Madhya Pradesh High Court
Rajendra Bissani vs Union Of India (Uoi) on 9 August, 1994
Equivalent citations: 1995(77)ELT68(MP)
ORDER A.R. Tiwari, J.
1. Impelled by the surge of an urge to avert preventive detention pursuant to order dated 3-5-1994 (Annexure R/1) passed by the Additional Chief Secretary to Government, Home Department (Special) Government of Gujarat, Sachivalaya, Gandhinagar, in excercise of powers under Sub-section (i) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'the Act') and on the strength of Government Order dated 14th Nov. 1990, the petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking quashment of the aforesaid order on the ground of its having been passed for wrong purpose.
2. Briefly stated the facts of the case are that the petitioner is a resident of Indore. On 20-2-1993, officers of Customs (Prevention) and officers of Customs and Central Excise, Indore raided the factory allegedly belonging to one Babulal Dhanraj Mohta situate- at village Delsor Dohad, District Panchmahal and recovered 90 silver bricks and 274 silver choreas packed in cloth bags, equipments for melting the-silver, in absence of the petitioner. The petitioner was arrested on 17-6-1993 at Indore and admitted to bail by the High Court of Gujarat on 10-9-1993 in M. Cr. Case No. 3461/93 (Annexure 1). The criminal case has been filed in the court of Chief Judicial Magistrate Godhara. The linchpin of the case of the petitioner as contended is that the aforesaid Babulal Dhanraj Mohta, co-accused in the criminal case made statement under Section 164 of the Cr. P.C. implicating the petitioner (Annexure 2). It seems that Babulal Mohta complaining of 3rd degree method, has lodged the criminal case No. 15/93 under Section 324 I.P.C. (Annexure P/7). The petitioner, before the Criminal Court, as noted above, has filed the application under Section 245(2) Cr. P.C. seeking quashment of the proceedings against him right at the stage of infancy on the grounds stated therein (Annex. 8). The show cause notice issued by the respondent No. 3 (Annexure 10) has been replied by the petitioner (Annexure 11). The petitioner contends that Respondent No. 5 has passed the order of detention on 3-5-1994 (Annex. R/1) for wrongful purpose without any allegation much less credible to show such necessity between the period 10-9-1993 (Order of bail (Annexure-I) and 3-5-1994 (An order of detention (Annexure R/1) i.e. the gap of 8 months. Contending and categorising this order (Annexure R/1) as having been passed for wrong purpose in view of this material fact, the petitioner seeks to safeguard his liberty and quashment of the aforesaid order. On 13-5-1994, show cause notice against admission, and interim relief was directed to be issued by this court. In oppugnation, Respondents No. 1 to 3 have filed preliminary objection contending that it was desirable that "such matters be normally left to the High Court having the territorial jurisdiction" and respondents No. 4 and 5 in separate reply have also preferred preliminary objections contending that no part of cause of action has taken place within the territorial jurisdiction of this Court and as such the petition in this Court is not tenable. The right to submit additional reply on merits is reserved if this Court overruled objection about absence of jurisdiction.
3. I have heard both the sides.
4. This petition has been filed at pre-detention stage. The order of detention as also the grounds of detention are yet to be served.
5. The counsel for the petitioner has attacked the aforesaid order of detention as being passed on extraneous reasons and for a wrong purpose. He has placed reliance on JT 1992 (4) SC 49; Shri N.K. Bapna v. Union of India and Ors., JT 1991 (I) SC 549; Additional Secretary to Govt. of India v. Smt. Alka Subhash and Ors, and (1990) I SCC 328; S.M.D. Kiran Pasha v. Govt. of Andhra Pradesh and Ors. In an effort to meet the objection about absence of jurisdiction, the counsel has submitted that earlier Section 491 Cr. P.C. as was in force then had related to the question of unlawful detention. According to him, AIR 1961 SC 533; Lt. Col. Khajoor Singh v. Union of India precipitated some controversy about jurisdiction-al aspect under Article 226 of the Constitution of India which led to 44th Amendment of the Constitution in 1978 to clarify the position about territorial jurisdiction within which the powers are exercisable. At present, this position is indicated by Article 226(2) of the Constitution of India. The counsel has urged that the powers under Article 226 are much wider than those available under Section 438 Cr. P.C. and has placed reliance on 1982 Cr. LJ 61 (Cal.); B.R. Sinha v. State; 1985 Cr. LJ 1316 (Kerala); C.T. Mathew v. Govt. of India Home Deptt. 1992 Cr. LJ 3442 (Kerala) T. Madhusoodan v. Supdt. of Police; 1984 Cr LJ 757 (Kant); Dr. L.R. Naidu v. State of Karnataka, 1989 Current Cri. Judgments 126 (MP); Narendra Kumar v. State of M.P.; 1976 Cr LJ 889 (Gujarat); Manjulaben v. C.T.A. Pillay; 1985 Cr. LJ 1754 (Patna) Madan Mohan Choudhari v. State of Bihar; and 1991 Cr LJ 950; Captain Satish Kumar Sharma v. Delhi Administration. He has particularly drawn my attention to para 23 of the Division Bench decision of the Delhi High Court rendered in the case of Capt. Satish Kumar Sharma (Supra). The relevant portion is quoted below:
"Therefore, it cannot be disputed that since there is a threat of deprivation of liberty of the petitioner in the State of Delhi in connection with an offence alleged to have been committed in the State of Uttar Pradesh, the cause of action in part certainly arises in Delhi."
The counsel for the petitioner, relying heavily on the aforesaid decision of Sharma's case has urged that in view of threat of arrest at Indore, part of cause of action, in terms of Article 226(2) does arise here and as such this Court has the territorial jurisdiction to entertain this petition.
6. The counsel for the respondents No. 1 to 3 and the counsel for respondents No. 4 and 5, on the other hand, have submitted that the assumed enforcement of the order of detention here by itself could furnish no cause of action and as such, this petition is not tenable in this Court for want of jurisdiction. It is submitted that it was futile to see similarity between pre-trial and preventive detention.
7. In the face of Arrtex. R/1, 'eclipse' on liberty is evidently visible. Preamble to the Constitution promises liberty of five activities. Article 21 shows serious concern to 'Personal libferty'. R.G. Inger Soil, in Progress put it in classic terms that "what light is to the eyes what air is to the lungs - what love is to the heart, liberty is to the soul of man". Patrick Henry in his speech, delivered as back as in March, 1775 posed question and proposed answer as under :
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Alm%hty God! I know not what course others may take, but as for me, give tne liberty or give me death."
8. The petitioner maintains that he has been unmerits lugged into prosecution and that his attempt at questions of the case has driven him to ill fate of order of detention for a wrong purpose. His liberty, so the point contends, is likely to be invaded at Indore.
9. In appropriate cases, this Couit under Article 226 does possess power to interfere with and exterminate the order of detention at pre-execution stage but such power is meaningfully limited in scope. Such interference is permissible only on prima facie satisfaction of one or more of the under-noted situations as held in Alka's case (supra):
(a) That the order is not passed under the Act it is purported to have been passed.
(b) That the order is sought to be executed against a wrong person.
(c) That the order is passed for a wrong purpose.
(d) That the order is passed on vague, extraneous and irrelevant grounds.
(e) That the order is passed by the authority possessing no such power under the law.
10. It is settled that writ petitionlies for protection of personal liberty, (1990) 1 SCC 328; S.D.M. Kiran Pasha v. Govt. of A.P. is pertinant.
11. The order (Annexure R/1) is sought to be mortalised on the contention of its having been passed for a wrorg purpose. However, in view of preliminary objection I restricted the counsellor the parties to submission about jurisdiction only and proposed to post he petition for hearing on this contention in case the preliminary objection wis held to be non-meritorious.
12. I, therefore, proceed to examine the worth of rival contentions about territorial jurisdiction.
13. Article 226(2) provides as under :
"(2) The power conferred by clause (1) to issue directions, orders or writs to any - Government, authority or person may also be: exercised by High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
14. The core question then is whether part of cause of action can be held to have arisen within the jurisdiction of this Court. The undisputed facts are -
(a) Seizure took place at village Delsor, Dotted.
(b) Order (Annexure R/1) is passed by Govt. of Gujarat at Gandhinagar.
(c) Criminal prosecution is filed and pending in the Court at Godhara.
(d) On arrest at Indore, order of bail was obtained from High Court of Gujarat at Ahmadabad (Annexure 1)
(e) Nothing is recovered on search at Indore.
(f) Order is yet to be executed and grounds are yet to be served.
(g) Petition seeks quashment of orders (Annex. R/1) passed by the Government of Gujarat and not release on bail or anticipatory order of bail.
15. The jurisdiction is sought to be supported on the linchpin of possible 'eclipse' on personal liberty and threat of arrest at Indore. And this feature is pressed in service is giving rise to 'cause of action' in part here. The authorities, relied upon, deal with the question of bail under Section 438 Cr. EC. and do not relate to the question of order of detention at pre-execution or post-execution stage. Dichotomy is not in doubt. Feature is not fugacious.
16. Full Bench of Patna High Court in Syad Zafrul Hassan v. State -1986 Cr. LJ 605 (AIR 1986 Pat. 194) took the view that Section 438 Cr. PC. did not permit the grant of anticipatory bail by High Court "Where the accused may apprehend arrest" and that question of residence was an irrelevant factor. It luculently ruled that such a power vests only in the Court of Session or High Court having jurisdiction over the locals of the commission of the offence of which the person is accused. Capt. Satish Kumar's case also related to the question of bail under Section 438, part of cause of action, for that limited purpose, seems to have been held because warrant of arrest was endorsed to Commissioner of Police, Delhi by C.J.M. Sultanpur. In such a case even Section 81 Cr. P.C. can come into play. Such is not ,the case here.
17. This Court considered B.R. .Sinha's case (supra) and Dr. L.R. Naidu's case (supra) as also some other decisions in 1990 Cr. LR (MP) 138, Dr. Pradeep Kumar Soni v. State of M.P. and held that bail petition, may be under Section 438 Cr. P.C. or 439 Cr. P.C. being an incidental matter to the trial, could only be presented in the Court where the alleged offence is triable. The case of Delhi High Court turned on its own peculiar facts and is contrary to the decision rendered by this Court in Soni's case (supra).
18. Assuming that order (Annexure R/1) may be executed at Indore, yet, in my view, that act cannot be termed as integral part of 'cause of action' in cases of detention. Placing reliance on AIR 1985 SC 1289 - State of Rajasthan and Ors. v. Swaike Properties and Anr., High Court of Kerala in Mohandas's case 19931 Ker. L.T. 35 - AIR 1994 NOC 162 (Kerala); K.K. Mohandas and Ors. v. State of Tamil Naidu and Ors. took the view as under :
"High Court can issue writs, directions or orders to any Government, authority or person even beyond its territorial writ jurisdiction, if cause of action partly arises within its territorial jurisdiction. Mere service of demand notice cannot give rise to cause of action unless service of such notice is an integral part of cause of action. Where Revenue Recovery Tehsildar of Kerala issued demand notices to persons in Kerala for realisation of amount due to Tamil Nadu Government, such notices cannot be construed as forming integral part of cause of action that arose wholly in State of Tamil Nadu. Thus as no cause of action arose partly in Kerala, jurisdiction of Kerala High Court cannot be invoked for challenging demand notices issued by Tamil Nadu Government."
19. In order to offer elucidation, the counsel for the petitioner, when questioned, stated that if arrest takes place here and detention thereafter takes place in Gujarat then also this Court will have jurisdiction on the basis of 'part cause of action'. This assumption is also contrary to the law laid down by the Division Bench of Madras High Court in Nazima Begum v. Joint Secretary; 1992 LW (Cri.) 686, it is held that "The Court which is having jurisdiction over the matter is that of Calcutta High Court within whose jurisdiction the act was committed by the detenue and he was detained as such".
In the instant case, the order, when enforced and executed will, as urged, result in detention in territories of High Court of Gujarat.
20. More recently, the Division Bench of this Court making reference to the aforesaid decision and Damomal Kausomal Raisinghani v. Union of India and Ors. AIR 1967 Bom. 355, took the same view in M.P. 2021 /93 - Jawaharlal v. The Union of India and Ors., decided on 7-4-1994 and declined to entertain the petition against order of detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for want of jurisdiction.
21. The relief claimed in the petition is that :-
"The petitioner therefore prays that this Hon'ble Court be pleased to accept this petition and quash the detention order issued by the respondents."
Indisputably, the detention order (Annexure R/1) is passed by the Government of Gujarat at Gandhinagar. No cause of action, wholly or in part, is shown to have arisen within the territorial jurisdiction of this Court as far as this order (Annexure R/1), of which quashment is sought, is concerned. Curiously enough, the petition contains no averments to show as to how this court can acquire jurisdiction over order (Annexure R/1). Additional grounds, despite inkling after production of copy of the order, are nil. Part cause of action for limited question of bail is something quite different from any cause of action for quashment of entire case as such. It is meretricious to 'structure' plea about jurisdiction on the ground of apprehension of arrest. In pursuance of the order, not yet endorsed to any authority here. Arguments, I should say, are erudite but palpably fall short to say as to how the same come in tune with the eventual relief as shaped and spun. The plea is simply not irrecusable. The answer is simple, monosyllabic, not dissyllabic. Intention is infirm and lacks sonority.
22. Factual matrix apart, enough light is thrown by the Single Bench decision (1990 Cr. LR138) and Divisional Bench decision (MP 2021/93 decided on 7-1-1994) of this Court. On my consideration, I find it apt to permit preliminary objection, particularly in the light of the relief claimed, to prevail and preen. Law values liberty but voices dissent at wrong forum. It is improper to liberalise the rigours and lapidate the order passed by the Govt. of other State.
23. In the result, I have no option but to - the contention of 'wrong purpose' and hold that the petition itself is presented at 'wrong place'.
24. The omega then is that this petition is liable to be, and is hereby, dismissed for want of jurisdiction. The interim order is consequently vacated.
25. All points, as projected in this petition concerning the order of detention, are left litigable. In the facts and circumstances, parties are, however, left to bear their own costs of this petition as incurred.