Andhra HC (Pre-Telangana)
Reena Ranka vs Union Of India on 24 January, 1991
Equivalent citations: 1991(1)ALT678, 1991CRILJ3195
JUDGMENT Ramanujulu Naidu, J.
1. This is a petition filed under Art. 226 of the Constitution of India for issue of a writ of habeas corpus directing the respondent to produce before this Court the petitioner's husband, Basant Kumar Ranka, hereinafter referred to as "the detenu" and to set him at liberty after quashing the order dated 26-10-1990 passed by the Joint Secretary to the Government of India, in exercise of the powers conferred upon him under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the Act" directing his detention in the Central Prison, Madras. The order of detention reads that it was made with a view to preventing the detenu from engaging in keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing smuggled goods.
2. The relevant facts giving rise to the order of preventive detention lie in a narrow compass and may be briefly stated. On 23-10-1990 at about 11 p.m. the officials of the Directorate of Revenue Intelligence, Madras raided the house of the detenu situate at Egmore, Madras and recovered 25 silver bars from the open space but inside the compound of the house. Another 10 bars of silver were also recovered from an auto-rickshaw which was just then leaving the house of the detenu. A Maruti van was found parked inside the compound of the house of the detenu and from the van 11 bars of silver were recovered. All the silver bars which have no foreign markings and each weighing 30 Kgs, were seized. Including the detenu three persons were arrested in that connection and confessional statements were recorded from them on 24-10-1990. From the confessional statement recorded from the detenu it is revealed that one Babulal known to him gave him the silver bars for the purpose of sale, that the detenu is a silver-smith by avocation and that one Ashok Narayan Kumar alias A. Kumar, a friend of Babulal likewise action on behalf of Babulal was staying in Asoka Hotel, Madras. Pursuant to the said confessional statement the officials of the Directorate of Revenue Intelligence raided the Asoka Hotel on 24-10-1990 and traced A. Kumar in one of the rooms of the hotel and recovered certain belongings of Babulal in the room. A confessional statement was recorded from A. Kumar to the effect that he was acting on behalf of one Deepak Modi of Bombay and that he helped Babulal in clearing certain containers on 26-10-1990 from the godown situate at Madras, said to have been taken on lease in the name of Babulal. The godown was searched by the officials of the Directorate of Revenue Intelligence, Madras and a mahazar was drawn up. The mahazar reads that it was drawn up and completed on 26-10-1990. The petitioner who is the second wife of the detenu submitted from Hyderabad a representation to the detaining authority on 20-11-1990 seeking transfer of the detenu from the Central Prison, Madras to the Central Prison, Hyderabad pleading inter alia that after her husband's incarceration at Madras she was not taken kindly by her husband's brothers, she being the second wife, that they made her stay at Madras miserable and that she was therefore, forced to leave Madras and seek shelter in her sister's house situate at Hyderabad. Her representation was rejected by the Ministry of Finance by its memorandum dated 6-12-1990 and communicated to her at Hyderabad. The grounds of detention were served upon the detenu on 30-10-1990 and a reference was made in the grounds of detention to the mahazar drawn up on 26-10-1990 in connection with the search of the godown situate at Madras and taken on lease in the name of Babulal.
3. Sri B. Kumar, learned counsel appearing for the detenu assails the impugned order of detention on more than one ground.
4. Firstly, it is urged that as many as 21 documents relied upon in the grounds of detention were not supplied to the detenu in the original language in which the same were recorded. The factum of non-supply of documents to the detenu is not denied in the counter-affidayit filed on behalf of the respondent. For that reason the impugned order of detention is undoubtedly vitiated as held by the Supreme Court in Icchu Devi v. Union of India, .
5. Secondly, it is urged that the sponsoring authority viz., the Directorate of Revenue Intelligence, Madras sought to supply the said 21 documents to the detenu on 23-11-1990 and that non-supply of the documents by the detaining authority is in contravention of the constitutional mandate enacted in Article 22(5) of the Constitution of India which lays down that the authority making an order of preventive detention shall communicate to the detenu the grounds on which the order has been made. In Icchu Devi's case (supra) it was held that the grounds would include all the documents relied upon in the grounds of detention. Inasmuch as the documents were not supplied to the detenu by the detaining authority but sought to be supplied to the detenu by the sponsoring authority there was a breach of the requirement contained in Art. 22(5) of the Constitution of India.
6. Thirdly, it is urged that even assuming that the documents sought to have been supplied to the detenu was on behalf of the detaining authority, the same not having been supplied within the time specified in S. 3(3) of the Act, the impugned order of detention is vitiated. Sub-section (3) of S. 3 of the Act lays down that the grounds of detention which include the documents relied upon should be served upon the detenu ordinarily not later than five days, from the date of the order of detention and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. Inasmuch as the documents sought to be supplied to the detenu was only on 23-11-1990 long after the period specified in subsection (3) of S. 3 of the Act the impugned order of detention is undoubtedly vitiated as no exceptional reasons for non-supply of the same within the time specified were either recorded or communicated.
7. Fourthly, it is urged that though the order of detention recites items (iii) and (iv) of Clause (1) of S. 3 of the Act in the grounds of detention but the expression "engaging" is omitted and that there was, therefore, no required satisfaction in the eye of law. We, however, consider it unnecessary to advert to this ground as in our opinion the impugned order of detention is vitiated for the other reasons adverted to earlier.
8. Unable to resist the grounds of attack, Sri I. Koti Reddy, learned standing counsel for the Union of India, however, submits that the writ petition is liable to be dismissed for want of total lack of jurisdiction and reliance is placed upon the decision in State of Rajasthan v. Swaika Properties, . In the said case, the respondent company had its registered office in Calcutta and owned certain land on the outskirts of Jaipur city situate in the state of Rajasthan. The Special Officer, Town Planning, Jaipur issued a notice under S. 52(2) of the Rajasthan Urban Improvement Act, 1959 regarding acquisition of that and for the public purpose of a development scheme. The notice was duly served on the company at its registered office at Calcutta. In response to the notice the representative of the company appeared before the Special Officer in several hearing and adopted shifting stand in support of their claim for need of the land. The Special Officer on being satisfied that the land was not needed by the respondent bona fide, rejected their prayer for its release and recommended that the entire land be acquired by the State Government. The respondents' subsequent application to the State Government seeking exemption of the land under S. 20 of the Urban Land (Ceiling and Regulation) Act, 1976, also failed. The State Government then issued the impugned notification under S. 52(1) of the Act and the land vested in the State Government free from all encumbrances. The respondents thereupon filed a writ petition under Art. 226 in Calcutta High Court challenging that notification. A Single Judge of the High Court entertained the petition, issued a rule nisi and passed an ad interim ex parte prohibitory order restraining the State of Rajasthan and the concerned authorities from taking any steps under S. 52(5) or (6) of the Act. The same was appealed against before the Supreme Court. The question before the Supreme Court in appeal was whether the service of notice under S. 52(2) at the registered office of the respondent was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain the petition challenging the impugned notification of the State of Rajasthan under S. 52(1). Answering the question in the negative and allowing the appeal, their Lordships observed that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and that the mere service of notice under Section 52(2) of the Act on the respondents at their registered office within the territorial limits of the State of West Bengal could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action.
9. Sri B. Kumar, learned counsel appearing for the detenu submits that the case relied upon by Sri I. Koti Reddy has absolutely no relevance to the instant case as no part of cause of action arose within the territorial limits of the Calcutta High Court in the said case. Sri Kumar adds that the impugned order of detention is assailed on grounds of breach of constitutional requirements enacted under Arts. 21 and 22 of the Constitution, that the petitioner submitted from Hyderabad a representation within the meaning of Art. 22(5) of the Constitution of India, to the detaining authority seeking transfer of her husband from the Central Prison, Madras, to the Central Prison, Hyderabad, that the representation was rejected unreasonably, that the order of rejecting the representation was communicated to her at Hyderabad and that the impugned order of detention is liable to be attacked in this Court on grounds of infraction of Arts. 21 and 22 of the Constitution of India.
10. Sri Kumar also contends that inasmuch as the order of detention deprived the detenu of his freedom of movement throughout the country including the State of Andhra Pradesh his fundamental right guaranteed under Art. 19 of the Constitution of India is also violated, the restriction of detaining him in the Central Prison, Madras being unreasonable.
11. Before we advert to the submissions made by Sri B. Kumar, we may usefully refer to S. 5 of the COFEPOSA which runs thus :
"5. Power to regulate place and conditions of detention :- Every person in respect of whom a detention order has been made shall be liable -
(a) to be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and
(b) to be removed from one place of detention to another place of detention, whether within the same State or in another State by order of the appropriate Government :
Provided that no order shall be made by a State Government under clause (b) for the removal of person from one State to another State except with the consent of the Government of that other State."
12. In Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746 : (1981 Cri LJ 306) Bhagwati, J. observed (paras 3 and 7) :
"Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this, procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only of Art. 22, but also of Arts. 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just.
The right to life enshrined in Art. 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
... ... ...
Thus, as part of the right to live with human dignity and therefore a necessary component of the right to life, the prisoner or detenu would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Arts. 14 and 21, unless it is reasonable, fair and just.".
13. In Kubic Dariusz v. Union of India, their Lordships of the Supreme Court observed (para 14) :
"In Smt. Shalini Soni v. Union of India, it has been held that under Article 22(5) no pro forma for representation has been prescribed and a request for release of the detenu, therefore, has to be deemed a representation; so also a request to supply copies of documents etc. ... ... ...
There has been a catena of decisions of this Court that the representation of the detenu must be considered by the appropriate Government under Article 22(5) does not say which is the authority to whom representation shall be made or which authority shall consider it. But it is indisputable that the representation may be made by the detenu to the appropriate Government and it is the appropriate Government that has to consider the representation as was reiterated in John Marin v. State of West Bengal, ."
14. In A. K. Roy v. Union of India, the right of the detenu to socialize with the members of his family was reiterated and it was held that any unreasonable restriction placed on such right would be violative of Art. 21 of the Constitution of India.
15. In Narendra v. B. B. Gujral, it was held by the Supreme Court (para 23) :
"The constitutional safeguards embodied in Art. 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions of S. 8(b) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to prevent any arbitrary executive action."
16. This principle was reiterated by the Supreme Court in Harsans Lal v. M. L. Wadhaman, .
17. It, therefore, follows that the detenu has an undoubted right to socialize with the members of his family, that in order to exercise that right meaningfully the petitioner made representation within the meaning of Art. 22(5) of the Constitution of India to the detaining authority to transfer her husband from the Central Prison, Madras to the Central Prison, Hyderabad and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of a valuable right under Art. 21 of the Constitution of India. This Court has, therefore, undoubted jurisdiction to entertain the Writ Petition as part of cause of action arose at Hyderabad.
18. In this view it is unnecessary for us to advert to the other submission made by Sri S. Kumar that this Court has undoubted jurisdiction to entertain the petition as the order of detention deprived the detenu of his freedom of movement throughout the territory of India including the State of Andhra Pradesh as enshrined in Art. 21 of the Constitution of India.
19. From the above discussion it follows that the impugned order of detention is liable to be quashed and is accordingly quashed. A direction shall issue to the Superintendent, Central Prison, Madras to release the detenu forthwith. The writ petition is accordingly allowed.
20. Petition allowed.