Madras High Court
Nazima Begum vs Joint Secretary, Department Of ... on 16 October, 1992
Equivalent citations: 1993CRILJ1336
JUDGMENT K.M. Natarajan, J.
1. This writ petition is filed by the wife of the detenu Amanullah, under Art. 226 of the Constitution of India, seeking for the issuance of a Writ of Habeas Corpus quashing the order of detention dated 21-1-1992 and set her husband at liberty. The impugned order of detention was passed by the Joint Secretary to the Government of India, the first respondent herein in exercise of the powers conferred under S. 3(1) of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act 1974 (as amended) with a view to preventing the detenu from smuggling goods in future.
2. The brief facts which led to the passing of the order as follows :- The officers of the Air Intellingence Unit at Calcutta Airport, intercepted the detenu while he was passing through the green channel towards the exit gate on 6-1-1992 and on examination of the passport and the disembarkation card of the detenu, it revealed that he is a holder of India Passport No. C-533792 dated 25-10-1989 issued at Kualalumpur. When he was questioned as to whether he was carrying any gold with him, he replied in the negative. When his person was searched in the presence of two independent witnesses, two pieces of gold rings crudely made of gold and collectively weighing 62 grams approximately were recovered from the right side pocket of the trousers worn by him. When he was further interrogaged, he confessed that he was having gold biscuits in his rectum. Thereupon he was taken to the toilet room of Customs arrival hall where he voluntarily ejected 7 pieces of gold biscuits of 100 grams each, collectively weighing 700 grams, firstly 4 pieces and again 3 pieces through anal passage. They were with foreign markings. The 7 pieces of gold biscuits and the two gold rings were collectively weighing 762 grams approximately and valued at Rs. 3,81,000/- and they were seized in the presence of independent witnesses. When his baggage was examined, miscellaneous consumer goods worth Rs. 4,170/- were recovered. The Thai International Airlines Ticket No. 217.4405.534.705.5, Thai Airlines boarding card and Indian Railway Ticket No. 12724.167 dated 7-1-1992 were recovered from his possession. The detenu also handed over to the Customs Officers at Calcutta Airport on the same day his Indian Passport No. C533792 issued at Kulalampur on 25-10-1989 and the Certificate of Registration No. 2363/80 dated 9-1-1980 issued by the High Commission of India, Kualalumpur, along with identification Card No. A-603388 issued by Malaysian Government on 25-9-1990. Subsequently he appeared before the Customs Officer, Calcutta, on 6-2-1992, in pursuance of summons issued under S. 108 of the Customs Act and his voluntary confessional statement was recorded. In his statement, he has also stated that his intention to collect money was only to bring some cash in Tamil Nadu where he wanted to purchase some cultivation land and he wanted to shift his residence from Malaysia to his birth place, that he came to Madras several times and he used to carry goods of consumable nature from Singapore to Madras, that he used to earn profit by selling those goods in the Burma Bazaar, Madras, and that his wife and children were able to run his business in Malaysia in his absence. He also stated that he decided to purchase a plot of land as already selected. It was Karim who advised him on 5-1-1992 that if he could bring gold to India, he could earn more money and if he carried gold biscuits inside his rectum there is less possibility of detection by Customs and it was Karim who inserted the gold biscuits inside his rectum in the early morning of 6-1-1992. He was subsequently arrested and produced before the Chief Judicial Magistrate, Barasat, North 24-Parganas on 7-1-1992. Later he was remanded to judicial custody. Subsequently necessary follow up action was taken and after being satisfied with on the materials and after arriving at the subjective satisfaction, the impugned order was passed.
3. The impugned order was challenged on various grounds. But, in view of the objections raised by the respondent with regard to the jurisdiction of this court to entertain the writ petition, that question was taken up as a preliminary point and arguments were heard.
4. The learned counsel for the petitioner mainly submitted that the detenu himself hails from Thanjavur within the limits of this court. Though he left India and settled at Malaysia, still he has got his relations here. His wife came all the way from Malaysia to Madras and she took a room in a lodge and she sent a representation from Madras to transfer the detenu from Calcutta to Madras to be within his social environments. Her representation was rejected and communicated to her at Madras and that provides a cause of action for filing the written petition before this Court. In view of Article 226(2), Constitution of India, this Court is entitled to entertain the writ petition as part of the cause of action arose within the jurisdiction of this court. The learned counsel in support of his contention mainly relied on the decision of the apex court in A. K. Roy v. Union of India, , wherein it was held at page 370 (of Cri LJ) "It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food." According to the learned counsel, the place of detention and his social environments, like other rights to adduce oral evidence in rebuttal, being a right in the nature of a constitutional safeguard embodied in Art. 22(5) of the Constitution as construed in Art. 22(5) of the constitution as construed in A. K. Roy's case and the same has necessarily to be read into S. 8(b) and (c) of the COFEPOSA Act. If this right is denied to a detenu, the necessary consequence must follow. In this connection, he drew the attention if this court to para 7 of the decision of the apex court in Harbans Lal v. M. L. Wadhawan, . The learned counsel in support of his contention also relied on the decision of a Division Bench of the Andhra Pradesh High court reported in Reena Ranka v. Union of India, 1991 Cri LJ 3195. He also submitted that though the word "cause of action" has not been defined in the Code of Civil Procedure, it came up for consideration in P. S. Rai v. Union of India, AIR 1974 Mysore 39 and D. L. Suresh v. Institute of Chartered Accountants of India, AIR 1983 Karnataka Per contra the learned Additional Central Government Standing Counsel, Mr. K. Ilias Ali, submitted that the ratio in the decision in A. K. Roy's case is not applicable to the facts of this case and even in the statement of the detenu, he admitted that he left once for all his native place Thanjavur and settled at Malaysia, that he is not having any of his relation ors of friends at Thanjavur or in the State of Madras and that he is not an ordinary resident of Tamil Nadu. Further, it is not an absolute right that any person who is an ordinary resident of a particular State is automatically entitled to that privilege and that it is subject to certain exceptions, namely administrative convenience, safety, security, etc. According to the learned Central Government Standing Counsel, the detenu has not established that he is an ordinary resident of Tamil Nadu. Further, the mere fact that his wife came all the way from Malaysia and took a lodge in Madras and from here she sent a representation and the representation has been rejected and served at the first instance on the detenu and subsequently a copy of it has been communicated to the wife at Madras would not provide any cause of action to the petitioner to file the petition in this court. According to him, the decision in Reena Ranka case, 1991 Cri LJ 3195 rendered by Andhra Pradesh High Court has not been correctly decided in view of the ratio laid down by the apex court.
5. We will consider the rival submissions advanced on behalf of both the parties. This is a case where admittedly the detenu was apprehended at Calcutta Airport while he was smuggling gold by concealing in his rectum and subsequently, when he was examined, he ejected the gold biscuits. Later on the basis of materials placed before the detaining authority and drawing the subjective satisfaction, the impugned order was passed by the Joint Secretary, Ministry of Finance, Government of India and the detenu left India and settled at Malaysia, he has got relatives and friends in the State of Tamil Nadu. Further, his wife who came all the way from Malaysia, stayed in a lodge at Madras and sent a representation on behalf of her husband from Madras and that the representation was rejected and communicated to the detenu and to the petitioner (his wife) and the petitioner's wife received the rejection order at Madras and as such part of the cause of action arose within the jurisdiction of this court and hence this petition is maintainable. In support of his contention, the learned counsel relied on the decision of the apex court in A. K. Roy v. Union of India, of the said judgment was very much relied on by the learned counsel and it reads as follows :-
"74. By section 5, every person in respect of whom of detention order has been made is liable -
(a) to be detained in such place and under such conditions, including the conditions as to maintenance, discipline and punishments 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 in the same State or in another State, by order of the appropriate Government.
The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance. Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure that is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. The requirements of administrative convenience safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides but that can only be by way of on exception and not as a matter of general rule. Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not be sent to any far off place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled."
The ratio laid down in the above decision is that the normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence and by keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for detenu to claim the advantage of facilities like having his own food. That rule is not an absolute rule and that is subject to the administrative convenience, safety and security. In the instant case, as rightly pointed out by the learned Central Government Standing Counsel for the respondent, even the detenu in his very voluntary statement, which is not retracted, has categorically stated that he had settled in Malasia, that there is no property or house of his own in Tamil Nadu. or any where in India and that none of his family members stays in Tamil Nadu. He has also stated that he would send a letter to his wife in Malaysia to make arrangements for his help. It is the case of the petitioner that she came all the way from Malaysia to Madras and took a room in a lodge, and from the said lodge, she sent representation on behalf of her husband to the authorities and that she was served with a copy of the order of the rejection in the said address. Thus it is clear that the detenu was not one who ordinarily resides within the limits of Tamil Nadu, within jurisdiction of this court. An attempt has been made to establish that the detenu has got friends and relatives within the jurisdiction of this court by filing affidavits of one M.A. Adam who is alleged to be the first cousin of the detenu's wife and one Nagoor Pitchai, a close friend and associate of the said M.A. Adam. The superintendent (R.S.I.) of the Department, after verification of the above addresses, filed a report to the effect that the enquiries from the Teynampet Post Office and many people in Teynampet revealed that there is no V.O.C. Nagar at Teynampet, though the said M.A. Adam has given her residential address as if he is residing at V.O.C. Nagar, Teynampet. The petitioner is also said to be staying in V.O.C. Nagar, Teynampet. As regards Nagoor Pitchai, the address given by him is that he is a resident of Pulianthope, Madras. As seen from the report of the Superintendent, the said address is correct. But he was not available. His son Shaik Syed, aged 22 years, told him that his father Nagoor Pitchai has gone for business and that he would return in the evening. Shaik Syed has also told the officer that he does not know the detenu or Mrs. Nazima Begum. Thus, there is nothing to show that the detenu has got a close relative or friend within the jurisdiction of this court, viz. Madras. Admittedly the petitioner, the wife of the detenu, is not a resident of Madras. She has also given her address as if she is staying in a room of a lodge, and to that address the order of rejection of the representation was communicated, after the same was served on the detenu at Calcutta. It is to be noted that it is only the detenu who has received the copy of the order of rejection earlier at the Central Prison at Calcutta, and only subsequently his wife received a copy. Thus, the detenu has miserably failed to establish that he has the ordinary place of residence within the jurisdiction of this Court, namely Tamil Nadu. Further, he has also not established that he has close friends and relatives in Tamil Nadu to attend on him. It is only while he was smuggling gold biscuits concealing in his rectum from malasia, he was caught at Dum Dum Airport, Calcutta, where he has been detained in the Central Prison. Further, it is not the absolute rule that even if the detenu has the ordinary place of residence in Tamil Nadu and that he has close relatives in Tamil Nadu, he is entitled to the transfer order automatically; it is subject to exceptions even as per the ratio laid down in A. K. Roy's case (cited supra). In the counter affidavit filed by the respondents in para 19 it is stated that a case against the detenu has been pending in the Court of the Chief Judicial Magistrate, Barasat, West Bengal, before whom the detenu is required to be produced in certain intervals. In addition, prosecution and adjudication proceedings are likely to be initiated against the detenu. Hence they will suffer a set back if the detenu is transferred from the Central Prison, Calcutta to the Central Prison. Madras. It is stated that adjudication proceedings have also been initiated and that it is pending. Thus, on the ground of administrative convenience, security and safety also, the petitioner's request for transfer has been rightly rejected. Now, in order to invoke the jurisdiction of this court, it is submitted that a representation has been sent from Madras from where the petitioner, on behalf of her husband, prayed for transfer of her husband-detenu from Calcutta to Madras. It is also submitted that in view of the decision of the apex court, her husband is entitled to such a right and that has been rejected and that it has been communicated to her at Madras. Hence, she is entitled to maintain the writ petition in this court. We do not find any merit in the said contention. As rightly contended by the learned Additional Central Government Standing Counsel, Mr. K. Ilias Ali, the representation was sent by the petitioner after coming all the way from Malaysia to Madras, that she was staying in a lodge only, that the representation has been rejected and communicated to the detenu who was detained in the central prison, calcutta and a copy of the same has been communicated to the petitioner. That will not in any way give any cause of action to the petitioner to file the petition before this court. As rightly contended by the learned Additional Central Government Standing Counsel, the ratio laid down in A. K. Roy's case (supra) will not apply to the case of the petitioner with regard to her claim for transfer from Calcutta to Madras on the ground that the detenu has to be detained in a place which is within the environs of his ordinarily place of residence. Further, the decision rendered in Reena Ranka v. Union of India, 1991 Cri LJ 3195 is not at all helpful to the case of the petitioner. Admittedly that was a case where the wife of the detenu was living in Hyderabad and from there she sent a representation and that was rejected. Though the detenu and his wife were living originally in Madras, she could not continue to stay in Madras and she shifted to Hyderabad and she and her relations were staying in Hyderabad. The learned Additional Central Government Standing Counsel vehemently argued that that decision is not correctly rendered in accordance with A. K. Roy's case, as admittedly Hyderabad is not the ordinary place of residence of the detenu and merely because the wife of the detenu changed her place to Hyderabad, that cannot be a reason for invoking the jurisdiction of Andhra Pradesh even though the detenu has some relations and friends at Hyderabad. We are of the view that the above decision will not apply to the facts of this case especially in view of the decision in A. K. Roy's case and in view of our finding that the petitioner has not made out any case that the detenu has to be kept in detention in a place which is within his ordinary place of residence. The ratio laid down in A. K. Roy's case will not apply to the detenu for his transfer from Calcutta to Madras. In Daya Shankar v. Chief of the Air staff, New Delhi, a Division Bench has observed in para 4 as follows :-
"A right of action is the right to enforce a cause of action. A person residing anywhere in the country being aggrieved by an order of Government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved."
6. In State of Rajasthan v. M/s. Swaika Properties, , the Hon'ble Court approved the meaning of word 'cause of action' in Mulla's Civil Procedure Code which runs as under :
"8. "The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court."
"It was held that mere service of notice on the office of Swaika Properties situated in Calcutta did not confer jurisdiction on High Court of Calcutta to entertain the writ petition as all action having been taken in the State of Rajasthan it could not be said that cause of action wholly or partly arose within territorial limits of Calcutta. Similar dispute arose in K. K. Bhargava v. Metropolitan Magistrate, Bombay, 1986 All LJ 1093. A Division Bench of this Court following the decision in Swaika Properties (supra) held that the service of notice on a person residing in a State did not entitle him to present the writ petition within the territorial limits of the High Court where he was residing. In effect it was reaffirmation of principle of Khajoor Singh's case that order taking effect in a State did not entitle the High Court of that State to entertain the writ petition."
Ultimately on the facts of that case it was held :
"The petitioner was a Junior Warrant Officer in Air Force. When he was posted at Madras he was superseded. He seeks a direction to opposite parties to decide his representation and grant him status of Warrant Officer. He was never posted in this State. Therefore no cause of action arose in this State which could entitle petitioner to approach this Court to issue a direction to opposite party whose office in situated in Delhi."
7. In Ujjal v. Netai Chand, , it was observed :
"Everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action. Cause of action does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. Evidence of a fact should not be confused with the fact itself. Even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court within the territorial limits of which that little occurs. Where the entire dispute over a Cricket Match was occasioned, discussed and settled in Calcutta, and where the plaintiff through his agent was apprised of the decision in Calcutta, mere fact that the decision was conveyed to the plaintiff club by a letter received by the Club at Sealdah will not take the cause of action to Sealdah and give Sealdah Court jurisdiction. (1873) 8 CP 107 and (1888) 22 QB 128 and , Not followed. , Dist."
8. We also find every force in the contention of the learned Additional Central Government Standing Counsel that in the instant case the representation has been considered and has been rejected and has been communicated, that it satisfies the statutory requirement and that it has been communicated to the detenu at Calcutta and that the petitioner who sent the representation on behalf of the detenu was also intimated about the order of rejection and it was received at Madras. The effect of the order was also communicated to the detenu at calcutta. In Abdul Kafi Khan v. Union of India, it was observed in para 11 that "Such cause of action must be antecedent to the institution of the suit." In para 13 it was observed : "The provision as to Clause (1-A) of Art. 226(1) was inserted in the light of the decision of the Supreme Court as mentioned above and now the location of the subject-matter or the parties to the controversy is immaterial for the purpose of determining the jurisdiction the High Court under Art. 226(1). Still then, the cause of action or any part there of should arise or accrue within the territorial jurisdiction of the court concerned."
Ultimately, it was held on the facts of that case that "the submissions of Mrs. Banerjee that since a representation in the form of a letter demanding justice has been made to the General Manager, who has his office within the jurisdiction of this Court, this Court would have jurisdiction to entertain this application, in my view, are of no substance." Finally the application in that case was held to be not maintainable and the preliminary objection with regard to the jurisdiction was upheld. That was a case where the petitioner was issued a show cause notice for his removal from service, by the railway authorities of Bihar. The writ petition was filed before the Calcutta High Court on the ground that a representation was made against the said order to the General Manager whose office is within the jurisdiction of the Calcutta High Court. It was held that no cause of action or any part there of has arisen within the jurisdiction of the Calcutta High Court and negatived the contention of the petitioner.
9. The decision in P. S. Rao v. Union of India, AIR 1974 Mysore 39 relied on by the learned counsel for the petitioner is not helpful to this case, as the said decision was rendered on the facts of that case. The facts involved in the said decision were that the Union Government was not competent to promote the opposite party to the post of Director of Biological Research Institute, Dehra Dun without considering the case of the petitioner who was holding the post of Head of Utilisation Research at the Forest Research Laboratory, Bangalore. The very basis for claiming relief in the writ petition was that the petitioner was the holder of the aforesaid post in Bangalore. If that fact was controverted by the opposite party, the petitioner would have been required to prove that fact in order to secure the relief prayed for. If the petitioner would have failed to establish the fact that at the relevant time he was holding the above mentioned post at Bangalore he would not have been entitled to any relief in the writ petition. It is, therefore, clear that the holding of the post of Head of Utilisation Research at the Forest Research Laboratory, Bangalore, is an essential fact, which the petitioner is required to prove in order to secure relief in the writ petition. The cause of action has partly arisen within the territory in respect of which the High Court of Mysore exercise jurisdiction. In the above circumstances it was held that since the cause of action has partly arisen within the territory in respect of which the High Court of Mysore exercise jurisdiction, the writ petition is entertainable in the High Court of Mysore. In Damomal v. Union of India, :
"The question that arises is whether the cause of action for the exercise of the power invoked by the petitioner arose wholly or in part within the territory in relation to which this Court exercises jurisdiction. The petitioner, as it appears, was a resident of Ullasnagar, a place situated in the District of Thana of Maharashtra State. The impugned order itself shows that the case was heard in Bombay. It is indeed true that the order on the face of it does not show the place where it was made. Even assuming that this order was made by the third respondent in New Delhi, there can hardly be any doubt that the effect of this order fell on the petitioner at Ullasnagar where he resides. It is also not in dispute that the proceedings that would be taken against the petitioner in consequence of the impugned order would be by officers located within the terriories in relation to which this Court exercises jurisdiction."
That decision is also not helpful to the case of the petitioner as in the above quoted case, though the order was passed outside the Jurisdiction of the High Court, the effect of the order fell on the petitioner at Bombay. It was only in the circumstances, it was held that the Bombay High Court can entertain the petition challenging the action of the authority at Delhi. In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got jurisdiction. Even the order of rejection was served on the detenu at Calcutta and only a copy of the rejection order was served on by the petitioner (Wife of the detenu) at Madras.
10. In Rifaqatullah Khan v. Emperor, AIR 1947 All 4 : (48 Cri LJ 208) while considering the word 'reside' in connection with Section 482(8) Cr.P.C. relating to grant of maintenance, the Division Bench observed :
"The word 'reside' in S. 482(8) means to live or to have a dwelling place or an abode. It cannot be treated as equivalent to something in the nature of having a domicile in a particular place or the place where the person's family used to live. Consequently a Magistrate has no jurisdiction to proceed under S. 482 against a person who is living in another district from many years and who has no abode of his own within the local jurisdiction of the Magistrate. The fact that his father resides there and he visits that place from time to time is immaterial".
Thus, considering the facts of the case and the ratio laid down in the above decisions, we have no hesitation in holding that this court is not having jurisdiction to entertain the writ petition as the cause of action either partly or wholly does not arise within the jurisdiction of this court. On the other hand, the Court which is having jurisdiction over the matter is that of Calcutta High Court within whose jurisdiction the act was committed by the detenu and he was detained and as such, the petition is liable to be dismissed on the ground of want of jurisdiction. Since we are taking the view that the petition itself is not entertainable by this Court, we do not propose to go into the merits of the case.
11. In the result, the writ petition fails and stands dismissed as this court has no jurisdiction to entertain the writ petition.
12. Petition dismissed.