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Munnalal Prabhudas Sharma Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR465
AppellantMunnalal Prabhudas Sharma
RespondentUnion of India (Uoi) and ors.
Cases ReferredJeypore Sugar Ltd. v. I.T. Officer Kakinada
Excerpt:
.....for this purpose we must first see which is the cause of action set forth in the plaint. therefore, taking into consideration the entire petitions it is nowhere contended that the detention orders are bad because the detaining authority had relied upon the activities of the detenues which according to their statement were carried on by them at ahmedabad......guest house at delhi and on 1st may 1985 the detenues were apprehended with file smuggled gold at delhi. the information conveyed by the officers at ahmedabad to the officers at delhi cannot be said to be the cause of action for detention orders.10. the interpretation of the phrase 'cause of action' is well settled by series of decisions., in the case of state of rajasthan v. swaika properties : [1985]3scr598 , the supreme court has considered the phrase 'cause of action' and taken into account the definition given in mulla's code of civil procedure which is as under: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.in that case the court negatived the contention.....
Judgment:

M.B. Shah, J.

1. In these two Special Criminal Applications for habeas corpus under Article 226 of the Constitution of India the common question which requires decision is whether the cause of action wholly or in part, has arisen within the territorial jurisdiction of this Court.

2. By order dated 3rd May 1985 Hasmukh Prabhudas Sharma and Amrutlal Soni alias Mama s/o Late Devdanbhai were detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, hereinafter referred to as 'COFEPOSA Act', by the Joint Secretary to the Government of India, Ministry of Finance, New Delhi. On behalf of Hasmukh Prabhudas Sharma his brother Munnalal Prabhudas Sharma has filed Special Criminal Application No. 497 of 1985. On behalf of Amrutlal Soni his wife Manjulaben has filed. Special Criminal Application No. 498 of 1985. The grounds of detention are annexed to the petitions at Ex. 'B.'

3. As per the grounds of detention, officers of Directorate of Revenue Intelligence at Ahmedabad received an information to the effect that Haji Ashraf, a kingpin of the London-Dubai based smuggling syndicate was likely to deliver a huge quantity of gold to Amrutlal Devdan Jhala alias Amrutlal Devdan Soni alias Mama of Shahibagh, Ahmedabad on 27th April 1985 at Delhi. One of Haji Ashrafs trusted men named Kishan was to contact one H.P. Shah who was Mama's most trusted hand on telephone Nos. 2524703 or 2515013 of Delhi. The vehicle was to be driven by Hasmukh Prabhudas Shah and Chandulal Modi known as K.P. These two persons had already made several trips to Delhi for lifting gold on behalf of Mama as per Intelligence report. Surveillance was kept at Swaminarayan Guest House at Delhi and it was found that Amrutlal Soni and H.P. Shah stayed upto 1st May, 1985. At about 2.15 pm. on 1-5-85 at Kapas-hera Police Post on Gurgaon Road, the officers of the Directorate of Revenue Intelligence intercepted new Fiat Car (No. GUF-17) in which Amrutlal Soni and H.P. Shah were sitting for questioning them and also for search of the vehicle. On examination 295 gold biscuits of 10 tolas each with foreign markings were recovered in two bags concealed beneath the front seat of the car in the presence of panchas. Under Section 110 of the Customs Act, 1962, the Custom authorities seized gold biscuits weighing 2890 tolas, Indian currency of Rs. 39,500/- along with the Fiat Car and some other documents recovered from the person and possession of Amrutlal Soni and H.P. Shah. The gold in question was got assayed and was found to be of 24 carat purity.

4. The statement of Amrutlal Soni was recorded on the same day wherein inter alia he has stated that he was engaged in smuggling in association with Kadar Bhatti gang; that he used to supply silver slabs to Kadar Bhatti and in return he was getting payment in cash or gold biscuits for disposal,' that he had worked with Kadar Bhatti for about 5 months and his business flopped when Kadar Bhatti was caught and pint under COFEPOSA. On 2-5-85 his further statement was also recorded wherein he had stated that he was asked by Haji Ashraf to go to Delhi some time in the first week of October 1984 for taking delivery of smuggled gold; that he went to Delhi by train and stayed at Swaminarayan Guest House, Delhi, that he collected 90 foreign marked gold biscuits at ISBT from one Satpal, the agent of Haji Ashraf who came to ISBT on his scooter carrying 90 foreign marked gold biscuits concealed in the dicky of the scooter, that the scooter along with the gold biscuits was handed over to him and he drove the same scooter all the way from Delhi to Ahmedabad that he had disposed of the said gold biscuits at Ahmedabad at Manekchowk. He has further stated with regard to his other trips to Delhi. He has narrated that Haji Ashraf had contracted him on telephone from London. It is his say that on 30th April 1985 at about 8.00 p.m. he met Kishan at the gate of Natraj Cinema as per the previous arrangement. One another person named Satpal was also standing there and Satpal had asked him to come near Plaza Cinema at Connaught Place at 9.00 a.m. on 1-5-85. At about 7.30 to 8-00 a.m. they checked out from Swaminarayan Guest House on 1-5-85 that the loading of smuggled gold in the car was done and after loading of smuggled gold in the car which was done outside Plaza Cinema, he changed the number plate of the brand, new Fiat Car into GUF-17. He also stated that the amount of Rs. 39,500/- seized by DR1 officers was part of the sale proceeds of foreign gold biscuits which he had kept as his commission. It is his say that after bringing gold biscuits from Delhi, he used to sell them off at Ahmedabad through one Balwant Bhagu and Bhanubhai Soni of Ahmedabad.

5. The statements of Hasmukh Prabhudas Shah were also recorded on 1-5-85 and 2-8-85 wherein inter alia he had stated that he used to drive the Vehicle of Kadar Bhatti. After detention of Kadar Bhatti he contacted Amrutlal alias Mama who was indulging in smuggling of gold and silver; that Mama offered him to work with him and he started working with him since October 1984. Various other details were stated with which we are not concerned. The statement of one Vinodkumar Sharma of Delhi is also recorded on 1-5-85 wherein inter alia he has stated that he recognises Mama who is a Gujarati that he had dome to him during last Diwali when he had brought 2 Kgs. of silver; that at his shop there are two telephones having Nos. 234205 and 2520356 that on 23-1-84 DRI officers had seized 20 gold biscuits with foreign markings from him while he was carrying them to Jaipur and that the said biscuits belonged to Lala Nandkishor. After taking into consideration the aforesaid statements and other facts narrated in the grounds of detention, the Joint Secretary to the Government of India arrived at the conclusion that the detenues were regularly engaged in transporting smuggled goods and that he was satisfied that they should be detained under the COFEPOSA Act, 1974 with a view to preventing them from engaging in transporting smuggled goods.

6. When these petitions came up for admission on 1-8-85 the Court made rule returnable on 26-8-85. In response to die notice issued by die Court, the Joint-Secretary to die Government of India, Ministry of Finance, Department of Revenue, New Delhi, had filed an affidavit raising a preliminary contention that this Court had no territorial jurisdiction to entertain and decide this petition under Article 226 of the Constitution of India, therefore the petitions should be dismissed on this preliminary ground.

7. On behalf of the Union of India the learned Counsel has contended that no cause of action, wholly or in part, has arisen within the territorial jurisdiction of this Court because:

(a)the office of the detaining authority-Union of India is situated at Delhi from where the detention orders were passed;

(b) the detenues were apprehended at Delhi,

(c) the sponsoring authority for detention orders is the Directorate of Revenue Intelligence, having its office at Delhi;

(d) the transporting of smuggled goods was also done at Delhi;

(e) the statements of the detenues ware also recorded at Delhi;

(f) the whole enquiry was also conducted at Delhi by the officers of the Directorate Revenue Intelligence;

(g) the detention orders are served at Delhi;

(h) the detenues are lodged in Tihar Jail at Delhi.

8. As against this, the learned Counsel for the petitioners vehemently submitted that in the grounds of detention the detaining authority has elied upon certain activities which were carried on by the detenues at Ahmedabad i.e., the detenues were bringing smuggled gold from Delhi and were selling it in Manekchowk at Ahmedabad and also relied upon the Intelligence report sent by Directorate of Intelligence at Ahmedabad, investigation was carried out by the officers of DRT at Delhi, therefore, the cause of action for orders of detention has arisen partly at Ahmedabad, hence this Court has jurisdiction to entertain these petitions.

9. Under Article 226(2) of the Constitution of India the power conferred by Clause (1) to issue directions, orders or writs to any government, authority or person can also be exercised by any 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. If the cause of action, wholly for in part, has arisen within the territory of the Gujarat State, then this Court would have jurisdiction to entertain the petitions. In this case admittedly the detention orders are passed by the Joint Secretary to the Government of India having office at Delhi.

The detention orders are served on the detenues at Delhi, they are detained at Delhi, they were also apprehended at Delhi on 1-5-85 when they were carrying gold biscuits weighing 2890 tolas with foreign marking by the officers of the Directorate of Revenue Intelligence, Delhi. Merely because the detenues (as per the statement made by the detenues) were transporting gold from Delhi and were bringing it to Ahmedabad and selling it at Ahmedabad, it cannot be said that the cause of action for detention orders has arisen at Ahmedabad. The contention of the learned Counsel for the detenues that because the information was conveyed by the officers of Directorate of Revenue Intelligence at Ahmedabad to the officers at Delh to the effects that Haji Ashraf, a king-pin of the London-Dubai based smuggling syndicate, was likely to deliver huge quantity of gold, to one Amrutlal Soni of Ahmedabad, therefore this Court had jurisdiction to entertain the petitioners is also equally misconceived.

On the basis of this information first surveillance was kept at Swaminarayan Guest House at Delhi and on 1st May 1985 the detenues were apprehended with file smuggled gold at Delhi. The information conveyed by the officers at Ahmedabad to the officers at Delhi cannot be said to be the cause of action for detention orders.

10. The interpretation of the phrase 'cause of action' is well settled by series of decisions., In the case of State of Rajasthan v. Swaika Properties : [1985]3SCR598 , the Supreme Court has considered the phrase 'cause of action' and taken into account the definition given in Mulla's Code of Civil Procedure which is as under:

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.

In that case the Court negatived the contention that because the notice was served at Calcutta, therefore the Calcutta High Court had jurisdiction to entertain the petition under Article 226(2) of the Constitution.

11. In the case of State of Madras v. C.P. Agencies : AIR1960SC1309 , the Supreme Court in paragraph (3) of the judgment has approved and relied upon the definition of phrase 'cause of action' given by Lord Esher M.R. in Read v. Brown (1888) 22 QBD 128 which is as under:

We have been referred to the well-known observations of Brett J. Cook v. Gill (1873) 8 Cp 107 and to the definition of 'cause of action' given in Read v. Brown (1888) 22 QBD 128 which are all referred to in 75 Ind. App. 121 A.I.R. 1949 PC 72 (supra). In (1888) 22 QBD 128 (supra), Lord Esher M.R. defined 'cause of action' to mean.

Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

Fry L.J. agreed said:

Everything which, if not proved gives the defendant an immediate right to judgment, must be part of the cause of action.' To the same effect are the observations of Lopes L.J. in Mst. Chand Kaur v. Pratab Singh 15 Ind. App. 156, Lord Watson observed:

Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely on the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

The meaning of 'cause of action' being thus well understood, we now proceed to consider whether the cause of action with which the plaintiff has come to Court has been stated sufficiently in the notice given under Section 80. For this purpose we must first see which is the cause of action set forth in the plaint.

12. Therefore, for the petition under Article 226 the cause of action would mean the facts which are required to be proved for succeeding in the petition. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved. It would, depend entirely on the grounds set forth in the petition as a cause of action or, in other words, to the media upon which the petitioner has asked the Court to arrive at the conclusion in his favour.

13. In the detention matters the jurisdiction of the High Court under Article 226 is limited and the Court can quash the detention order and release the detenu on a limited ground. The High Court's jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed by the detaining authority on material before it. If it is found that the order has been based by the detaining authority on the material on record, then the Court cannot go further and examine whether the material was adequate or not. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction of the detaining authority is subjective and the High Court has no jurisdiction to appreciate or sit in appeal against the subjective satisfaction arrived at by the detaining authority but the Court can verify and set aside the detention order if:

(1) the detaining authority has, as soon as may be, not communicated to the detenu the grounds on which the order of detention has been made;

(2) the detaining authority has not furnished the grounds of detention along with the documents and materials which formed the basis of the detention order at the earliest and in any case not beyond the prescribed time;

(3) the detaining authority has not afforded the detenu the earliest opportunity of making effective representation against the order of detention;

(4) there is non-application of mind by the detaining authority to the relevant facts;

(5) the detention order is passed mala fide,

(6) the grounds of detention are vague, irrelevant or based upon extraneous material;

(7) the detaining authority has not referred the case of the detenu to the Advisory Board or the Advisory Board has not submitted its report within the prescribed period;

(8) the detaining authority has not complied with the procedure prescribed under the Detention Act or under Article 22 of the Constitution or on such other Acts or omissions.

14. For all the aforesaid grounds for quashing or setting aside the detention order the cause of action against the detaining authority would arise at the place where the detaining authority is required to act or has acted in a particular manner. As the office of the detaining authority is situated at Delhi, it has passed the detention orders at Delhi and the detention orders are served to the detenues at Delhi therefore it cannot be said that any part of the cause of action has arisen within the territorial jurisdiction of this Court.

15. Further, taking into consideration the contentions which are raised in the petitions, it is dear that the cause of action has not arisen, within the territorial jurisdiction of this Court. It is alleged that some documents which were relied upon by the detaining authority were belatedly supplied to the detenues; statements of the co-detenu recorded under Section 138 of the Customs Act cannot be relied upon; the statements were extracted by coercion and under duress and, therefore, cannot be relied upon, that there is non-application of mind by the detaining authority because the statements were recorded on 1st May 1985 and the detention orders, were passed on 4th May 1985; that the sponsoring authority had not placed all the relevant material before the draining authority to show that the alleged gold biscuits seized by them were of foreign origin that the several documents which were originally in Gujarati language were not translated in English and, therefore, the detaining authority had not applied its mind because the detaining authority was not conversant with the Gujarati language; that the detaining authority had applied his mind to irrelevant documents and statements; that the sponsoring authority had not placed before the detaining authority the detenues arrest memos and as the said fact is not considered, the detention orders are illegal. It is further submitted that the Central Government would disclose to this Court as to whether the Advisory Board had submitted along with its report the record and proceedings which included the representations submitted by the detenues to the Advisory Board and further the Central Government would disclose to this Court as to whether such record and proceedings of the Advisory Board including the representations submitted by the detenues were considered by the Central Government, before confirming the order. Therefore, taking into consideration the entire petitions it is nowhere contended that the detention orders are bad because the detaining authority had relied upon the activities of the detenues which according to their statement were carried on by them at Ahmedabad. Further, the cause of action for determining whether the detaining authority has not complied with the procedure prescribed under the Detention Act or under Article 22 of the Constitution or such other grounds or omissions would not arise within the territorial jurisdiction of this Court because in this case the detaining authority is Union of India and the detenues are arrested at Delhi.

16. In the case of Kajaria Exports Ltd. v. Union of India : AIR1985Cal70 , the Calcutta High Court has dismissed the petition under Article 226 by holding that the principal respondent against whom preliminary relief was sought to be claimed was one of the relevant factors for determination of the jurisdiction and held that the cause of action is not limited to the actual infringemeat of the right sued on but includes all the material facts on which it is founded. In that case the import licence was issued by the authority whose office was situated at Delhi and the goods had arrived at the Bombay Port and the goods has to be cleared by the Customs Authorities at Bombay and that no notice or other correspondence was made by the authority and the petitioner-Company at Calcutta and therefore, the Court held that the Calcutta High Court had no jurisdiction to entertain the petition. The Court further held that the mere fact that the petitioners Registered Office is at Calcutta and that the fact that the petitioner-Company made correspondence to foreign sellers and then foreign sellers also made correspondence with the Calcutta Office in the matter and the price of the goods was paid from Calcutta Office were wholly irrelevant in the matter for the purpose of ascertaining the question of the jurisdiction of the Court in the case.

In the case of Jeypore Sugar Ltd. v. I.T. Officer Kakinada, 1980 Tax. L.R. 1549 the Madras High Court had dismissed the writ petition for the issue of a writ of prohibition against the Income-tax Officer, Kakinada, by holding that as the if notice for re-assessment proceedings has been issued from Kakinada has been issued to a person within the jurisdiction of the Income-tax Officer Kakinada, and as the petitioner is borne on the file of the said Income-tax Officer, no part of the cause of action can be said to arise within the jurisdiction of the Madras High Court. The Court observed that the fact that the respondent corresponded with the persons in Madras at some point of time in order to elicit information from them does not mean that any part of the cause of action arose within the jurisdiction of the Madras High Court. The Court held that the cause of action in that case arose out of the issue of notice which was issued from Kakinada and served on the assesses in Chagallu.

17. Therefore, taking into consideration the entire aspects of the matter it is clear that no part of the cause of action for filing writ of habeas corpus has arisen within the territorial jurisdiction of this Court. Hence both the petitions require to be dismissed on a preliminary ground that the petitions are not maintainable before the Court. In the result, both the petitions are dismissed.


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