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TMI Blog1987 (8) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign countries from the Bombay Airport. The detenu after arrest was put up before a Magistrate at Calcutta who directed her enlargement on bail. Being a resident of Ulhasnagar, District Thane, Maharashtra, she came to that place, after availment of bail. On 22 September, 1986 respondent 1, a Joint Secretary to the Government of India in the Ministry of Finance, passed an order of detention against the detenu under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the order reciting that this was being done with a view to prevent her from smuggling goods . The same, together with the grounds, were served upon the detenu on 11 November, 1986 at Ulhasnagar. After this service the detenu was taken into custody and moved for detention at Presidency Jail, Calcutta, as directed in the order of detention. On 26 February, 1987 leave was obtained to move the Court on the next day and on 27 February, 1987 this Court directed the issue of rule nisi. As an interim measure, the Court directed that the detenu be transferred from the Presidency Jail, Calcutta, to a Jail at Kalyan. Impleaded to the petition are the detaining authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by this Court. It is contended that the detention order read in the background of the grounds, clearly shows that the detenu had been carrying out smuggling activities outside the territory of Maharashtra. That she resided, had been served with the detention order at or had been whisked away from Ulhasnagar, was not germane to rule upon the issue of jurisdiction. In a habeas corpus petition the territorial jurisdiction depended upon the place where the order of detention was made, the base of the detaining authority, and the place specified for the detention of the detenu. In addition, what could possibly be taken into consideration, was, the nexus between the prejudicial activity and the detention order. In such a case, the Court having jurisdiction, could conceivably be that where the prejudicial activity had taken place. Counsel for the parties, Mr. Agarwal and Mr. Kotwal have all been heard at great length. The question that has arisen is one of great importance and not covered by any direct decision of the Supreme Court or this Court. 4. The first ground advanced by Counsel for the petitioner to justify recourse to this Court, has merely to be stated to furnish its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident. Reliance is placed in support of this contention upon Smt. Manjulaben v. C. T. A. Pillay (1975)GLR730 (Gujarat High Court). The contention in that case was stated thus in the verdict : It is also contended that the impugned orders of detention constitute an interference with all rights guaranteed by Art. 19(1) of the Constitution and in particular the rights guaranteed under Art. 19(1)(d) and (e) of free movement within the territory of India and their rights to reside the settle in any part of India. On the theory of the cause of action as provided in Art. 226(1A) of the Constitution every High Court in India has a jurisdiction to entertain a habeas corpus writ application. It does appear that this submission was accepted by the Bench. However, the reasons for the acceptance are not clear. With respect to the learned Judges, we find it difficult to agree with the rather spacious view taken by them. Art. 19 specifies various rights vesting in citizens. Breach of these rights gives the aggrieved a cause of action to approach the proper Court. Truly speaking no considered decision on the plea was given by the Division Bench. It merely observed - Moreover the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the breach. The forum where such complaints can be made is provided by the Constitution. Insofar as Art. 226 is concerned. Clause (1) entitles the High Court to issue writs to a person or authority within the limits of its territorial jurisdiction. Next, it can issue writs to an authority or person outside its territorial limits, provided the cause of action wholly or in part, arose in its territory. In the present case, the High Court exercising jurisdiction over Delhi would obviously have the competence to entertain the petition for the order of detention was made in that territory and the headquarters of the officer making the order, is also Delhi. The next place where the petition could have been filed is Calcutta where the detenu had to be lodged under the order of detention for the duration of the period of detention. There remains the argument that the cause of action, at least in part, arose in the State of Maharashtra inasmuch as the detenu was taken into custody at Ulhasnagar and the order of detention was served upon her at that place. In Manjulaben's case (1975)GLR730 (supra) which has been relied upon by the Counsel for the petitioner and Mr. Kotwal the facts wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The detenus were not set at liberty on the expiry of the previous orders of detention passed under the Maintenance of Internal Security Act, 1971. Under their fresh orders of detention the detenus were kept in the Central Jail, Jaipur. Their initial detention at Baroda is continued. The effect of the impugned orders of detention is that the detenus are prevented to enter the State or to reside or to carry on their business therein. The aforesaid facts furnish a part of cause of action within the territorial limits of this Court and this Court has, therefore, jurisdiction to entertain these writ petitions. It is true that the statement made in the affidavit of the respondents that separate entries relating to the detention of the detenus in the jail register have been made to show that the detenus were taken afresh in the jail after service of fresh orders of detention under the impugned Act but that is not of much consequence in view of the fact that the detenus were not in fact set at liberty at any time before the fresh orders of detention were served on them. The detenus were not free agents when they were served with the fresh orders of their detention under the impugned Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dabad could not be said to be the cause of action for the making of the detention orders. The attention of this Bench was not drawn to Manjulaben's case. With respect to the Judges who heard and decided Manjulaben's case, it is difficult to agree with them. Taking into consideration Art. 19 or any part thereof for fixing the territorial jurisdiction under Art. 226, would be to permit the intrusion of an irrelevance and at the cost of the express language of the latter Article. The Delhi High Court in Smt. Ramadevi v. K. A. Gafoor ILR (1976) 1 Del 72 considered a similar question at greater length. It went into the history leading to the Constitution (Fifteenth Amendment) Act, 1963. In Lt. Col. Khajoor Singh v. Union of India, [1961]2SCR828 , Chief Justice B. P. Sinha speaking for the majority had observed :- The concept of cause of action cannot in our opinion be introduced in Art. 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intendment of the Article. To the extent the 1985 decision goes contrary to Manjulaben's case, Mr. Agarwal supports its correctness. But certain expressions in the former, so argues, the Counsel, go beyond the true scope of Art. 226. Mr. Kotwal on the other hand had drawn our attention to the judgment of a Division Bench of this Court delivered on 12 to 14 July, 1982 in Criminal Application No. 180 of 1982 (1982 decision) in support of the contention that in habeas corpus petitions, the cause of action arises as soon as the detenu's liberty is curtailed and this entitles him to move the Court where the restraining act is performed, irrespective of the situs of the authorisation or authoriser whereunder the liberty was being restricted. In that case the prejudicial activity had been detected in Bombay, where also the detenu and his associates were interrogated on several occasions between May and October 1981. A complaint under the Customs Act was put up against the detenu and he was released on bail by a Magistrate sometime after 15 June, 1981. From time to time, the detenu attended the Magistrate's Court at Bombay till November 1981. On 4 November, 1981, an order of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted position that service of the order upon the detenu was contemporaneous to her being taken into custody. Therefore, the 1982 decision does not apply to the issue arising here. But the Gujarat High Court's 1985 decision does lay down that the place where the detention order is served on the detenu, can be said to be a place where part of the cause of action arises. On this point Mr. R. S. Desai for petitioner has referred us to Damomal v. Union of India, AIR1967Bom355 . In that case the Bombay High Court was held to have jurisdiction because the effect of the order would be felt upon the petitioner at Ulhasnagar, though the same was passed at New Delhi. The effect or impact of the order was held to constitute part of the cause of action. It is precisely at this point that Mr. Agarwal presses for acceptance the 1985 decision's delineation of the cause of action in detention cases barring one feature therefrom. It was there held that in detention matters the jurisdiction of the High Court under Art. 226 was limited to an examination of the detention order and its aftermath, so as to find out if the protection afforded by the Statute or/and the Constitution had been made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade or the detenu was to be lodged. On the authority of Ujagar Singh's case of the Punjab High Court he wanted us to direct the petitioner to move either of the Courts. Convenience of the detaining authority which has to answer such petitions is not an insignificant factor. As against this is the fact that quite some time has passed since the commencement of the detention and filing of the petition. To now direct the petitioner to move the more appropriate court, would mean that time spent up to now has all gone waste. The detenu is a lady and inasmuch as the Court does not totally lack inherent jurisdiction, it would be too harsh a measure to drive petitioner to the remedy of a fresh petition. To sum up, Ulhasnagar being the place where the detenu was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court. We would however like to make it clear that convenience of the detaining authority and the factor of greater suitability of another forum are not to be ignored. In appropriate cases, a direction to the person questioning a detention to move other Courts also having jurisdiction, may be required t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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