Back
1987 Supreme(Bom) 233
IN THE HIGH COURT OF BOMBAY
D.N. Mehta S.M. Daud, JJ.
Ramchand Santumal Bhatia .... Petitioner.
Versus
Tarun Roy, Jt. Secretary, Ministry of Finance others .... Respondents.
Criminal Writ Petition No. 243 of 1987, decided on 7-8-1987.
Advocates appeared :
S.B. Keshwani with R.S. Desai, for petitioner.
R.V. Desai, for respondents 1 3.
J.A. Barday, P.P., for respondents 2 4.
R.M. Agarwal, Amicus Curiae at request of Court.
M.R. Kotwal, permitted to address Court at request of petitioner’s Counsel.
Headnote:Articles 14, 19 and 226 (1) and (2)-Detention Order-Writ of Habeas Corpus against that order-Maintainability of-Article 226 (1) entitles the High Court to issue writs to a person or authority within the limits of territorial jurisdiction-It can issue writs to an authority or person outside its territorial limits provided cause of action wholly or in part arose In its territory.
Article 19 confers on citizens as many as seven rights. There is no reason why the rights of free movement and residence and settling throughout and in any part of India should be given precedence over the other rights spoken of in the Article. If the existence of rights were to be the anvil on Which to decide the question of jurisdiction, only habeas corpus petitions should be excluded from the limitation imposed by clauses (1) and (2) of Article 226. The result would be that there would be complete freedom for "forumshopping" whenever petitions under Article 226 were to be moved. This would be irrespective of the location of the person or authority to whom the writ or order had to be issued or the place where the Cause of action Wholly or in part, arose. The simple answer to an objection relating to territorial jurisdiction would be that the petition was for vindication of a fundamental right and irrespective of the nature of the writ claimed, all High Courts had jurisdiction, for the exercise of the rights could not be curtailed by the territorial limits contemplated by clause (1) and (2) of Article 226. If the rights covered by clauses (d) and (e) of Article 19 (1) give the right to move any High Court to question an order of detention, there would be no reason to limit the filing of the petitions seeking relief in any other case from any High Court of the choice of the petitioner. Limits placed on territorial jurisdiction under Article 226 would become meaningless.
The result would be chaos-unimaginable and uncontrollable. Irrespective of the location of the person or authority to whom the writ had to be issued or the territory within which the cause of action arose, petitioner would move any High Court of their choice and get relief-atleast interim and thereby frustrate the permissible activities of the State and other authorities. Different provisions of the Constitution have to be read reasonably, and, where there be an apparent conflict. Court should try to so interpret the provisions, as to bring about a harmonious construction. Nothing in Article 19 warrants the supposition that breaches actual or threatened of the rights stipulated by the Article can be vindicated in a Court of the choice of the petitioner complaining against the breach. The forum where such complaints can be made is provided by the Constitution.
Insofar as Article 229 is concerned, clause (1) entities the High Court to issue writs to a person or authority within the limits 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 D would obviously have the competence to entertain the petition for the order of detention was made in that territory and the head quarters of the officer making the order, is also D. The next place where the petition could have been filed is where the detenue had to be lodged under the order of detention for the duration of the period of detention.
2. The Directorate of Intelligence Officers based at Calcutta acting on information on 9 April, 1986 intercepted certain persons disembarking at Calcutta from a Thai Airways Plane being flight No. TG-313. One of the disemberkees was the petitioner's wife Smt. Durga Ramchand Bhatia. Being carried on her ticket were two pieces of registered baggage and a hand bag on her person. But there was something suspicious about her movements and therefore she was taken in for a personal search and Interrogation. This search led to the recovery of gold in the form of biscuits of the value of Rs. 1, 03, 750/- from the lady's private parts. Detailed investigation showed that Smt. Durga was part of a syndicate of Bombay based ladies engaged in smuggling through the Calcutta and Madras Airports, though they left for 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 section 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, the Union of India, and the Superintendent of Presidency Jail at Calcutta. The State of Maharashtra is also impleaded, though reasons for this joinder are not known.
3. Para 10 of the petition gives an explanation for the jurisdiction of this High Court to impugn the detention order in these words :---
"the detenu was detained at Ulhasnagar, she is a permanent resident of the State of Maharashtra over which this Hon'ble High Court has territorial jurisdiction ............................................. since the same (order of detention) affects the fundamental rights of the detenu of being detained without trial, the said order can be challenged before this Hon'ble High Court under Article 226 of the Constitution of India ............................ subsequently the detenu came to the address at Ulhasnagar and moved to Calcutta............................. the entire and/or substantial part of the cause of action has arises within the jurisdiction of this Hon'ble High Court and therefore this Hon'ble Court has jurisdiction, to entertain and try this petition."
The relief sought in the petition is a quashing of the detention order with the consequential direction for the release of the detenu. Inasmuch as the order of detention was made at Delhi and the detenu's place for detention was specified to be Calcutta, a doubt has arisen as to this Court's juristic to entertain the petition. On behalf of the petitioner, the submission is that this Court has jurisdiction, because---
(1) The detention order relates to activities-past and anticipated-of the detenu within the State of Maharashtra and therefore part of the cause of action has arisen within the jurisdiction of this Court.
(2) The detention order affects the fundamental rights of the detenu to freely move about and/or reside or s
