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1989 Supreme(Mad) 153
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE DAVID ANNOUSSAMY & THE HONOURABLE MR. JUSTICE JANARTHANAM
P. Subramani - Appellant
Versus
State of Karnataka and Others - Respondents
Writ Petn. No. 9678 of 1988
Decided On : 28 February 1989
The non-supply of vital documents requested by a detenu in his representation, which prejudices the detenu's ability to make further representations for revocation of the detention order, violates the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and renders the detention order null and void.
Headnote:
DETENTION - CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT, 1974 - SECTION 3(1)(III) - DETENTION ORDER QUASHED - NON-SUPPLY OF VITAL DOCUMENTS REQUESTED BY DETENU IN HIS REPRESENTATION - VIOLATION OF PROVISIONS OF THE ACT - ORDER RENDERED NULL AND VOID.
Fact of the Case:
The petitioner was detained under S. 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, for engaging in keeping and transporting smuggled goods. He challenged the detention order on the grounds that he was not provided with vital documents, including the mahazar for search of his house and son's place of business, and the certificate of forensic test showing the purity of gold, which prejudiced his ability to make further representations for revocation of the order.
Finding of the Court:
The court held that the non-supply of the requested documents constituted a violation of the provisions of the Act and rendered the detention order null and void. It also rejected the respondents' contentions that the petitioner had not exhausted his remedies by not sending the representation to the proper authority and that the plea of non-supply of documents was not taken in the additional affidavit.
Issues: 1. Whether the court had jurisdiction to entertain the petition since the seizure and service of the detention order took place in Karnataka. 2. Whether the petitioner could file a second writ petition challenging the same detention order after his first petition was dismissed by the Karnataka High Court. 3. Whether the non-supply of vital documents requested by the petitioner in his representation violated the provisions of the Act and rendered the detention order null and void.
Ratio Decidendi: 1. The court held that it had jurisdiction to entertain the petition as the essential act of detention physically happened in Tamil Nadu, where the petitioner was served with the order and his liberty was deprived. 2. The court held that a second writ petition was maintainable as the petitioner was challenging the legality of the detention order on a fresh ground, namely, the absence of a reply to his third representation, which arose after the rejection of the first petition. 3. The court held that the non-supply of the requested documents, which were vital to the petitioner's ability to make further representations for revocation of the detention order, constituted a violation of the provisions of the Act and rendered the order null and void.
Final Decision: The court allowed the petition, quashed the detention order, and ordered the release of the petitioner.
ANNOUSSAMY, J.
This is a petition under Art. 226 of the Constitution of India, for the issuance of a writ of habeas corpus quashing the order of detention passed against the detenu and setting him at liberty.
2. The order of detention was passed by the Government of Karnataka under S. 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to prevent the detenu from engaging in keeping and transporting smuggled goods.
3. The short facts which led to the detention are as follows.
On 13-1-1988 at 06.45 hours, the Superintendent of Customs and Central Excise, Head quarters, Preventive II Belgaum and his staff accompanied by witnesses entered the second class Bogie No. 6738 of Bombay Bangalore Udyan Express train No. 129 which had arrived at the Gulbarga Railway station on information and reasonable belief that one passenger sitting on Seat No. 32 of the said bogie was carrying smuggled goods with him. The detenu was found actually sitting as stated above and disclosed his name and address and he was found carrying one brown colour raxine bag. He produced a second class train ticket from Dar to Bangalore City. He was taken to suits No. 4 of Hotel Pariwar, Gulbarga. A search was made and in the course of which gold weighing 933.280 grams were found and recovered from the detenu. The Panchas, who are experienced persons in gold business, had tested all the gold pellets with foreign markings under seizure with touchstone method and ascertained their purity as 24 cts. Further the petitioner has also given statements incirminating himself.
4. 'The petitioner first sent a representation to the Home Secretary, Karnataka on 8-6-1988, which was rejected on 16-6-1988. He gave a second representation on 9-7-1988 to the jail authority. This writ petition was filed on 22-8-1988 in which it was complained that the second representation in which vital document were asked for were not so far supplied. The counter of the respondents was that the alleged second representation was never signed by the detenu and, therefore it was not forwarded by the jail authority. Then a third representation was sent by the detenu duly signed and addressed to the Chief Secretary to the Government of Karnataka on 17-10-1988. The petitioner filed an additional affidavit on 21-8-89 stating that the third representation which was sent and for which acknowledgment was obtained, was not so far replied. It is also to be stated that the petitioner approached first the Karnataka High Court and his writ petition to set aside the order of detention was rejected in the month of April 1988.
5. The first point which emerged for our consideration is, whether this Court has got jurisdiction to entertain this petition ?
6. A two fold argument was put forth by the learned counsel for the respondents. He stated that since the seizure was effected in Karnataka, the Karnataka High Court alone would have jurisdiction and the fact that the order was served upon the petitioner would not be of any consequence. In this connection, he relied on a decision of the Supreme Court reported in State of Rajasthan v. M/s. Swaika Properties 1985 AIR(SC) 1289, 1985 (2) CCC 651, 1985 (1) Scale 1181, 1985 (3) SCC 217, 1985 (3) SCR 598, 1985 UJ 785 where in it was held as follows.
'The mere service in the State of West Bengal of notice under S. 52(2) of the Rajasthan Urban Improvement Act (5 of 1959) on the owner of a land situated in the State of Rajasthan intimating of the State Government's proposal to acquire that land for public purpose does not constitute an integral part of the cause of action sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under Art. 226 of the Constitution challenging the validity of the notification acquiring the land.
This ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu his
