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2024 Supreme(P&H) 744
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ALOK JAIN, J.
Neha Sharma – Petitioner
Versus
CBI & Ors. – Respondents
CRWP-8833 of 2022
Decided On : 05-01-2024
Mr. Vikram Chaudhri, Sr. Advocate with Mr. Hargun Sandhu, Advocate and Mr. Kunal Sharma, Advocate; For the Petitioner
Mr. Nitin Kumar Sharma, Advocate for Mr. Shubhra Singh, Advocate for Respondent No. 1-CBI.
Mr. Sunish Bindlish, Advocate for Respondent No.3.
Mr. Tejinder Joshi, Advocate for Respondent No.4
The High Court lacks jurisdiction to entertain a petition challenging a preventive detention order if the cause of action arises outside its territorial limits.
Headnote:(A) Constitution of India - Article 226 - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) and Section 7(1)(b) - Preventive detention - Petition challenging detention order on grounds of lack of jurisdiction - Court held that the cause of action did not arise within its jurisdiction as the alleged offence occurred in Delhi and the detaining authority is also situated there - Petition dismissed for lack of territorial jurisdiction. (Paras 20, 45, 46)
(B) Preventive Detention - Pre-execution stage - The court ruled that a preventive detention order can be challenged at the pre-execution stage only if certain conditions are met, including that the order is not passed under the relevant Act or is sought to be executed against the wrong person. (Paras 7, 46)
Facts of the case:
The petitioner challenged a preventive detention order issued under the Cofeposa Act, claiming it was unjust and lacked jurisdiction as the alleged smuggling activities occurred in Delhi, while she resided in Haryana. The court found that the jurisdiction was not established as the cause of action arose in Delhi.
Findings of Court:
The court upheld the preliminary objection regarding lack of territorial jurisdiction and dismissed the petition, allowing the petitioner to challenge the detention order once served.
Issues: The main issues were whether the court had territorial jurisdiction to entertain the petition and if the preventive detention order could be challenged at the pre-execution stage.
Ratio Decidendi: The court ruled that the jurisdiction of the High Court under Article 226 is limited to where the cause of action arises, and since the detention order was issued in Delhi, the petition was not maintainable.
Result: Petition dismissed.
JUDGMENT
Mr. Alok Jain, J. (Oral)
The present petition has been preferred by the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C. inter alia praying that this court may: -
(a). Issue appropriate directions to Respondent No. 1 CBI to take over all inquiries/investigations relating to C. No. VIII(AP) 10/P&I/2410-C/Arrival/2019/7355 dated 15.07.2019 initiated by the office of Respondent No. 4 for the purported violations under the Customs Act, 1962 and conduct a fair, unbiased and impartial inquiry/ investigation;
(b) Direct the Respondent No. 4 Commissioner of Customs, New Custom House, IGI Airport, New Delhi to transmit the entire record pertaining to C. No. VIII(AP) 10/P&I/2410- C/Arrival/2019/7355 dated 15.07.2019 to Respondent No. 1 CBI so that the role of all concerned, who may have indulged in fabrication of evidence etc. is scanned and scrutinized independently;
(c). Direct Respondent No. 3 Detaining Authority to produce before this Hon'ble Court the entire record including the file notings pertaining to the consideration that may have been bestowed upon the Representation dated 30.09.2019 (Annexure P-6) made on behalf of the petitioner in terms of section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Cofeposa, 1974, 1974- for brevity) for revocation of the Order of Detention bearing No. PD/12002/09/2019-Cofeposa, 1974 dated 19.07.2019 as well as the subsequent reminders dated 21.09.2021 and 08.06.2022 (Annexure P-7 & P-8) along with the final decision, if any, taken thereon;
(d). Quash and set aside the Order of Detention bearing No. PD/12002/09/2019-Cofeposa, 1974 dated 19.7.2019 passed in purported exercise of powers under Section 3(1) of ('Cofeposa, 1974') by Respondent No. 3 and all subsequent proceedings arising therefrom including the Order dated 14.11.2019 published in the Official Gazette of Ministry of Finance (Department of Revenue) (Central Economic Intelligence Bureau) (Cofeposa, 1974 Wing) vide S.O. 4117(E) (Annexure P-5) whereby action in terms of Section 7(1)(b) thereof has purportedly been taken against the petitioner;
(e). Restrain the Respondent No. 2 (DGP Haryana) not to take any coercive action against the petitioner and consequently not to execute the impugned order of detention (Annexure P-5) in terms of the proceedings under Section 7(1)(b) of the Cofeposa, 1974;
(f). Stay the operation and execution of the impugned Order of Detention as well as all Proclamation Proceedings against the petitioner.
2. The factual matrix of the case as detailed by the counsel for the petitioner is asunder: -
| (ababab)Date | (ababab)Event |
| 16.05.2019 | One Raju Singh Sachdeva was apprehended by the Customs department at Terminal-1, Domestic Airport, New Delhi for carrying 232 Gold metal rings weighing a total of 2.1 Kgs while he was travelling from Varanasi to New Delhi. |
| 16.05.2019 | In his statement under section 108 of the Customs Act, Raju Singh Sachdeva stated that he had to hand over the recovered gold to one Ms. Neha Sharma (Petitioner herein) and his relative Sh. Greeshm Sharma. He further allegedly confessed that he has already smuggled a total of 16 Kgs of gold on 8 previous occasions. |
| 30.06.2019 | Greeshm Sharma, who was named along with the petitioner by Raju Singh Sachdeva, was apprehended and he testified that he worked at the behest of the petitioner and her husband who had indulged in smuggling of gold on previous 29 visits to Bangkok. |
| 19.07.2019 Annexure P-4 | In this background, four detention orders in purported exercise of power under Section 3(1) of Cofeposa, 1974 by the Joint Secretary, Cofeposa, 1974, Central Economic Intelligence Bureau were issued against Raju Singh Sachdeva, Greeshm Sharma, petitioner and her husband. One of them being detention order PD-12002/09/2019-Cofeposa, 1974 dated 19/ |
