TMI Blog1992 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... d at Kualalumpur. When he was questioned as to whether he was carrying any gold with him, he replied in the negative. When his person was searched in the presence of two independent witnesses, two pieces of gold rings crudely made of gold and collectively weighing 62 grams approximately were recovered from the right side pocket of the trousers worn by him. When he was further interrogaged, he confessed that he was having gold biscuits in his rectum. Thereupon he was taken to the toilet room of Customs arrival hall where he voluntarily ejected 7 pieces of gold biscuits of 100 grams each, collectively weighing 700 grams, firstly 4 pieces and again 3 pieces through anal passage. They were with foreign markings. The 7 pieces of gold biscuits and the two gold rings were collectively weighing 762 grams approximately and valued at ₹ 3,81,000/- and they were seized in the presence of independent witnesses. When his baggage was examined, miscellaneous consumer goods worth ₹ 4,170/- were recovered. The Thai International Airlines Ticket No. 217.4405.534.705.5, Thai Airlines boarding card and Indian Railway Ticket No. 12724.167 dated 7-1-1992 were recovered from his possession. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Madras to transfer the detenu from Calcutta to Madras to be within his social environments. Her representation was rejected and communicated to her at Madras and that provides a cause of action for filing the written petition before this Court. In view of Article 226(2), Constitution of India, this Court is entitled to entertain the writ petition as part of the cause of action arose within the jurisdiction of this court. The learned counsel in support of his contention mainly relied on the decision of the apex court in A. K. Roy v. Union of India, , wherein it was held at page 370 (of Cri LJ) It is neither fair nor just that a detenu should have to suffer detention in such place as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide any cause of action to the petitioner to file the petition in this court. According to him, the decision in Reena Ranka case, 1991 Cri LJ 3195 rendered by Andhra Pradesh High Court has not been correctly decided in view of the ratio laid down by the apex court. 5. We will consider the rival submissions advanced on behalf of both the parties. This is a case where admittedly the detenu was apprehended at Calcutta Airport while he was smuggling gold by concealing in his rectum and subsequently, when he was examined, he ejected the gold biscuits. Later on the basis of materials placed before the detaining authority and drawing the subjective satisfaction, the impugned order was passed by the Joint Secretary, Ministry of Finance, Government of India and the detenu left India and settled at Malaysia, he has got relatives and friends in the State of Tamil Nadu. Further, his wife who came all the way from Malaysia, stayed in a lodge at Madras and sent a representation on behalf of her husband from Madras and that the representation was rejected and communicated to the detenu and to the petitioner (his wife) and the petitioner's wife received the rejection order at Madras an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled. The ratio laid down in the above decision is that the normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence and by keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for detenu to claim the advantage of facilities like having his own food. That rule is not an absolute rule and that is subject to the administrative convenience, safety and security. In the instant case, as rightly pointed out by the learned Central Government Standing Counsel for the respondent, even the detenu in his very voluntary statement, which is not retracted, has categorically stated that he had settled in Malasia, that there is no property or house of his own in Tamil Nadu. or any where in India and that none of his family members stays in Tamil Nadu. He has also stated that he would send a letter to his wife in Malaysia to make arrangements for his help. It is the case of the petitioner that she c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u to attend on him. It is only while he was smuggling gold biscuits concealing in his rectum from malasia, he was caught at Dum Dum Airport, Calcutta, where he has been detained in the Central Prison. Further, it is not the absolute rule that even if the detenu has the ordinary place of residence in Tamil Nadu and that he has close relatives in Tamil Nadu, he is entitled to the transfer order automatically; it is subject to exceptions even as per the ratio laid down in A. K. Roy's case (cited supra). In the counter affidavit filed by the respondents in para 19 it is stated that a case against the detenu has been pending in the Court of the Chief Judicial Magistrate, Barasat, West Bengal, before whom the detenu is required to be produced in certain intervals. In addition, prosecution and adjudication proceedings are likely to be initiated against the detenu. Hence they will suffer a set back if the detenu is transferred from the Central Prison, Calcutta to the Central Prison. Madras. It is stated that adjudication proceedings have also been initiated and that it is pending. Thus, on the ground of administrative convenience, security and safety also, the petitioner's request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad. We are of the view that the above decision will not apply to the facts of this case especially in view of the decision in A. K. Roy's case and in view of our finding that the petitioner has not made out any case that the detenu has to be kept in detention in a place which is within his ordinary place of residence. The ratio laid down in A. K. Roy's case will not apply to the detenu for his transfer from Calcutta to Madras. In Daya Shankar v. Chief of the Air staff, New Delhi, a Division Bench has observed in para 4 as follows :- A right of action is the right to enforce a cause of action. A person residing anywhere in the country being aggrieved by an order of Government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved. 6. In State of Rajasthan v. M/s. Swaika Properties, , the Hon'ble Court approved the meaning of word 'cause of action' in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conveyed to the plaintiff club by a letter received by the Club at Sealdah will not take the cause of action to Sealdah and give Sealdah Court jurisdiction. (1873) 8 CP 107 and (1888) 22 QB 128 and , Not followed. , Dist. 8. We also find every force in the contention of the learned Additional Central Government Standing Counsel that in the instant case the representation has been considered and has been rejected and has been communicated, that it satisfies the statutory requirement and that it has been communicated to the detenu at Calcutta and that the petitioner who sent the representation on behalf of the detenu was also intimated about the order of rejection and it was received at Madras. The effect of the order was also communicated to the detenu at calcutta. In Abdul Kafi Khan v. Union of India, it was observed in para 11 that Such cause of action must be antecedent to the institution of the suit. In para 13 it was observed : The provision as to Clause (1-A) of Art. 226(1) was inserted in the light of the decision of the Supreme Court as mentioned above and now the location of the subject-matter or the parties to the controversy is immaterial for the purpose of deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l fact, which the petitioner is required to prove in order to secure relief in the writ petition. The cause of action has partly arisen within the territory in respect of which the High Court of Mysore exercise jurisdiction. In the above circumstances it was held that since the cause of action has partly arisen within the territory in respect of which the High Court of Mysore exercise jurisdiction, the writ petition is entertainable in the High Court of Mysore. In Damomal v. Union of India, : The question that arises is whether the cause of action for the exercise of the power invoked by the petitioner arose wholly or in part within the territory in relation to which this Court exercises jurisdiction. The petitioner, as it appears, was a resident of Ullasnagar, a place situated in the District of Thana of Maharashtra State. The impugned order itself shows that the case was heard in Bombay. It is indeed true that the order on the face of it does not show the place where it was made. Even assuming that this order was made by the third respondent in New Delhi, there can hardly be any doubt that the effect of this order fell on the petitioner at Ullasnagar where he resides. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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