TMI Blog1977 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... posted before Natarajan J. as per S. 392 Crl. P. C. Before him it was urged by the State for the first time, that the above petitions which indirectly challenge the validity of the detention orders passed against the petitioner cannot be maintained in view of the decision of the Supreme Court in A. D. M. Jabalpur v. S. Shukla, 1976CriLJ945 . The learned Judge felt that the said question deserves consideration by a Full Bench. He, therefore, referred all the petitions to a Full Bench, and accordingly they have come before us. 2. K.T.M.S. Abdul Khadar, the petitioner in Crl. M. P. 445 of 1975, A.M. Ahmed Yaseen, the petitioner in Crl. M. P. 449 of 1975 and B.S.A. Rahman the petitioner in Crl. M. P. 449 of 1975, are alleged to have been smuggling or dealing with smuggled goods. This led the State Government to reasonably apprehend that unless they are detained forthwith, they will continue to indulge in similar activities which may prove a hazard to the safety and security of the country. Hence detention orders were originally passed against each of the petitioner under S. 3(1)(c) of the Maintenance of Internal Security (Amendment) Ordinance 1974. As the petitioners in each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention order under S. 3 of the Act could be passed in respect of persons outside India. As already stated, Paul J. has held that detention orders can be passed against any person outside India provided he is an India citizen while Varadarajan J. is of the view that detention orders can not be made in respect of persons outside. India even if they are Indian citizens. Since one of petitioners before us is a foreign citizen, we have to necessarily deal with the validity of the detention orders passed against Indian citizens as also foreign Nationals who were outside India at the time when they were passed. 4. Before dealing with the above main question, we have to consider the preliminary objection raised by the learned Advocate General that these petitions which indirectly attack the validity of the detention orders cannot be maintained in view of the decision of the Supreme Court in A. D. M. Jabalpur v. B. Shukla, 1976CriLJ945 . In the said decision of the Supreme Court, it has been held by a majority that-- In view of the Presidential Order dated 27th June 1975, no person has any locus standi to move any writ petition under Art. 226 before a High Court for habeas corpus or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself may be suspended by a Presidential Order under Art. 359(1). We are not in a position to agree with Mr. Govind Swaminathan appearing for the petitioners that the ratio in Shukla's case would apply only to proceedings under Art. 32 or 226 and not the proceedings under the Code. The ban under Art. 359(1) will have to apply to all proceedings in any court as otherwise the purpose and object of the Presidential Order will be nullified by parties having resort to any legal proceedings other than the writ proceedings under Art. 32 or under Art. 226. If the contention of Mr. Govind Swaminathan that Art. 359 will apply only to writ proceedings under Art. 32 and 226 of the Constitution is accepted, it will lead to a curious and absurd result, in that courts other than the High Courts and the Supreme Court, will be able to enforce fundamental rights in any legal proceedings while the higher courts like the High Courts and the Supreme Court will be powerless to enforce fundamental rights either directly or by way of appeal or revision from the lower courts. Further, the expression 'all proceedings pending in any court' occurring in Art. 359 may not allow any other inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. A close reading of the said Article indicates that any Presidential Order there under can suspend the enforcement of the rights conferred by Part III of the Constitution while a Proclamation of Emergency is in operation and that after such a Presidential Order no person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in that order. Therefore, when a proceeding is filed to enforce certain rights as against the Government while a Proclamation of Emergency is in operation, the first and foremost thing is to see whether the right claimed is one referred to in the Presidential Order and whether it is the kind of right conferred by Part III. The Presidential Order dated 16-11-1874 with which we are now c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other claims put forward by the detenus apart from the claim for personal liberty is not taken away by the Presidential Order. In paragraphs 551 and 552 of the Judgment the Supreme Court has pointed out-- Paragraph 551: Art. 359 clause (1) and the Presidential Order issued under it do not have the effect of making unlawful actions of the executive lawful. There can be no doubt that the executive is bound to act in accordance with law and cannot flout the command of law. The executive cannot also act to the detriment of a person without authority of law or except in accordance with law. If the executive takes any action which is not supported by law or is contrary to law, its action would be unlawful. This unlawful characteristic of the action is not obliterated by the Presidential Order issued under Art. 359 clause (1). Art. 359 clause (1) and the Presidential Order issued under it do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law. They merely suspend the right of a person to move any court for redress against the unlawful action of the executive, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry objection raised by the learned Advocate General that the above petitions are not maintainable cannot be accepted. 8. Then we proceed to consider on merits the petitioners' contentions as regards the validity of the proclamations issued by the Chief Metropolitan Magistrate. Mr. Govind Swaminathan, learned counsel for the petitioners, submits (1) the orders of proclamation issued under S. 82(1) of the Code are based on the detention orders and that as detention orders themselves are bad in view of their extraterritorial operation, the proclamations have also to be taken to be invalid and inoperative, (2) even if the detention orders are taken to be valid notwithstanding their extra-territorial operation, the petitioners cannot be said to have absconded or concealed themselves so as to bring into operation S. 82(1) of the Code and (3) there are no materials from which a reasonable belief could be entertained that the petitioners are avoiding arrest under the detention orders. 9. As regards the first contention, the learned counsel for the petitioners refers to the various provisions of the Act and submits that none of the provisions of the Act would enable the issue of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well established that the power of the Parliament to make a law in relation to the topic entrusted to it is plenary, that a law passed by the Parliament under Art. 245 cannot be invalidated merely on the ground it has extra-territorial operation and that such a law cannot be questioned on the ground that it may not be found capable of enforcement outside its territories. So long as the Parliament is supreme and plenary, inadequacy of enforcement machinery cannot hamper its legislative freedom. Even if the law as made by the Parliament is ineffective in respect of persons and things outside India, it has to be enforced by the courts in India as if it is fully effective within its territory. To what extent, if at all, it will receive recognition in courts or Tribunals of foreign countries have to depend upon different considerations. That circumstance is not one in which the courts or tribunals in India are interested or concerned. As pointed out by Lord Simon in British Columbia Ele. Rly. Co. v. King, AIR 1946 PC 180, the question whether Legislative power is so used as to extend beyond what will prove to be effective is different from the legislative competence. A Legislature wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncertainly as to how far a State can legislate with respect to and its courts decide issues arising out of events taking place entirely abroad. It cannot be doubted that there should be some link between either the offence or the offender and the State claiming jurisdiction and how close that link must be to satisfy the requirement of international law may be difficult to state with accuracy. The State's sovereign powers including the power to make its laws cannot be limited unless it is prohibited by any international law or by agreement, it has agreed to curtail its jurisdiction. At page 167 the circumstances under which the State may exercise extra-territorial jurisdiction are set out. It is true the territory and population being two of the essential characteristics of a Statehood and therefore it is natural that territorial supremacy and the bond of nationality should form the basis of the State's jurisdictional competence. But at the same time, there may be other circumstances which can confer the jurisdictional competence on a State such as (1) territorial jurisdiction based on the theory of incidents occurring in, or persons residing within the territory of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is mainly territorial, its jurisdiction can extend in respect of things or acts done by its nationals even outside its territories. It has also jurisdiction which may properly be called protective jurisdiction to deal with a foreign national whose acts have jeopardised or are about to jeopardise its safety or public order. The protective principle on the basis of which a State exercises its jurisdiction over foreigners for its own preservation is recognised by the international law. If such a protective jurisdiction is not given to a sovereign State, its stability and existence itself can be shaken by acts or things done by foreigners outside its territory and the State will be powerless to do anything against them. Therefore, it should be taken to be the basic right of any State to protect itself from such prejudicial acts done by foreigners outside the State by dealing with them in any manner they like. It may be that any action taken by the State against a foreigner sometimes is ineffective so long as the foreigner is outside its territory. But merely on that ground, the action taken cannot be said to be invalid as the jurisdiction of the State to take action against of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of another country and whether anything could be done about them. 14. Though as pointed out in the above passage, International Law does not directly deal with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country, it definitely recognises the protective jurisdiction of one State to deal with foreign nationals acting in their country against its security and integrity. 15. From the above discussion, it is clear that the Parliament has got the undoubted power to pass a law to deal with its nationals as well as foreigners in respect of acts or things done by them abroad which are prejudicial to the security and integrity of India. There cannot be any dispute that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 is an Act directed against persons who are engaged in violating foreign exchange regulations and smuggling activities which have an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the country. As a matter of fact this Act takes the place of the Maintenance of Internal Security Act 1971. Then the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de India as it has stated in S. 1(3) of the Foreign Exchange Regulation Act, we have to consider the question of applicability of the Act to the citizens or foreign nationals outside India with reference to the object of the legislation which is to preserve the national economy and the security of the country. It has already been pointed out that S. 1(2) extending the Act to the whole of India cannot throw light on the question of the operation of the provisions of the Act on persons outside India. That question has to be decided only with reference to S. 3. S. 3 is clearly applicable to any person including a foreigner who is acting in any manner prejudicial to the conservation or augmentation of foreign exchange, by his smuggling activities. S. 4, which has been relied on by Mr. Govind Swaminathan as indicating that the Act is applicable only to a person in India cannot, in our view, control or restrict the operation of S. 3. section 4 merely provides the mode of execution of an order of detention passed under S. 3. It says that detention orders can be executed anywhere in India in the manner prescribed for the execution of warrants of arrest under the Code. It may be that if S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Police and that, therefore, he cannot exercise the power of detention in respect of persons beyond his jurisdiction. In Mohan Kumaramangalam in re 1951 1 MLJ 174 : 52 Cri LJ 294, a Division Bench of this court cited with approval the above decision of the Bombay High Court and held that the State of Bombay cannot, for the purpose of Preventive Detention Act 1950 pass orders detaining persons found within its territory for their activities in Madras State which is outside the Bombay State. All the above decisions limiting the powers of the detaining authority to pass orders against persons within its jurisdiction is based on the provisions of S. 5 of that Act which is as follows-- 5. Detention order not to be invalid by reason of place of detention: No detention order made by an officer mentioned in sub-s. (2) of S. 3 shall be deemed to be invalid merely by reason that the place of detention specified in the order is situate outside the limits of the territorial jurisdiction of such officer. The above provision indicates that any order passed by an Officer empowered under S. 3(2) of the Act cannot be invalidated merely by reason of the fact that the place of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on but it does not confer on them the power to detain a person who is outside the territorial limits of India. But a close look at S. 6 convinces us that the section is intended to confer on all the detaining authorities referred to in S. 3, the power to pass orders of detention in relation to person outside the country. Section 6 uses the expression 'outside the limits of the territorial jurisdiction of the Government or Officer making the order of detention.' The word 'Government' is defined under the General Clauses Act in S. 2(23) as meaning both the Central Government and State Government. Therefore the word 'Government' in S. 6 has to mean both Central as well as State Government. Apart from this, the other provisions of the Act clearly indicate that wherever the Legislature wanted to distinguish the Central Government from the State Government it uses the words Central Government and State Government. This is clear from the definition of 'appropriate Government' in S. 2(a) and in S. 3 which separately refers to the Central Government as well as State Government. Having regard to the use of the word 'Government' in S. 6, the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is not the case of the petitioners that they had no contact with their families in India during these two years. All the three petitioners admittedly have their families in India and it can easily be expected that the petitioners would have been informed about the passing of the detention orders against them by the members of their family. Besides, in these cases the petitioners should be taken to have been aware of the orders of detention as they themselves have approached the court challenging the orders of detention. The petitioners have not stated in their petitions as to when they became aware of the orders of detention. Therefore, it can be presumed that they became aware of the passing of the detention orders against them within a reasonable time. The question is whether the petitioners can be taken to have absconded or concealed themselves to that the warrants of arrest could not be executed as contemplated by S. 82 of the Code, to enable the Criminal Court to issue a proclamation. 22. The words 'absconding debtor' with reference to Bankruptcy Laws, according to Stroud's Judicial Dictionary of words and phrases, 3rd Edn., means one who departs for dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the detention orders, if they continue to remain outside India with a view to defeat or delay the execution of the detention orders, they have to be taken to be absconding persons. It has been held in Jagdev Khan LJ Emperor, AIR 1948 LJ 151 : 48 Cri LJ 624, that the onus of proving that the accused did not abscond for the purpose of avoiding execution of warrant of arrest and that he had no notice of the proclamation issued under S. 87 of the old Cr.P.C., lies on the accused. In these cases we are of the view that the petitioners have not discharged their onus. Even assuming that they did not leave the country in anticipation of the detention orders being passed against them, they should have become aware of the detention orders through their family members who admittedly reside here. There is, therefore, no substance in the contention advanced on behalf of the petitioners that they cannot be taken to be persons absconding or concealing themselves with a view to evade the warrant of arrest. 24. Mr. Govind Swaminathan then submits that the expression 'reason to believe' occurring in S. 82 of the Code contemplates the objective satisfaction of the court that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before him that the person sought to be detained has absconded of concealed himself without necessarily finding that the person has in fact absconded. We are not in a position to say that the materials on the basis of which the appropriate Government under S. 7(1) and the Magistrate under S. 82 of the Code, had reason to believe that the petitioners have absconded or concealed themselves are in any way inadequate or insufficient. As already stated, the detention orders have been passed more than two years before and the petitioners have consciously kept away from the arm of law with the knowledge of the order of detention. The fact that they have come before the court in these proceedings seeking relief for quashing the proceedings initiated under S. 82 of the Code clearly shows that they are aware of the detention orders. The fact that notwithstanding the knowledge of the detention orders the petitioners continued to remain abroad is sufficient to form the basis for the reason to believe that they continue to live abroad with a view to defeat or delay the enforcement of the order of detention. In a recent decision in N.G. Gavate v. State of Maharashtra, [1977] 1 SCR 763 , their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court has reason to believe that the person sought to be detained has absconded or concealed himself no proclamation could be issued under S. 82 of the Code. The learned counsel also refers to the order of proclamation issued by the court under S. 82 to show that it has not formed an independent opinion after an enquiry as to whether the persons sought to be detained have absconded or concealed themselves, and that it has merely referred to the satisfaction of the State Government. With reference to this contention that the Magistrate has to form an independent opinion before issuing the proclamation, the learned Advocate General points out that once the State Government sends a report as contemplated in S. 7(1)(a) that it had reason to believe that the person sought to be detained has absconded or concealed himself, the court has to proceed to issue a proclamation under S. 82 in view of the fact that the Act being an emergency legislation it will be defeating the very purpose of the legislation if S. 7(1)(a) is interpreted as requiring a second opinion being formed by the court. According to the learned Advocate General the legislation for preserving national economy and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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