Satya Brata Sinha, J.
1. In this writ application the petitioner has prayed for relese of her husband who has been detained in terms of an order dated 22-3-2000 issued by the Deputy Secretary to the Government of Bihar which reads thus :
No. 202/C. Whereas, the State Government is satisfied that with a view to preventing Shri Prasant Kumar Sarkar alias Prashanto Sarkar S/o Hemento Sarkar Pradhan Nagar near North Bengal, Nursing Home Siliguri present address Shankar Medical Hall Pradhan Nagar Siliguri (W.B.) Pin Code 734 403 from engaging in smuggling of Foreign Goods it is necessary to make an order that he be detained;
Now, therefore, in exercise of the powers conferred by Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) State Government hereby direct that the said Shri Prasanto Kumar Sarkar be detained;
Shri Prasanto Kumar Sarkar shall be detained in Special Central Jail, Bhagalpur and shall be kept in Class III.
2. The principal contentions of Mr. Ghosh, learned senior counsel, appearing on behalf of the petitioner in support of the application are two fold, although several grounds have been raised in this writ application.
3. The learned counsel firstly submits that having regard to the order of detention, the ground and the stand taken by the concerned respondents in their affidavit-in-op-position, it would appear that separate and distinct stand having been raised therein the same must be held to be suffering from total non-application of mind on their part. According to the learned counsel, whereas Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act had been referred to in the order of detention, it would appear from the ground served on the detenu on 16-3-2000 that therein it has been stated :
From the above it is evident that Prashanto Sarkar alias Prashanto Kumar Sarkar alias P.K. is the kingpin of smuggling activities in North Bengal and Bihar and is an habitual offender under the Act. As such the Govt. has decided to detain Sri Prashanto Sarkar alias Prashanto. Kumar Sarkar alias P.K. R/o. Pradhannagar, North Bengal Nursing Home Siliguri present Address Shankar Medical Hall Pradhan Nagar Siliguri (W.B.) P.C. 734403 under the COFEPOSA to prevent him from including in activities which are prejudicial to the public interest.
Yet again it has been stated in the affida-vit-in-opposition of the concerned respondents as :-
The case of petitioner, Detenu and another person namely, Abulias Ahmad, was considered and the Committee considered it necessary to detain the instant petitioner/Detenu and the said Abulias Ahmad under Section 3(1) of the COFEPOSA Act, 1974 with a view to prevent them from further indulging in smuggling activities which are prejudicial to the conservation and augmentation of foreign exchange. The Committee was in the knowledge of the fact that the date of incident on which detention was to be considered, was on 27-2-99.
4. In support of the said contention, reliance has been placed on Anup Kumar Ghosh v. Union of India reported in (1998) 59 ECC 479 (Cal) and in Re : Manick Saha reported in 1996 Cal Cri LR 136.
5. Mr. Ghosh, learned counsel, next pointed out that before the appropriate authority the petitioner had demanded Bengali version of the following documents :
I. Documents being serial Nos. 8,9, 10, 23 and 32 of documents in English.
II. Statement of Mehrunissa dated 5-3-99 which is at page 175 of English documents.
III. Documents at pages No. 202, 203, 204, 205, 206, 207, 208, 209, 210 and 211 of English documents', but this same had not been supplied.
6. Despite the fact that the petitioner only knows Bengali, the said documents had not been handed over to the petitioner. The aforementioned statements have been made in paragraph 10(a) and 10(b) of the writ application. In the affidavit-in-opposition the said statements had not been traversed. However in the affidavit-in-opposition it was stated :
The detenu, Shri Sarkar has demanded in his application, the Bengali version of pages 3 to 7 and 62 to 87 of the relied upon documents only. It was found that pages 3 to 7 are copy of petition produced before the S.D.J.M. Siliguri, West Bengal and the materials at pages 62 to 87 are mostly notices statements and seizure lists.
As a matter of facts all the documents could not be translated in Bengali version. According to Section 3(3) of the COFEPOSA Act, 1974, the order and the grounds of detention should be in language which the detenu understands and the grounds bear some sorts of certificate to show the grounds have been explained to the detenu in the language which he understands.
7. Mr. Ghosh, learned counsel appearing on behalf of the petitioner in support of the aforementioned contention, inter alia, has relied upon a recent Division Bench decision of this Court in the case of Jamad Ali Mondal v. Union of India reported in (2000) 1 Cal HN 580.
8. Mr. Vinod Kumar Gupta, learned counsel, appearing on behalf of the respondents, however, has raised a preliminary objection with regards to the territorial jurisdiction of this Court. The learned counsel submits that having regard to the fact that the order of detention has been passed by the State of Bihar, this Court has no territorial jurisdiction to entertain this application. It is also submitted that it cannot be said that the detenu did not know English, inasmuch as, from the receipt of the grounds of detention it appears that he has signed it in English.
9. It appears that the impugned order of detention dated 22-3-2000 was issued in Hindi language and the same had allegedly been read over and explained to the detenu and he made an endorsement to the effect that the grounds had been read over to him and he having understood the meaning thereof had put his signature thereupon.
10. Re : Jurisdiction of this Court : In terms of Article 226 of the Constitution of India this Court inter alia is entitled to issue writ in the nature of habeas corpus. Clause (2) of Article 226 empowers any High Court to issue direction, orders or writs to any document authority or person in relation to the territories within which the cause of action wholly or in part arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a bare perusal of the order of detention it clearly appears that the detenu at all material times was and still is lodged in Siliguri jail which is within the jurisdiction of this Court. It further appears from the statements made in the affidavit-in-opposition that apart from his continued detention in Siliguri jail, the records have been placed before the Advisory Board and the order of detention has been approved by it. It has been accepted in the affidavit-in-opposition that although th detenu was ordered to be detained in Special Central Jail, Bhagalpur, Bihar, in Class III, as he was in custody at Special Jail, Siliguri, West Bengal in other case in which there was likelihood of his being enlarged on bail, the order and grounds of detention was served upon him through the superintendent, Special Jail, Siliguri, West Bengal, on 13-4-2000. The fact that he is still in Siliguri Jail has neither been denied nor disputed.
11. Having regard to the phraseology used in Clause (2) of Article 226 of the Constitution of India there cannot be any doubt whatsoever that if a case of action or part thereof has arisen within the territorial jurisdiction, this Court will have the jurisdiction to entertain the writ application, cause of action, as is well known, although not defined in the Civil Procedure Code must be held to mean the bundle of facts which are necessary to be proved by the petitioner to detain the relief sought for.
12. As indicated hereinbefore, the fact that the detenu is still detained at Siliguri Jail which is within the territorial jurisdiction of this Court is not in dispute. The only question, which, would, therefore, be relevant for the purpose of consideration as to whether his continuous detention in Siliguri Jail from 22-3-2000 on which date the impugned order of detention was served on him constitutes a part of cause of action or not. The relevant law in this regard may now be considered.
13. In Mussummat Chand Kour v. Pratap Singh (1888) 15 Ind App 156 it was held-.the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
14. The Supreme Court in Oil & Natural Gas Commission v. Utpal Kumar Basu, : (1994)4SCC711 held that the question as to whether the Court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise whereof being immaterial.
15. The Supreme Court in ONGC's case : (1994)4SCC711 (supra) held that all necessary facts must from an integral part of the cause of action. It observed 'so also the mere fact that it sent fax message from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides, the fax message of 15-1-93 cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-93.
16. In Union of India v. Hindusthan Aluminium Corporation Ltd. reported in : AIR1983Cal307 it was held in view of the statement made in the writ petition that the aluminium control order which had although been issued at Delhi, the same having affected the business of Hindalco at Calcutta; a part of cause of action arose in Calcutta.
17. In Everest Coal Pvt. Ltd. v. Coal Controller reported in (1986) 90 Cal WN 438 the Court held :-
For the purpose of accrual of action for filing a writ petition, it is also necessary to make a distinction between actual or apprehended injury in the writ petitioner and indirect effect or remote consequences on him. Obviously, for giving rise to cause of action for maintaining the writ petition what is material is whether or not within the territorial limits of the said High Court, there has been proximate or direct effect upon the petitioner. Indirect or remote result of the impugned acts of the respondents must be pleaded for establishing that cause of action, either whole or in part, has arisen within the territorial limits of a particular High Court.
18. In State of Rajasthan v. M/s. Swaika Properties reported in : [1985]3SCR598 the Supreme Court held that mere service of a notice would not give rise to any cause of action unless service of notice was integral part of the cause of action. In the instant case, service of notice formed an integral part of cause of action.
19. The said decision has also been noticed in Oil and Natural Gas Commission : (1994)4SCC711 (supra). The Apex Court held 'the answer to the questioin whether service of notice is an integral part of cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action'.
20. In Serajuddin's case : AIR1971Cal414 a Division Bench of this Court held 'that this Court will have territorial jurisdiction as important correspondences were made from Calcutta and Communication of revocation of mining lease was also made at Calcutta and thus this Court had jurisdiction to entertain the writ petition'.
21. Reference in this connection may be made to a recent decision of this Court in People's Union v. Union of India reported in : AIR1996Cal89 .
22. In P. Subramani v. State of Karnataka reported in 1990 Cri LJ 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case : [1985]3SCR598 (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the 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 liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petitioner is concerned and, therefore, a considerable part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction upon this Court'.
23. Yer again in Smt. Manjulaben v. C.T.A. Pillay reported in 1976 Cri LJ 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this Court'. So taking into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to deprivation of liberty of the detenu having taken place within the territorial jurisdiction of the said Court, a part of cause of action was held to have arisen within the said jurisdiction.
24. Having regard to the fact that in the instant case the detenu is still detained in Siliguri Special Jail which is within the jurisdiction of this Court and in the event the said detention is held to be illegal, a writ of habeas corpus may have to be issued; pursuant whereto, the detenu may be released, we are of the opinion, that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable.
25. Let us now consider the contentions raised by Mr. Ghosh-
Re : Contention 1 - From the order of detention dated 22-3-2000 it appears that the detaining authority, the first respondent herein has invoked Clauses (i), (ii) and (iii) of Section 3 of the COFEPOSA Act which reads thus-
3. Power to make orders detaining persons - (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, specially empowered for the purposes of this section by that Government or any officer of the State Government not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggled goods or in abetting the smuggling of goods,
it is necessary so to do, make an order directing that such persons be detained.
26. However, in paragraph 12 of the grounds of detention, it has been alleged that the said order of detention had been issued with a view to preventing the detenu from indulging in activities which are prejudicial to public order and interest - Maintenance of public order and interest is not one of the grounds which can be invoked for the purpose of passing an order of preventive detention under the said Act. Yet again in the affidavit-in-opposition the first respondent herein, as noticed earlier, stated in paragraph 8(ii) that the said order has been passed under Section 3(1) to prevent the detenu from further indulging in smuggling activities which are prejudicial to the conservation and augmentation of foreign exchange which evidently does not come under Sub-section (i) of Section 3 of the Act. The prevarication of the stand taken by the first respondent herein at different stages clearly goes to show total non-application of mind on the part of the detaining authority.
27. In the case of Anup Kumar Ghosh v. Union of India reported in (1998) V 58 (sic) ECC 479, a Division Bench of this Court held-
The detaining authority, therefore, on the face of the order of detention as also the show cause notice as contained in Annexure 'A' to the writ petition appears to have ignored the said vital fact that Shri S. Chaudhury had travelled in the same place and got the baggage in question registered in his name. The detaining authority appears to have proceeded on a surmise that the Rush Tag was only procured in name of Shri S. Chowdhury although in the earlier paragraphs of the said order it was clearly stated that travelling agent categorically stated that Manoj Kothari, the petitioner and the aforementioned S. Chowdhury are also known to have purchased tickets for going to Hongkong. It is also on record that both the petitioner and the said S. Chowdhury were residing in two Guest houses located in the same building. In that view of the matter there is nothing to show that the petitioner invoked himself in every step of activities in course of acquisition or possession of the goods under seizure nor there was any material for forming the opinion that the petitioner had engaged himself along with said Manoj Kothari in smuggling of huge amount of wrist watches movements by way of missing handled baggage. No case of acquisition or possession as against the petitioner has been made out. As noticed hereinbefore, both in the notices grounds of detention as also in paragraph 8 of the affidavit-in-oppo-sition, it had clearly been stated that the petitioner had been acting as carrier with prior engagement with Sri Manoj Kothari and against monetary consideration. Thus the petitioner could not have been detained on the ground of alleged charge of smuggling.
28. In the case of Manick Saha v. State of West Bengal, reported in 1996 Cal Cri LR 136, a Division Bench of this Court held as follows :-
In view of our findings aforementioned there cannot be any doubt that the purported subjective satisfaction has been arrived at without application of mind, in as much as different version has been stated in the order of detention, the ground of detention and the affidavit-in-positioin filed before this Court.
29. In this view of the matter the first contention of Mr. Ghosh must be accepted,
Re : Contention 2 - It has not been disputed that the detenu knows Bengali language only and having regard to the said fact all the documents were supplied to him in Bengali version as would appear from the statements made in the affidavit-in-opposi-tion as also the grounds served upon the detenu. It is evident that the grounds which 'were in Hindi version were read over and explained to him. It, therefore, does not lie in the mouth of the first respondent herein to contend that as the detenu knew English, he was not prejudiced by non-supply of some documents in Bengali version.
30. The approach of the first respondent in this connection appears to be that as the detenu had not asked for the Bengali version of the documents, it was not necessary for it to supply the same. Another stand taken on behalf of the respondent is that the documents, Bengali version whereof had not been supplied, were known to the detenu being notices etc. The aforementioned stand taken by the first respondent herein, in our opinion, does not subserve the requirements of law.
31. In the case of Jamat Ali Mondal v. Union of India, reported in (2000) 2 Cal LT 563, a Division Bench of this Court upon taking into consideration a large number of decisions categorically held that the constitutional requirement under Article 22(5) must be taken recourse to in establishing the basic fact and particularly in arriving at the requisite satisfaction leading to the making of the order of detention and it must be communicated to the detenu with a view to enabling him to make an effective representation thereagainst.
32. In that view of the matter it is neither for the detaining authority nor for this Court to consider as to whether any prejudice has been caused to the detenu or not by reason of non-supply of documents in the langugage which is known to him and thus such a contention would be of no moment.
33. In view of our findings aforementioned, we have no other option but to allow this application and direct that a writ of Habeas Corpus do issue. The respondent No. 3 is hereby directed to release the petitioner forthwith unless he is wanted in connection with any other case.
34. Release order be communicated to the respondent No. 3 by special messenger at the cost of the petitioner.