judgement:
ivil Appeal No. 1043 of 1990.
From the Judgment and Order dated 10.8.1989 of the Bombay High Court in C.R.A. NO.
521 of 1985.
V.A. Bobde, S.D. Mudaliar.
Mrs. Ranjana Bobde and C.K. Ratnaparkhi for the Appellants.
V.P. Salve, and Ms. Bina Gupta for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
Special Leave granted.
The short question involved is the maintainability of the suit which gives rise to this appeal.
The appellants contend mat the Suit is not maintainable even on the plaint averments.
The Trial Court held the suit to be maintainable and the High Court has dismissed the appellants ' revision affirming that view.
Hence this appeal by special leave.
The appellants are the legal representatives of Motilal who purchased the disputed property, namely, 'Goyal Talkies ' at Kamptee in the year 1946.
The said Motilal entered into a partnership on 31.12.1953 with respondent Ratanlal repre senting the joint family firm "M,s.
Ratanlal Damdoolal and Bros." for the purpose of running the cinema business in 'Goyal Talkies '.
Some disputes having arisen between the parties, the said Motilal together with his wife and chil dren filed Civil Suit No. 19A of 1955 on 4.8.1955 in the Court of Civil Judge, Class I, Nagput, against respondent Ratanlal as defendant No. 1, the firm "M/s. Damdoolal and Bros." as defendant No. 2 and one Puranmal as defendant No. 3.
The suit was for the dissolution of partnership, rendi tion of accounts and ancillary reliefs.
On discovery of the misdescription of defendant No. 2 firm, an application was made by the plaintiff for correction of that misdescription.
The misdescription being obvious, the Trial Court allowed the plaintiff 's application on 19.8.1955 permitting defend ant No. 2 firm to be correctly described as "M/s. Ratanlal Damdoolal and Bros." instead of "M/s. Damdoolal and Bros." It appears that the correction even though permitted was 175 not actually incorporated in the plaint.
However, the par ties were not misled in any manner by the misdescription of defendant No. 2 made initially in the plaint which is evi dent from the fact that defendant No. I Ratanlal who filed the separate written statement in the suit on behalf of defendant No. 2 also correctly described defendant No. 2 as "Ratanlal Damdoolal and Bros." This suit was compromised between the parties and a compromise petition dated February 20, 1956 signed by the plaintiff, Motilal, Ratanlal for himself as defendant No. 1 and also on behalf of defendant No. 2 firm, and the counsel for defendant Nos. 1 and 2 was filed in the Trial Court.
This compromise was recorded by the Court on 5.3.1956 after the statements of defendant No.1 Ratanlal and the counsel for defendant No. 2 firm were recorded accepting the compromise.
One of the agreed terms was that defendant No. 3 Puranmal should be discharged from the suit apparently because he had no interest in the suit.
According to the terms of the compromise, plaintiff was to pay to defendant Nos. 1 and 2 a sum of Rs.15,700 in full satisfaction of their claim subject to final accounting, which included the sum of Rs.2,600 paid to Puranmal by defendant Nos. 1 and 2.
It was also agreed that on payment of this amount by the plaintiff to defendant Nos. 1 and 2 within the specified period, the partnership would be deemed to be dissolved and that defendant Nos. 1 and 2 gave up all their rights including the interest acquired by them from defendant No. 3, Puranmal under the sale deed executed in their favour.
It was agreed that the plaintiff would be entitled to possession of the talkies immediately on payment of the amount due to defendant Nos. 1 and 2.
The Receiver Shri K.S. Mishra Advocate, was required to act in terms of the compromise between the parties which required confirma tion of accounts from the accountbooks of the partnership and thereafter distribution of the surplus between the plaintiff and defendant Nos. 1 and 2.
The plaintiff paid this sum of Rs.15,700 on 5.3.1956 well within the specified period; the receiver rendered accounts on 19.3.1956 and an application for correction was made on 3.4.1956.
It may be mentioned that full compliance having been made by the plaintiff on 5.3.
1956, the receiver gave possession of the Talkies to the plaintiff on 5.3.
1956 according to the compromise since the Only thing remaining to be done thereafter was to refund to the plaintiff the amount of Rs.5,470 paid in excess by plaintiff to defendant Nos. 1 and 2.
Accordingly, on 16.11.1959 the Court passed the final decree in the suit stating that the partnership stood dissolved with effect from 27.4.1959 and the defendant Nos. 1 and 2 were directed to refund to the plaintiff the amount of Rs.5,470 which was the excess amount paid by the plaintiff to them.
176 Notwithstanding the above facts, defendant Nos. 1 and 2 filed an appeal against the final decree dated 16.11.1959 in the Court of the Extra Assistant Judge, Nagpur which was C.A. No. 413 of 1962 decided on 27.12.
Thereafter, a second appeal No. 293 of 1963 was also filed by these de fendants in the High Court which too was dismissed on 2.12.1972.
The final decree dated 16.11.1959 based on the compromise which was fully satisfied become final inasmuch as the defendants did not challenge the same by a further appeal to this Court.
Thereafter, Civil Suit No. 1699 of 1980 in the Court of Civil Judge, Senior Division, Nagpur, was filed by respond ent Ratanlal against the petitioners who are the legal representatives of the aforesaid Motilal assailing the above consent decree after taking the entire benefit thereunder.
The reliefs claimed in this suit are for a declaration that the aforesaid final decree dated 16.11.
1959 passed on the basis of the order dated 5.3.1956 in Civil Suit No. 19A of 1955 by the Civil Judge, Senior Division, Nagpur, is a nullity; that the partnership under the partnership deed dated 31.12.1953 between the said Ratanlal and Motilal continues to subsist; that Ratanlal is entitled to posses sion of the said Goyal Talkies; and the other ancillary reliefs.
This suit was contested by the petitioners, inter alia on the ground that it was barred by res judicata by the earlier adjudication between the parties and also that it was not maintainable.
It would suffice to say that as a result of the High Court 's direction, the Trial Court framed preliminary issue regarding maintainability of the suit and by its order dated 15.4.1985, it held the suit to be main tainable.
On behalf of the petitioners the suit was claimed to be barred also by virtue of Rule 3A of Order 23, C.P.C. The Trial Court rejected these contentions and held the suit to be maintainable.
The petitioners then preferred a Civil Revision in the High Court which has been dismissed by the Order dated 10.8.1989.
Hence this appeal by special leave.
The contention of Shri V.A. Bobde, learned counsel for the appellant is that the suit is barred by virtue of Rule 3A of Order 23, C.P.C. and even otherwise the plaint aver ments do not disclose any cause of action in order to raise a triable issue.
He also contended that even if Rule 3A inserted in Order 23, C.P.C. by the C.P.C. Amendment Act, 1976 with effect from 1.2.1977 does not apply to the present suit challenging the decree passed prior to the amendment, this suit is barred also in accordance with the unamended provision existing earlier.
In reply, Shri V.P. Salve, learned counsel for the respondent contended that Rule 3A of Order 23, C.P.C. has no application since the decree as sailed in the suit is of a date much prior to insertion of 177 Rule 3A by amendment with effect from 1.2.
He also contended that the question of examining the frame of the suit to determine its maintainability on any other ground does not arise since the petitioners case was based on the bar under Order 23, Rule 3A, C.P.C., which too was an objec tion raised after the filing of the written statement in which the plea of res judicata had been taken.
However, in all fairness Shri Salve made no attempt to contend that the suit as framed raises any triable issue on the basis of the only grounds on which the decree dated 16.11.1959 is alleged to be a nullity.
He urged only two additional grounds, not pleaded in the existing plaint, which were raised unsuccess fully on behalf of the present respondent in the First Appeal and the Second Appeal against the compromise decree to contend that the suit is triable.
He also urged that no specific objection for rejection of the plaint under Order 7 Rule 11 C.P.C. was taken earlier and, therefore, the matter be remanded for a fresh consideration on this basis.
To avoid protracting this litigation any longer, we gave opportunity to learned counsel for the respondent to prepare the case on this point.
Shri Salve then filed an application for amendment of the plaint on the next day in any attempt to plead the additional grounds on which alone he claimed the suit to be triable.
We may first dispose of the application for amendment to the plaint filed by Shri Salve on January 12, 1990 during the course of hearing of the appeal.
We do not find any ground to allow this application which apart from being highly belated, is clearly an after thought for the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue.
Moreover, the proposed amendments in the plaint, as summarised by Shri Salve, are to raise two grounds which are concluded by the earlier adjudication ending with dismissal of Ratanlal 's Second Appeal against the impugned decree.
The first is the consequence of rejection of the plaint under Order 7, Rule 11, C.P.C. in the earlier suit on 26.3.1959 and its revival on payment of court fee by plaintiff, Motilal, in terms of that order itself.
It is sufficient to mention that the High Court 's order dismissing the Second Appeal arising out of that decree considers and rejects this argument and that order has become final between the parties since it was not challenged thereafter.
The second point relates to delivery of possession of the Talkies on 5.3.1956 to plaintiff, Motilal, which is alleged to have been made under a wrong procedure.
The facts narrated above clearly indicate that delivery of possession by the 178 Receiver, Shri K.S. Mishra, Advocate, to plaintiff, Motilal, was in pursuance of the Court 's order dated 5.3.1956 after plaintiff Motilal had already deposited the sum of Rs.15,700 which was really in excess of the amount required to be paid by the plaintiff, Motilal, to.
defendant Nos. 1 and 2 re sulting in subsequent refund of Rs.5,470 to plaintiff and the express compromise between parties which was accepted by Ratanlal in his statement recorded by court on 22.2.
This contention also was rejected in the earlier adjudica tion ending with the High Court 's dismissal of the Second Appeal which has become final.
Moreover, this appeal is not against that decision of the High Court.
There is no ground to allow the belated attempt to amend the plaint for taking these grounds.
The application for amendment is, therefore, rejected.
We do not consider it necessary to decide the applica bility of Rule 3A of Order 23, C.P.C. to the present suit since the matter can be disposed of even otherwise.
The plaint averments specify the grounds on which the decree dated 16.11.
1959 is alleged to be nullity.
The question is: whether any of these grounds raises a triable issue in the suit or in other words does the plaint disclose any cause of action? The specific case of the respondent as clearly mentioned in Para 3 of the impunged order dated 10.8.
1989 of the High Court is as under: "The plaintiff has never claimed that some fraud, coercion or misrepresentation is played.
On the other hand, he says that due to the lapses while deciding the matter, decree passed by the Court below has become a nullity.
It is, therefore, clear that the respondent/plaintiff does not challenge validity of the decree dated 16.11.1959 on the ground of fraud, coercion or misrepresentation but merely on the basis of lapses in deciding the earlier suit which have been specifically mentioned in para 6 of the plaint.
It is, therefore, only on these limited grounds that the question of maintainability of the present suit has to be decided.
We shall, therefore, now refer to the grounds mentioned in para 6 of the plaint which alone are relied on to dis close a cause of action for the suit.
The first ground of nullity averred in para 6 of the plaint is that the decree was passed against a non existent person "M/s.
Damdoolal and Bros." It is not the respondent 's case that "M/s. Dam doolal and Bros." is a legal entity distinct from "M/s. Ratanla Damdoolal and Bros." so that the decree was against another person As earlier stated, in the written statement filed by respondent Ratan 179 lal, the description of defendant No. 2 was correctly given by respondent Ratanlal himself as "M/s. Ratanlal Damdoolal and Bros." and not "M/s. Damdoolal and Bros." Moreover, an order dated 19.8.
1955 was made by the trial court permit ting the correction to be made even though it was not duly incorporated in the plaint thereafter.
It is significant that the first appeal and the second appeal filed against the compromise decree made by the respondent in which the firm as one of the appellants was correctly described as "M/s. Ratanlal Damdoolal and Bros." and not "M/s. Damdoolal and Bros".
The decree was, therefore, against "M/s. RatanIal Damdoolal and Bros." and this is how it was admittedly understood throughout by the respondent himself who repre sented the firm at every stage of the earlier suit till the final decision by the High Court, describing the firm cor rectly as "M/s. Ratanlal Damdoolal and Bros." Obviously this ground is non existent.
The next ground of nullity pleaded is that the decree does not direct discharge of defendant No. 3, Puranmal.
Admittedly, no relief was claimed or granted against defend ant No. 3, Puranmal who was treated by all to be only a formal party.
This ground also is, therefore, non existent.
The next ground is that there is no consideration for aban donment of the interest of Puranmal which renders the corre sponding term void.
Admittedly, the terms of compromise show payment of Rs.2,600 to Puranmal and execution of a sale deed by Puranmal in favour of defendant Nos. 1 and 2 who alone thereafter remained the interested parties.
This is how Shri Salve, learned counsel for the respondent summarised the entire grounds of nullity pleaded in the plaint.
On the admitted facts appearing from the record itself, learned counsel for the respondent, was unable to show that all or any of these averments in the plaint disclose a cause of action giving rise to a triable issue.
In fact, Shri Salve was unable to dispute the inevitable consequence that the plaint was liable to be rejected under Order 7 Rule 11, C.P.C. on these averments.
All that Shri Salve contended was that the Court did not in fact reject the plaint under Order 7 Rule 11, C.P.C. and summons having been issued, the trial must proceed.
In our opinion, it makes no difference that the Trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the High Court also overlooked this fatal defect.
Since the plaint suffers from this fatal defect, the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise.
Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation.
This cannot be done.
180 It being beyond dispute that the plaint averments do no disclose a cause of action, the plaint is liable to be rejected under Order 7 Rule 11, C.P.C. without going into the applicability of Order 23 Rule 3A, C.P.C. to the present suit.
Having reached this conclusion, it is unnecessary to adopt the technical course of directing the Trial Court to make the consequential order of rejecting the plaint and, instead, we adopt the practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this futile litigation.
Consequently, the appeal is allowed.
The impugned orders of the Trial Court and the High Court holding the suit to be maintainable are set aside and the plaint is rejected under Order 7 Rule 11, C.P.C. The respondent shall pay the appel lants ' costs throughout.
R.S.S. Appeal allowed.

summary:
One Motilal who owned Goyal Talkies entered into a partnership with respondent Ratanlal representing the joint family firm of M/s. Ratanlal Damdoolal and Bros., for the purpose of running the cinema business.
Later, the said Motilal together with his wife and children filed a civil suit for dissolution of partnership, rendition of accounts, etc., against respondent Ratanlal, as defendant No. 1, the firm "M/s Damdoolal and Bros." as defendant No. 2, and one Puranmal as defendant No. 3.
Motilal subsequently filed an application for correction of the description of defendant No. 2 firm, which was allowed.
The suit was compromised.
According to one of the terms of the compromise, plaintiff was to pay to defendant Nos.1 and 2 a sum of Rs.15,700 in full satisfaction of their claim, subject to final accounting.
The plaintiff paid this sum within the specified period and thereupon the receiver gave possession.
Subsequently, the Court passed a final decree dated 16.11.1959 stating that the partnership stood dissolved, and directing defendant Nos. 1 and 2 to refund to the plaintiff the amount of Rs.5,470 which was the excess amount paid by the plaintiff to them.
Defendant Nos. 1 and 2 filed an appeal against the final decree which was dis missed, and their second appeal in the High Court was also dismissed on 2.12.1972.
Thereafter, Civil Suit No. 1699 of 1980 was filed by Ratanlal, respondent herein, against the appellants, who are the legal representatives of Motilal, assailing the consent decree after taking the entire benefit thereunder.
The reliefs claimed were for a declaration that the final decree dated 16.11.1959 was a nullity, and for possession of Goyal Talkies, etc.
The appellants resisted the suit inter alia on the ground that it was barred by res judicata, and further that the suit was also barred by virtue of Rule 3A Order 23, C.P.C. The Trial Court framed a 173 preliminary issue regarding maintainability and held the suit to be maintainable.
The High Court dismissed the civil revision against that order.
Before this Court it was contended on behalf of the appellant that the suit was barred by virtue of Rule 3A of Order 23 and even otherwise tile plaint averments did not disclose any cause of action in order to raise a triable issue.
In reply, it was contended that Rule 3A of Order C.P.C., had no application since the decree assailed in the suit was a date much prior to insertion of Rule 3A by amend ment with effect from 1.2.1977; and that the question of examining the frame of the suit to determine its maintain ability on any other ground did not arise since the appel lant 's case was based on the bar under Order 23, Rule 3A, and no specific objection for rejection of the plaint under order 7 Rule 1 t C.P.C., was taken earlier.
During the course of hearing of the appeal, the respond ent filed an application for amendment of the plaint.
Allowing the appeal, this Court, HELD: (1) On the admitted facts appearing from the record itself, counsel for the respondent was unable to show that all or any of the averments in the plaint disclose a cause of action giving rise to a triable issue.
[179F] Since the plaint suffers from this fatal defect, the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise.
Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation.
This can not be done.
[179G H] (3) It being beyond dispute that the plaint averments do not disclose a cause of action, the plaint is liable to be rejected under Order 7 Rule i 1, C.P.C. without going into the applicability of Order 23 Rule 3A, C.P.C. to the present suit.
[180A] There is no ground to allow the application for amend ment of the plaint which apart from being highly belated, is clearly an afterthought fur the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue.
Moreover, the proposed amendments in the plaint are to raise two grounds which are concluded 174 by the earlier adjudication ending with dismissal of Ratan lal 's Second Appeal against the impugned decree.
[177E F]


judgement:
ivil Appeal No. 480 of 1986.
From the Judgment and Order dated 10.7.85 of the Madhya Pradesh High Court in Misc.
Petition No. 1235 of 1984.
D.N. Mukherjee and Ran jan Mukherjee for the Appellant.
S.S. Khanduja, Yashpal Dingra and Baldev Kishan for the Respondents.
The Judgment of the Court w. as delivered by 146 K. JAGANNATHA SHETTY, J.
This appeal by leave from a judgment of the M.P. High Court concerns the scope of Sec tion 415 of the M.P. Municipal Corporation Act, 1956 ( 'the Act ' for short).
The circumstances can be shortly stated.
Within the Jabalpur Municipal Corporation limits, there is a 'Mandi ' established under the M.P. Krishi Upaj Mandi Adhiniyam, 1973 ( 'Adhiniyam ') covering an area of 55 acres.
It is enclosed by high boundary wall and is under the con trol and jurisdiction of the Krishi Upaj Mandi Samithi or otherwise called the Market Committee.
Under Section 7 of the Adhiniyam, the market Committee is a body corporate with power to provide facilities for regulation of buying and selling of agricultural produce and establishment of proper administration of the market.
Section 7(3) of the Adhiniyam provides that notwithstanding anything contained in any enactment for the time being in force, every market commit tee shall for all purposes, be deemed to be a 'local author ity '.
Inside the Mandi, the market committee appears to have constructed office buildings, shop complexes, godowns, market yards, shades and other buildings.
The Jabalpur Municipal Corporation assessed property tax in respect of the buildings within the Mandi area and also demanded safai tax, water tax, electricity charges, development charges for the years 1980 81 to 198384.
The market committee has re fused to pay the same and claimed that the corporation has no jurisdiction to levy and collect such taxes or charges.
The Corporation did not agree with that claim and initiated proceedings to recover the dues.
Challenging the action taken, the Market Committee moved the High Court under Article 226 of the Constitution for quashing the recovery proceedings.
The High Court following an earlier decision arising under Section 334 of the M.P. Municipalities Act, 1961, allowed the petition and quashed recovery proceedings.
The High Court also directed the Corporation to take steps in accordance with Section 4 15 of the Act for resolving the dispute with the market committee.
The order of the High Court reads as follows: "Section 415 of the M.P. Municipal Corporation Act, 1956 provides for adjudication of disputes between the Corpora tion and local authorities by the State Government on a reference made to it for this purpose.
The corresponding provision in the M.P. Municipalities Act, 1961 is Section 334.
In a similar situation, where recovery proceedings had been commenced against a Krishi Upaj Mandi Samiti, like 147 the petitioner, by the Municipal Council, Gadarwara, a Division Bench in Misc.
Petition No. 994 of 1981 (Jawahar Krishi Upaj Mandi Samiti, Gadarwara and another) decided on 5.6.1983 quashed the recovery preceedings and directed the Municipal Council to take steps under section 334 of the M.P. Municipalities Act, 1961 for adjudication of the dis pute between itself and the Krishi Upaj Mandi Samiti.
Since section 415 of the M.P. Municipal Corporation Act, 1956 is in pari materia with section 334 of the M.P. Municipalities Act, 1961 that decision has to be followed.
Consequently, this petition is allowed.
The pending recovery proceedings against the petitioner are quashed and the respondent Municipal Corporation, Jabalpur is directed to take steps in accordance with section 4 15 of the M.P. Municipal Corporation Act, 1956 for resolving its dispute with the petitioner.
The parties shall bear their own costs.
" In this appeal, the Municipal Corporation, Jabalpur has challenged the validity of the above order.
Before us, the core of the argument of learned counsel for the appellant is that the Market Committee is not a local authority either under the Municipal Corporation Act, or under the M.P. General Clauses Act, 1957.
It has been declared to be a local authority only for purposes of the Adhiniyam and that declaration could not be relevant for the purpose of Section 415 of the Act.
The Market Committee unless it falls within the definition of 'local authority ' under the M.P. General Clauses Act, 1957, the dispute under Section 415 of the Act could not be referred to the Govern ment.
Counsel also referred to us the various provisions of the Act which confer power on the Corporation to levy and collect taxes and charges.
Indisputably, the respondent is not a local authority as defined under M.P. General Clauses Act, 1957.
Section 2(20) of the said Act defines 'local authority ' to mean "a munici pal corporation, municipality, local board, Janapad Sabha, village panchayat, or other authority legally entitled to, or entrusted by the Government with the control of manage ment of a municipal or local fund.
" Counsel for the respond ent however, strongly relied upon Section 7(3) of the Adhi niyam which provides that the Market Committee shall be deemed to be a local 148 authority notwithstanding anything contained in any other enactment.
It seems to us that it is not necessary to express any opinion on this controversy and even if we assume in favour of the respondent that it is a local authority without deciding, the recovery proceedings could not have been quashed by the High Court.
And the Corporation could not have been directed to refer the dispute to the Government under Section 415 of the Act.
Section 4 15 of the Act reads: "Disputes between Corporation and local authorities: If any dispute arises between the Corporation and any local authority as regards anything done or to be done under this Act, it shall be referred to the Government for decision and such decision may include an order as to costs of any en quiry ordered by the Government, and shall be final.
Provided that it shall be competent to the Corpora tion and the local authority to agree in writing that any such dispute shall, instead of being referred to the Govern ment for decision, be referred to the decision of an arbi trator or arbitrators appointed under the , or to a civil court under Section 20 of the Code of Civil Procedure, 1908.
" The Section is clear and provides that the disputes arising between the Corporation and local authority as regards anything done or to be done under the Act, shall be referred to the Government for decision.
It shall be compe tent also to the Corporation and local authority to agree in writing that any such dispute shall, instead of being re ferred to the Government be referred to the decision of an arbitrator under the or to a civil court under Section 20 of the Code of Civil Procedure.
The assess ment of tax or demand of any fees by the Corporation under the provisions of the Act could fall within the term "any thing done or intended to be done under the Act" as provided under Section 415.
Even refusal of the Corporation to con sider the objections against assessment and recovery of tax or fees could also be considered as "anything done or in tended to be done under the Act".
The question however, is whether it would be obligatory for the Corporation in the event of the local authority refusing to pay taxes or fees to approach the Government or refer the dispute 149 to the Government for decision? The answer to the question should be in the negative.
Section 4 15 does not provide that the Corporation has to move the Government when the local authority has refused to pay the tax or fees levied and demanded.
There are also no rules framed by the Govern ment regulating the exercise of power under the Section and at any rate our attention has been drawn to no statutory rules framed under the section.
The High Court however, has followed its earlier deci sion arising under Section 334 of the Municipalities Act.
There the dispute arose between the Gadarwara Municipal Council and Mandi Samiti Gadarwara as to the authority of the former to collect takes and charges from the latter.
The Mandi Samithi was an authority constituted like the present Market Committee under Section 7 of the Adhiniyam and func tioning within the Municipal limits.
It challenged the recovery proceedings initiated by the Municipal Council and moved the High Court for appropriate relief under Article 226 of the Constitution.
The High Court quashed the recovery proceedings and directed the Municipal Council to approach the Government under Section 334 of the Municipalities Act to resolve the dispute.
This decision, we think, overlooks the plain terms of Section 334 and even otherwise it is not relevant for operation of Section 415 of the Act.
Section 334 of the M.P. Municipality Act, 1961 reads: "Dispute between Council and other local body: (1) In the event of any dispute arising between a Council and any other local authority established under any State Act on a matter in which they are jointly interested, such dispute shall be referred to the State Government, whose decision shall be final.
" Under this Section the State Government has framed rules called "Madhya Pradesh Municipalities (Regulation of Rela tions between Councils and other local Authorities) Rules, 197 1".
Rules 2 and 3 are in these terms: "Rule 2.
Whenever a Council and any other authority are jointly interested in any matter, such matter shall be settled amicably between them and where they do not come to a mutual agreement, the matter shall be referred to the Collector.
150 Rule 3.
The Collector shall then arrange a joint meeting of the Council and Local Authority and manage to bring about an amicable settlement.
" The rules thus provide that the dispute in which the Council and local authority are jointly interested in any matter, but not possible to settle the dispute mutually, the matter shall be referred to the Collector.
The Collector shall try to bring about an amicable settlement by arranging a joint meeting of both the authorities.
Rules 4 and 5 are also relevant in this context and may be read: "Rule 4.
If the talk for amicable settlement fails, the Collector shah persuade the Council and the local authority to agree in writing to refer the matter to an arbitrator or arbitrators appointed under the and if they agree, the matter shall be referred to such arbitrator or arbitrators, as the case may be.
Rule 5.
When the Council and local authority do not agree to refer the matter to arbitration the Collector shall refer the matter to the State Government with his comments on it and the decision of the State Government shall be final.
" Under Rule 5, it would be for the Collector to refer the matter to the Government with his comments, and not for the Municipal Council to approach the Government.
By comparing the provisions of Section 415 of the Act with Section 334 of Municipalities Act, it will be seen that the structure of the former is different from the latter.
Section 4 15 speaks of dispute between the Corporation and local authority as regards anything done or to be done under the Act.
And such a dispute shall be referred to the Govern ment for decision.
Section 334 refers to a dispute on a matter in which the Municipal Council and local authority are jointly interested and it states that such dispute shall be referred to the State Government for decision.
Section 334 does not refer to the dispute as regards "anything done or to be done under the Act.
" Section 415 does not speak of any dispute in which the Corporation and the local authority are jointly interested.
Secondly, there are no rules framed for operation of Section 415 of the Act.
In view of these differences the view taken by the High Court.
That the Corporation must take steps to resolve the dispute cannot be justified.
It has apparently no support 151 either from the terms of Section 4 15 or from any rules framed for the purpose.
In the result, we allow the appeal and reverse the judgment of the High Court.
In the circumstances of the case, there will be no order as to costs.
T.N.A. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant Corporation assessed property tax in respect of buildings belonging to the respondent Market Committee, which refused to pay the same.
Proceedings were commenced for recovery of the dues.
The respondent moved the High Court under Article 226 of the Constitution for quash ing the recovery proceedings.
The High Court following its earlier decision arising under Section 334 of the M.P. Municipalities Act, 1961 allowed the petition, quashed the recovery proceedings and directed the Corporation to refer the dispute to the Govern ment under Section 415 of the M.P. Municipal Corporation Act, 1956.
Aggrieved by the aforesaid decision, the Corporation, appealed to this court.
Allowing the appeal, this Court, HELD: 1.
The assessment of tax or demand of any fees by the Corporation under the provisions of the M.P. Municipal Corporation Act, 1956 could fail within the term "anything done or intended to be done under the Act" as provided under Section 415 of the Act.
Even 145 refusal of the Corporation to consider the objections against assessment and recovery of tax or fees could also be considered as "anything done or intended to be done under the Act".
But section 415 does not provide that the Corpora tion has to move the Government when the local authority has refused to pay the tax or fees levied and demanded.
[148GH; 149A] 2.
The structure of section 415 of the M.P. Municipal Corporation Act, 1956 is different from section 334 of the M.P. MuniCipalities Act; 1961.
Section 415 speaks of dispute between the Corporation and local authority as regards anything done or to be done under the Act.
And such a dis pute shall be referred to the Government for decision.
Section 334 refers to a dispute on a matter in which the Municipal Council and local authority are jointly interested and it states that such dispute shall be referred to the State Government for decision.
Section 334 does not refer to the dispute as regards "anything done or to be done under the Act.
" Section 415 does not speak of any dispute in which the Corporation and the local authority are jointly inter ested.
There are no rules framed for operation of section 415 while under section 334 the State Government has framed Rules.
In view of these differences the view taken by the High Court that the Corporation must take steps to resolve the dispute cannot be justified.
It has apparently no sup port either from the terms of section 415, or from any rules framed for the purpose.
Therefore, the recovery proceedings should not have been quashed by the High Court.
And the Corporation should not have been directed to refer the dispute to the Government under section 415 of the M.P. Municipal Corporation Act, 1956.
[150F H; 151A] Jawahar Krishi Upaj Mandhi Samiti Gadarwara & Anr.
vs Municipal Committee Gadarwara & Anr.
Petition No. 994 of 1981 decided by the M.P. High Court on 5.5.1983, distin guished.


judgement:
ivil Appeal No. 3154 of 1982.
From the Judgment and Order dated 28.9.1981 of the Allahabad High Court in S.A. No. 1874 of 1970.
Satish Chandra, S.N. Singh, T.N. Singh, H.L. Srivastava and Sudama Ojha for the Appellants.
U.R. Lalit and R.D. Upadhyaya for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal is directed against the judgment dated 28 9 1981 of the High Court of Allahabad in Second Appeal No. 1874 of 1970.
167 The plaintiff respondent filed the suit alleging inter alia that before enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as "Zamindari Abolition Act", defendants Nos. 3 to 25 were the tenants in chief of the plots in suit and his father Munni Lal was their sub tenant; that Munni Lal died in 1951 leav ing behind four sons including the plaintiff respondent; that remaining three brothers of the plaintiff had separated and consequently the plaintiff became sole tenant; that Munni Lal was recorded occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra 1359 Fasli and consequen tially he acquired adhivasi rights and then sirdari rights, the rights of defendants 3 to 25 extinguished under section 240 A of the Zamindari Abolition Act; that in 1968, however, defendants Nos. 1 and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the plots in suit.
They had started interfering with the plaintiff 's possession and, hence, the plaintiff respondent filed the suit for permanent injunction.
Defendants Nos. 1 to 3, 5 to 7, 13 and 14 contested the suit.
They denied the plaintiff 's claim and disputed that the plaintiff 's father, Munni Lal, was the sub tenant or that he acquired adhivasi rights or sirdari rights.
It was further pleaded that the plaintiff or his father was never in possession of the plots in suit.
The suit for permanent injunction was dismissed.
Against the judgment of the trial court, the plaintiff respondent preferred Appeal No. 321 of 1969 which was dis missed by the first appellate court.
The Second Appeal No. 1874 of 1970, filed before the High Court of Allahabad against the judgment of the first appellate court, was allowed on 28 9 1981.
The respondent based his title on three grounds, namely, (i) that his father Munni Lal was recorded occupant in Khasra 1356 Fasli (be ginning from 1.7.1948 and ending with 30.6.1949) and became adhivas under section 20(b)(i) of the Zamindari Abolition Act; (2) that his father Munni Lal was in cultivatory possession of the disputed land it Khasra 1359 Fasli (beginning from 1.7.1951 and ending with 30.6.1952 and consequently he became adhivasi under section 3 of the U.P. Land Reforms (Supplementary) Act, (U.P. Act No. 31 of 1952);and (3) that his father Munni Lal was sub tenant over the disputed land and, there fore, he became an adhivasi and consequently the sirdar under the provisions of the zamindari Abolition Act.
The trial court and the first appellate court recorded finding of 168 facts to the effect that the plaintiff 's father Munni Lal was not in cultivatory possession of 1359 Fasli and there fore he could not get adhivasi right under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952.
Both the courts further observed that the plaintiff 's father was not a recorded occupant within the meaning of section 20(b)(i) of the Zamindari Abolition Act, as the entry of his name in column 6 of the Khasra 1356 Fasli was suspicious, not being supported by Khatauni entry.
It was further held that as his father died in 1951 before the date of vesting i.e. 1.7.1952 (when the zamindari was abolished in U.P. under the provi sions of Zamindari Abolition Act), the plaintiff is not entitled to the benefit of becoming adhivasi under section 20(b)(i) of the Zamindari Abolition Act.
The trial court and the first appellate court also found that no contract or sub tenancy between Munni Lal and the proforma defendants was proved.
The High Court held the view that the approach made by the courts below was wrong.
The question that arose for decision in the suit was whether the appellant 's father was a sub tenant? The learned Single Judge noticed that if Munni Lal was a sub tenant, his heir being the adhivasi and the appellant must, therefore, suc ceed.
The evidence relating to the sub tenancy and conse quent possession was therefore, considered in detail and the learned Judge concluded that Munni Lal was in cultivatory possession of the land in 1356 Fasli as a sub tenant.
His rights as sub tenant devolved on the appellant who continued in possession as such and became adhivasi and rights of defendants 3 to 14 were extinguished under the Zamindari Abolition Act and defendants could not interfere with appel lants possession.
In this view the appellant was granted a decree reversing the decision of the lower courts.
The main contention advanced on behalf of the appellants before us is that the decision having been rendered by the trial court and the first appellate court on the basis of the finding of fact regarding the right claimed and the possession alleged, in the absence of any substantial ques tion of law, there was no jurisdiction of the High Court under section 100 C.P.C. to disturb the finding of a concur rent nature and upset the decision.
The High Court, while exercising its power under section 100 C.P.C., has no juris diction to interfere with the finding of fact recorded by the first appellate court.
Reliance was placed on V. Rarna chandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302.
Section 100(1)(c) refers to a substantial error or defect in the procedure.
The error or defect in the proce dure to which the clause refers is not an error or defect in the appreciation of 169 evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly errone ous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision as held in Madan Lal vs Gopi, ; The substantial issue in the present suit was whether the respondent was in possession of the disputed land.
The respondent claimed possession under his father as sub tenant and thereafter as sirdar.
In support of his claim respondent relied on the entries in the revenue records and the re ceipts for payment of rent.
The effect of these documents had been wholly ignored by the lower courts on the assump tion that these were fabricated.
The U.P. Zamindari Aboli tion Act came into force on July 1, 1952.
Section 20(b)(i) of the Act provided that every person, recorded as occupant of a land in the Khasra or Khatauni of 1356 Fasli prepared under sections 28 and 33 of the U.P. Land Revenue Act 190 1, be called the adhivasi of the land.
This Court in Amba Prasad vs Abdul Noor Khan & Ors., ; examined the scheme of the section and held that the title to posses sion as adhivasi depends on the entry in the Khasra of 1356 Fasli.
The section eliminates enquiries into possession in accepting the record in the Khasra.
The Court observed at page 808: "The word 'occupant ' is not defined in the Act.
Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the land in possession or actual enjoyment.
The khasra, however, ma mention the proprietor, the tenant, the sub tenant and other person in actual pos session, as the case may be.
by occupant is meant the person in actual possession it clear that between a proprietor and a tenant the tenant and between a tenant and the sub tenant the latter and 170 between him and a person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants. ' ' In Nath Singh & Ors.
vs The Board of Revenue & Ors., ; in answering the contention that the cor rectness of the entry in the record of Khasra of 1356 Fasli could be gone into and where the respondents are recorded only as sub tenant and not as occupant, they could not get the benefit of section 20(b)(i) of the Act, this Court held as under: "The record of rights for the year 1356F. had not been corrected afterwards.
We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub tenants after the decision in favour of the landlord, Ram Dhani Singh.
The last decision of this Court also shows that as between the tenant and the sub tenant the entry in the record of rights in favour of the sub tenant makes him the occupant entitled to the adhivasi rights under section 20 of the Act.
" In this case the Khasra entry for 1356 Fasli Ex 4 showed that the respondent 's father Munni Lal was sub tenant.
As rightly stated by the High Court, it is not for the plain tiff to prove that this entry is correct.
It was for the defendants to show that the entry had been introduced sur reptitiously out of ill will or hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the respondent 's father.
The Khasra entry of 1371 Fasli and 1372 show the respondent 's name as person in possession.
It is clear indication that possession of the subtenant continued with the respondent.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the re spondent as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
We agree that the lower appellate court was not justified in ignoring these documents.
The High Court was, therefore, well within its powers in appreciating the evidence and arriving at its own conclusion.
The contention that the second appeal abated on account of non filing of substitution application after the death of defendants Nos. 6, 10 and 11 had been reiterated before us.
These defendants were only proforma parties and the High Court was right in holding hat appeal did not abate.
We may refer to The State of Punjab vs 171 Nathu Ram; , where it is held "that ordinari ly the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appel lants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court.
" The Civil Court had jurisdiction to try the suit for injunction when the question of title arose only incidentally.
The objection to jurisdiction of the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally.
We find no merit in the appeal which is accordingly dismissed.
No order as to costs.
G.N. Appeal dis missed.

summary:
The plaintiff respondent claimed that before the U.P. Zamindari Abolition and Land Reforms Act, 1950 came into force, his father was a sub tenant under defendants 3 to 25 and after his father 's death, the other 3 sons separated from the plaintiff and consequently he has become the sole tenant.
According to him, his father was recorded occupant of Khasra 1356 Fasli (1.7.1948 to 30.6.1949) and was in cultivatory possession in Khasra 1359 Fasli (1.7.1951 to 30.6.1952) as a result of which he had acquired adhivasi rights and sirdari rights, and the rights of defendants 3 to 25 extinguished under section 240 A of the said Act.
He alleged that in 1968, defendants I and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the said land and started interfering with his possession.
He, therefore, filed a suit for permanent injunction.
The suit was contested by some of the defendants who pleaded that neither the plaintiff nor his father was in possession of the said land at any point of time and there was no question of sub tenancy or acquiring of adhivasi/sirdari rights.
The trial court dismissed the suit.
The appeal preferred by the plaintiff respondent was dismissed by the first appellant court.
The trial court as also the first appellate court held that the respondent was not entitled to become an adhivasi under section 20(b)(i) of the Act since his father died in 1951 before the date of vesting i.e. 1.7.1952.
Both the courts also held that his father was not in cultivatory possession of Khasra 1359 Fasli and, therefore, he could not get adhivasi rights under section 3 of the U.P. Land Reforms (Supple 165 mentary) Act, 1952.
It was also held that there was no contract or sub tenancy in the name of his father.
The plaintiff respondent preferred an appeal before the High Court which allowed the appeal and granted a decree reversing the decision of the courts below.
Aggrieved, the appellants have flied the present appeal contending inter alia that since there were concurrent findings of facts by the trial court and the first appellate court, and in the absence of any substantial question of law, the High Court had no jurisdiction under section 100 C.P.C. to disturb the concurrent findings of facts.
Dismissing the appeal, this Court, HELD: 1.
Section 100(1)(c) of the Code of Civil Proce dure refers to a substantial error or defect in the proce dure.
The error or defect In the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded inconsequence is grossly erro neous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequent matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.
[168H; 169A C] Madan Lal vs Gopi, ; relied on.
V. Ramachandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302 referred to.
Section 20(b)(1) of the Act eliminates enquiries into possession in accepting the record in the Khasra.
In the instant case the Khasra entry for 1356 Fasli showed that the appellant 's father was the subtenant.
It is not for the appellant to prove that this entry Is incorrect.
It was for the defendants to show that the entry had been introduced 166 surreptitiously out of ill will of hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the appellant 's father.
The Khasra entry of 1371 Fasli and 1372 show the appellant 's name as person in possession.
It is clear indication that possession of the sub tenant con tinued with the appellant.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the appellant as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
The lower appellate court was not justified in ignoring these docu ments.
The High Court was, therefore, well within its power in appreciating the evidence and arriving at its own conclu sion.
[170B, E G] Amba Prasad vs Abdul Noor Khan & Ors., ; and Nath Singh & Ors.
vs The Board of Revenue & Ors., ; relied on.
Though the revenue courts had exclusive jurisdiction, the civil court had jurisdiction to try the suit for injunc tion when the question of title arose only incidentally.
[171B] 4.
The High Court was right in holding that the appeal did not abate on account of non filing of substitution application after the death of certain defendants.
[170H] The State of Punjab vs Nathu Ram, ; relied on.


judgement:
ition (Criminal) No 359 of 1989.
(Under Article 32 of the Constitution of India).
Dr. Shankar Ghosh, Ashok Ganguli, Md. Nizamuddin and Ms. Mridula Ray, for the Petitioner.
V.C. Mahajan, A. Subba Rao and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Mr. Kubic Dariusz, a Polish national, holding a Polish passport arriving Calcutta by air from Singapore via Bangkok was arrested on 29.4.1989 under sec tion 104 of the Customs Act, by the officers of the Customs Department attached to Calcutta Airport, on the ground that he was carrying in his possession foreign gold weighing about 70 tolas.
On 30.4.1989, he was produced before the Chief Judicial Magistrate, Barasat who remanded him to jail custody till 15th May, 1989.
He was interrogated by Intelli gence officer when he made, corrected and signed his state ments in English.
His application for bail was rejected by the Chief Judicial Magistrate.
While still in custody, he was served with the impugned detention order dated 16.5.1989 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, herein after referred to as 'the COFEPOSA Act along with the grounds of detention.
On 24.5.
1989 he was granted bail by the Calcutta High Court but the same could not be availed of because of the detention order which is now being challenged in this petition.
102 The detention order was passed with a view to preventing the detenu from smuggling goods; and it stated that the detaining authority, namely, the Additional Secretary to the Government of India in the department of Revenue, Ministry of Finance, was satisfied that the detenu was likely to smuggle goods into and through Calcutta Airport which was an area highly vulnerable to smuggling as defined in Explana tion 1 to section 9(1) of the COFEPOSA Act.
In the grounds of detention it was stated, inter alia, that arriving at Calcutta by Thai Airways the detenu opted for the green Channel meant for the passengers not having any dutiable and/or prohibited goods for customs clearance and proceeded towards the exit gate; that he declared that he did not have any gold with him, but on search 7 gold bars weighing 70 tolas valued approximately at Rs.2,71,728 deftly concealed between the inner soles of the left and right sports shoes in specially made cavities were recovered; that in his voluntary statement before the customs officer he admitted the recovery; that he had been able to learn English as he was with some English people during the period of 2nd Ke dardham Expedition or Kedarnath Dham Expedition in the year 1987 and he was also learning English when he was in France in the year 1985; that scrutiny of his passport revealed that he visited Delhi on 6.2.1989 & 21.2.
1989, Trichi on 22.4.1989 and Calcutta on 29.4.1989; that he admitted to have been in India in 1986, 1987 & 1988; and that on chemi cal tests the sample was found to be containing 99.9% of gold.
Shankar Ghosh, the learned counsel for the petitioner assails the detention order primarily on two grounds, name ly, that the detenu knew only the Polish language and did not know English wherefore he was unable to read and be informed of the grounds of detention given in English and he was not given the grounds of detention in a language under stood by him so as to enable him to defend himself; and that the representation submitted by him was not considered, acted upon or replied to at all by the detaining authority wherefore the detention order was liable to be quashed as violative of Article 22(5) of the Constitution of India.
Mr. V.C. Mahajan, the learned counsel for the respond ents emphatically refutes the first ground submitting that the detenu was conversant with the English language as would appear from the answers to the questions put to him in course of interrogation by the Intelligence authorities and this was clearly stated in the grounds of detention, and consequently, there arose no question of his being furnished with the grounds of detention in Polish and not in English 103 language.
Refuting the second submission Mr. Mahajan submits that the so called representation dated 13.6.1989 addressed to the Chairman, Central Advisory Board, COFEPOSA through the Superintendent, Central Jail, Dum Dum, Calcutta was duly sent to and received by the Chairman and the detenu appeared before the Advisory Board which, after hearing the detenu, found sufficient cause for his detention and there was, therefore, no question of the representation being separate ly dealt with by the Central Government.
Besides, Mr. Maha jan submits, had the detaining authority accepted the state ment that the detenu did not know English, they would have been in a trap.
Counsel would also submit that the so called representation dated 13.6.1989 was not a representation to the appropriate Government against the detention and could not be treated as such.
Taking up the first submission, we find that Article 22(5) of the C of India provides that when any person is detained inpursuance of an order made under any law provid ing for preventive detention, the authority making the order shall, as soon as may be, I communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
It is settled law that the communication of the grounds which is required by the earlier part of the clause is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause.
A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudi cial acts which the authorities attribute to him.
Such a communication would be there when it is made in a language understood by the detenu, as was held in Harikisan vs The State of Maharashtra, ; In Razia Umar Bakshi vs Union of India, , Fazal Ali, J. held that the service of the grounds of detention on the detenu was a very precious constitutional right and where the grounds were couched in a language which was not known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu, it would tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie.
In Nainmal Partap Mal Shah vs Union of India, the detenu stated that he did not know the English language and, therefore, could not under stand the grounds of detention, nor he was given a copy of the grounds duly translated in 104 vernacular language.
In the counter affidavit the detaining authority suggested that as the detenu had signed a number of documents in English, it must be presumed that he was fully conversant with English.
Rejecting the contention it was held by this Court that merely because he may have signed some documents, it could not be presumed, in absence of cogent material, that he had working knowledge of English and under those circumstances there had been clear violation of the constitutional provisions of Article 22(5) so as to vitiate the order of detention.
Thus what was considered necessary was a working knowledge of English or full expla nation or translation.
In Surjeet Singh vs Union of India, ; , the petitioner, being served the detention order and the grounds in English, contended that English was not a language which he under stood and that this factor rendered it necessary for the grounds of detention to be served on him in Hindi which was his mother tongue and that the same having not been done, there was in law no communication of such grounds to him; and it was held that under those facts and circumstances it had not been shown that the petitioner had the opportunity which the law contemplated in his favour of making an effec tive representation against his detention, which was, there fore, illegal and liable to be set aside.
Where it is stated that the detaining authority ex plained the grounds of detention to the detenu, Court in sists on adequate proof in the absence of any translation being furnished.
Thus in Lallubhai Jogibhai Patel vs Union of India & Ors., ; , the detenu did not know English but the grounds of detention were drawn up in Eng lish and the detaining authority in affidavit stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu.
Admittedly, no translation of the grounds of detention into Gujarati was given to the detenu.
It was held that there was no sufficient compliance with the mandate of Article 22(5) of the Constitution which required that the grounds of detention must be communicated to the detenu.
"Communicate" is a strong word.
It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purpose ful and effective representation.
If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.
This follows from the decisions in Harikisan vs State of Maharashtra, (supra) and Hadibandhu Das vs District Magistrate, [1969] 1 SCR ; 105 Mr. Ghosh relies on the decision in Ibrahim Ahmad Batti vs State of Gujarat, ; , wherein the detenu under the COFEPOSA Act was a Pakistani national to whom the detention order and the grounds of detention were served in English and he contended that as he did not know English and the grounds of detention and the document relied on were not furnished in Urdu within the statutory period the detention was bad.
Urdu translation of all the documents and state ments referred to in the grounds for reaching the subjective satisfaction had not been supplied to the detenu in time and translations of quite a few of such documents and statements had not been supplied at all.
The petitioner 's mother tongue seemed to be Urdu and a little knowledge of English figured.
It was evident that the petitioner knew English figures, understood English words written in capital letters and was also conversant with talking in Hindi and Gujarati and therefore it was argued for the detaining authority that the non supply of Urdu translation of the documents could not be said to have caused prejudice to the petitioner in the matter of making representation against his detention.
This Court held that the Explanation was hardly satisfactory and could not condone the non supply of Urdu translation of those documents.
In that case with the assistance of counsel of either side the Court had gone through many of those documents and statements and for the Court it was not possi ble to say that most of them were statements of accused containing figures in English with English words written in capital letters.
A large number of documents were in Hindi and Gujarati and were material documents which had obviously influenced the mind of the detaining authority in arriving at the subjective satisfaction and those were all in a script or language not understood by the detenu and, there fore, it was held that the non supply of Urdu translation of those documents had clearly prejudiced the petitioner 's right against his detention and hence the safeguards con tained in Article 22(5) was clearly violated.
In the instant case the basis of the statement that the detenu did not know English is his representation dated 13.6.1989, that is, nearly one month after his detention.
An English rendering of the representation is found at page 75 of the Writ Petition which is attested to have fully corre sponded to its original in Polish language.
It is signed by the detenu and is addressed to the Chairman, Central Adviso ry Board (COFEPOSA), High Court of Delhi, through the Super intendent, Central Jail, Dum Dum, Calcutta.
It reads: "Ref: Govt.
of India, Finance Department and Revenue Department Order No. F No. 673/322/89 CUS VIII dated 16.05.
1989 106 SUPREME COURT REPORTS [1990] 1 S.C.R. Sub: Representation against my detention under COFEPOSA Respected Chairman, 1.
I am a Polish national.
I do not know any other language except Polish language.
I cannot speak, write and read English language and do not know small English letters.
I know how to write my name in Block letters.
I have received all the documents concerning the above mentioned case in English language and for the fact that I do not know that language the documents were so complicated for me to understand.
In view of the above facts, I kindly request your goodself to provide me with the order of detention together with the grounds of detention in my language (Polish lan guage) so that I can effectively present my defence.
" While it is the settled law that the detention order, the grounds of detention and the documents referred to and relied on are to be communicated to the detenu in a language understood by him so that he could make effective represen tation against his detention, the question arises as to whether the courts have necessarily to accept what is stated by the detenu or it is permissible for the Court to consider the facts and circumstances of the case so as to have a reasonable view as to the detenu 's knowledge of the language in which the grounds of detention were served, particularly in a case where the detenu is a foreign national.
If the detenu 's statement is to be accepted as correct under all circumstances it would be incumbent on the part of the detaining authority in each such case to furnish the grounds of detention in the mother tongue of the detenu which may involve some delay or difficulty under peculiar circum stances of a case.
On the other hand if it is permissible to ascertain whether the statement of the detenu in this regard was correct or not it would involve a subjective determina tion.
It would, of course, always be safer course in such cases to furnish translations in the detenu 's own language.
We are of the view 107 that it would be open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is reigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished.
In the instant case we find that when the detention order and the grounds of detention were served the detenu received them and acknowledged the receipt thereof, as it appears from the records, putting his signature in English.
He did not complain that the grounds of detention were not understood by him.
On the other hand in the very grounds of detention it was stated that in course of interrogation he answered the questions in English including the questions as to how he happened to learn English.
The gist of his answers in this regard was also given in the grounds of detention.
We have perused the statements and find that those contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogators unless he knew the English language.
We also find that in several places he corrected the statements putting appropri ate English words and signing the corrections.
While the detention order was passed on 16 5 1989 his representation was admittedly dated only 13 6 1989.
In the meantime bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court.
There is nothing to show that he did not give instructions to his counsel.
After all, the detenu is not required to write an essay or pass any lan guage test.
A working knowledge of English enabling him to understand the grounds would be enough for making a representation.
He could very well send his representation in the language known by him.
In Parkash Chandra Mehta vs Commissioner and Secretary, Government of Kerala & Ors., ; , Venilal D. Mehta, his daughter Miss Pragna Mehta and son Bharat Mehta were detained under the COFEPOSA Act by an order dated 19th June, 1984 and the detention order was challenged in this Court under Article 32 of the Constitution of India.
They were alleged to have been in possession of 60 gold biscuits of foreign origin.
After their arrest the father and his daughter were taken to the Central Excise and Customs De partment, Cochin where statements on their behalf were written in English by the daughter.
The father Venilal D. Mehta put his signature in English as Balvant Shah but the daughter told the officers concerned that the correct name of her father was Venilal Mehta.
In the writ petition it was the case of the father that he could not understand, read, speak or write English but could only sign his name in English.
He was served 108 with the grounds of detention in English language on 20th June, 1984.
A Hindi translation of the grounds of detention was served on 30th June, 1984.
On 27th May, 1984 the father made a representation in Gujarati to the detaining authority praying that he was unable to read and write either in English or Hindi or 'Malayalam and the grounds of detention may be given to him duly translated in Gujarati.
In Court it was contended that the order and grounds should have been communicated to the detenu in the language or languages they understood and Venilal Mehta understood nothing except Gujarati.
He did not understand English or Hindi or Malaya lam.
The Hindi translation was admittedly furnished beyond a period of 5 days and no exceptional circumstances were stated to exist.
Following Harikisan vs State of Maharashtra (supra) and considering the definite case of Venilal Mehta, this Court observed that the facts revealed that the detenu Venilal Mehta was constantly in the company of his daughter as well as son and both of them knew English very well.
The father signed a document in Gujarati which was written in English and which was his mercy petition in which he com pletely accepted the guilt of the involvement in smuggling.
That document contained a statement "I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold.
" On those facts and circum stances this Court observed: "There is no rule of law that common sense should be put in cold storage while considering Constitutional provisions safeguards against misuse of powers by authorities though these Constitutional provisions should be strictly con strued.
Bearing in mind this salutary principle and having regard to the conduct of the detenu Venilal Mehta especially in the mercy petition and other communications, the version of the detenu Venilal in feigning lack of any knowledge of English must be judged in the proper perspective.
He was, however, in any event given by 30th June, 1984 the Hindi translation of the grounds of which he claimed ignorance.
The gist of the annexures which were given in Malayalam language had been stated in the grounds.
That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth.
He goes to the extent that he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a 109 time when he was under arrest, his room had been searched, gold biscuits had been recovered from him.
Court is not the place where one can sell all tales.
The detaining authority came to the conclusion that he knew both Hindi and English.
It had been stated so in the affidavit filed on behalf of the respondent.
We are of the opinion that the detenu Veni lal Mehta was merely reigning ignorance of English." After referring to the decisions in Hadibandhu Das vs District Magistrate, Cuttack & Anr. (supra), Nainmal Partap Mal Shah vs Union of India & Ors.
(supra), and Ibrahim vs State of Gujarat & Ors.
(supra) this Court in Prakash Chan dra Mehta (supra) rejected the contention that the grounds of detention were not communicated to Venilal Mehta in a language understood by him.
Considering the facts and circumstances of the instant case and in view of the fact that no objection regarding non communication of the grounds in a language understood by the detenu was made within the statutory period for furnish ing the grounds and the fact that the representation was beyond the statutory period, almost a month after the grounds were served, along with the detenu 's statements as to how he learnt English, we have no hesitation in holding that the detenu understood the English language, had working knowledge of it and was reigning ignorance of it, and there was no violation of Article 22(5) of the Constitution on the ground of non communication of the grounds of detention in a language understood by him.
The first submission of the detenu has, therefore, to be rejected.
Coming to the second submission, in the representation dated 13.6.
1989 the detenu clearly requested that he be provided with the order of detention together with the grounds of detention in his language (Polish language) so that he could effectively present his defence.
He called it a "representation" against his detention under COFEPOSA Act.
Admittedly, this representation was not disposed of by the appropriate Government and, indeed, has not been disposed of or acted upon till today.
Mr. Mahajan submits that it having been addressed to the Chairman, Central Advisory Board it need not have been dealt with by the Central Government and it could not be regarded as representation at all and the Government smarted out of the trap by not admitting that the detenu did not know English.
We are not inclined to accept this submission.
Admittedly the representation was sent through the Superintendent, Central Jail, Dum Dum, 110 Calcutta.
There was no scope to hold that what has been stated to be 'representation ' was not representation at all inasmuch as it only requested for translated copies of the grounds of detention and the annexed documents in Polish language.
Supply of translated copies would have surely not affected the detention order ipso facto.
In Smt.
Shalini Soni vs Union of India, ; 1981(1) SCR 962, it has been held that under Article 22(5) no proforma for representation has been prescribed and a request for release of the detenu, therefore, has to be deemed a representation; so also a request to supply copies of documents etc.
Oppor tunity to make a representation comprehends a request for supply of translated copies.
Therefore, the detenu 's 'repre sentation ' asking for copies of documents must be held to have amounted to a representation and it was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order.
There has been a catena of decisions of this Court that the representation of the detenu must be considered by the appropriate Government and Article 22(5) does not say which is the authority to whom representation shall be made or which authority shall consider it.
But it is indisputable that the representation may be made by the detenu to the appropriate Government and it is the appropriate Government that has to consider the representation as was reiterated in John Martin vs State of West Bengal, ; (3) SCR 211.
It is settled law that delay in disposing the represen tation when inordinate and unexplained the detention would be bad and the detenu must be ordered to be released forth with.
Chandroo Kundan vs Union of India, AIR 1980 SC 1123; Pabitra N. Rana vs Union of India, ; , Saleh Mohammed vs Union of India, ; Kamla Kanyalal Khusahalani vs State of Maharashtra, ; are some of the decisions settling this proposition of law.
In Rattan Singh vs State of Punjab & Ors., ; , it was held that section 11(1) of the COFEPOSA Act confers upon the Central Government the power of revocation of an order of detention made by the State Government or its officer.
That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention.
The failure of the Jail Superintendent to either forward the representation to the Government concerned or to have for warded the same to the State Government with a request for their onward transmission to the Central Government in that case was held to have 111 deprived the detenu of his valuable right to have his deten tion revoked by the Government.
The continued detention of the detenu was.
therefore, held illegal and the detenu was set free.
In the instant case though the representation was addressed to the Chairman, Central Advisory Board the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advi sory Board and the same having not been done Article 22(5) has to be held to have, been violated.
In Kirit Kumar Chaman Lal Kundaliya vs Union of India & Ors., [1981] 2 SCC 426, a case under the COFEPOSA Act, where the order of detention was made by the Home Minister and the representation made by the detenu had been rejected not by the Home Minister but by the Secretary, this Court held that the representation had been rejected by an authority which had no jurisdiction at all to consider or pass any order on the representation of the detenu and that, therefore, ren dered a continued detention of the petitioner void, follow ing Santosh Anand 's case , where it was held that the representation was not rejected by the detaining authority and as such the constitutional safeguards under Article 22(5) could not be said to have been strictly ob served or complied with.
In B. Sundar Rao & Ors.
vs State of Orissa, , where the detention was under the Orissa Preventive Detention Act, 1970 and sections 7 & 11 thereof conferred the right on the detenu to make represen tation and have it considered by appropriate authority it was held that such consideration was independent of any action of Advisory Board as there was necessity of Govern ment to form opinion and judgment before sending the case to the Advisory Board.
In Vimalchand Jawantraj Jain vs Shri Pradhan & Ors.
, ; , it was held by this Court that under Article 22(5) independent of the reference to the Advisory Board, the detaining authority must consider the representa tion at the earliest and come to its own conclusion before confirming the detention order and consideration and rejec tion of the representation subsequent to report of the Advisory Board would not cure the defect.
It was clearly held that it is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board had considered the representation and then made a report in favour of deten tion.
Even if the Advisory Board had made a report upholding the detention the appropriate Government is not bound by such opinion and it may still, on considering the represen tation of the 112 detenu and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu; as in that case there was nothing to show that the Government considered the representation before making the order con firming the detention.
The Constitutional obligation under Article 22(5) was not complied with.
In the instant case there was no consideration before and even after the Adviso ry Board considered the case of the detenu.
It can not therefore, be said that the representation was disposed of in accordance with law.
Mr. Ghosh faintly submits on merits of the case that a single instance of possessing 70 tolas of gold in gold bars was not enough to genuinely satisfy the detaining authori ties to resort to preventive detention of the petitioner who is a Polish national and not resident in India.
It is true that the detention order was passed with a view to prevent ing the detenu from repeating smuggling activities.
That the detenu in the particular act indulged in smuggling could not of course be denied.
It is stated in the counter that the detention of persons under the COFEPOSA Act serves two purposes: (1) to prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foreign exchange and also preventing him from smuggling activities and thereby to render him immobile by the detain ing authority so that during that period the society is protected from such prejudicial activities on the part of the detenu; and (2) to break the links between the persons so engaged and the source of such activity and from his associates engaged in that activity or to break the continu ity of such prejudicial activities so that it would become difficult, if not impossible, for him to resume the activi ties.
There is undoubtedly scope for interpreting that the above two purposes envisage continuous residence of the person engaged in smuggling and as such may be more readily applicable to a resident of the country.
But such habitual smuggling activity may not have similarly been envisaged in respect of a foreign national who is not a resident of this country.
The customs Act itself makes appropriate provisions for adjudication, confiscation and punishment for smuggling and prevents possible repetition or recurrence.
Preventive detention of a foreign national who is not resident of the country involves an element of international law and human fights and the appropriate authorities ought not to be seen to have been oblivious of its international obligations in this regard.
The universal declaration of human fights include the fight to life, liberty and security of person, freedom from arbitrary arrest and detention; the right 113 to fair trial by an independent and impartial tribunal; and the right to presume to be an innocent man until proved guilty.
When an act of preventive detention involves a foreign national, though from the national point of view the municipal law alone counts in its application and interpre tation, it is generally a recognised principle in national legal system that in the event of doubt the national rule is to be interpretted in accordance with the State 's interna tional obligations as was pointed out by Krishna Iyer, J. in Jolly George Verghese vs The Bank of Cochin, ; There is need for harmonisation whenever possible bearing in mind the spirit of the Covenants.
In this context it may not be out of place to bear in mind that the funda mental rights guaranteed under our Constitution are in conforming line with those in the Declaration & The Covenant on Civil and Political Rights and the Covenant, Economic, Social and Cultural Rights to which India has become a party by ratifying them.
Crimen Trahit personam.
The crime carries the person.
The commission of a crime gives the court of the place where it is committed jurisdiction over the person of the offender.
Legal relations associated with the effecting of legal aid on criminal matters is governed in the interna tional field either by the norms of multilateral interna tional conventions relating to control of crime of an inter national character or by special treaties concerning legal cooperation.
Smuggling may not be regarded as such a crime.
The system of extradition of criminals represents an act of legal assistance by one State (the requestee) to another State (the requestor) with the aim of carrying out a crimi nal prosecution, finding and arresting a suspected criminal in order to bring him to court or for executing the sen tence.
In concluding such convention the States base them selves on principles of humanitarianism in their efforts to contribute to the more effective achievement of the objec tives of the correction and re education of violators of the law.
Where such conventions exist, the citizens of a State who were convicted to deprivation of freedom in another signatory State are in accordance with mutual agreement of States, transferred to the country of which they are citizens to serve their sentences.
The transfer of the convicted person may take place only after the verdict has entered into legal force and may be carried out on the initiative of either of the interested States.
The punish ment decided upon with regard to a convicted person is served on the basis of the verdict of the State in which he was convicted.
On the strength of that verdict the competent court of the State of which the person is a citizen adopts a decision concerning its implementation and determines, in accordance with the law of its own State, the same period of deprivation of freedom as was assigned under the verdict.
While such ameliorative practices may be available in case of a foreign 114 national being criminally prosecuted, tried and punished, no such proceedings are perhaps possible when he is preventive ly detained.
A preventive detention as was held in Rex vs Holiday, 1917 AC 268 "is not punitive but precautionary measure.
" The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.
No offence is proved, nor any charge is formulated; and the justification of such deten tion is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence.
In this sense it is an anticipatory action.
Pre ventive justice requires an action to be taken to prevent apprehended objectionable activities.
In case of punitive detention the person concerned is detained by way of punish ment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in any conduct injurious to the society.
There may, therefore, be cases where while a citizen and resident of the country deserves preventive detention apart from criminal prosecution, in case of a foreign national not resident of the country he may not be justifiably subjected to preventive detention in the event of which no international legal assistance is possible unlike is case of criminal prosecution and punish ment.
Considering the facts and circumstances of the instant case, however, we find sufficient evidence of the detenu having visited this country though on earlier occasions he was not found to have been carrying on such smuggling activ ities.
However, in view of our decision in the earlier submissions we do not express any opinion on this submis sion.
In the result we find force in the second submission and hold that continued detention of the detenu has been ren dered illegal by nonconsideration of his representation by the appropriate Government according to law resulting in violation of Article 22(5) of the Constitution; and he is to be set at liberty forthwith in this case.
R.N.J. Petition allowed.

summary:
Mr. Kubic Dariusz a Polish national was arrested on 29.4.89 by the Customs Department on the ground that he was in possession of foreign gold weighing about 70 tolas.
On 30.4.89 he was produced before the Chief Judicial Magistrate who remanded him to jail custody till 15th May 89.
His bail application was rejected by the Chief Judicial Magistrate.
While still in custody he was served with the impugned Detention Order dated 16.5.89 under the COFEPOSA Act along with the grounds of detention.
On 24.5.89 he was granted bail by the Calcutta High Court but the same could not be availed of because of the detention order which the peti tioner challenged by preferring the Writ Petition before this Court.
The detention order is assailed on two grounds, namely that the detenu did not know English wherefore he was unable to read and be informed of the grounds of detention to enable him to defend himself and secondly that the represen tation submitted by him through the Superintendent of Jail to Central Advisory Board, COFEPOSA was neither considered nor acted upon or replied to at all by the detaining author ity wherefore the detention order was liable to be quashed as violative of Article 22(5) of the Constitution of India.
On behalf of the respondent it is contended that the detenu was 99 conversant with the English language as would appear from his replies to the questions put to him in the course of interrogation.
Hence there was no question of furnishing the grounds to him in Polish language.
Refuting the second contention it was stated that after hearing the detenu the Advisory Board found sufficient cause for his detention.
It was also urged by the respondent that the so called repre sentation of the detenu dated 13.6.89 was not a representa tion to the appropriate Govt.
against the detention and could not be treated as such.
Allowing the Writ Petition and setting at liberty the detenu, this Court, HELD: Continued detention of the detenu has been ren dered illegal by non consideration of his representation by the appropriate government according to law, resulting in violation of Article 22(5) of the Constitution of India.
[114F] Where the grounds are couched in a language which was not known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu it would tantamount to not serving the grounds of detention and would thus vitiate the detention ex facie.
It is the settled law that the detention order, the grounds of detention and the documents referred to and relied upon are to be communicated to the detenu in a language understood by him so that he can make effective representation against his detention.
To ascertain whether the detenu knew the language in which the grounds were served or was reigning ignorance, it is open to Court to consider the circumstances and facts of the case.
The detenu is not required to write an essay or pass any language test.
A working knowledge of English enabling him to understand the grounds would be enough for making a representation.
He could very well send his representation in the language known by him.
[103G; 106E H; 107A E] No hesitation there is in the instant case in holding that the detenu understood the English Language, had the working knowledge of it and was reigning ignorance of it.
[109E] Though the representation was addressed to the Chairman Central Advisory Board, the same was forwarded by the Jail authorities and it must be taken to have been a representa tion to the appropriate government which was to consider it before placing it before the Advisory Board and the same having been not done, Article 22(5) of the Constitution has to be held to have been violated.
Delay in disposing of 100 the representation when inordinate and unexplained the detention would be rendered bad and the detenu must be ordered to be released forthwith.
[111A B; 110E] Preventive detention of a foreign national who is not resident of the country involved an element of international law and human rights and the appropriate authorities ought not to be seen to have been oblivious of the international obligation in this regard.
The universal declaration of human rights include the right to life, liberty and security of person, freedom from arbitrary arrest and detention; the right to fair trial by an independent and impartial tribunal and the right to presume to be innocent until proved guilty.
[112G H; 113A] When an act of preventive detention involves a foreign national, though from the national point of view the munici pal law alone counts in its application and interpretation, it is generally a recognised principle in national legal system that in the event of doubt the national rule is to be interpreted in accordance with the States ' international obligations.
[113A B] The fundamental rights guaranteed under our Constitution are in conforming line with those in the Declaration and the Covenant on Civil and Political Rights and the Covenant, Economic, Social and Cultural Rights to which India has become a party by ratifying them.
Crimen Trahit personam.
The crime carries the person.
Smuggling may not be regarded as such a crime.
[113C D] There may, therefore, be cases where while a citizen and resident of the country deserves preventive detention apart from criminal prosecution, in the case of a foreign national not resident of the country he may not be justifiably sub jected to preventive detention in the event of which no international legal assistance is possible unlike in cases of criminal prosecution and punishment.
[114D E] Harikisan vs The State of Maharashtra, [1962] 2 Suppl.
SCR 918; Razia Umar Bakshi vs Union of India, ; Nainmal Partap Mal Shah vs Union of India, ; Surjeet Singh vs Union of India, ; ; Lallubhai Jogibhai Patel vs Union of India & Ors., ; ; Hadibandhu Das vs District Magistrate, ; ; [brahim Ahmad Batti vs State of Gujarat, ; ; Prakash Chandra Mehta vs Commissioner and Secretary, Government of Kerala & Ors., ; ; Smt.
Shalini Soni vs Union of India, ; ; John Martin vs State of West 101 Bengal; , ; Chandroo Kundan vs Union of India, AIR 1980 SC 1123; Pabitra N. Rana vs Union of India, ; ; Saleh Mohammed vs Union of India, ; Kamla Kanyalal Khushalani vs State of Maharashtra, ; ; Rattan Singh vs State of Punjab & Ors., ; ; Kirit Kumar Chaman Lal Kundaliya vs Union of India & Ors., [1981] 2 SCC 426; Santosh Anand 's case, ; B. Sundar Rao & Ors.
vs State of Orissa, ; Vimalchand Jawantraj Jain vs Shri Pradhan & Ors., ; ; Jolly George Verghese vs The Bank of Cochin, ; and Rex vs Halliday, , referred to.