M/S Ali Shah vs Union Of India Th. Secretary
2023 Latest Caselaw 1283 j&K/2

           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR
LPA No. 136/2023
CM No. 4490/2023
                                            Reserved on:-   09.08.2023
                                            Pronounced on:- 07.10.2023

M/S Ali Shah, 3 Nageen Lake Road, Srinagar              ....Appellant(s)
Th. its Partner Arif Ahmad Shah, Age 40 years,
S/O Ghulam Ahmad Shah, R/O 3 Nageen Lake Road
Srinagar.

          Through:- Mr. Nisar Ahmad, Adv.

                   V/S
1. Union of India Th. Secretary, Ministry of           .....Respondent(s)
   Finance, Government of India, New Delhi.
2. Commissioner of Customs, Air Cargo Export,
   New Customs House, near IGI Airport,
   New Delhi-110037.
3. Joint Commissioner of Customs (SIIB),
   Air Cargo Export, New Custom House,
   near IGI Airport, New Delhi-110037.
4. Assistant/Deputy Commissioner,
   Air Cargo Export (Shed), Cargo Terminal,
   near IGI Airport, New Delhi.
5. Regional Deputy Director,
   Wildlife Crime Control Bureau (NR),
   Bikaner House, Shahjahan Road,
   New Delhi-110011.
6. DHL Express (I) Pvt. Limited
   Th. Vice President, Customer Services,
   8th Floor, HDIL Towers, A.K Marg,
   next to Bandra Court, Bandra (East),
   Mumbai-400051.
          Through:- Mr. T.M. Shamsi, DGSI.
LPA No. 137/2023
CM No. 4491/2023

M/S Ali Shah, 3 Nageen Lake Road, Srinagar              ..... Appellant(s)
Th. its Partner Arif Ahmad Shah, Age 40 years,
S/O Ghulam Ahmad Shah,
R/O 3 Nageen Lake Road Srinagar.

          Through:- Mr. Nisar Ahmad, Adv.

                    V/s
                                        2             LPA Nos. 136 & 137/2023




1. Union of India Through Secretary,                        ....Respondent(s)
   Ministry of Environment & Forests,
   Wildlife Crime Control Bureau (N.R),
   2nd Floor,Trikoot-1, Bhikaji Cama Place,
   New Delhi-110066.
2. Regional Deputy Director,
   Wildlife Crime Control, Buearu (NR),
   Bikaner House, Shahjahan Road,
   New Delhi-110011.
3. Superintendent of Police,
   Central Bureau of Investigation,
   EO-II/Economic Offences,Unit-V, 4th Floor, B Wing,
   CBI Headquarters, 5-B, GCO Complex,
   5-B, Lodhi Road, New Delhi-110003.
4. Shri R. Ganesan, Inspector of Police,
   CBI/EO-II/EOU-V, New Delhi.

            Through:- Mr. T.M. Shamsi, DGSI.

CORAM: HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE

                                 JUDGMENT

(Per:- Chowdhary-J)

1. By this common judgment, it is proposed to decide the above titled

both the intra-Court appeals, arising out of a common judgment dated

16.06.2023 passed by the learned Single Judge (hereinafter referred to as the

"Writ Court") in writ petitions bearing OWP Nos. 251/2015 & 1110/2015 filed

by the petitioner-appellant herein, as identical questions of law are involved in

both the appeals having been dealt with, by the learned Writ Court.

2. One consignment of Pashmina Embroidered Ladies Shawls vide

shipping bill No. 8685517 dated 28.11.2013 were presented for clearance for

export to Switzerland on 02.12.2013 to Customs Authorities at IGI Airport, New

Delhi and on examination by the Wildlife Crime Control Bureau (Northern

Region), New Delhi, it was observed that out of 33 shawls, 20 shawls appeared

to be mixture of Shahtoosh and the fact as to whether the goods contained

objectionable yarn or not, the shawls were sent for forensic test. The Regional

Deputy Director, Wildlife Crime Control Bureau vide its letter No. 10-

10/WN/14/325 dated 29.05.2014 certified that all suspected twenty pieces of

shawls contained hair of Tibetan Antelope (Pantholopes Hodgsoni), which was

prohibited, as there was reason that they were liable for confiscation under the

Act, as such, those shawls were seized in terms of Section 110 of the Customs

Act, 1962 (hereinafter referred to as the "Customs Act") at New Delhi.

3. A show cause notice bearing No. SES/35/ADC/JC/2014-15 dated

19.01.2015 was issued by the Commissioner of Customs (SIIB), Air Cargo

Export, New Delhi (Special Intelligence & Investigation Branch) to the

petitioner-appellant, who had dispatched this seized consignment from Srinagar

to be delivered in Switzerland. The aforesaid notice was challenged in

OWP No. 251/2015 by the appellant-petitioner before this Court.

4. The respondent-Regional Deputy Director, Wildlife Crime Control

Bureau (NR), New Delhi issued Communication No. 1-270/WCCB/NR/14/153

dated 13.04.2015 to respondent-Superintendent of Police, Central Bureau of

Investigation (CBI), New Delhi, who registered a case vide FIR No.

RC220/2015/E-0007-CBI/EO-II/New Delhi under Sections 40, 49, 49-B and 58

read with Section 51 of the Wildlife (Protection) Act, 1972 (hereinafter referred

to as the "Wildlife Act of 1972"), based on which a notice was issued to the

appellant-petitioner by the respondent-R. Ganesan, Inspector of Police, CBI/EO-

II/EOU-V, New Delhi alongwith the proceedings initiated. These notices and the

FIR were also challenged by the appellant-petitioner through OWP No.

1110/2015 before this Court.

5. Both these writ petitions were heard by the Writ Court and vide

impugned judgment, it was held by the learned Single Bench that since the

consignment/goods had been seized at Delhi, proceedings emanating as a

consequence of seizure of prohibited/banned consignment/goods have been

initiated at Delhi, so it would be appropriate for petitioner to approach the

Courts/forums at Delhi and both these writ petitions were dismissed by the

common impugned judgment.

6. The case set up in both these appeals is, that the appellant-writ

petitioner-M/S Ali Shah, in the month of July 2013, got an order for supply of

Pashmina Embroidered lady shawls from Switzerland and it asked its suppliers

to provide the required number of Pashmina Embroidered lady shawls

@ ₹ 17,300/- per shawl and, accordingly, the suppliers supplied those shawls to

the appellant-writ petitioner from 3rd November to 5th November, 2013 against

proper receipts; that after receiving these shawls from its suppliers, the

appellant/firm booked the same on 27.11.2013 at a cost of ₹ 12,870/- Swiss

Francs, through DHL Express & Courier Service, under Airway Bill No.

1545575738 from Srinagar; that the consignment was to be delivered in

Switzerland within a period of one week, however, due to non-delivery of the

consignment, the appellant/firm took up the matter with DHL Express (I)

Mumbai, who informed the appellant/firm that the shipment was seized by the

Customs Department at IGI Airport, New Delhi on 02.12.2013 and that

20 (twenty) shawls out of 33 have been sent for forensic examination.

7. Based on this information, the appellant/firm sent its representative

to New Delhi, in view of having a higher risk of moth/insect damage to the pure

pashmina and also submitted an application to the respondent No. 5-Regional

Deputy Director, Wildlife Crime Control Bureau (NR), New Delhi on

22.05.2014, requesting him to release the consignment without any further delay,

however, the respondent No. 2 vide Communication dated 10.06.2014, informed

the appellant that the examination report and 20 (twenty) sealed shawls relating

to SB No. 8685517, as received from forensic cell of Wildlife Institute of India,

Dehradun, was submitted to the office of Deputy Commissioner of Customs

(Export), IGI, Air Cargo, Complex, New Delhi on 11.06.2014, for taking further

necessary action.

8. It was further stated that on receipt of letter dated 19.06.2014, the

appellant/firm submitted an application on 30.06.2014 before the respondent-

Regional Deputy Director, Wildlife Crime Control Bureau (NR), New Delhi,

stating therein that no letter as referred to in the Communication dated

19.06.2014 has been enclosed with the Communication; that the appellant/firm

received a summons dated 30.07.2014 from Superintendent of Customs (SIIB),

New Delhi, asking for attendance, giving evidence in respect of an enquiry being

made in connection with illegal export of shawls made of hair of endangered

species/animals, which is prohibited under law and the appellant/firm was asked

to cause appearance on 11.08.2014.

9. Pursuant to the summons dated 30.07.2014, the appellant caused its

appearance through an Advocate before the Superintendent of Customs (SIIB),

New Delhi, informing him that the Customs Department has violated the

customs law in seizing and sending the seized shawls for tests; that the

appellant/firm submitted an application on 14.08.2014 to the Commissioner of

Customs, Air Cargo Export, New Delhi and requested him to release the seized

shawls in its favour, failing which it would be constrained to initiate appropriate

legal action and this application was followed by a reminder dated 26.09.2014.

10. Aggrieved of the show cause notice dated 19.01.2015, the

appellant/firm filed a Writ Petition bearing OWP No. 251/2015 before this

Court, seeking quashment of the show cause notice and directing the respondents

not to proceed against the writ petitioner on the basis of the said show cause

notice and also to release the seized shawls forthwith, so that the same are

delivered to the customer in Switzerland.

11. The respondent No. 2 also addressed a Communication bearing No.

1-2070/WCCB/NR/14/153 dated 13.04.2015 to the respondent No. 3, whereby

he was asked to take up investigation of the case as per the provisions of the Act

of 1972. The respondent No. 3 registered an FIR bearing No. RC2202015 E-007

on 28.04.2015 under Section 51 read with Sections 40, 49, 49-B & 58 of the

Wildlife (Protection) Act of 1972 and entrusted the investigation of the case to

the respondent No. 4-Shri R. Ganesan, Inspector of Police, CBI/EO-II/EOU-V,

New Delhi, who issued a notice under Section 41-A of the CrPC to the appellant

on 12.06.2015 with a direction to appear before him on 22.06.2015.

12. Aggrieved of the aforesaid actions by the respondent Nos. 2 & 3

being violative of interim order passed by this Court in OWP No. 251/2015 and

the same being without jurisdiction, the appellant challenged the same through

the medium of Writ Petition bearing OWP No. 1110/2015 before this Court and

sought the following reliefs:-

"(i) By issuance of a writ of certiorari or any other appropriate writ, order or direction, the impugned Communication No. 1- 270/WCCB/NR/14/153 dated 13.04.2015 addressed by respondent No.2 to respondent No.3, FIR No. RC220/2015/E- 0007-CBI/EO-II/New Delhi under Sections 40, 49, 49-B and 58 read with Section 51 of the Wildlife (Protection) Act, 1972 registered by respondent No.3 against petitioner, as also the Notice bearing No. RC 220/2015/E0007-CBI/EO-II/IND dated 12.06.2015 issued by respondent No.4 to the petitioner alongwith the proceedings initiated against him be quashed;

(ii) By issuance of a writ of mandamus or any other appropriate writ, order or direction, the respondents be directed not to

proceed against petitioner on the basis of the impugned Communication dated 13.04.2015, FIR No. RC220/2015/E- 0007-CBI/EO-II/New Delhi and the Notice dated 12.06.2015 issued by the respondent No. 4 to the petitioner, in any manner, whatsoever;

(iii) The Hon'ble Court may pass any other order or direction, which it may deem fit and proper under the facts and circumstances of the case."

13. The respondent Nos. 3 & 4 have filed their reply affidavit to the

writ petitions and thereafter, both the aforesaid writ petitions were clubbed. The

respondents took a plea before the learned Writ Court with regard to lack of

territorial jurisdiction of this Court. The learned Writ Court vide impugned

judgment dated 16.06.2023 dismissed the petitions filed by the appellant-

petitioner. While deciding the case, the Writ Court had relied upon the law laid

down by the Apex Court in case titled, "Lt. Col. Khajuri Singh Vs. Union of

India, reported as AIR 1961 (SC) 532", wherein it has been held that the act

against which the relief has been sought was clearly performed at Delhi,

therefore, the Jammu & Kashmir High Court, cannot exercise its jurisdiction

under Article 226 of the Constitution of India.

14. The impugned judgment dated 16.06.2023 passed by the learned

Writ Court has been assailed by the appellant through the medium of this Intra-

Court Appeal on the ground that the action of the respondent No. 2 and

registering of FIR thereon by the respondent No. 3 were violative of the interim

order passed by this Court and the same was without jurisdiction, therefore, the

appellant had rightly challenged the same before this Court. However, the

learned Writ Court without appreciating the aforesaid material facts, passed the

impugned judgment, whereby the writ petition filed by the appellant-writ

petitioner was dismissed; that the appellant's writ petition was dismissed on the

ground that the seizure of prohibited/banned consignment/goods took place at

Delhi, so it would be appropriate for the appellant to approach Delhi Courts/fora,

though a clear stand had been taken before the Writ Court that since the

appellant had booked the consignment at Srinagar, so if at all, there is any

offence, then the occurrence would have taken place at Srinagar and just seizure

is at Delhi, however, Writ Court allegedly without appreciating the matter,

simply held that the goods had been seized at Delhi, therefore, the Courts at

Delhi had the jurisdiction and this observation of the Writ Court is contrary to

law, as such, the impugned judgment deserves to be set aside.

15. By booking the consignment at Srinagar, the cause of action as

contemplated under Article 226(2) of the Constitution of India, has arisen to the

appellant within the territorial jurisdiction of this Court and all the

Communications had also been addressed and received by the appellant at

Srinagar; that the appellant while meeting the objection raised by the

respondents with regard to maintainability of the writ petition, qua the territorial

jurisdiction of this Court, had raised the principle of "Forum Conveniens" and

under this principle, this Court had the jurisdiction to decide the case.

16. The main thrust/vehemence of the arguments of learned counsel for

the appellant-petitioner is that the Courts/Fora at Delhi may have jurisdiction in

the matter, since the seizure and proposed confiscation and registration of a

criminal case against the appellant-petitioner was at Delhi, however, this Court

had also writ jurisdiction vested in it for the reason that the consignment/goods

alleged to have seized, had been originated from Srinagar-the business place of

the appellant-petitioner, through courier service. Therefore, it can be safely

stated that the part of cause of action had accrued at Srinagar and in view of

latest judgments of the Apex Court, in terms of Article 226 (2) of the

Constitution of India, every High Court is vested with the powers of writ

jurisdiction in a case, where even a part of cause of action had accrued within its

territorial jurisdiction. It was argued that the seized consignment was booked by

the appellant-petitioner at Srinagar through courier service, to be delivered in a

foreign country, therefore, the cause of action had started at Srinagar only and

the Notices/Communications have been made/received by the appellant-

petitioner at Srinagar.

17. There is no dispute with regard to submission of the learned counsel

for the appellant-petitioner that in view of the part of cause of action having

accrued within the territorial jurisdiction of the High Court, that High Court can

exercise writ jurisdiction in a matter, where some cause of action may have

accrued in continuation within the territorial jurisdiction of some other High

Court, in view of the law on the point having been authoritatively laid by the

Hon'ble Apex Court, in case titled, "Navinchandra N. Majithia Vs. State of

Maharashtra & Ors., reported in 2000 (7) SCC 640" the relevant para of the

said judgment, for ready reference, is extracted as under:-

" We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case."

18. Adverting to the case of the appellant-petitioner and having regard

to the pleadings made by the petitioner in its writ petitions, though it has been

pleaded that Pashmina Embroidered Ladies Shawls had been booked on

27.11.2013 from Srinagar through DHL Express (I) Private Limited, Mumbai, to

be delivered in Switzerland within a period of one week, however, the appellant-

petitioner though claiming to have received this consignment from its suppliers,

did not specify as to who were the suppliers; what was their location and where

the seized shawls had been manufactured. Therefore, merely receiving of shawls

from its suppliers by the appellant-petitioner, without any descriptive details in

its petitions, cannot be said that the part of the cause of action had accrued within

the territorial jurisdiction of this Court.

19. It was for the appellant-petitioner, to at least plead and also urge at

the time of arguments before the learned Writ Court or even before this Bench

substantially, as to wherefrom it had received supplies of the consignment of

shawls manufactured from the prohibited yarn, so that the learned Writ Court or

this Court in appeal could have said that in view of commission of offences in

J&K, the appellant's cause of action had arisen within the territorial jurisdiction

of this Court, so as to entertain the writ petitions for their disposal on merits.

Merely pleading that the consignment was booked from Srinagar by the

appellant-petitioner and the Notice/Communications from the respondents were

received by the appellant-petitioner at Srinagar, does not disclose any cause of

action having arisen at Srinagar so as to confer territorial jurisdiction on the basis

of part of cause of action, exercising writ jurisdiction of this Court. In absence

of any specific pleadings in the writ petitions as well as memoranda of appeals, it

cannot be said that any part of cause of action had accrued to the appellant-

petitioner at Srinagar. The learned Writ Court has rightly held that the seizure of

the shawls containing prohibited material had taken place in Delhi, therefore,

Delhi Courts/Fora shall be having jurisdiction in the matter and not this High

Court.

20. Having regard to the foregoing discussion and reasons stated

hereinabove, the impugned common judgment passed by the Writ Court is

maintained and upheld. As a consequence, both the appeals are dismissed,

alongwith pending application(s). Interim direction, if any, shall stand vacated.

Judgment shall be placed across both the appeal files. In peculiar facts and

circumstances, parties shall bear their own costs.

21. Both the LPAs alongwith pending application(s) are disposed of as

dismissed.

                       (MA CHOWDHARY)                (N. KOTISWAR SINGH)
                            JUDGE                        CHIEF JUSTICE

Jammu:
07.10.2023
Ram Krishan
                                       Whether the judgment is speaking?   Yes
                                       Whether the judgment is reportable? Yes