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TMI Blog2016 (4) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... the Smugglers and Foreign Exchange Manipulations (Forfeiture of Property) Act, 1976 ('SAFEMA', for short), against the petitioner therefore the petitioner has prayed to quash and set-aside such orders by issuance of appropriate writ under Article 226 of the Constitution of India, claiming that the detention order and notice to forfeit his property is illegal and violative of Articles 14 and 21 of Constitution of India. It is also undisputed fact that similar order was passed against other three brothers of the present petitioner and they all have filed separate writ petitions and challenged the similar order of detention wherein they succeeded in quashing and setting aside such order of detention. Such judgment is in Special Criminal Application Nos.125 and 127 of 1974 by Division Bench of this High Court as back as on 5.11.1974. It is also undisputed fact that while quashing and setting aside the detention orders of all the brothers of the present petitioner, the Division Bench has categorically observed as under:- "It is, therefore, difficult for us to accept the version of the detaining authority that because of this defect in the voucher for which the purchasers, Messr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the socalled subjective satisfaction of the detaining authority is being reached. After all, the constitution places the individual liberty of the citizen on a high pedestal and even the legislature's power to enact a law providing for preventive detention is begged in with may safeguards. We fail to see now under the circumstances any detaining authority after examining the facts which he was bound to examine could have reached the satisfaction which the District Magistrate, Surat, the first respondent herein, has purported to have reached, namely, that it was necessary to detain the main partner and the active of the firm of Messrs Gamanlal Vithaldas Choksi. It must be borne in mind that in the grounds of detention apart from this incident of the seizure of ten bars of silver of September 6, 1974, no other incident has been relied upon and in connection with that incident, the defect, if any, was in the voucher issued by Messrs Motiram Rupchand Jariwala. Again from the practice of this Customs Department, as seen by the counter signature of the transport voucher of the very ten silver bars from Songadh to Surat, it is clear that uptil now or till February, 1974, the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds before passing the order of detention and if such grounds were not formulated by the detaining authority before passing the order of detention, then, the order of detention is to be considered as illegal. 4. However, the respondents have tried to convince the Court that this cannot be the ground for quashing and setting-aside the order of detention. 5. Irrespective of above-referred factual details on record, this Special Civil Application came to be dismissed by learned Single Judge of this Court vide order dated 27.2.1997 holding that writ petition is barred by principle of res judicata reserving the liberty to file fresh petition relying upon the judgment of Attorney General of India Vs.Amratlal Prajivandas reported in (1994)5 SCC 54. 6. Being aggrieved by such judgment dated 27.2.1997, the petitioner has preferred Letters Patent Appeal No.478 of 1997, but it was also dismissed by judgment and order dated 6.12.2012 holding that petitioner has no right to challenge the order of detention, but with exemplary cost of Rs. 25,000/- considering that appellant has tried to delay the proceeding at every stage. When such order of Letters Patent Appeal was challenged befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do further than to rely upon such decision of the Division Bench, which was never challenged before the higher authority to put an end to such case, wherein first order of detention, which is impugned in the petition is of 1976 i.e. before 40 years. 8. Learned advocate for the respondent has tried to convince the Court that even after the decision by the Hon'ble Supreme Court in Civil Appeal No.14352 of 2015, the petitioner is not entitled to take all the grounds. I could not agree to such proposition for the simple reason that there are previous decisions of Division Bench of this High Court that detaining authority is under obligation to comply with the requirements by formulating grounds for detention and on factual aspect also, there is no reason to detain such person and therefore, as recorded herein above, the Division Bench has gone to the extent of saying that "a grosser case than this is yet to be seen." 9. For arriving at such conclusion, the petitioner has referred and I am relying upon the relevant observations from the following decisions:- 1. Ghelubhai R.Madam Vs.Competent Authority & Ors. reported in 2004(2) GLR 1431; 2. Kamleshkumar Ishwardas Vs. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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