TMI Blog2016 (4) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... hwar, Adv. JUDGMENT 1. This petition is dragged for all these 21 years for no valid reason when the issue involved in the petition has already been decided by several decisions of different High Courts as well as the Hon'ble Supreme Court of India. However, the respondents have instead of conceding to the settled legal position so also the admitted position on the face of the present case itself, selected to argue and oppose the petition and therefore, though petition can be disposed of summarily, it becomes necessary to recollect several factual details. 2. It is undisputed fact that there is an order of detention dated 11.6.1976 u/s.12A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA', for short) so also the order dated 11.6.1976 u/s.6(1) of 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hai was concerned. It is high time that those to whom these powers under the Maintenance of Internal Security Act are entrusted realise their responsibility and that they are dealing with the liberty of the citizen and unless as rational persons they can reach the satisfaction contemplated by law, namely, that in order to prevent the smuggling of goods or any of the four activities mentioned in Section 3(1)(c), it is necessary to detain the person so that the activities contemplated by Section 3(1)(c) can be prevented, the liberty of the citizen shall not be taken away. We have come across only recently several orders passed by the respective District Magistrate, where proper attention which should be paid in passing such orders has not been paid, and we are constrained to make these observations regarding the manner in 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court and therefore, I do not want to make this judgment bulky by reproducing the same. It is also undisputed fact that in the present petition, the petitioner has disclosed the factual details of one Special Criminal Application No.1276 of 1977 preferred by him, in paragraph 5.3 and 5.4 of the petition and there is no reply to such facts in affidavit in reply filed by the respondent No.3 and therefore, it is to be considered as admitted fact and hence, conclusion in Special Criminal Application would be binding on the respondents. So far as the merits of the impugned orders are concerned, petitioner is relying upon decision of Division Bench of this High Court in Special Criminal Application No.447 of 1989 wherein it is held that detaining authority is under an obligation to comply with the requirements of the Act by formulating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India has remanded back the matter to the High Court so as to consider all the grounds taken by the petitioner, respondents are trying to take a chance by opposing the petition vehemently, but failed to realise that remitting back the matter is mainly for the reason that while dismissing the petition, by order dated 27.2.1997 this High Court has not considered the merits of the case though the fact remains that similar orders of detention were already quashed and set-aside by Division Bench in the year 1974 and 1990. Therefore, again the only small issue, which remains is that when there are two concurrent views of the Division Bench and when one of such judgment is practically quashing and setting-aside a similar order of detention against the real brothers of the present petitioner for same set of facts, practically, now the Single Judge has nothing 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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