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2016 (4) TMI 677 - GUJARAT HIGH COURT

2016 (4) TMI 677 - GUJARAT HIGH COURT - TMI - Order of detention - Held 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.

Thus the impugned .....

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pellants : Mr SH Sanjanwala, Sr Adv. with Dilip L Kanojiya, Adv. For the Respondents : Mr Utkarsh Sharma, AGP and Mr PY Divyaeshwar, 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 fa .....

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iture 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 .....

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erefore, difficult for us to accept the version of the detaining authority that because of this defect in the voucher for which the purchasers, Messrs Gamanlal Vithaldas Chokshi, were in no way responsible, though there is no compulsion to put individual numbers on silver bars and since even the customs officials themselves countersigned the transport voucher without insisting on the individual numbers of the silver bars, two partners, one the main partner, and the other an active partner in the .....

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of the firm of Messers Gamanlal Vithaldas Choksi were engaged either in smuggling goods or dealing in smuggled goods or abetting other persons to smuggle goods. This single transaction in connection with ten silver bars which were seized by the customs officials on September 6, 1974. under the circumstances which we have mentioned herein above, is the sole ground on which the District Magistrate has reached his subjective satisfaction that his firm of Messrs Gamanlal Vithaldas Choksi and particu .....

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plated 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 .....

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faction 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 Messr .....

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an being could have reached. In view of the above discussion, we held that the detention order in each of these Special Criminal Applications must be quashed and set-aside. We, therefore, quash and set-aside the order of detention against each of these two detenues and direct that Pravinbhai Choksi, the detenu concerned in Special Criminal Application No.126 of 1974, and Suresh Gamanlal Choksi, the detenu concerned in Special Criminal Application No.127 of 1974, should be set at liberty forthwit .....

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re, prima facie, on this ground itself, this petition needs to be allowed since it is also undisputed fact that detention of present petitioner is based upon the same facts and circumstances, which are very well described in the pleadings as well as in above-referred decision of Division Bench of this High 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 detail .....

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plication 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 .....

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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 ₹ 25,000/- considering that appellant has tried to delay the proceeding at every stage. When such order of Letters Patent Appeal was challenged before the Hon'ble Supreme Court of India in Civil Appeal No.14352 of 2015, Hon'ble Supreme Court of India has by its reasoned judgment dated 10.12 .....

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brothers. 28. In the above view of the matter, we are of the view, that the determination rendered by the High Court in not allowing the appellant to raise a challenge to the order of his detention dated 11.6.1976, was wholly unjustified. The order passed by the High Court is therefore liable to be set aside. The same is accordingly hereby set aside. The appellant is relegated back to the High Court, so as to enable him to press his claim, on the grounds as may be available to him (to assail th .....

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ner, 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 conc .....

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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 .....

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95)4 SCC 51; 3. Niranjan Chokshi & Anr. Vs. Union of India and Ors. reported in 1992(2) GLR 891; 4. Krishna Murari Vs.Union of India & Ors. reported in 2002 AIH C 2866; 5. A copy of the order in Special Criminal Application Nos.332 of 1992 and 332 of 1992; 6. Parshottam Dahyabhai Chunara Vs. State of Gujarat & Ors. reported in 1988(1) GLR 342; 7. Bipinchandra Gamanlal Chokshi Vs. State of Gujarat & Ors. reported in AIR 2016 SC 267; 8. Bipinchandra Gamanlal Chokshi Vs.State of Guj .....

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