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TMI Blog1992 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Chokshi Sureshchandra G. Chokshi S.G. Chokshi July 28, 1987 3. 723 of 1990 Smt. Dhangauri G. Chokshi Laxmanbhai @ Lallubhai Govindbhai Laxmanbhai @ Lallubhai Govindbhai Oct. 24, 1977 4. 377 of 1991 Suresh Thakorebhai Desai Suresh T. Desai March 27, 1979 5. 745 of 1991 Mohd. Ebrahim lanmohmed Abdullah Janmohmed Feb. 15, 1983 6. 747 of 1991 Smt. Urmilaben M. Desai Manubhai P. Desai Oct. 10, 1985 7. 748 of 1981 Kishore Cbunilal Chokshi Kishore C. Chokshi Sept. 26,1979 3. By filing the aforementioned 7 petitions the petitioners not only challenged the notices issued under Section 7 of the SAFEMA, 1976 but they also challenged the original orders of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (now hereinafter referred to as 'COFEPOSA, 1974'). 4. The Spl. Criminal Application No. 289 of 1990 has been filed by the two petitioners, namely, Niranjan D. Chokshi and Smt. Surekha N. Chokshi, they being the husband & wife respectively. The petitioner No. 1 is a proprietor of a proprietory business known as 'Niranjan Jewellers' situated at Surat. The petitioner No. 1 was detained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was re-detained by the orders of detention dated August 22, 1975. According to the case of the petitioner, the grounds of detention were never formulated and were not supplied to him. Later on the necessary notice under Section 6 of SAFEMA dated October 24, 1977 has been issued against the petitioner and therefore he challenges the orders of detention under COFEPOSA and the proceedings under SAFEMA. 7. In Spl. Cri. Application No. 377 of 1991 the petitioner challenges the original orders of detention as well as the proceedings instituted against him under SAFEMA. According to the petitioner, he was detained under COFEPOSA but during the pendency of the Spl. Cri. Application No. 177 of 1977 the orders of detention under COFEPOSA were revoked on November 30, 1977. According to the case of the petitioner, the grounds of detention were not formulated and were not furnished to him and in the same way the material documents, on which the detaining authority had placed reliance, were also not supplied or furnished to him. Later on the notice under Section 6 of the SAFEMA have been issued against the petitioner on March 27, 1979. It is therefore that the petitioner not only challenges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under COFEPOSA namely the detention of a particular detenu. In the submission of learned Advocates for the petitioners, SAFEMA would apply only to those persons in respect of whom an order of detention has been made under COFEPOSA and such order of detention has not been set aside by the Court of Competent Jurisdiction. Arguing in the same line, the learned Advocates have further contended that, in all these petitions the orders under COFEPOSA have been duly revoked and therefore, when the proceedings came to be initiated under SAFEMA the pre-requisite of the detention under COFEPOSA was not existing and therefore the proceedings under SAFEMA could never have been instituted. 12. It is also the contention raised by the learned Advocates for the petitioners that irrespective of the revocation of the orders of detention, the very detention in respect of each of the detenu had become illegal, invalid and unconstitutional because of the fact, that in no case the grounds of detention were formulated before or at the time of the passing of the orders of detention under COFEPOSA and that such grounds were never furnished to the respective detenu. Any how the contention raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under COFEPOSA but when the orders of detention were sought to be used as basis for taking action against under Sections 6 & 7 of SAFEMA, the respondents had challenged the orders of detention by filing petition under Article 226 of the Constitution of India, challenging the orders of detention under COFEPOSA. Such a petition in the view of the Supreme Court was maintainable. It therefore becomes clear that in the instant case also the preliminary objection in the abovesaid 4 petitions shall have to be repelled and rejected following the ratio laid down by Supreme Court in case of Union of India v. Haji Mastan (supra). 14. It appears that various such petitions came to be filed under Article 226 of the Constitution of India, challenging the orders of detention under COFEPOSA and, the initiation of proceedings under SAFEMA. Certain matters pending on the file of this Court were stayed by the Supreme Court by the orders dated 25th October, 1989. But later on by the orders of the Supreme Court on Civil Original Jurisdiction side in I.A. No. 101 of 1991 dated 19th December, 1991, 8 such petitions mentioned in the above said orders, were directed to be heard by this High Court on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs that it applies to every person in respect of whom an order of detention has been made under COFEPOSA, provided that such order of detention has not been set aside by a Court of competent jurisdiction. In view of this principle laid down by the Supreme Court in case of Union of India v. Haji Mastan (supra) it must be accepted that initiation of proceedings under Sections 6 & 7 of SAFEMA pre-suppose a valid order of detention under COFEPOSA. As indicated above, in the aforementioned six petitions, original orders of detention have been revoked. The orders which have been revoked would not stand on a different footing than the orders which are set aside and quashed by the High Court while exercising the jurisdiction under Article 226 of the Constitution of India. This position is clearly obtained from the Supreme Court decision in Ibrahim Bachu Bafan v. Stale of Gujarat and Ors. has been pointed out that when the High Court exercises the jurisdiction under Article 226 of the Constitution of India, it definitely does not make an order of revocation. By issuing a high prerogative writ like Habeas Corpus or Certiorary, High Court quashes the impugned orders before it. But as pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.Ps. after the scrutiny of certain files, which were made available to them by the officers concerned, who were present in the Court at the time of the hearing of these petitions, had ultimately come with a statement that the files and the record do not show that the grounds of detention were in existence at the time of or before passing the orders of detention. In other words the above said candid statement made by the learned A.P.Ps. would amount to a simple admission that when the orders of detention came to be passed by the detaining authorities the grounds of detention were not in existence. In other words the prerequisite of the existence of the grounds of detention at the time of or before the passing of the orders of detention was not duly complied with and satisfied. The legal consequences following from such factual situation are not unknown. The learned Advocates for the petitioners have placed reliance upon the Supreme Court decision in Krishna Murari Aggarwala, v. Union of India and Ors. . In this decision at paragraph-7 the Supreme Court has observed thus: Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above said 3 Supreme Court decisions as well as the decision in case of Parshottam Dahyabhai Chunara (supra) rendered by this Court would go into operation. It would therefore become clear that the very orders of detention would be bad, invalid, unconstitutional and therefore unsustainable. 18. Mr. Sanjanwala has invited our attention to a unreported decision in Spl. Criminal Application No. 1775 of 1990 and 1776 of 1990 dated 16-2-1991 decided by the Bench of this Court (Coram: G.T. Nanavati & J.M. Panchal, JJ.) in which a similar view has been taken. In that case also the petitioners were detained but later on their detention orders were revoked by the Government. It was also urged, in the above said cases that the grounds were not formulated by the detaining authority on the date on which the orders of detention came to be passed. Any how the petitions came to be allowed slightly on a different footing, namely that certain material documents on which the detaining authority has placed reliance were admitedly not furnished to the petitioner-detenu. One more unreported decision on which Mr. Sanjanwala has placed reliance is again a Bench decision of this Court in Spl. Cri. Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and the learned Counsel appearing on behalf of the Union of India and the Competent Authority, these 7 petitions arising under Article 226 of the Constitution of India, presenting similar questions of facts and law, have been taken for hearing together and they shall be decided and disposed of by this common judgment. 2. The following Table shows the Special Criminal Application Numbers, the name of the petitioners, the name of the detenues and the date of the notice under the relevant provisions of Smugglers & Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as Sr. No. Spl. Crl. Appll No. Petitioners Detenu Date of Notice Under SAFEMA 1976 1. 289 of 1990 Niranjan D. Chokshi Smt. Surekha N.D Chokshi July 30,1977 2. 704 of 1990 N. Chokshi Sureshchandra G. Chokshi S.G. Chokshi July 28, 1987 3. 723 of 1990 Smt. Dhangauri G. Chokshi Laxmanbhai @ Lallubhai Govindbhai Laxmanbhai @ Lallubhai Govindbhai Oct. 24, 1977 4. 377 of 1991 Suresh Thakorebhai Desai Suresh T. Desai March 27, 1979 5. 745 of 1991 Mohd. Ebrahim lanmohmed Abdullah Janmohmed Feb. 15, 1983 6. 747 of 1991 Smt. Urmilaben M. Desai Manubhai P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1976. Any how, on lifting of the Emergency the orders of detention were revoked by the Government on/or about March 21, 1977. Any how the necessary notice under Section 6 of the SAFEMA, 1974 has been issued against the petitioners on July 28, 1987. It is therefore that the petitioner challenge the original orders of detention under COFEPOSA and the consequent proceedings under SAFEMA. 6. In Spl. Criminal Application No. 723 of 1990 the petitioner was detained under MISA and later on he had challenged his detention by filing the Spl. Cri. Application No. 121 of 1974 before the High Court of Gujarat. The abovesaid Special Cri. Application filed by the petitioner came to be allowed by the High Court of Gujarat vide orders dated October 29, 1974. But during the Emergency, the petitioner was re-detained by the orders of detention dated August 22, 1975. According to the case of the petitioner, the grounds of detention were never formulated and were not supplied to him. Later on the necessary notice under Section 6 of SAFEMA dated October 24, 1977 has been issued against the petitioner and therefore he challenges the orders of detention under COFEPOSA and the proceedings under SAFEMA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g challenged in this petition. 10. In Spl. Cri. Application No. 748 of 1991 petitioner Kishore Chokshi challenges his detention under COFEPOSA under the orders dated October 13, 1977. The above said orders of detention were quashed and set aside by the High Court of Gujarat in Spl. Cri. Application No. 250 of 1977 filed by one Vasantlal Shah challenging the orders of detention. The case of the petitioner is that his detention was illegal, as the grounds were not formulated and were never supplied to the detenu. The petitioner also challenges the initiation of the proceedings under SAFEMA. 11. The contention, raised by Mr. S.H. Sanjanwala and Mr. M.C. Kapadia the learned Advocates appearing on behalf of the petitioners, is that the proceedings under SAFEMA would presuppose the valid proceedings under COFEPOSA namely the detention of a particular detenu. In the submission of learned Advocates for the petitioners, SAFEMA would apply only to those persons in respect of whom an order of detention has been made under COFEPOSA and such order of detention has not been set aside by the Court of Competent Jurisdiction. Arguing in the same line, the learned Advocates have further contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a contention by holding that the preliminary objection was required to be overruled. The Bench had also placed reliance upon Rajasthan High Court decision in Prakash Chand Kasliwal v. Union of India and Ors. 1987 Cri.LJ 598. Because of this position the preliminary objection sought to be raised by the learned A.P.P. Mr. Shelat and learned Standing Counsel Mr. Patel would at least not survive in the above said three Special Criminal Applications. So far as the other 4 matters are concerned, the same view shall have to be taken, following the above said Bench decision of this Court and the Supreme Court decision in case of Union of India and Ors. v. Haji Mastan Mirza (supra). Under the circumstances mentioned in this decision the respondent had not challenged the orders of detention under COFEPOSA but when the orders of detention were sought to be used as basis for taking action against under Sections 6 & 7 of SAFEMA, the respondents had challenged the orders of detention by filing petition under Article 226 of the Constitution of India, challenging the orders of detention under COFEPOSA. Such a petition in the view of the Supreme Court was maintainable. It therefore becomes cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes clear that in the above said six Spl. Cri. Applications the original orders of detention under COFEPOSA issued against the respective detenues came to be revoked. It is the contention raised by the learned Advocates of the petitioners that a valid order of detention under COFEPOSA is prerequisite for the issuance of the proceedings under SAFEMA. In support of their contention, the learned Advocates for the petitioners, have invited the attention of this Court to the Supreme Court decision in case of Union of India v. Haji Mastan (supra). In this decision it has been made clear that in view of Section 6(1) of SAFEMA, the action under Sections 6 & 7 of SAFEMA may be taken against only those persons to whom SAFEMA applies. Looking to Sub-section (2) of Section 2 of SAFEMA it appears that it applies to every person in respect of whom an order of detention has been made under COFEPOSA, provided that such order of detention has not been set aside by a Court of competent jurisdiction. In view of this principle laid down by the Supreme Court in case of Union of India v. Haji Mastan (supra) it must be accepted that initiation of proceedings under Sections 6 & 7 of SAFEMA pre-suppose a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and are prepared contemporaneously, otherwise the orders of detention would become purely illusory. In support of the above said contention the learned Advocates wanted to place reliance upon certain reported decisions of the Supreme Court of India and of this High Court in this respect. But before proceeding further to examine the exact legal situation in this respect, it would be worthwhile firstly to inquire into the question as to whether the grounds of detention existed or not at the time of passing the orders of detention as the contemporaneous record. The learned A.P.Ps. Mr. K.V. Shelat and Mr. J.A. Shelat appearing on behalf of State Authorities were not able to meet with the above said factual contention raised by the learned Advocates for the petitioners. The learned A.P.Ps. after the scrutiny of certain files, which were made available to them by the officers concerned, who were present in the Court at the time of the hearing of these petitions, had ultimately come with a statement that the files and the record do not show that the grounds of detention were in existence at the time of or before passing the orders of detention. In other words the above said candid sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence on the day on which the orders of detention are being passed. It has been laid down by the above said decision of this Court in case of Parshottam Dahyabhai Chunara (supra) that if the grounds of detention were to be formulated subsequently the order of detention would be bad in law. Here, in the present petitions, we are concerned with a situation in which the grounds of detention were not formulated. Mr. J.A. Shelat and Mr. K.V. Shelat the learned A.RPs. appearing on behalf of the State Authorities were at the best able to lay their hands on certain correspondsnce in their files, which would go to show that certain draft statements were made by the sponsoring authorities but the grounds of detention were never formulated. Looking to this position the ratio laid down in the above said 3 Supreme Court decisions as well as the decision in case of Parshottam Dahyabhai Chunara (supra) rendered by this Court would go into operation. It would therefore become clear that the very orders of detention would be bad, invalid, unconstitutional and therefore unsustainable. 18. Mr. Sanjanwala has invited our attention to a unreported decision in Spl. Criminal Application No. 1775 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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