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Bipinchandra Gamanlal Chokshi and another Versus State of Gujarat and others

2015 (12) TMI 1527 - SUPREME COURT

Detention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - non opportunity to assail the order of his detention - Held that:- In the facts and circumstances of the present case, it is apparent, that the order of detention under Section 3 of the COFEPOSA Act was passed on 11.6.1976. Immediately after the passing of the aforesaid order, on the same day, the Government of Gujarat issues a declaration under Section 12A, with referen .....

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the grounds as may have been available to him.

We are satisfied, that in the facts and circumstances of this case, specially the position highlighted by the learned counsel for the appellant, as has been noticed hereinabove, the appellant had no occasion whatsoever to challenge to the order of his detention, on the grounds available to him, while the detention order subsisted under the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof after 21.3.1977, as th .....

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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 the order of his detention dated 11 .....

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h H. Sanjanwala, Sr. Adv. Mr. Shamik Sanjanwala, Adv. Mr. Zafar Inayat, Adv. Ms. Rohini Musa, Adv. Mr. Abhishek Gupta, Adv. Mr. Kailash Pandey, Adv. Mr. Ranjeet Singh, Adv. For Mr. K. V. Sreekumar,AOR For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv. Ms. Sunita Rani Singh, Adv. Mr. R.K. Verma, Adv. for Ms. Binu Tamta,AOR Ms. Hemantika Wahi, Adv. Ms. Jesal Wahi, Adv. J U D G M E N T JAGDISH SINGH KHEHAR, J. Leave granted. 2. The State of Guja .....

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t, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchang .....

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detained: [Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu & Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J&K Ordinance 1 of 1988).] (2) When any order of detention is made by .....

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cumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention. 3. The revocation of an order passed under Section 3 of the COFEPOSA Act, is contemplated inter alia under Section 8 of the COFEPOSA Act. Section 8, which is also relevant in the determination of the present controversy, is also reproduced hereunder: 8. Advisory boards.- For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of Article .....

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ke a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution; (c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from, the appropriate Government or from any person called for the purpo .....

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re is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the .....

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ate Government shall revoke the detention order and cause the person to be released forthwith. 4. Proclamation of emergency under Article 352(1) of the Constitution of India was declared on 25.06.1975. Based on the above, the State of Gujarat issued a declaration under Section 12A of the COFEPOSA Act, that the detention of the appellant was necessary for dealing effectively with the emergency contemplated under section 12(A)(2) of the COFEPOSA Act. 5. Section 12A provides .....

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tion on the 3rd day of December 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twenty-four months from the 25th day of June, 1975, whichever period is the shortest. (2) When making an order of detention under this Act against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1975, the Central Government or the State Government or, as the case m .....

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dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned: Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days. .....

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ely dealing with the emergency, that Government may revoke the declaration. (4) In making any consideration, review or reconsideration under sub-section (2) or (3), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.

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s of sub-section (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into account for the purpose of computing- (i) the periods specified in clauses (b) and (c) of section 8; (ii) the periods of "one year" and "five weeks" specified in sub-section (1), the period of "one year" specified in sub-section (2)(i), and the period of "six mont .....

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POSA Act, every detention order is to be reviewed before the expiry of every four months. The instant review is contemplated under sub-section (3) of Section 12A of the COFEPOSA Act. In compliance with Section 12A(3) of the COFEPOSA Act, the first review contemplated under sub-section (3) took place on 04.10.1976. Yet again, the order of detention of the appellant was affirmed. Still further, the second review under Section 12A(3) of the COFEPOSA Act, was held on 9.2.1977. .....

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anlal Chokshi assailed the order of his detention dated 11.6.1976, by filing Special Civil Application No. 1276 of 1977. It is apparent, that the aforesaid challenge was made by the appellant, well after the order of his detention (dated 11.6.1976), had been revoked (by the order dated 21.3.1977). Further details in this behalf, shall be referred to at a later juncture. 9. The grievance of the appellant in assailing the order of his detention (passed under Sections 3 read with 12A of .....

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Under Section-5 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976), have, on the basis of relevant information and relevant material available to me, reason to believe that the properties described in the schedule enclosed hereto which are held by you or on your behalf, are illegally acquired properties within the meaning of clause (c) of sub-section (1) of section-3 of the said Act. 2. Now, therefore, in pursuance of sub-section (1) of .....

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Sd/- (S.N. Sastri) Competent Authority Bombay 10. It would be relevant to mention, that the initiation of proceedings under the SAFEMA Act against the appellant, were based on Section 2 of SAFEMA Act. During the course of hearing, learned counsel for the rival parties agitated their claims, on the basis of the interpretation of Section 2(2)(b) of the SAFEMA Act. Whilst, it was the contention of the learned counsel for the appellant, .....

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stification of law. Section 2(2)(b) of the SAFEMA Act is extracted below: Section 2(2)(b): every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): Provided that- (i) such order of detention being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under .....

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p> (iii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; or (iv) such order of detention has not been set aside by a Court of competent jurisdiction. 11. In order to c .....

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i Aggarwala v. Union of India AIR 1975 SC 1877, wherein it was held, that recording of the grounds of detention is an essential prerequisite, before the passing of the order of detention. Accordingly it was held, that if the grounds of detention are not recorded and signed, before passing an order of detention, the satisfaction of the concerned Government or the concerned officer, contemplated under Section 3 of the COFEPOSA Act, would be purely illusory, and such order of detention w .....

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nst Niranjan Dahyabhai Chokshi under Section 6 of the SAFEMA Act were also set aside as unsustainable. 12. Two other brothers of the appellant - Bipinchandra Gamanlal Chokshi, namely, Rameshchandra Gamanlal Chokshi and Pravinchandra Kikabhai Choksy had likewise approached the High Court of Gujarat by filing Special Criminal Application Nos. 331 and 332 of 1992 respectively, to likewise assail the orders of their detention under the provisions of COFEPOSA Act, and initiation of proceed .....

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appellant, under Section 6 of the SAFEMA Act were also set aside. 13. Insofar as the challenge raised by the appellant herein, to the order of his detention dated 11.6.1976, as well as, the order of initiation of proceedings under Section 6 of the SAFEMA Act on 28.4.1977 is concerned, the claim raised by the appellant was rejected by a learned Single Judge of the High Court (while disposing of Special Civil Application No. 3716 of 1995) on 27.2.1997 by holding as under: Sp .....

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was initially registered as Special Criminal Application No. 1499 of 1994. It was subsequently, on conversion, registered as Special Civil Application No. 3716 of 1995. The petition appears to have been not affirmed. A non-affirmed affidavit filed is dated 24-8-1993. However, it is signed by the learned Advocate on 7-10-1994. The petition appears to have been filed on 10-10-1994. The necessary facts are that the appellant No. 1 was detained under the provisions of COFEPOSA .....

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order of detention as well as the SAFEMA Act notices by way of filing Special Criminal Application No. 1276 of 1977. However, the said writ petition was dismissed as withdrawn by the order of the Division Bench of this Court on 9-8-1994. The order reads as follows: The challenge to the Constitutional validity of SAFEMA Act and COFEPOSA Act no longer survives, in view of the decision of the Supreme Court in the case of Attorney General of India v. Pranjivandas and Ors., reported in JT .....

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a view to file fresh petition, we express no opinion on any of the questions on merit. Permission to withdraw the petition is granted. The petition stands disposed of as withdrawn. The interim relief order stands vacated. Mr. J.N. Patel, learned Addl. Central Government Standing Counsel has raised two preliminary objections - firstly that since the appellant did not challenge the order of detention during the subsistence of Emergency in view of the judgment of the Apex Court in Atto .....

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wala, learned Advocate for the appellants submits that the 9-Bench judgment of the Supreme Court in Attorney General of India's case (supra) has been explained in subsequent judgment in the case of Smt. Gangadevi v. Union of India & Ors.. It is held in Gangadevi's case (supra) that where there has been no pronouncement by any Court upon the validity of the order of detention, the detenu is entitled to challenge the validity of the detention order as the same is being made .....

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made by Mr. Sanjanwala, learned Advocate for the appellant. Smt. Gangadevi's case (supra) does not advance the case of the appellant. The observations quoted above by the Apex Court cannot be read in isolation. In the said case, the order of detention was challenged by the detenu Sreekrishna Gopilal Solanki. The writ petition was admitted and notices were issued to the State. On 11-3-1976, notices under Section 6 of the SAFEMA Act were issued. On May 1,1976, the said detenu-Sreekrishna Gopi .....

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d that the order of detention was challenged by detenu Sreekrishna Solanki himself and unless the challenge is repealed, it cannot be made basis of the proceedings under SAFEMA Act against the wife of the detenu. 19. In the present case, it is not in dispute that the order of detention was never challenged during the subsistence of Emergency. In Attorney General of India's case (supra), it is held that the person who could have challenged the order of detention yet does not choose .....

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e Apex Court in Attorney General's case (supra). It is held that a person who do not challenge either by himself or through his best friends, the order of detention challenged but failed, cannot be allowed to challenge the order of detention, when action is taken against him under SAFEMA Act. Thus, this contention also fails. It is lastly contended by Mr. Sanjanwala that the order of detention has been revoked by the wireless message dated 21-3-1977 - Annexure "C" and as such the v .....

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15. Dissatisfied with the order passed by the learned Single Judge, the appellant preferred LPA No. 478 of 1997. The said appeal came to be dismissed by a Division Bench of the High Court on 06.12.2012. The orders passed by the learned Single Judge in Special Civil Application No. 3716 of 1995, and by the Division Bench in LPA No. 478 of 1997, have been impugned by the appellant before this Court. 16. The primary question that arises for our consideration is, whether in view of the j .....

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as to expose him to extremely harsh consequences. In order to determine the above submission, it will be imperative for us to examine, whether or not the claim of the appellant had been rightfully determined by the High Court, on the basis of the judgment rendered by this Court in Attorney General for India's case (supra). In examining the instant aspect of the matter, it is essential to notice that this Court (in Attorney General for India's case) while adjudicating upon the issues rais .....

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ction under Section 6 of SAFEMA Act against the detenu, his relatives and associates? And if it does, can the validity of such order of detention be challenged by the detenu and/or his relatives and associates, when proceedings are taken against him/them under SAFEMA Act, even though the said order of detention has ceased to be operative and was not either challenged - or not successfully challenged - during its operation? (3) If the answer to Question 1 is in the affirmative, should the validit .....

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te of the proclamation of emergency to which Section 12-A was applicable. None of theme are, what may be called, 'normal' orders of detention. For that reason, the detenus were neither supplied with the grounds of detention, nor were they given an opportunity to make a representation against their detention nor does it appear that their cases were referred to the Advisory Board - not at any rate within the period prescribed by Section 8, or for that matter, Section 9. They were released .....

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Act is made the basis for action under SAFEMA Act against them, they are entitled to challenge the validity of the order of detention. They may not have been able to question the validity of detention during their detention by virtue of Section 12-A of COFEPOSA Act (non-supply of grounds and non-reference to Advisory Board) and also because their right to move the court for enforcement of the rights guaranteed to them by Articles 14, 21 and 22 was suspended during the period of emergency by an .....

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their enforcement was suspended. If so, they say, the detention orders made against them are invalid and illegal for violation of clauses (4) and (5) of Article 22. They may have been barred from enforcing their rights under Article 22,21 and 19 because of the said order of the President, but that did not render the orders of detention valid. Such invalid, indeed void orders, they say, cannot serve as the basis or as the foundation of action under SAFEMA Act. They also stress the drastic nature .....

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o suspension of the right itself since one cannot conceive of a right without a remedy. There is no distinction, he says, between Article 358 and an order under Article 359(1) in this regard. He places strong reliance upon the observations (SCR at p. 812) of the decision in Makhan Singh v. State of Punjab. Having given our thoughtful consideration to the issue in hand, we are satisfied, that insofar as the factual position is concerned, the present case is apparently similar to the o .....

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he appellant has placed reliance on the findings recorded in respect to question no.2 (extracted hereinabove), in paragraphs 39 to 41. The same are relevant, and are accordingly being reproduced hereunder: 39. Proviso (iii) expressly treats "an order (of detention)to which the provisions of Section 12-A of the said Act apply" and which "has not been revoked before the expiry of time for, or on the basis of, the first review under sub- section (3) of that section (Sectio .....

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titutional reproach. One has to take the said provisions as they stand and they stand solidly against the appellants' contentions. On this single ground, we hold, as we must, that an order of detention made under COFEPOSA Act, to which the provisions in Section 12-A applied, is an order of detention within the meaning of and for the purposes of Section 2(2)(b) of SAFEMA Act and can, therefore, constitute the basis for applying SAFEMA Act to such person. 40. At this jun .....

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3-12-1974. On 25-6-1975, emergency was proclaimed under Article 352(1) on the ground of internal disturbance, which continued to be in force up to 21-3-1977. The respondent was released on 23-3-1977. Notice under Section 6(1) of SAFEMA Act was issued to him, his relatives and associates whereupon he filed a writ petition in the Bombay High Court challenging the validity of the order of detention dated 19-12-1974 on the ground inter alia that he was not supplied with the documents clearly and unm .....

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to proceedings being taken under Sections 6 and 7 of SAFEMA Act. If the impugned order of detention dated 19-12-1974 is set aside for any reason, the proceedings taken under Sections 6 and 7 of SAFEMA Act cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19-12-1974 under COFEPOSA Act is void and has to be quashed." 41. From the facts stated above, it is clear that the order of detention was made long prior to the proclamation of emergency .....

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against him under Sections 6 and 7 of SAFEMA Act. It is not possible to agree with the reasoning of the decision. There are two ways of looking at the issue. If it is a normal order of detention[not governe d by Section 12-A nor protected by an order under Article 359(1) suspending the enforcement of Article 22] and if the detenu does not challenge it when he was deprived of his liberty, or challenges it unsuccessfully, there is no reason why he should be allowed to challenge it when action und .....

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aken, the challenge must be confined to grounds which were open or available during the period of emergency; otherwise there would be no meaning behind the concluding words in Article 358(1) and Article 359(1A). Hence, we say that a person who did not choose to challenge such an order of detention during the emergency when he was detained, or challenged it unsuccessfully, cannot be allowed to challenge it when it is sought to be made the basis for applying SAFEMA Act to him. In either of the two .....

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ntion was drawn to the factual position depicted in paragraph 41, namely, that the detenu therein, had an opportunity to assail the impugned order of detention under COFEPOSA Act, and it is therefore, that this Court arrived at the conclusion, that a challenge having not been raised by the respondent in the above case, it would not now be open to him to raise such a challenge, after the detention order stood revoked. Insofar as the present controversy is concerned, learned counsel wishes us to b .....

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with section 12A is extremely limited, inasmuch as, the challenge would be sustainable only if the procedure contemplated under Section 12A had not been followed. The remedy would be limited to the above technical challenge. It was submitted that as against the above, the challenge to an order of detention passed under Section 3 of COFEPOSA Act, can be based on a variety of reasons, wherein it is open to the appellant to assail the non-compliance of the procedure contemplated under Section 8, an .....

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, whereas, the substantive order of detention is passed under Section 3 of COFEPOSA Act. It was contended, that as soon as the emergency was lifted on 21.3.1977, the original position stood revived, inasmuch as, the order of detention would thereafter be an order under Section 3 of COFEPOSA Act without a Section 12A declaration super-added, and as such, was assailable in terms of the grounds available to a detenu under Section 8, and the other grounds referred to above. It was the assertion of t .....

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ntiate his claim, placed emphatic reliance on Section 2 (2) (b) of the SAFEMA Act. It was asserted, that the right to assail an order of preventive detention is a valuable right, and has been recognised in proviso (iv) to Section 2(2)(b)(extracted above). It was the assertion of the learned counsel for the appellant, that an order of detention under the COFEPOSA Act, would inter alia constitute the basis for initiation of proceedings under Section 6 of the SAFEMA Act. However, every detenu has t .....

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r, that the appellant came to be released on 21.3.1977, and Special Civil Application No. 1276 of 1977 was filed by him for the first time on 19.09.1977. According to the learned counsel, that however should make no difference whatsoever. In order to substantiate his instant contention, he placed reliance on proviso (iii) of Section 2(2)(b) of the SAFEMA ACt, which provides for two further eventualities, wherein proceedings under the SAFEMA Act cannot be initiated, despite the detention of an in .....

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en made to Section 12A(6), which expressly finds mention in proviso (iii) of Section (2)2(b) of SAFEMA Act. It is the submission of the learned counsel, that proviso (iii) expressly postulates the possibility of a revocation of an order of detention, even after the declaration under Section 12A ceases to operate, under section 8 of the COFEPOSA Act. It is submitted, that this right which was available to the appellant after the declaration under Section 12A came to be revoked, was really not ava .....

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empty formality. It should be an effective right available to a detenu, so as to enable him to assail the order of his preventive detention. A detenu may be advised not to raise a challenge to his order of detention, while it subsists under the stringent conditions of Section 12A, on account of the fact that his remedy would be wider and the grounds available would be far more, when the order of detention is limited to the scope of Section 3 of the COFEPOSA Act. Illustratively it may be mention .....

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ally, the grounds on which an order of detention has been passed under Section 3 of the COFEPOSA Act, have to be furnished to the detenue. The non-communication of the grounds could constitute the basis to assail an order of detention. In case the grounds furnished to the detenu are either vague or irrelevant, and even if they can be shown to be patently false and incorrect, a detenu can successfully challenge an order of his preventive detention. A detenu can also assail an order of his detenti .....

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tion is passed under Section 3 of the COFEPOSA Act, the Government ordering the detention, has to make a reference to the Advisory Board within five weeks (in terms of Section 8(b) of the COFEPOSA Act). On receipt of a reference from the Government, the Advisory Board has to submit a report within eleven weeks from the date of detention (under Section 8(c) of the COFEPOSA Act). And, an order passed by the Advisory Board opining that there was … no sufficient cause for the detention of the .....

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the order of detention was not passed on sufficient cause. Or even if it can be shown that the grounds of detention are vague, irrelevant, false or incorrect. None of these grounds are available to a detenu, where a declaration has been issued under section 12A of the COFEPOSA Act. The substantive challenge to an order of preventive detention when the order of detention is limited to the scope of Section 3 of the COFEPOSA Act, are far greater. This, because after the declaration under Section 1 .....

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appellant. Again, on the lifting of the emergency on 21.3.1977, the declaration under Section 12A ceased to be operative, with reference to the detention of the appellant. At the beginning of the order of detention, and at the time of revocation thereof, whilst the detention order subsisted only within the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof, there was really no occasion for the appellant to assail the same thereafter, on any of the grounds as may have be .....

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could not have been the subject matter of challenge as the detenu was released on the same day. 25. The factual position depicted in paragraph 41 of the order passed by this Court in Attorney General for India's case (supra) deals with a situation where the appellant had ample opportunity to assail the order of detention, but had chosen not to do so. In paragraph 41, this Court in Attorney General for India's case (supra) held ...If it is a normal order of detention (not gove .....

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choose to do so, cannot be allowed to do so when such order of detention is made the basis of applying SAFEMA Act to him... 26. In the present controversy, the appellant had no opportunity whatsoever to assail the order of his detention, after his release. As soon as the declaration under Section 12A of the COFEPOSA Act was revoked, the appellant was ordered to be released. His release undoubtedly was a release from detention under Section 3 of the COFEPOSA Act. The factua .....

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