9911796707
TMI Blog1992 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 valid order of detention under COFEPOSA. As indicated above, in the aforementioned six petitions, original orders of detention have been revoked. The orders which hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abhai 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of detention were later on revoked. It would therefore mean that on both the counts the notice under Section 6 of the SAFEMA could not have been issued. In the result therefore this group of 7 petitions is hereby allowed. The impugned orders of detention passed against the concerned petitioner under Section 3(2) of COFEPOSA and the consequent notice issued under Section 6 of SAFEMA are ordered to be quashed and set aside. No order as to costs. Rule made absolute. 1. At the request and with the consent of the learned Advocates appearing on behalf of the petitioners, the learned A.P.Ps. appearing on behalf of the State Authority 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 (F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advisory Board the State Government had revoked the orders of detention by the orders dated November 7, 1974, and the petitioner No. 1 was ordered to be released from the detention forthwith. But during the Emergency the petitioner No. 1 was again detained under COFEPOSA by the orders dated September 1, 1976. It is alleged that no grounds of detention were formulated and were furnished to the detenu. The Emergency was lifted, somewhere in March, 1977 and the orders regarding the detention of the petitioner No. 1 were revoked and he was released from the detention forthwith. The petitioner No. 1 has thereafter received the notice under Section 6 of the SAFEMA, 1976, dated July 30, 1977 and September 20, 1978, inter alia saying that the Competent Authority has reason to believe that the properties described in the Schedule annexed to the notice, were illegally acquired properties. The petitioners have challenged the proceedings under SAFEMA, 1976 by urging that the original orders of detention under COFEPOSA, 1974 were illegal and therefore the proceedings under SAFEMA, 1976, could not have been instituted against the petitioners. 5. In Spl. Cri. Application No. 704 of 1990 the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated December 19, 1974. The orders of detention were revoked on lifting of Emergency on March 22, 1976. According to the petitioner the grounds of detention were not formulated and no documents were supplied to the petitioner detenu. Any how now the necessary proceedings have been initiated by the issuance of a notice under Section 6 of SAFEMA against the petitioner. The said notice appears to be of February 15, 1983. In view of this position the petitioner challenges the orders of detention in respect of Abdullah Janmohmed under COFEPOSA and also challenges the initiation of the proceedings under SAFEMA. 9. In Spl. Cri. Application No. 747 of 1991 the petitioner happens to be one Smt. Urmilaben Desai, the widow of deceased Manubhai Desai who came to be detained by the orders dated 21-1-1976. On lifting of the Emergency the orders of detention were revoked. Any how the proceedings under SAFEMA, by the issuance of the notice under Section 6 have been instituted, the notice being dated October 9, 1985. The petitioner widow challenges the orders of detention in respect of detention of her husband on the ground that no grounds for detention were formulated and no documents were supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders of detention were not challenged in due course of time, now the petitioners cannot challenge the original orders of detention after the issuance of the notices under SAFEMA. It is also the contention raised by the learned Standing Counsel Mr. Patel that the grounds of detention were duly formulated and furnished to the respective detenu, alongwilh the orders of detention. It is on this basis that the learned A.P.P. appearing for the State Authority and the learned Standing Counsel appearing on behalf of the Union of India and the Competent Authority have urged for the dismissal of the present petitions. 13. So far as the preliminary objection raised by the learned A.P.P. and learned Counsel for the Union and Competent Authority is concerned, it requires to be appreciated that at least in 3 matters, namely, Spl. Cri. Application No. 289 of 1990, Spl. Cri. Application No. 704 of 1990 and Spl. Cri. Application No. 723 of 1990 such a preliminary contention was raised by the learned A.P.P. appearing at that point of time. The preliminary objection came to be repelled by the orders dated 1-8-1990 and 31-7-1990. The Bench of this Court (Coram: S.B. Majmudar J.N. Bhatt, JJ.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters were ordered to be stayed by the Supreme Court by the orders dated 25th October, 1989, that is even before the filing of the present petitions. Therefore, as rightly pointed out by Mr. Sanjanwala and Mr. Kapadia the learned Advocates appearing on behalf of the petitioners, those petitions were not existing before this Court on the said date. They have also made a statement at the Bar that the present petitions were never stayed by any of the orders of the Supreme Court. Moreover they have further clarified the situation by stating that the Supreme Court had stayed, certain matters pending before the High Court in view of the fact that, the constitutional validity of certain provisions of SAFEMA were being challenged in those petitions. Mr. Sanjanwala and Mr. Kapadia, both have further made it clear that, in none of the present petitions, they seek to challenge the constitutional validity of any of the provisions of SAFEMA. It is therefore clear that no such order of the Supreme Court would be required for further proceedings and the decision or disposal of the present 7 petitions. 15. It should be appreciated before proceeding further the original orders of detention ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition as made by the Supreme Court in case of Ibrahim Bachu Bafan (supra) it is clear that the ultimate effect of cancellation of order of detention by the High Court under a high prerogative jurisdiction and the orders of revocation by the Government would be one and the same. It, therefore, shall have to be accepted that in the aforesaid mentioned six petitions, there were no valid orders of detention under COFEPOSA and therefore in absence of valid orders of detention under COFEPOSA the proceedings under SAFEMA could not have been instituted. It would therefore become clear that in the abovesaid six petitions the proceedings under SAFEMA would be bad for the above said reasons alone. 16. The next and significant ground on which the proceedings under COFEPOSA and SAFEMA both have been challenged by the learned Advocates for the petitioners is that, when the detention orders came to be issued by the detaining authority, the grounds of detention were not in existence because they were never formulated all at the time of or before the issuance of the orders of detention. Mr. Sanjanwala and Mr. Kapadia, both have urged that since the orders of detention would be based on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a situation vis-a-vis the Constitutional right guaranteed under Article 22(5) of the Constitution of India. This Bench decision, unequivocally lays down that the grounds of detention must be in existence on the day the order of detention is passed and if the grounds are recorded subsequently the order of detention would be bad. In that case, it appears, from the observations made by the Bench at para-3 of the judgment, that the grounds of detention were formulated subsequently, that is four days after the orders of detention were passed and executed. It has been pointed out in this decision that the provisions contained under Article 22(5) of the Constitution of India postulate that the grounds on which the order of detention is made should be in existence when the said order is passed. This decision rendered by this Court, makes a reference to, two earlier Supreme Court decisions. The reference has been firstly made to the Supreme Court decision in State of Bombay v. Atmaram Shridhar Vaidya . The second decision referred by the Bench is the Supreme Court decision in Naresh Chandra Ganguli v. State of West Bengal . Therefore, looking to the above said decisions rendered by the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under SAFEMA was challenged by the petitioner-detenu on the ground that his detention under COFEPOSA was bad in law. His contention came to be recognised on the simple ground that the relevant material documents supporting the orders of detention were not supplied to the detenu along-with the grounds of detention. It appears that the above said orders in the said 3 Spl. Cri. Applications came to be challenged before the Supreme Court of India by filing the S.L.P. (Criminal No. 2033 of 1991) but by the orders dated 28th August, 1991 the S.L.Ps. came to be dismissed by the Supreme Court of India, thus upholding the above said two orders pronounced by the Benches of this Court as stated above. These decisions therefore would go to strengthen and support the view which we are taking while disposing of this group of petitions. A similar view has been taken by us also while deciding the Spl. Cri. Application No. 909 of 1990 alongwith six other applications by the orders dated 31-1-1992. While speaking for the Bench one of us (Hon'ble Mr. Justice K.J. Vaidya) relying upon the above said decisions has reached the same conclusion. 19. Therefore it appears very clearly in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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