9911796707
TMI Blog2015 (12) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the order under Section 3 could not have been the subject matter of challenge as the detenu was released on the same day. 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 As soon as the declaration under Section 12A of the COFEPOSA Act was revoked, the appellant was ordered to be released.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. 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be 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 a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate 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 for a procedure, separate and distinct from the procedure contemplated for revocati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely 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. (5) It shall not be necessary to disclose to any person detained under a detention order to which the provisions of sub-section (2) apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that sub- section in is force, and, accordingly, such period shall not be taken into account for the purpose of sub-section (3) of section 3. (6) In the case of every person detained under a detention order to which the provisions 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 compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Property) Act, 1976 (hereinafter referred to as 'SAFEMA Act'). The short show cause notice issued to the appellant, is extracted hereunder: Shri Bipinchandra Gamanlal Choksy, Nanavat Main Road, Surat. Whereas, I S.N. Sastri, being the competent Authority 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 section-6 of the said Act, I hereby call upon you by this notice to indicate to me within 35 days of service of this notice, the sources of your income, earnings or assets, out of which or by means of which you have acquired the aforesaid properties, the evidence on which you rely and other relevant information and particulars and to show cause why the aforesaid properties should not be declared to be illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; or (iv) such order of detention has not been set aside by a Court of competent jurisdiction. 11. In order to complete the sequence of facts, it is essential to notice, that one of the brothers of the appellant, namely, Niranjan Dahyabhai Chokshi approached the High Court, so as to assail a similar order of detention, as was also passed against him. The challenge was raised through Special Criminal Application Nos. 289, 704 and 723 of 1990, and 745, 747 and 748 of 1991. The challenge to the detention of Niranjan Dahyabhai Chokshi was raised on the ground of the law declared by this Court in Krishna Murari 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 would be liable to be set aside. Having arrived at the finding, that the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially 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 Act by the order of detention dated 11-6-1976. Simultaneously, a declaration under Section 12-A was issued on the same day declaring that it was necessary to detain the detenu for dealing effectively with the Emergency which was then proclaimed. Upon the Emergency being lifted, the order of detention was revoked by the State Government under a wireless message dated 21-3-1977. The notices under Section 6(1) of SAFEMA Act dated 28-4-1977 were issued. The appellants have challenged the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 which reads as follows: There has been no pronouncement by any Court upon the validity of the detention order dated 12-9-1975. The appellant is entitled to challenge the validity of the aforesaid order because it is now being made foundation for forfeiting her properties under SAFEMA Act. I cannot agree with the submissions 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 Gopilal Solanki died while under detention. Another notice under Section 6 of the SAFEMA Act was issued to the widow of the detenu, i.e., Gangadevi on April 17, 1977. The writ petition filed by detenu Sreekrishna Solanki was dismissed as infructuous on a representation made by the Public Prosecutor appearing for the State that the detenu has been released. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 judgment rendered by this Court in Attorney General for India's case (supra), the right of the appellant to assail the order of his detention dated 11.6.1976 stood foreclosed. This is indeed, the contention before us by the learned counsel representing the respondent. Whereas, the submission of the learned counsel for the appellant is, that he had been deprived of the right to assail/impugn the order dated 11.6.1976, which was a valuable right, and the same could not have been taken away, so 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 raised be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2). The appellants say that since the order of detention under COFEPOSA 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 order made by the President of India under Article 359 (1) of the Constitution even Article 19 did not avail them by virtue of Article 358 but when the said orders of detention are sought to be made the bases of action under SAFEMA Act, after the lifting of emergency, they are now entitled to question them. They point out that by virtue of the order made under Article 359(1), the fundamental rights guarateed to them by Articles 14,21 and 22 were not suspended, but only the right to move for their enforcement was suspended. If so, they say, the detention orders made against them are invalid and illegal for viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Board under Section 8,read with sub-section (6) of Section 12-A, of that Act , as an order of detention for the purpose of and within the meaning of clause (b) of Section 2(2) of SAFEMA Act. In view of the fact that SAFEMA Act as well as COFEPOSA Act are included in the Ninth Schedule by the 39th and 40th (Amendment) Acts to the Constitution, clause(b) of Section 2(2) of SAFEMA Act [including proviso (iii) appended to it] are beyond constitutional 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 juncture, it would be appropriate to deal with two decisions of this Court brought to our notice. The first one is in Union of India v. Haji Mastan Mirza11 rendered by a Bench of three Judges. The respondent therein was first detained under Maintenance of Internal Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under SAFEMA Act is taken against hi m for action under SAFEMA Act is not automatic upon the fact of detention but only the starting point. On the other hand, if it is an order of detention governe d by Section 12-A [or by a Presidential Order under Article 359(1) suspending Article 22], it perhaps could still be challenged even durin g the perio d of emergency on grounds not barred by the said provisions. Secondly, even if such an order is allowed to be challenged when action under SAFEMA Act is taken, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of detention under Section 3 was passed, till the order of detention was revoked on the lifting of the emergency on 21.3.1977. It was submitted, that Section 12A is invoked merely by a declaration, 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 the learned counsel, in the present case, that the order under section 3 of the COFEPOSA Act, could not be assailed by the appellant as he was released on the same day, i.e., on 21.3.1977. There was therefore no occasion for the appellant, to assail the order of his detention, based on pleas and contentions, as would have been available to the appellant, under Section 8 of the COFEPOSA Act, and the other grounds expressed above. 20. Learned counsel for the appellant, in order to substantiate h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant after the declaration under Section 12A came to be revoked, was really not available to him, because the appellant came to be released on 21.3.1977. Therefore, the appellant could not have availed of the right to challenge his order of detention, for the simple reason, that on the revival of the order of detention within the framework of Section 3 of the COFEPOSA Act, the appellant came to be released forthwith, namely, on the same day. 22. We find merit in the contention of the learned counsel for the appellant. The proviso (iv) to Section 2(2)(b) cannot be an 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 mentioned, that on passing of an order of detention under Section 3 of the COFEPOSA Act, a detenu must be communicated the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 12A of the COFEPOSA Act, the challenge is only on technical grounds of violation of procedure under Section 12A of the COFEPOSA Act, as expressed above. 23. 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 reference to the detention of the 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 revocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly not be applicable to the controversy in hand. 27. We are even otherwise persuaded to accept the contention of the appellant, to enable him to raise a challenge to the order of his detention, for the simple reason, that three of his brothers who raised such a challenge, to the order of their preventive detention, were successful in having the same set aside. The appellant is possibly similarly situated as his three brothers, and if it is so, he should have the same right as was availed of by his three 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 the order of his detention dated 11.6.1976). It is only after the determination of the High Court, that it will be open to the authorities to proceed with the action taken again ..... X X X X Extracts X X X X X X X X Extracts X X X X
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