Gujarat High Court
Niranjan Dahyabhai Chokshi And Anr. vs Union Of India (Uoi) And Ors. on 8 May, 1992
Equivalent citations: (1992)2GLR891
JUDGMENT Dave, J.
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 (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 N.D Chokshi July 30,1977 Smt. Surekha N. Chokshi
2. 704 of 1990 Sureshchandra S.G. Chokshi July 28, 1987 G. Chokshi Smt. Dhangauri G. Chokshi
3. 723 of 1990 Laxmanbhai @ Laxmanbhai @ Oct. 24, 1977 Lallubhai Govindbhai Lallubhai Govindbhai
4. 377 of 1991 Suresh Thakorebhai Suresh T. Desai March 27, 1979 Desai
5. 745 of 1991 Mohd. Ebrahim Abdullah Feb. 15, 1983 lanmohmed Janmohmed
6. 747 of 1991 Smt. Urmilaben Manubhai Oct. 10, 1985 M. Desai P. Desai
7. 748 of 1981 Kishore Cbunilal Kishore C. Chokshi Sept. 26,1979 Chokshi ________________________________________________________________________________________
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 the State Government under the relevant provisions of the Maintenance of Internal Security Act (now hereinafter referred to as 'MISA') by the orders dated 22nd. Sept. 1974. The ground of detention bearing even date are alleged to have been furnished to the detenu. Any how, later on, on the advice of the 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 petitioner No. 1 Sureshchandra was detained under the COFEPOSA, 1976, by the orders dated June 11, 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.
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 the issuance of the notice under COFEPOSA but also challenges the original orders of detention.
8. In Spl. Cri. Application No. 745 of 1991 the petitioner Mohd. Ebrahim Janmohmed challenges the orders of detention in respect of the detenu Abdulla Janmohmed who was detained under COFEPOSA by the orders dated 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 supplied to the petitioner detenu for his detention. The notice under Section 6 of the SAFEMA is also being 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 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 raised by the learned A.P.P. Mr. Shelat appearing for the State Authorities and learned Standing Counsel Mr. J.M. Patel appearing for the Union of India and the Competent Authority, is that the present petitions are not maintainable because they are being filed quite at a late juncture and that, when the 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.) placing reliance upon the Supreme Court decision in Union of India and Ors. v. Haji Mastan Mirza has repelled 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 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 the ground, that the Constitutional validity of the SAFEMA was not challenged in the said petitions. It must be pointed out that, though the above said orders are in respect of 8 application mentioned in the aforesaid matter, the said situation has no bearing with the present petitions. Those 8 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 came to be revoked in Spl. Cri. Application Nos. 289 and 704 of 1990, 377, 745, 747 and 748 of 1991. It therefore becomes 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 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 out by the Supreme Court, the ultimate effect of cancellation of an order by revocation and by quashing of the same in exercise of the high prerogative jurisdiction vested within the High Court may be the same but the manner in which the situation is obtained is different. Looking to this position 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 grounds to be served on the detenu, the orders of detention can be passed only if the grounds of detention are in existence 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 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 passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory.
17. this Court also in case of Parshottam Dahyabhai Chunara v. State of Gujarat and Ors. [1988 (1)] XXIX (1) GLR 342 had the occasion to consider such 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 Supreme Court of India and also by this Court, it is by now conclusively settled that the grounds of detention must be in 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 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. Application No. 364 of 1990 decided on 31-7-1990 (Coram: S.B. Majmudar & J.N. Bhatt, JJ.). It appears that, in that case the petitioner had preferred to challenge the orders of detention under COFEPOSA, 1974, after the issuance of the notice under Section 6 of the SAFEMA, 1976. The notice 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 present petitions also that the grounds of detention were not formulated at the time of passing of the orders of detention which clearly violated the constitutional mandate under Article 22(5) of the Constitution of India. Moreover, as indicated above in almost all the matters the orders 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.