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Gujarat High Court
Judgename :K.J.VAIDYA, SHARAD D.DAVE
NIRANJAN DAHYABHAI CHOKSHI - Appellant
Versus
UNION OF INDIA - Respondent
S.CRI.A. 289 of 1990
Decided On : 05/08/1992
Constitution of India – Article, 226 – Maintenance of Internal Security Act, 1971 – Section 6 – Smugglers and Foreign Exchange manipulators Act, 1976 – Detention order – Petitioner No. 1 is a proprietor of a proprietory business known as niranjan Jewellers situated – Petitioner was detained by State Government under relevant provisions of Maintenance of Internal Security Act by orders ground of detention bearing even date are alleged to have been furnished to detention Any later on advice of Advisory board State Government had revoked orders of detention by orders and Petitioner was ordered to be released from detention forthwith – But during Emergency petitioner was again detained under by orders – It is alleged that no grounds of detention were formulated and were furnished to detention – Emergency was lifted somewhere and orders regarding detention of petitioner No. 1 were revoked and he was released from detention forthwith – Petitioner has thereafter received notice under Sec. 6 of SAFEMA, 1976 inter alia saying that Competent Authority has reason to believe that properties described in Schedule annexed to notice were illegally acquired properties – Petitioners have challenged proceedings under safema 1976 by urging that original orders of detention under cofeposa 1974 were illegal and therefore proceedings under safema 1976 – Held, Criminal Application decided by Bench of this Court in which a similar view has been taken – In that case also petitioners were detained but later on their detention orders were revoked by Government – It was also urged in above said cases that grounds were not formulated by detaining authority on date on which orders of detention came to be passed – Any how petitions came to be allowed slightly on a different footing namely that certain material documents on which detaining authority has placed reliance were admitedly not furnished to the petitioner-detention – One more unreported decision on which has placed reliance is again a Bench decision of this Court – Application decided – It appears that in that case petitioner had preferred to challenge the orders of detention under COFEPOSA, 1974, after the issuance of the notice under Sec. 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 simple ground that the relevant material documents supporting the orders of detention were not supplied to along with grounds of detention – It appears that above said orders in said 3 – Applications came to be challenged before Supreme court of India by filing S. L. P. but by the orders S. L. Ps. came to be dismissed by Supreme Court of India thus upholding above said two orders pronounced by Benches of this Court as stated – Petitions is hereby allowed.
( 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 art. 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 and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as safema, 1976) : sr. No. Spl. Cri. Appli No. Petitioners Detenu Date of Notice under safema 1976 1. 289 of 1990 Niranjan D. Chokshi N. D Chokshi 30/07/1977 smt. Surekha n. Chokshi 2. 704 of 1990 Sureshchandra S. G. Chokshi 28/07/1987 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 27/03/1979 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 Chunilal Kishore C. Chokshi Sept. 26,1979 chokshi
( 3 ) BY filing the aforementioned 7 petitions the petitioners not only challenged the notices issued under Sec. 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 and 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 7/11/1974, 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 1/09/1976. 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 Sec. 6 of the SAFEMA, 1976, dated Jul 30/07/1977 and 20/09/1978, 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 11/06/1976. Any how, on lifting of the Emergency the orders of detention were revoked by the Government on/or about 21/03/1977. Any how the necessary notice under Sec. 6 of the SAFEMA, 1974 has been issued against the petitioners on 28/07/1987. It is therefore that the petitioner challenge the original orders of de
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