Bipinchandra Gamanlal Chokshi & Ors vs State Of Gujarat & Ors

9. The grievance of the appellant in assailing the order of his detention (passed under Sections 3 read with 12A of the COFEPOSA Act) assumed significance, on account of a show cause notice issued to the appellant on 28.4.1977, under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as 'SAFEMA Act'). The short show cause notice issued to the appellant, is extracted hereunder:

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 grounds of detention were not formulated at the time of passing of the order of detention, the High Court of Gujarat concluded, that the detention order, clearly violated the constitutional mandate contained in Article 22(5), and as such, set aside the order of detention of Niranjan Dahyabhai Chokshi (the appellant's brother). Simultaneously with the setting aside of the above order, proceedings initiated against Niranjan Dahyabhai Chokshi under Section 6 of the SAFEMA Act were also set aside as unsustainable.

Secondly, that the present Special Civil Application is barred by the principles of res judicata, inasmuch as that in his earlier petition being Special Civil Application No. 1276 of 1977, he had challenged the order of detention as well as the notice under SAFEMA Act and the same has been disposed of by the order of the Division Bench of this Court dated 9-8- 1994.

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 to do so, cannot be allowed to do so when such order of detention is made the basis of applying SAFEMA Act to him. In view of this clear position of law, the appellant cannot be permitted now to challenge the order of detention. It is next contended by Mr. Sanjanwala that since the order of detention has been made foundation for SAFEMA Act proceedings, it is open for the relatives and friends of the detenu to challenge the order of detention. This question has also been decided by the 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 very foundation of SAFEMA Act notices disappears. This aspect I have dealt with in my earlier part of the judgment and in view of that this contention also does not survive and it is accordingly rejected.” (emphasis is ours)

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 against the appellant under Section 6 of the SAFEMA Act, and that too, if the appellant fails in his attempt, to successfully assail the order of his detention.

29. The instant appeal is allowed in the above terms.

Petition(s) for Special Leave to Appeal (C) No(s). 10771/2013 (Arising out of impugned final judgment and order dated 06/12/2012 in LPA No. 478/1997 in SCA No. 3716/1995 passed by the High Court Of Gujarat At Ahmedabad) BIPINCHANDRA GAMANLAL CHOKSHI & ORS. appellant(s) VERSUS STATE OF GUJARAT & ORS. Respondent(s) (with prayer for interim relief and office report) Date : 10/12/2015 This petition was called on for hearing today.

CORAM :