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1988 DIGILAW 137 (BOM)

Mohomed Anees Shaikh Ibrahim v. State of Gujarat

1988-04-19

G.D.KAMAT, G.F.COUTO

body1988
JUDGMENT Dr. Couto, J. -By this Writ Petition under Article 226 of the Constitution, Petitioner challenges the validity of the Order dated 30th October, 1987, issued under the COFEPOSA Act, by the second Respondent and prays that the same be quashed and set aside. 2. Petitioner is an Indian citizen, carrying on business in the name and style of "A1-Marwan Video Centre" at Dubai, where he is residing. On or about 6th February, 1987, an Order of Detention was issued by the then Administrator of Goa, Daman and Diu, under Section 3(1) of the COFEPOSA Act, against the Petitioner with a view to preventing him from smuggling goods. On the same date, a communication was issued containing the rounds of detention as well as a list of the documents and copies of documents relied upon by the Detaining Authority were served on the Petitioner. Being aggrieved by the said Order of Detention, Petitioner's mother filed a Writ Petition for Habeas Corpus, being the Writ Petition No. 15 of 1987, challenging it. By judgment dated 23rd March. 1987, a Division Bench of this Court allowed the said Petition and consequently, quashed and set aside the aforesaid Order of Detention dated 6th February 1987. 3. On the same date, i.e. on 6th February 1987, the then Administrator of Goa, Daman and Diu also issued another Order of Detention against Lallubhai Jogibhai Patel with a view to preventing him from smuggling goods. The said Order also was challenged in a Writ Petition, being the Writ Petition No. 16 of 1987. It was ultimately quashed and set aside by another judgment dated 23rd March, 1987, by the Division Bench of this Court. 4- On the very same date, i.e., on 23rd March, 1987, another Order of Detention was issued by the Administrator of Goa, Daman and Diu, again, with a view to preventing the Petitioner from smuggling goods, in the exercise of the powers conferred on him by Section 3(1) of the COFEPOSA Act. This order of Detention was again successfully challenged in a Writ Petition, being the Writ Petition No. 20 of 1987, for by judgment dated 22nd April 1987 the Division Bench of this Court quashed and set aside the aforesaid Order of Detention. This order of Detention was again successfully challenged in a Writ Petition, being the Writ Petition No. 20 of 1987, for by judgment dated 22nd April 1987 the Division Bench of this Court quashed and set aside the aforesaid Order of Detention. Similarly, another Order of Detention also dated 23rd March 1987, had been issued under Section 3(1) of the COFEPOSA Act against the aforesaid Lallubhai Jogibhai Patel with a view to preventing him from smuggling goods. This Order was also successfully challenged in a Writ Petition, being the Writ Petition No. 21 of 1987, for by judgment dated 24th April, 1987, the Division Bench of this Court quashed and set it aside. 5. On or about 30th October 1987, the second Respondent issued an Order of Detention against the said Lallubhai Jogibhai Patel, purportedly with a view to preventing him from abetting the smuggling of goods. Grounds of detention were also served on the same date on the said Lallubhai Jogibhai Patel, and on 23rd November 1987, a Declaration under Section 9(1) of the COFEPOSA Act was issued by the Additional Secretary of the Government of India, Ministry of Finance, Department of Revenue, New Delhi. Being aggrieved by this Order, the said Lallubhai Jogibhai Patel filed a Writ Petition for Habeas Corpus, being the Special Criminal Application No. 1266 of 1987, in the High Court of Gujarat. The said Writ Petition was admitted on 9th December 1987 by Division Bench and is pending disposal. 6. Petitioner avers that he has every reason to believe that the Order of Detention issued against him under Section 3(1) of the COFEPOSA Act, presently challenged in this Petition, was issued on grounds parallel to the grounds dated 30th October, 1987, served on the aforesaid Lallubhai Jogibhai Patel with the corresponding changes to make them applicable to the Petitioner and that the said grounds of detention are based on the same and identical material which was furnished to the said Lallubhai Jogibhai Patel. This is the necessary inference that one has to take from the fact that, when the Order of Detention dated 6th February 1987, was issued against the said Lallubhai Jogibhai Patel by the Administrator of Goa, Daman and Diu, another Order of Detention also dated 6th February, 1987, was issued against the Petitioner by the same Administrator on grounds parallel to the grounds on basis of which the Order against Lallubhai Jogibhai Patel had been issued. Further, the Order of Detention dated 23rd March 1987, issued by the same Administrator of Goa, Daman and Diu against the Petitioner, was passed on identical material, which formed the basis of Detention Order of the same date issued against the said Lallubhai Jogibhai Patel. Finally, a perusal of the Order of Detention dated 30th October 1987 issued under Section 3(1) of the COFEPOSA Act by the second Respondent against the said Lallubhai Jogibhai Patel, shows that if is entirely based on the same material and on the same grounds that had caused the Administrator of Goa, Daman and Diu to issue the above referred to Orders of Detention, dated 6th Feb., 1987 and 23rd March, 1987, against the Petitioner and Lallubhai Jogibhai Patel. Thus, since a fresh Order of Detention was issued on 30th October, 1987, under Section 3(1) of the COFEPOSA Act against the Petitioner, it is only to be expected that the material on which the said Order was made is parallel and identical to the material which formed the basis of the Detention Order issued on the same date against the said Lallubhai Jogibhai Patel. 7. Respondents, except the fourth Respondent, chose not to put an appearance at the hearing, though duly served, nor did any of them file a Return. We may therefore, safely proceed on the basis that it is an uncontroversial and admitted position that the material at the disposal of the Detaining Authority and the grounds to issue the Detention Orders against Lallubhai Jogibhai Patel and the Petitioner on 30th October, 1987, under Section 3(1) of the COFEPOSA Act are identical and the same. We may also say, at the outset, that this being the case, the Petition necessarily succeeds on this ground alone and that we need not therefore, deal with the other grounds advanced by the Petitioner to challenge the impugned Order of Detention. 8. We may, however, mention here that Mr. We may also say, at the outset, that this being the case, the Petition necessarily succeeds on this ground alone and that we need not therefore, deal with the other grounds advanced by the Petitioner to challenge the impugned Order of Detention. 8. We may, however, mention here that Mr. Karmali, the learned counsel appearing for the Petitioner, took us minutely through the Annexure 'u' to the Petition which incorporates the grounds for issuing the Order of Detention dated 6th February, 1987, against Lallubhai Jogibhai Patel and the grounds for the Detention Order dated 30th October 1987, issued by the second Respondent against the same Lallubhai Jogibhai Patel. A careful and detailed examination of the said Annexure leaves no margin for doubts and it becomes exceedingly clear that the material which formed the basis for formulating the grounds for the detention of Lallubhai Jogibhai Patel is the same material which was used by the Administrator of Goa, Daman and Diu to issue the Detention Order dated 6th February, 1987, against the said Lallubhai Jogibhai Patel. We may however mention that a reference is made in the grounds of detention, which accompanied the Order of Detention dated 30th October, 1987, to a statement of one Ramesh Gopal Machhi which was recorded under Section 108 of the Customs Act, 1962, on 16th February, 1987. No reference to this statement has been made in the grounds of detention, which accompanied the Orders dated 6th February. 1987. However, the contents of the said statement are clearly in respect of the same transaction, which was the basis of the said Order of Detention. It is now well settled that when an Order of Detention is quashed by the High Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution, it is not open to issue a fresh Order of Detention on the grounds, which had been the basis of the quashed Order. This much has been held by the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat and others1. This much has been held by the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat and others1. Their Lordships of the Supreme Court have, in fact, observed in paragraph 9 of the Report as under: "The power conferred under clauses (a) and (b) of sub-section (1) of Section 11 is in fact extension of the power recognised under Section 21 of the General Clauses Act, and while under the General Clauses Act the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of Section 11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a High prerogative writ like habeas corpus of certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11 (1) of the Act, the order is not known to the statute and is exercised by an authority beyond the purview of subsection (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order under section 3 of the Act on the same grounds. " Similarly, it is also well settled that any material, which was anterior to the issuance of an Order of Detention, which was quashed and was not utilized to pass the said Order, cannot be taken advantage of to issue a fresh Order of Detention. " Similarly, it is also well settled that any material, which was anterior to the issuance of an Order of Detention, which was quashed and was not utilized to pass the said Order, cannot be taken advantage of to issue a fresh Order of Detention. As observed by the Andhra Pradesh High Court in Ahmed v. State of Andhra Pradesh2, while dealing with the provisions of the Maintenance of Internal Security Act, 1971, "if it is permissible for the Detaining Authority to make up once again incidents antecedent to one detention for supporting another detention after the first one is quashed by a Court of Law, then it would be easily open to the Authority to get over the limitation prescribed under Section 30 as to the maximum period of detention". It was further observed that "therefore, incidents of earlier period as earlier to the first detention-cannot be made grounds for the second detention and that this conclusion is reinforced by another principle that is implicit in the aforesaid Maintenance of Internal Security Act". The Division Bench finally observed: "When an-authority passes an order of detention it is expected-indeed it is its bounden duty-to - examine all the records, events and deeds relating to the detenue and rely on and state such of those grounds which gave that authority satisfaction as to the need for detaining him. When an appropriate authority proposes to exercise powers conferred on it under the Act it should take into consideration all the activities of the concerned person in regard to the charge levelled against him. It is simply not permissible for the authority to turn and say after the first detention is set aside or revoked or its period has expired that some past events had not been brought to its notice when the first order was made and so they were taken into consideration for detaining him again. That would clearly be tantamount to negligence on the part of the detaining authority in making an adequate investigator and enquiry into the activities of the detained person and amounts to not applying its mind properly to the case of the detenue. That would clearly be tantamount to negligence on the part of the detaining authority in making an adequate investigator and enquiry into the activities of the detained person and amounts to not applying its mind properly to the case of the detenue. That a complete study of a detenue's case should be made before an order of detention is made is the general intendment of the Act and also the necessary implication of Section 14(2)." The above observations of the Andhra Pradesh High Court are fully attracted to the case at hand although they were made in respect of the provisions of the Maintenance of Internal Security Act. They indeed deal with a case of preventive detention and are, as such, fully attracted to the case at hand. 9. We already mentioned that not only the Respondents bad not challenged the truth of the allegations made by the Petitioner that the grounds which formed the basis for the issuance of the Detention Order against him and the material for the effect are identical and the same as the grounds and the material which constituted the basis for issuance of the Order of Detention against Lallubhai Jogibhai Patel on 30th October, 1987, but that also we found on persual of Annexure 'II' to the Petition that the grounds for issuance of the fresh Order of Detention against Lallubhai Jogibhai Patel are the same grounds that formed the basis of the Order of Detention dated 6th February, 1987, as well as 23rd March, 1987. Therefore, on the strength of the above quoted rulings of the Supreme Court in Ibrahim Bachu Bafan's and of the Andhra Pradesh High Court in Ahmed's cases, it is obvious that the impugned Order of Detention dated 30th October, 1987, issued against the Petitioner under Section 3(1) of the COFFPOSA Act is bad and liable to be quashed and set aside. 10. The result is that the Rule is made absolute and, consequently, the impugned Order of Detention is hereby quashed and set aside. Appeal dismissed. 1. AIR 1985 SC 697 . 2. 1975 ILR (A.P. Series) 128.