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1992 DIGILAW 41 (GUJ)

Lallubhai Jogibhai v. UNION OF INDIA

1992-01-31

K.J.VAIDYA, SHARAD D.DAVE

body1992
VAIDYA, J. ( 1 ) THE petitioners herein who came to be preventively detained pursuant to the various orders of detention under S. 3 (2) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (For short-COFEPOSA) as briefly indicated in the table appended below and on the basis of which only some proceedings against them by way of various notices under S. 6 of Smugglers and Foreign Exchange Manipulators (Forfeiture of Properties) Act, 1976 (for short-SAFEMA) came to be initiated, have by way of group of these 7 writ petitions challenged the same under Articles 14, 19, 21, 22 and 226 of the Constitution of India, inter alia praying for two reliefs by way of issuance of the writ of certiorari quashing and setting aside (i) the order of detention passed under COFEPOSA; and (ii) the impugned notices issued against them. ( 2 ) THE relevant particulars regarding each of the petitions having a bearing on the decision of the case are set out and indexed in a chart tabulated as under: ( 3 ) MR. S. H. Sanjanwala, the learned advocate appearing for the petitioners while challenging the legality and validity of impugned notices under section 6 of the SAFEMA, has contended that since the said proceedings were essentially based upon original detention orders under Section 3 (2) of the COFEPOSA against each of the petitioners, unless they are proved to be legal and valid, no proceedings under section 6 of the SAFEMA can ever be initiated. Accordingly, Mr. Sanjanwala further submitted that the original orders of detention under COFEPOSA were liable to be quashed and set aside on the following three grounds. (i) That the documents referred to and relied upon in the grounds of detention were not supplied to the petitioners along with the grounds of detention. This according to Mr. Sanjanwala was fatal to the orders of detention. In support of this contention, the reliance was placed on a Supreme Court decision in the case of Union of India v. Haji Mastan, reported in AIR 1984, SC, 681 (1984 Cri LJ 610), wherein in paras 10 and 11, it has been held as under: para-10. A reading of S. 6 (1) of SAFEMA would show that action under sections 6 and 7 can be taken against only persons to whom that Act applies. A reading of S. 6 (1) of SAFEMA would show that action under sections 6 and 7 can be taken against only persons to whom that Act applies. Section-2 (1) of that Act specifies the persons to whom the Act applies. Sub-s. (2) of S. 2 says that the Act applies to every person in respect of whom an order for detention has been made under COFEPOSA provided that such order of detention has not been set aside by a court of competent jurisdiction. In the present case action has been taken against the respondent under Ss. 6 (1) and 7 read only with S. 2 (2) of the Act. Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under Ss. 6 and 7 of SAFEMA. If the impugned order of detention dated 19-12- 1974 is set aside for any reason the proceedings taken under Ss. 6 and 7 of SAFEMA cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19-12-1974 under COFEPOSA is void and has to be quashed. Para-11. It is seen from para 17 of the judgment of Kotwal J that it was not disputed before the learned Judges of the High Court no copy of any of the documents was ever supplied to the respondent. That fact was admitted in un- mistakable terms not only in the counter-affidavit filed on behalf of the respondents before the High Court but also in the course of the arguments of their learned counsel. Kotwal J. has held that the documents referred to in the grounds and relied upon for the purpose of the respondents detention are such that without copies thereof being supplied to the respondent he could not have been in a position to make any effective representation against his detention. There was no dispute before the learned Judges of the High Court that the documents referred to in the grounds of detention and relied upon for the purpose of detention are material documents and that the respondent could not have made any effective representation without copies of those documents. The respondents before the High Court however sought by their counter-affidavit to justify the non- supply of the copies of the documents. The respondents before the High Court however sought by their counter-affidavit to justify the non- supply of the copies of the documents. The explanation for the non-supply of the documents cannot be a substitute for the copies of the documents without which the respondent could not have made any effective representation against his detention. This court has repeatedly held in several decisions that the failure to supply copies of documents referred to and relied upon in the grounds of detention for the purpose of detention under COFEPOSA vitiates the detention itself. In Gurdip Singh v. Union of India (1981) 1 SCC 419 , AIR 1981 SC 362 (1981 Cri LJ 2) the person detained under S. 3 (1) of COFEPOSA applied for the supply of copies of the documents forming the material on which the order of detention had been made but they were refused to be supplied to him. Nor were the grounds supplied to the detenu accompanied by the copies of documents forming the basis thereof. It was held in that decision to which one of us is a party that the detention was bad in law". (ii) That, at the point of time when the impugned orders of detention came to be passed the grounds of detention were not formulated accordingly the same were not in existence. This infirmity also is held to be fatal rendering the detention order illegal and unconstitutional. In support of this contention also, reliance was sought to be placed on two Supreme Court decisions in cases of (1) Krishna Murari Aggarwala v. The Union of India, reported in AIR 1975, SC 1877: (1975 Cri LJ 1648) and (ii) Parshottam Dahyabhai Chunara v. State of Gujarat, reported in (1988) 29 (1) GLR, 342. The Supreme Court in the case of Krishna Murari Aggarwala (supra) at page-1883 has held as under: "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". Similarly, this court also in the case of Parshottam Dahyabhai Chunara (supra) at page 343 has held as under: "in the instant case, the grounds of detention have been framed subsequently, that is, four days after the order of detention is passed and executed. On this point there is no controversy. Similarly, this court also in the case of Parshottam Dahyabhai Chunara (supra) at page 343 has held as under: "in the instant case, the grounds of detention have been framed subsequently, that is, four days after the order of detention is passed and executed. On this point there is no controversy. Therefore on this ground alone the order of detention is required to be quashed and set aside". (iii) That in three Special Criminal Applications, the same being Special Criminal Applications Nos. 514/ 91, 581/ 91 and 583/ 91, since the orders of detention came to be revoked by the Government, there was no valid order of detention in existence in eye of law on the basis of which SAFEMA proceedings could have been initiated. In support of this contention, reliance was placed on two Supreme Court decisions in the case of (1) Ibrahim Bachu Bafan and Mithu Bawa Pandhiyar v. State of Gujarat and others reported in AIR 1985, SC 697: (1985 Cri LJ 533) and (ii) Chhagan Bhagwan Kahar v. N. L. Kaina, reported in AIR 1989, SC 1234 (1989 Cri LJ 1145 ). The Supreme Court in the case of Ibrahim Bachu Bafan (supra), while explaining the meaning of the word "revocation", in para-8 at page 700, has held as under: "this leads us to examine the tenability of the submission of Mr. Jethmalani as to the true meaning of the word revocation. "revoke" is the verb and revocation is its noun. These words have no statutory definition and therefore would take the common sense meaning available for these words. Blacks Law Dictionary gives the meaning of the word revoke to be the recall of some authority or thing granted or a destroying or making void of some deed that had existence until the act of revocation made it void". Whartons Law Lexicon gives the meaning to be "the undoing of a thing granted or a destroying or making void of some deed that had existence until the act of revocation made it void". The Shorter Oxford English Dictionary gives the meaning of the word revocation to be "the action of recalling; recall of persons; a call or summons to return; the action of rescinding or annulling, withdrawing". The meaning of the word revoke has been given as to recall, bring back, to restore, to retract, to withdraw, recant, to take back to oneself". The Shorter Oxford English Dictionary gives the meaning of the word revocation to be "the action of recalling; recall of persons; a call or summons to return; the action of rescinding or annulling, withdrawing". The meaning of the word revoke has been given as to recall, bring back, to restore, to retract, to withdraw, recant, to take back to oneself". The true meaning of the verb revoke; and its noun, therefore, seems to signify that revocation is a process of recall of what had been done. According to the Websters Third New International Dictionary, the word means "an act of recalling or calling back, the act by which one having the right annuls something previously done". According to the Corpus Juris Secundum, 1952 Edition, Vol. 77, the word revoke carries with in "the idea of cancellation by the same power which originally acted and not to setting aside of an original order by higher forum of power or jurisdiction. It does not mean repudiation". The aforesaid view once again came to be reiterated and followed in the case of Chhagan Bhagwan Kahar (supra ). Mr. Sanjanwala further submitted that so far as the point regarding non-supply of the documents referred to and relied upon in the grounds of detention was concerned, they in fact have not been supplied in any of the present proceedings. Mr. Sanjanwala on the basis of the aforesaid contentions, finally submitted that when the impugned orders of detention under cofeposa were on face of them non est and if that was the situation, the proceedings initiated under section 6 of SAFEMA should be declared to be void ab initio and without any jurisdiction and therefore required to be quashed and set aside. Mr. Sanjanwala further submitted that the points which have been urged by him in these petitions and are referred above also came up for consideration before various Benches of this court, which ultimately relying upon the relevant Supreme Court decisions,. cited above, quashed and set aside the impugned notices issued under Section 6 of SAFEMA those unreported decisions are as under:1. Special Criminal Application No. 1487/ 89, decided on 8-3-1990 by Honble M/s. G. T. Nanavati and K. J. Vaidya JJ. 2. Special Criminal Application No. 427/ 90, decided on 4-5-1990 by Honble M/s. G. T. Nanavati and K. J. Vaidya JJ. 3. Special Criminal Applications Nos. Special Criminal Application No. 1487/ 89, decided on 8-3-1990 by Honble M/s. G. T. Nanavati and K. J. Vaidya JJ. 2. Special Criminal Application No. 427/ 90, decided on 4-5-1990 by Honble M/s. G. T. Nanavati and K. J. Vaidya JJ. 3. Special Criminal Applications Nos. 1377 and 1378 of 1990 decided on 8-3-1990 by Honble M/s. G. T. Nanavati and K. J. Vaidya JJ. 4. Special Criminal Applications Nos. 363 and 364 of 1990 decided on 31-7-1990 by Honble M/s. S. B. Majmudar and J. N. Bhatt JJ. 5. Special Criminal Application No. 447/ 89, decided on 1-3-1990 by Honble M/s G. T. Nanavati and K. J. Vaidya JJ. 6. Special Criminal Application No. 724/ 90, decided on 1-8-1990 by Honble M/ s. S. B. Majumdar and J. N. Bhatt JJ. 7. Special Criminal Application No. 1252/ 90 and three others, decided on 30-11-1990 by Honble M/ s. J. U. Mehta and A. N. Divecha JJ. 8. Special Criminal Applications Nos. 1775 and 1776 of 1990 decided on 16-2-1991 by Honble M/s. G. T. Nanavati and J. M. Panchal JJ. It was further pointed out by Mr. Sanjanwala that some of the aforesaid decisions of this court were even carried before the Supreme Court and challenged which ultimately came to be confirmed as the petitions came to be dismissed summarily on merits. ( 4 ) IN all these petitions, no affidavits have been filed controverting the facts alleged and points raised by the petitioners, though rule came to be issued long back. Apart from this, nothing has been shown from the concerned file even orally controverting the aforesaid situation and the contentions. The learned PP and the learned APP appearing for the respective respondents have frankly not been able to dispute any of the facts and contentions raised by the petitioners, however, at the same time, while making final and feable last ditch attempt to sustain the impugned notices, they submitted that the same were issued long back and were challenged after the considerable lapse of time. It was further submitted that the proceedings under Article 226 of the Constitution of India were extraordinary proceedings and the parties which are indolent and sleep over their respective rights and thus when the petitions suffer from delay and laches, they are not entitled to claim any relief. It was further submitted that the proceedings under Article 226 of the Constitution of India were extraordinary proceedings and the parties which are indolent and sleep over their respective rights and thus when the petitions suffer from delay and laches, they are not entitled to claim any relief. Now this very contention was also raised before this court (Coram G. T. Nanavati and K. J. Vaidya JJ) in Special Criminal Applications Nos. 1775 and 1776 of 1989, decided on 16-2-1991, which was rejected on the ground that the proceedings on the basis of the detention orders were sought to be taken out recently. It was also held that merely because the detention orders were not challenged earlier, it cannot be regarded as a good ground for not permitting them to challenge the same at this stage. ( 5 ) THUS, taking into consideration the over-all undisputed facts and circumstances of the case, which are squarely covered and governed by the various decisions of the Supreme Court and this court, it is not possible for us to take a view contrary to the one already taken by the previous Benches. Accordingly, we hold that the original orders of detention passed under S. 3 (2) of COFEPOSA against each of the petitioners being illegal and unconstitutional, they are ordered to be quashed and set aside and accordingly the proceedings initiated on the basis of the same under S. 6 of SAFEMA are also held to be illegal and without jurisdiction. ( 6 ) IN the result, the group of these 7 petitions is hereby allowed. The impugned orders of detention passed: against the concerned petitioner under Section 3 (2) of COFEPOSA and pursuant to which the impugned notices dame to be issued under section 6 of the SAFEMA ate ordered to be quashed and set aside. Rule made absolute. No order as to costs. Rule made absolute. .