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2016 DIGILAW 649 (GUJ)

Bipinchandra G. Chockshi v. State of Gujarat

2016-03-22

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. This petition is dragged for all these 21 years for no valid reason when the issue involved in the petition has already been decided by several decisions of different High Courts as well as the Hon'ble Supreme Court of India. However, the respondents have instead of conceding to the settled legal position so also the admitted position on the face of the present case itself, selected to argue and oppose the petition and therefore, though petition can be disposed of summarily, it becomes necessary to recollect several factual details. 2. It is undisputed fact that there is an order of detention dated 11.6.1976 u/s. 12A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA' for short) so also the order dated 11.6.1976 u/s. 6(1) of the Smugglers and Foreign Exchange Manipulations (Forfeiture of Property) Act, 1976 ('SAFEMA' for short), against the petitioner therefore the petitioner has prayed to quash and set-aside such orders by issuance of appropriate writ under Article 226 of the Constitution of India, claiming that the detention order and notice to forfeit his property is illegal and violative of Articles 14 and 21 of Constitution of India. It is also undisputed fact that similar order was passed against other three brothers of the present petitioner and they all have filed separate writ petitions and challenged the similar order of detention wherein they succeeded in quashing and setting aside such order of detention. Such judgment is in Special Criminal Application Nos. 125 and 127 of 1974 by Division Bench of this High Court as back as on 5.11.1974. Such judgment is in Special Criminal Application Nos. 125 and 127 of 1974 by Division Bench of this High Court as back as on 5.11.1974. It is also undisputed fact that while quashing and setting aside the detention orders of all the brothers of the present petitioner, the Division Bench has categorically observed as under:- "It is, therefore, difficult for us to accept the version of the detaining authority that because of this defect in the voucher for which the purchasers, Messrs Gamanlal Vithaldas Chokshi, were in no way responsible, though there is no compulsion to put individual numbers on silver bars and since even the customs officials themselves countersigned the transport voucher without insisting on the individual numbers of the silver bars, two partners, one the main partner, and the other an active partner in the firm of Messrs Gamanlal Vithaldas Chokshi should be detained under the Maintenance of Internal Security Act by the District Magistrate, Surat. A grosser case than this is yet to be seen. Liberty of two citizens of the State has been put in jeopardy from September 22, 1974 till today because the District Magistrate did not apply his mind properly to the facts of the case and without going deep into the case, has accepted the word of the customs officials at its face value, namely, these partners of the firm of Messers Gamanlal Vithaldas Choksi were engaged either in smuggling goods or dealing in smuggled goods or abetting other persons to smuggle goods. This single transaction in connection with ten silver bars which were seized by the customs officials on September 6, 1974. under the circumstances which we have mentioned herein above, is the sole ground on which the District Magistrate has reached his subjective satisfaction that his firm of Messrs Gamanlal Vithaldas Choksi and particularly its main partner and active partner, Pravinbhai and Sureshbhai respectively, were engaged either in smuggling goods and abetting other persons to smuggle goods concerned and in smuggling goods so far as Sureshbhai was concerned. It is high time that those to whom these powers under the Maintenance of Internal Security Act are entrusted realise their responsibility and that they are dealing with the liberty of the citizen and unless as rational persons they can reach the satisfaction contemplated by law, namely, that in order to prevent the smuggling of goods or any of the four activities mentioned in Section 3(1)(c), it is necessary to detain the person so that the activities contemplated by Section 3(1)(c) can be prevented, the liberty of the citizen shall not be taken away. We have come across only recently several orders passed by the respective District Magistrate, where proper attention which should be paid in passing such orders has not been paid, and we are constrained to make these observations regarding the manner in which the so-called subjective satisfaction of the detaining authority is being reached. After all, the constitution places the individual liberty of the citizen on a high pedestal and even the legislature's power to enact a law providing for preventive detention is begged in with may safeguards. We fail to see now under the circumstances any detaining authority after examining the facts which he was bound to examine could have reached the satisfaction which the District Magistrate, Surat, the first respondent herein, has purported to have reached, namely, that it was necessary to detain the main partner and the active of the firm of Messrs Gamanlal Vithaldas Choksi. It must be borne in mind that in the grounds of detention apart from this incident of the seizure of ten bars of silver of September 6, 1974, no other incident has been relied upon and in connection with that incident, the defect, if any, was in the voucher issued by Messrs Motiram Rupchand Jariwala. Again from the practice of this Customs Department, as seen by the counter signature of the transport voucher of the very ten silver bars from Songadh to Surat, it is clear that uptil now or till February, 1974, the customs officials were not insisting that each bar or silver should bear its individual identification mark and number. Under the circumstances, it is very difficult to see that the satisfaction reached by the detaining authority as such as a rational human being could have reached. Under the circumstances, it is very difficult to see that the satisfaction reached by the detaining authority as such as a rational human being could have reached. In view of the above discussion, we held that the detention order in each of these Special Criminal Applications must be quashed and set-aside. We, therefore, quash and set-aside the order of detention against each of these two detenues and direct that Pravinbhai Choksi, the detenu concerned in Special Criminal Application No. 126 of 1974, and Suresh Gamanlal Choksi, the detenu concerned in Special Criminal Application No. 127 of 1974, should be set at liberty forthwith so far as each of these two cases is concerned. There will be no order as to costs of either of these two Special Criminal Application. Rule made absolute in each matter accordingly." 3. It is also undisputed fact that there is no evidence on record that whether such order is ever challenged before the Hon'ble Supreme Court of India and interfered with in any manner whatsoever. Therefore, the above findings are now conclusive findings so far as order of detention is concerned. Therefore, prima facie, on this ground itself, this petition needs to be allowed since it is also undisputed fact that detention of present petitioner is based upon the same facts and circumstances, which are very well described in the pleadings as well as in above-referred decision of Division Bench of this High Court and therefore, I do not want to make this judgment bulky by reproducing the same. It is also undisputed fact that in the present petition, the petitioner has disclosed the factual details of one Special Criminal Application No. 1276 of 1977 preferred by him, in paragraph 5.3 and 5.4 of the petition and there is no reply to such facts in affidavit in reply filed by the respondent No. 3 and therefore, it is to be considered as admitted fact and hence, conclusion in Special Criminal Application would be binding on the respondents. So far as the merits of the impugned orders are concerned, petitioner is relying upon decision of Division Bench of this High Court in Special Criminal Application No. 447 of 1989 wherein it is held that detaining authority is under an obligation to comply with the requirements of the Act by formulating the grounds before passing the order of detention and if such grounds were not formulated by the detaining authority before passing the order of detention, then, the order of detention is to be considered as illegal. 4. However, the respondents have tried to convince the Court that this cannot be the ground for quashing and setting-aside the order of detention. 5. Irrespective of above-referred factual details on record, this Special Civil Application came to be dismissed by learned Single Judge of this Court vide order dated 27.2.1997 holding that writ petition is barred by principle of res judicata reserving the liberty to file fresh petition relying upon the judgment of Attorney General of India vs. Amratlal Prajivandas, (1994) 5 SCC 54 . 6. Being aggrieved by such judgment dated 27.2.1997, the petitioner has preferred Letters Patent Appeal No. 478 of 1997, but it was also dismissed by judgment and order dated 6.12.2012 holding that petitioner has no right to challenge the order of detention, but with exemplary cost of Rs. 25,000/- considering that appellant has tried to delay the proceeding at every stage. When such order of Letters Patent Appeal was challenged before the Hon'ble Supreme Court of India in Civil Appeal No. 14352 of 2015, Hon'ble Supreme Court of India has by its reasoned judgment dated 10.12.2015 observed and held as under:- "27. We are even otherwise persuaded to accept the contention of the appellant, to enable him to raise a challenge to the order of his detention, for the simple reason, that three of his brothers who raised such a challenge, to the order of their preventive detention, were successful in having the same set aside. The appellant is possibly similarly situated as his three brothers, and if it is so, he should have the same right as was availed of by his three brothers. 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. 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." 7. Therefore, only because Hon'ble Supreme Court of India has remanded back the matter to the High Court so as to consider all the grounds taken by the petitioner, respondents are trying to take a chance by opposing the petition vehemently, but failed to realise that remitting back the matter is mainly for the reason that while dismissing the petition, by order dated 27.2.1997 this High Court has not considered the merits of the case though the fact remains that similar orders of detention were already quashed and set-aside by Division Bench in the year 1974 and 1990. Therefore, again the only small issue, which remains is that when there are two concurrent views of the Division Bench and when one of such judgment is practically quashing and setting-aside a similar order of detention against the real brothers of the present petitioner for same set of facts, practically, now the Single Judge has nothing to do further than to rely upon such decision of the Division Bench, which was never challenged before the higher authority to put an end to such case, wherein first order of detention, which is impugned in the petition is of 1976 i.e. before 40 years. 8. Learned advocate for the respondent has tried to convince the Court that even after the decision by the Hon'ble Supreme Court in Civil Appeal No. 14352 of 2015, the petitioner is not entitled to take all the grounds. 8. Learned advocate for the respondent has tried to convince the Court that even after the decision by the Hon'ble Supreme Court in Civil Appeal No. 14352 of 2015, the petitioner is not entitled to take all the grounds. I could not agree to such proposition for the simple reason that there are previous decisions of Division Bench of this High Court that detaining authority is under obligation to comply with the requirements by formulating grounds for detention and on factual aspect also, there is no reason to detain such person and therefore, as recorded herein above, the Division Bench has gone to the extent of saying that "a grosser case than this is yet to be seen." 9. For arriving at such conclusion, the petitioner has referred and I am relying upon the relevant observations from the following decisions:- 1. Ghelubhai R. Madam vs. Competent Authority & Others, 2004 (2) GLR 1431 2. Kamleshkumar Ishwardas vs. Union of India & Others, (1995) 4 SCC 51 3. Niranjan Chokshi & Another vs. Union of India and Others, 1992 (2) GLR 891 4. Krishna Murari vs. Union of India & Others, 2002 AIHC 2866 5. A copy of the order in Special Criminal Application Nos. 332 of 1992 and 332 of 1992 6. Parshottam Dahyabhai Chunara vs. State of Gujarat & Others, 1988 (1) GLR 342 7. Bipinchandra Gamanlal Chokshi vs. State of Gujarat & Others, AIR 2016 SC 267 8. Bipinchandra Gamanlal Chokshi vs. State of Gujarat & Others, 2013 (2) GLR 1719 9. Karimaben K. Bagad vs. State of Gujarat, 1997 (2) GLR 1595 10. The combined and cogent reading of all such judgments make it clear that the impugned order of detention cannot sustain. Bipinchandra Gamanlal Chokshi vs. State of Gujarat & Others, AIR 2016 SC 267 8. Bipinchandra Gamanlal Chokshi vs. State of Gujarat & Others, 2013 (2) GLR 1719 9. Karimaben K. Bagad vs. State of Gujarat, 1997 (2) GLR 1595 10. The combined and cogent reading of all such judgments make it clear that the impugned order of detention cannot sustain. Therefore, I am relying upon the decision rendered by the Division Bench of this High Court in Special Criminal Application No. 125 and 127 of 1974, which is based upon the same facts for detaining the brothers of the petitioner and hence, instead of reproducing all such factual details, which are otherwise very well appreciated, described and considered by Division Bench and therefore, I am not reproducing all such factual details in this petition, but conclude on such facts and circumstances available on record, that it now becomes clear that the impugned order cannot sustain and therefore, the petition is allowed resulting into quashing and setting-aside the impugned order of detention dated 11.6.1976 at Annexure 'A' to the petition and declaration under Section 12A of the COFEPOSA, 1974 at Annexure 'B' dated 11.6.1976 and quash and set-aside three notices under Section 6 of SAFEMA, 1976, Annexure 'D' Collectively dated 28.4.1977, 20.1.1997 and 23.3.1977. 11. Rule is made absolute. Direct service permitted. Further Order dated 22.3.2016 Learned advocate Mr. Anuj Dave for learned advocate Mr. P.Y. Divyeshvar for respondent No. 3 is seeking stay of this judgment for few weeks. Looking to the facts and circumstances, no such request can be granted. Hence, the request is rejected.