Supreme Court of India
BIPINCHANDRA GAMANLAL CHOKSHI AND ANOTHERversusSTATE OF GUJARAT AND OTHERS
- Citation
- 2015 INSC 913
- Decided
- 10 December 2015
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHAR
Holding
A detenu may substantively challenge a Section 3 COFEPOSA detention order even after the Section 12A declaration is revoked, and the High Court’s refusal to permit such a challenge was erroneous.
Summary
The appellant, Bipinchandra Gamanlal Chokshi, was detained on 11 June 1976 under Section 3 of the COFEPOSA Act, with a simultaneous declaration under Section 12A during a national emergency. The declaration was revoked on 21 March 1977 when the emergency ended, and the appellant was released the same day. He later challenged the detention order after its revocation, arguing that he could still contest it under Section 3, which allows a broader substantive challenge than the technical challenge permitted under Section 12A. The High Court refused to allow the challenge, relying on Attorney General v. Pranjivandas, but the Supreme Court held that the appellant could indeed raise a substantive challenge to the Section 3 detention order, that the High Court’s refusal was unjustified, and set aside that order, remitting the matter back to the High Court. The appeal was allowed.
Issues considered
- The scope of challenge available to a detenu under Section 3 of COFEPOSA Act versus Section 12A after the emergency is lifted.
- Whether a preventive detention order, once revoked, can still be challenged when it forms the basis for proceedings under SAFEMA Act.
- The effect of the precedent in Attorney General v. Pranjivandas on the right to challenge a detention order post‑emergency.
- Whether the provisions of Section 2(2)(b) proviso (iv) of SAFEMA Act grant an effective right to assail the detention order after revocation.
- The relevance of similar challenges succeeded by the appellant’s brothers.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 12A, s. 3, s. 8
- Constitution of Indias. Article 22, s. Article 352, s. Article 358, s. Article 359
- Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA)s. 2(2)(b), s. 6
Subjects
preventive detentionCOFEPOSASAFEMASection 12Aemergency proclamationsubstantive vs technical challengeArticle 22Article 352Article 359
Judgment
[2015] 11 S.C.R. 1077
BIPINCHANDRA"GAMANLALCHOKSHIANDANOTHER · A
v.
STATE OF GUJARAT AND OTHERS
(Civil Appeal No. 14352 of 2015)
DECEMBER 10, 2015 B
[JAGDISH SINGH KHEHAR AND ROHINTON FALi
NARIMAN, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 - ss. 3 and 12A - Detention C
under both ·the provisions - On the same date - On
revocation of declaration uls. 12A, the detenu was released
u/s. 3 on the very same day - Thereafter initiation of
proceedings u/s. 6 of SAFEMA Act on the basis of s. 2 of the
SAFEMA Act- The detenu then challenged his.detention u/ D
s. 3 of COFEPOSA Act - High Court rejected the petition
holding that the detenu was not allowed to challenge the
detention order after its revocation - On appeal, held: Scope
of challenge to detention u/s. 3 is wider than the scope of
challenge u/s. 12A ~ Thus when the. detention uls. 3 is rlw s. E
12A, the scope to challenge the detention is only on technical
grounds - The detention of the detenu u/s. 3, in the present
case, was althrough·rlw. s. 12A- Thus there was no occasion
for the detenu to challenge his detention under limited scope
of s. 3 - Therefore the challenge to detention uls. 3 can be F
allowed to be raised even after revocation of the detention -
Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976 - s. 2(2)(b) Proviso iv and s. 6 -
Constitution oflndia, 1950-Article 352(1 ).
G
Allowing the appeal, the Court.
HELD: 1. The substantive challenge to an order of
preventive detention when the order of detention is
limited to the scope of Sec.tion 3 of the COFEPOSA Act,
is far greater. After the declaration under Section 12A of H
1077 .
1078 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the COFEPOSA Act, the challenge is only on technical
grounds of violation of procedure under Section 12A of
the COFEPOSAAct. [Para 22] [1107-D-E]
2. The proviso (iv) to Section 2(2)(b) of SAFEMAAct
cannot be an empty formality. It should be an effective
8
right available to a detenu, so as to enable him to assail
the order of his preventive detention. A detenu may be
advised not to raise a challenge to his order of detention,
while it subsists under the stringent conditions of
c Section 12A of COFEPOSA Act, on account of the fact
that his remedy would be wider and the grounds
available would be far more, when the order of detention
is limited to the scope of Section 3 of the COFEPOSA
Act. [Para 22] [1105-G-H; 1106-A-B]
D 3. In the facts and circumstances of the present
case, it is apparent, that the order of detention under
Section 3 of the COFEPOSA Act was passed on
11.6.1976. Immediately after the passing of the aforesaid
E order, on the same day, the Government of Gujarat issues
a declaration under Section 12A, with reference to the
detention of the appellant. Again, on the lifting of the
emergency on 21.3.1977, the cieclaration under Section
12A ceased to be operative, with reference to the
F detention of the appellant. As soon as the declaration
under Section 12A of the COFEPOSA Act was revoked,
the appellant was ordered to be released. At the
beginning of the order of detention, and at the time of
revocation thereof, whilst the detention order subsisted
G only within the limited scope of Section 3 of the
COFEPOSAAct read with Section 12A thereof, there was
really no occasion for the appellant to assail the same
thereafter, on any of the grounds as may have been
available to him. [Paras 23 & 26] [1107-F-H; 1108-A;
H 1109-A]
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1079
GUJARA1
4. Thus, the appellant had no occasion whatsoever A
to challenge the order of his detention, on the grounds
available to him, while the detention order subsisted
under the limited scope of Section 3 of the CO FE POSA
Act read with Section 12A thereof after 21.3.1977, as the
order under Section 3_ could not have been the subject B
matter of challenge as the detenu was released on the
same day. [Para 24) [1108-8-D]
5. Another reason to enable the appellant to raise a
challenge to the order of his detention is, that three of c
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 D
brothers. [Para 27) [1109-C-D]
6. Therefore, the determination rendered by the
High Court in not allowing the appellant to raise a
challenge to the order of his detention d.ated 11.6.1976, E
was wholly unjustified. 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 (t~ assail the order
of his detention dated 11.6.1976). It is only after the F
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 assai~ the order of his detention. [Para 28) G
[1109-E-G]
Attorney General of India v. Pranjivandas and Ors. JT
1994 (3) SC 583: 1994 (5) sec 54: 1994 (1) Suppl. SCR 1
- distinguished.
H
1080 SUPREME COURT REPORTS [2015] 11 S.C.R.
A Krishna Murari Aggarwala v. Union of India AIR 1975
SC 1877: 1976 (1) SCR 16 - referred to
Case Law Reference
1976 (1) SCR 16 referred to. Para 22
B 1994 (1) Suppl. SCR 1 distinguished. Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
14352of2015
From the Judgment and Order dated 06.12.2012 of the
C Division Bench of High Court of Gujarat in Letters Patent
Appeal No. 478of1997
C. A. Sundaram, Shirish H. Sanjanwala, Shimik
Sanjanwala, Zafar lnayat, Ro_hini Musa, Abhishek Gupta,
D Kailash Pandey, Ranjeet Singh (for K. V. Sreekumar) for the
Appellants. ·
K. Radhakrishnan, Sunita Rani Singh, R. K. Verma (for
Bi nu Tamta), Hemantika Wahi, Jesal for the Respondents.
E The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. Leave granted.
2. The State of Gujarat on 11.6.1976 ordered the
detention of the appellant- Bipinchandra Gamanlal Chokshi,
F under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as the 'COFEPOSAAct'). Section 3, whereunder
the above order of detention was passed, is being extracted
hereunder:
G "3. Power to make orders detaining certain persons.-
( 1) The Central Government or the State Government or
any officer of the Central Government, not below the rank
of a Joint Secretary to that Government, specially
empowered for the purposes of this section by that
H
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1081
GUJARAT [JAG DISH SINGH KHEHAR, J.]
Government, or any officer of a State Government, not A
below the rank of a Secretary to that Government,
specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any
person (including a foreigner), that, with a view to
preventing him from acting in any manner prejudicial to B
the conservation or augmentation of foreign exchange
or with a view to preventing him from-
i) smum:iling goods, or
(ii) abetting the smuggling of goods, or c
(iii) engaging in transporting or concealing or keeping
smuggled goods, or
(iv) dealing in, smuggled goods otherwise than by
engaging in transporting or concealing or keeping D
smuggled goods, or
(v) harbouring persons engaged-in smuggling goods or
in abetting the smuggling of goods,
it is necessary so to do, make an order directing that E
such· person be detained:
[Provided that no order of detention shall be made on
any of the grounds specified in this sub-section on which
an order of detention may be made under section -3 of F
the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 or under section 3
of the Jammu & Kashmir Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Ordinance,
1988 (J&K Ordinance 1 of 1988).] G
(2) When any order of detention is made by a State
Government or by an officer empowered by a State
Government, the State Government shall, within ten days,
forward to the Central Government a report in respect of
the order. H
1082" . SUPREME COURT REPORTS [2015) 11 S.C.R.
A (3) For the purposes of clause (5) of Article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which
the order has been made shall be made as soon as may
be after the detention, but ordinarily not later than five
B days, and in exceptional circumstances and for reasons
to be recorded in writing not later than fifteen days, from
the date of detention."
3. The revocation of an order passed under Section 3 of
c the COFEPOSAAct, is contemplated inter alia under Section
8 of the COFEPOSAAct. Section 8, which is also relevant in
the determination of the present controversy, is also reproduced
hereunder:
"
D
8. Advisory boards.- For the purposes of sub-clause (a)
of clause (4), and sub-clause (c) of clause (7), of Article 22 of
the Constitution, -
(a) the Central Government and each State Government
E
shall, whenever necessary, constitute one or more
Advisory Boards each of which shall consist of a chairman
and two other persons possessing the qualifications
specified in sub-clause (a) of clause (4) of Article 22 of
the Constitution;
F
(b) save as otherwise provided in section 9, the
appropriate Government shall, within five weeks from the
date of "etention of a person under a detention order
make a reference in respect thereof to the Advisory
G
Board constituted under clause (a) to enable the Advisory
Board to make the report under sub-clause (a) of clause
(4) of Article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under
H clause (b Jshall after considering the reference and the
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1083
GUJARAT [JAGDISH SINGH KHEHAR, J.]
materials placed before it and after calling for such further A
information as it may deem necessary from, the
appropriate Government or from any person called for
the purpose through the appropriate Government or from
the person concerned, and if, in any particular case, it
considers it essential so to do or if the person concerned B
desired to be heard in person, after hearing him in
person, prepare its report specifying in a separate
paragraph thereof its opinion as to whether or not there
is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from C
the date of detention of the person concerned;
(d) when there is a difference of opinion among the
members forming the Advisory Board, the opinion of the
majority of such members shall be deemed to be the D
opinion of the Board;
a
(e) person against whom an order of detention has
been made under this Act shall not be entitled to appear
by any legal practitioner in any matter connected with E
the reference to the Advisory Board, and the proceedings
of the Advisory Board and its report, excepting that part
of the report in which the opinion of the Advisory Board
is specified, shall be confidential;
F
(f) in every case where the Advisory Board has reported
that there is in its opinion sufficient cause for the detention
.of a person, the appropriate Government may confirm
ttie detention order and continue the detention of the
person concerned for such period as it thinks fit and in G
every case where the Advisory Board has reported that
there is in its opinion no sufficient cause forthe detention
of the person concerned, the appropriate Government
shall revoke the detention order and cause the person to
be released forthwith." H
1084 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 4. Proclamation of emergency under Article 352(1) of
the Constitution of India was declared on 25.06.1975. Based
on the above, the state of Gujarat issued a declaration under
Section 12A of the COFEPOSAAct, that the detention of the
appellant was necessary for dealing effectively with the
B emergency contemplated under section 12(A)(2) of the .
CO FE POSA Act.
5. Section 12A provides for a procedure, separate and
distinct from the procedure contemplated for revocation of an
C order passed under Section 3 of the COFEPOSAAct. Section
12A is being reproduced hereunder:
"12A. Special provisions for dealing with emergency.-
(1) Notwithstanding anything contained in this Act or any
D rules of natural Justice, the provisions of this section shall
have effect during the period of operation of the
Proclamation of Emergency issued under clause (1) of
Article 352 of the Constitution on the 3rd' day of
December 1971, or the Proclamation of Emergency
E issued under that clause on the 251" day of June, 1975,
or a period of twenty-four months from the 25th day of
June, 1975, whichever period is the shortest.
(2) When making an order of detention under this Act
F against any person after the commencement of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Amendment) Act, 1975, the Central
Government or.the state Government or, as the case may
be, the officer making the order of detention shall
G consider whether the detention of such person under this
Act is necessary for dealing effectively with the
emergency in respect of which the Proclamations
referred to in sub-section (1) have been issued (hereafter
in this section referred to as the emergency) and if, on
H such consideration, the Central Government or the State
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1085
GUJARAT(JAGDISH SINGH KHEHAR, J.]
Government or, as the case may be, the officer is satisfied A
that it is necessary to detain such person for effectively
dealing with the emergency, that Government or officer
may make a declaration to that effect and communicate
a copy of the detlaration to the person concerned:
B
Provided that where such declaration is made by an
officer, 'it shall be reviewed by the appropriate
Government within fifteen days from the date of making
of the declaration and such declaration shall cease to
have effect unless it is confirmed by that Government, C
after such review, within the said period of fifteen days .
.
(3) The question whether the detention of any person in
respect of whom a declaration has been made under
sub-section (2) continues to be necessary for effectively o
dealing with the emergency shall be reconsidered by the ·
appropriate Government within four months from the date
of such declaration and thereafter at interitals not
exceeding four months, and if, on such reconsideration,·
it appears to the appropriate Government that the E
detention of the person is no longer necessary for
effectively dealing with the emeigency, that Government
may revoke the declaration.
(4) In making any consideration, review or F
reconsideration under sub-section (2) or (3), the
appropriate Government or officer may, if such
Government or officer considers itto be againstthe public
interest to do otherwise, act on the basis of the
information and materials in its or his possession without G
disclosing the facts or giving an opportunity of making a
representation to the person concerned.
(5) It shall not be necessary to disclose to any person.
detained under a detention order to which-the provisions H
1086 SUPREME COURT REPORTS [2015] 11 S.C.R.
A of sub-section (2) apply, the grounds on which the order
has been made during the period the declaration made
in respect of such person under that sub- section in is
force, and, accordingly, such period shall not be taken
into account for the purpose of sub-section (3) of section
B 3.
(6) In the case of every person detained under a detention
order to which the provisions of sub-section (2) apply,
being a person in respect of whom a declaration has
C been made thereunder, the period during which such
declaration is in force shall not be taken into account for
the purpose of computing-
(i) the periods specified in clauses (b) and (c) of section
D 8;
(ii) the periods of "one year" and "five weeks" specified
in sub-section (1 ), the period of "one year" specified
in sub-section (2)(i), and the period of "six months"
E specified in sub-section (3) of section 9.]"
6. It is apparent, that under sub-section (2) of Section
12A of the COFEPOSAAct, every detention order has to be
reviewed within fifteen days. It is in consonance with sub-
F section (2) aforementioned, that the detention order passed
against the appellant was reviewed on 26.6.1976. The
Competent Authority arrived at the conclusion in the above
review, that the detention of the appellant should continue.
Under Section 12A of the COFEPOSA Act, every detention
G order is to be reviewed before the expiry of every four months.
The instant review is contemplated under sub-section (3) of
Section 12A of the COFEPOSA Act. In compliance with
Section 12A(3) of the COFEPOSA Act, the first review
contemplat?d under sub-section (3) took place on 04.10.1976.
H Yet again, the order of detention of the appellant was affirmed.
BIPINCHANDRAGAMANLALCHO!(SHI v. STATE OF 1.087
GUJARAT [JAGDISH SINGH KHEHAR, J.]
Still further, the second review under Section 12A(3) of the A
COFEPOSA Act, was held on 9.2.1977 .. Yet again, the
Competent Authority arrived at the conclusion, that the
detention of the appellant should be continued.
· 7.Emergency declared under Article 352 of the
8
Constitution of India, was revoked by the President of India,
on 21.3.1977. On the same day, as the revocation of the
emergency, i.e., on 21.3.1977 itself, the State of Gujarat,
revoked the order of detention passed against the appellant.
8. It is sufficient to record herein, that the appellant C
Bipinchandra Gamanlal Chokshi assailed the order of his
detention dated 11.6.1976, by filing Special Civil Application
No. 1276 of 1977. It is apparent, that the aforesaid challenge
was made by the appellant, well after the order of his detention.
0
(dated 11.6.1976), had been revoked (by the order dated
21.3.1977). Further details in this behalf, shall be referred to
at a later juncture.
9. The grievance of the appellant in assailing the order
of his detention (passed under Sections 3 read with 12A of E
the COFEPOSAAct) 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 'SAFEMAAct'). The short show cause notice F
issued to the appellant, is extracted hereunder:
"Shri Bipinchandra Gamanlal Choksy,
Nanavat Main Road,
Surat.
G
Whereas, I S.N. Sastri, being the competent Authority
Under Section-5 of the Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976
(13of1976), have, on the basis of relevant information
and relevant material available to me, reason to believe H.
1088 SUPREME COURT REPORTS (2015] 11 S.C.R.
A that the properties described in the schedule enclosed
hereto which are held by you or on your behalf, are illegally
acquired properties within the meaning of clause (c) of
sub-section (1) of section-3 of the said Act.
B 2. Now, therefore, in pursuance of sub-section (1) of
section-6 of the said Act, I hereby call upon you by this
notice to indicate to me within 35 days of service of this
notice, the sources of your income, earnings or assets,
out of which or by means of which you have acquired the
c aforesaid properties, the evidence on which you rely and
other relevant information and particulars and to show
cause why the aforesaid properties should not be
declared to be illegally acquired properties and forfeited
to the Central Government under the said Act.
D
Sd/-
(S.N. Sastri)
Competent Authority
Bombay"
E 10. It would be relevant to mention, that the initiation of
proceedings under the SAFEMAAct against the appellant,
were based on Section 2 of SAFEMAAct. During the course
of hearing, learned counsel for the rival parties agitated their
claims, on the basis of the interpretation of Section 2(2)(b) of
F the SAFEMAAct. Whilst, it was the contention of the learned
counsel forthe appellant, that proceedings could not be initiated
against the appellant, under clause (b) of sub-section (2) of
Section 2 of the SAFEMA Act, it was the contention of the
learned counsel representing the CompetentAuthority, as well
G as, the State of Gujarat, that the mandate of Section 2(2)(b)is
clear and explicit. Because the appellant does not fall in any
of the exceptions contemplated through provisos (i) to (iv)
thereof, the proceedings initiated against the appellant were
H well within the justification of law. Section 2(2)(b) of the
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1089
GUJARAT [JAGDISH SINGH KHEHAR, J.]
SAFEMAAct is extracted below: A
"Section 2(2){b): every person in respect of whom an
order of detention has been made under the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (52of1974): B
Provided that-
(i) such order of detention being an order to which the
· provisions of section 9 or section 1.2A of the said Act
do not apply, has not been revoked on the report of C
the Advisory Board under section 8 of the said Act or
before the receipt of the report of the Advisory Board
or before making a reference to the Advisory Board;
or
D
(ii) such order of detention being an order to which
the provisions of section 9 of the said Act apply, has
not been revoked before the expiry of the time for, or
on the basis of, the review under sub-section (3) of
section 9 or on the report of the Advisory Board under E
section 8, read with sub-section (2) of section 9 of the
said Act; or
(iii) such order of detention, being an order to which
the provisions of section 12A of the said Act apply, F
has not been revoked before the expiry of the time for,
or on the basis of, the first re.view under sub-section
(3) of that section, or on the basis of the report of the
Advisory Board under section 8, read with sub-section
(6) of section 12A, of that Act; or
G
(iv) such order of detention has not been set aside by
a Court of competent jurisdiction." ·
11. In order to complete the sequence of facts, it is
essential to notice, that one of the brothers of the appellant,. H
1090 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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 723of1990, and 745,
74 7 and 748 of 1991. The challenge to the detention of
B Niranjan Dahyabhai Chokshi was raised on the ground of the
law declared by this Court in Krishna MurariAggarwala 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,
C that if the grounds of detention are not recorded and signea,
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
0
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
E 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 SAFE MA Act were also set
F aside as unsustainable.
12. Two other brothers of the appellant- Bipinchandra
Gamanlal Chokshi, namely, Rameshchandra Gamanlal
Chokshi and Pravinchandra Kikabhai Choksy had likewise
G approached the High Court of Gujarat by filing Special Criminal
Application Nos. 331 and 332 of 1992 respectively, to likewise
assail the orders of their detention under the provisions of
COFEPOSAAct, and initiation of proceedings under Section
6 of the SAFEMAAct. Yet again, the High Court by its order
H
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1091
GUJARAT [JAGDISH SINGH KHEHAR, J.]
dated 12.04.1993 set aside their orders of detention, based A
on the decision rendered by this. Court in Krishna Murari
Aggarwala's case (supra). The High Court concluded similarly
as in the other brother's case, that their orders of detention
had been passed, before the grounds of detention were
prepared and signed by the authorities concerned. B
Accordingly, proceedings initiated against these two brothers
of the appellant, under Section 6 of the SAFE MA Act were
also set aside.
13. Insofar as the challenge raised by the appellant herein, C
to the order of his detention dated 11.6.1976, as well as, the
order of initiation of proceedings under Section 6 of the
SAFEMAAct on 28.4.1977 is concerned, the claim raised by
the appellant was rejected by a learned Single Judge of the
High Court (while disposing of Special Civil Application D.
No. 3716of1995) on 27.2.1997 by holding as under:
"Special Civil Application No. 3716of1995:
This Special Civil Application has been filed by E
Bipinchandra G. Choksi- detenu as appellant No. 1, Smt.
Jayashree Bipinchandra Choksi, wife of appellant No. 1
and Bipinchandra Ramanlal Choksi, H.U.F. as appellant
No. 3. The appellants have challenged the order of
detention dated 11-6-1976 and declaration under F
Section 12-A of the COFEPOSAAct dated 11-6-1976
and the notice issued under Section 6(1) of SAFEMA
Act-Annexure "D". This petition was initially registered
as Special Criminal Application No. 1499of1994. It was·
subsequently, on conversion, registered as Special Civil G
Application No. 3716of1995. The petition appears to
have been not affirmed. A non-affirmed affidavit filed is
dated 24-8~1993. However, it is signed by the learned
Advocate on 7-10-1994. The petition appears to have
H
1092 SUPREME COURT REPORTS [2015] 11 S.C.R.
A been filed on 10-10-1994. The necessary facts are that
the appellant No. 1 was detained under the provisions of
COFEPOSAAct by the order of detention dated 11-6-
1976. Simultaneously, a declaration under Section 12-A
was issued on the same day declaring that it was
B necessary to detain the detenu for dealing effectively with
the Emergency which was then proclaimed. Upon the
Emergency being lifted, the order of detention was
revoked by the State Government under a wireless
message dated 21-3-1977. The notices under Section
c 6(1) of SAFEMAAct dated 28-4-1977 were issued. The
appellants have challenged the order of detention as well
as the SAFEMA.Act notices by way of filing Special
Criminal Application No. 1276 of 1977. However, the said
writ petition was dismissed as withdrawn by the order of
D
the Division Bench·ofthis Courton 9-8-1994. The order
reads as follows:
''The challenge to the Constitutional validity of
SAFEMAAct and COFEPOSAAct no longer survives,
E in view of the decision of the Supreme Court in the
case of Attorney General of India v. Pranjivandas and
Ors., reported in JT 1994(3) SC 583. The learned
Advocate for the appellant, however, wishes to
with<;fraw the writ petition. He wishes to file fresh
F
petition in the light of the said judgment raising such
contention; as may be open to the appellant in
accordance with law. Mr. J.N. Patel, learned Addi.
Central Government Standing Counsel appearing for
the respondent states that all the questions had been
G
answered by the Supreme Court and nothing survives.
As the appellant is wanting to withdraw th is writ petition
with a view to file fresh petition, we express no opinion
on any of the questions on merit. Permission to
H withdraw the petition is granted. The petition stands
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1093
GUJARAT [JAGDISH SINGH KHEHAR, J.]
disposed of as withdrawn. The interim relief order A
stands vacated."
Mr. J.N. Patel, learned Addi. Central Government Standing
Counsel has raised two preliminary objections - firstly.
that since the appellant did not challenge the order of 8
detention during the subsistence of Emergency in view
of the judgment of the Apex Court in Attorney General of
India's case (supra), he cannot be permitted to challenge
the order of detention. Secondly, that the present Special
Civil Application is barred by the principles of res c
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 SAFEMAAct and the same has been disposed
of by the order of the Division Bench of this Court dated D
9-8-1994.
18. Mr. R.S. Sanjanwala, learned Advocate for the
appellants submits that the 9-Bench judgment of the
Supreme Court in Attorney General of India's case E
(supra) has been explained in subsequent judgment in
the case of Smt. Gangadevi v. Union of India &Ors .. It is
held in Gangadevi's case (supra) that where there has
been no pronouncement by any Court upon the validity
of the order of detention, the detenu is entitled to F
challenge the validity ofthe detention order as the same
is being made foundation for forfeiting the properties
under SAFEMAAct. The learned Advocate has placed
reliance ~n the observations of the Supreme Court in.
para 12 which reads as follows: G
"There has been no pronouncement by any Court upon
the validity of the detention order dated 12-9-1975.
The appellant is entitled to challenge the validity of the
aforesaid order because if is now being made H
1094 SUPREME COURT REPORTS [2015] 11 S.C.R.
A foundation for forfeiting her properties under SAFEMA
Act."
I cannot agree with the submissions made by Mr.
Sanjanwala, learned Advocate for· the appellant. Smt.
B Gangadevi's case (supra) does not advance the case
of the appellant. The observations quoted above by the
Apex Court cannot be read in isolation. In the said case,
the order of detention was challenged by the detenu
Sreekrishna Gopilal Solanki. The writ petition was
c admitted and notices were issued to the State. On 11-3-
1976, notices under Section 6 of the SAFEMAAct were
issued. On May 1, 1976, the said detenu-Sreekrishna
Gopilal Solanki died while under detention. Another
notice under Section 6 of the SAFE MA Act was issued
D to the widow of the detenu, i.e., Gangadevi on April 17,
1977. The writ petition filed by detenu Sreekrishna
Solanki was dismissed. as infructuous on a
representation made by the Public Prosecutor appearing
for the State that the detenu has been released. The Apex
E Court found that it was an incorrect representation as
the detenu expired while he was in detention. In that
context, the Apex Court said that the order of detention
was challenged by detenu Sreekrishna Solanki himself
and unless the challenge is repealed, it cannot be made
F
basis of the proceedings under SAFEMAAct against
the wife of the detenu.
19. In the present case, it is not in dispute that the order
of detention was never challenged during the subsistence
G 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 SAFEMAAct to him. In view of this
H
•
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1095
GUJARAT [JAGDISH SINGH KHEHAR, J.]
clear position of law, the appellant cannot be permitted A
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 SAFEMAAct
proceedings, it is open for the relatives and friends of
the detenu to challenge the order of detention. This B
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, C
when action is taken against him under SAFEMAAct.
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 -
0
Annexure "C" and as such the very foundation of SAFE MA·
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." E
(emphasis is ours)
14. A perusal of the order passed by the High Court
reveals, that the High Court relied on the decision rendered by
a nine-Judge Bench of this Court, in Attorney General for India F
and others vs. Amratlal Prajivandas and others (1994) 5 SCC
54.
15. Dissatisfied with the order passed by the learned
Single Judge, the appellant preferred LPA No. 478of1997. G
The said appeal came to be dismissed by a Division Bench
of the High Court on 06.12.2012. The orders passed by the
learned Single Judge in Special Civil Application No. 3716 of
1995, and by the Division Bench in LPANo. 478 of1997, have
been impugned by the appellant before this Court. H
1096 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 16. The primary question that arises for our consideration
is, whether in view of the judgment rendered by this Court in
Attorney General for India's case (supra), the right of the
appellant to assail the order of his detention dated 11.6.1976
stood foreclosed. This is indeed, the contention before us by
B the learned· counsel representing the respondent. Whereas,
the submission of the learned counsel for the appellant is, that
he had been deprived of the right to assail/impugn the order
dated 11.6.1976, which was a valuable right, and the same
could not _have been taken away, so as to expose him to
C extremely harsh consequences. In order to determine the
above submission, it will be imperative for us to examine,
whether or not the claim of the appellant had been rightfully
determined by the High Court, on the basis of the judgment
rendered by this Court in Attorney General for India's case
0
(supra). In examining the instant aspect of the matter, it is
essential to notice that this Court (in Attorney General for India's
case) while adjudicating upon the issues raised before it, had
framed six questions. Question No.2 was to the following
E effect:
"(2) Whether an order of detention under Section 3 read
with Section 12-A of COFEPOSAAct made during the
period of emergency proclaimed under Article 352(1) of
the Constitution of India, - with the consequent
F
'suspension' of Article 19 and during which period the
right to move the court to enforce the rights conferred by
Articles 14, 21 and 22 was suspended - can form the
foundation for taking action under Section 6 of SAFEMA
G Act against the detenu, his relatives and associates? And
if it does, can the validity of such order of detention be
challenged by the detenu and/or his relatives and
associates, when proceedings are taken against him/
them under SAFEMAAct, even though the said order of
H detention has ceased to be operative and was not either
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1097
GUJARAT [JAGDISH SINGH KHEHAR, J.]
challenged - or hot successfully challenged - during its A
operation? (3) If the answer to Question 1 is in the
affirmative, should the validity of the order of detention
be tested with reference to the position of law obtaining
at the time of making the said order and during its period
of operation or with reference to the position of law B
obtaining on the date of issuance of the show-cause
notice under Section 6 of SAFEMAAct?"
. While determining question no.2, this Court noticed the
factual position as under: C
"24.These questions arise this way. The orders of
detention concerned herein were made on or after the
date of the proclamation of emergency to which Section
12-A was applicable. None of theme are, what may be D
called, 'normal' orders of detention. For that reason, the
detenus were neither supplied with the grounds of
detention, nor were they given an opportunity to make a
representation against their detention nor does it appear
that their cases were referred to the Advisory Board - E
not at any rate within the period prescribed by Section 8,
or for that matter, Section 9. They were released on or
within a day or two of the date on which the emergency
was lifted. In this sense, the order of detention has worked
.itself out. But that order of detention is now being made F
the foundation, the basis for taking action under SAFEMA
Act against the detenus, t~eir relatives and their
associates. SAFE MA Act is made applicable to them
by virtue of Section 2(2)(b) read with clauses (c), (d) and
· (e) of sub-section (2). The appellants say that since the G
order of detention under COFEPOSAAct is made the
basis for action under SAFEMAAct against them, they
are entitled to challenge the validity of the order of
detention. They may not have been able to question the H
1098 SUPREME COURT REPORTS (2015] 1'1 S.C.R.
A validity of detention during their detention by virtue of
Section 12-A of COFEPOSAAct (non-supply of grounds
and non-reference to Advisory Board) and also because
their right to move the court for enforcement of the rights
·guaranteed to them by Articles 14, 21 and 22 was
B suspended during the period of emergency by an order
made by the President of India under Article 359 (1) of
the Constitution - even Article 19 did not avail them by
virtue of Article 358 - but when the said orders of
detention are sought to be made the bases of action
c under SAFEMAAct, after the lifting of emergency, they
are now entitled to question them. They point out that by
virtue of the order made under Article 359(1), the
fundamental rights guarateed to them by Articles 14,21
and 22 were not suspended, but only the right to move
D
for their enforcement was suspended. If so, they say, the
detention orders made against them are invalid and
illegal for violation of clauses (4) and (5) of Article 22.
They may have been barred from enforcing their rights
E under Article 22,21 and 19 because of the said order of
the President, but that did not render the orders of
detention valid. Such invalid, indeed void orders, they
say, cannot serve as the basis or as the foundation of
action under SAFEMAAct. They also stress the drastic
F nature of the provisions of SAFEMAAct. On the other
hand, the learned Additional Solicitor General relies upon
the provisions of clause (1-A) of Article 359 and submits
that the validity of th~said detention orders has to be
judged with reference to the Jaw then obtaining and not
G with reference to the Jaw obtaining on the date of
issuance of notice under Section 6 of SAFEMAAct. At
any rate, he submits, clause (1-A) of Article 359 saves
all such orders. Suspension of remedy, he says,, is
tantamount to suspension of the right itself since one
H cannot conceive of a right without a remedy. There is no
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 1099
GUJARAT[JAGDISH SINGH KHEHAR, J.]
distinction, he says, between Article 358 and an order A
under Article 359(1) in this regard. He places strong
reliance upon the observations (SCR at p. 812) of the
decision in Makhan Singh v. State of Punjab."
Having given our thoughtful consideration to the issue in s
hand, we are satisfied, that insofar as the factual position is
concerned, the present case is apparently similar to the one
adjudicated in Attorney General for India's case (supra), on
account of the apparent similarity herein within the factual
position recorded in paragraph 24, extracted hereinabove. C
Thus viewed, the conclusions on the issue, should ordinarily
follow the determination rendered by this Court in Attorney
General for India's case (supra).
17. In order to wriggle out of the determ.ination rendered o
by this Court in Attorney General for India's case (supra),
learned counsel for the appellant has placed reliance on the
findings recorded in respect to question no.2 (extracted
hereinabove), in paragraphs 39 to41. The same are relevant,
and are accordingly being reproduced hereunder: E
"39. Proviso (iii) expressly treats "an order (of
detention)to which the provisions of Section 12-A of
the said Act apply" and which "has not been revoked
before the expiry of time for, or on the basis of, the first F
review under sub- section (3) of that section (Section
12-A) or on the basis of the report of the Advisory Board
under Section 8,read with sub-section (6) of Section
12-A, of that Act", as an order of detention for the purpose
of and within the meaning of clause (b) of Section 2(2) G
of SAFE MA Act. In view of the fact that SAFE MA Act
as well as COFEPOSAAct are included in the Ninth
Schedule by the 39th and 40th (Amendment) Acts to the
Constitution, clause(b) of Section 2(2) of SAFEMAAct
[including proviso (iii) appended to it] are beyond H
1100 SUPREME COURT REPORTS [2015] 11 S.C.R.
A constitutional reproach. One has to take the said
provisions as they stand and they stand solidly against
the appellants' contentions. On this single ground, we
hold, as we must, that an order of detention made under
COFEPOSAAct, to which the provisions in Section 12-
B A applied, is an order of detention within the meaning of
and for the purposes of Section 2(2)(b) of SAFEMAAct
and can, therefore, const!tute the basis for applying
SAFEMAAcHo such person.
C 40. At this juncture, it would be appropriate to deal with
two decisions of this Court brought to our notice.The
first one is in Union of India v. Haji Mastan Mirza11
rendered by a Bench of three Judges.The respondent
therein was first detained under Maintenance of Internal
D Security Act (MISA)under an order dated 17-9-1974.
On 19-12-1974 the said order was revoked but
simultaneously an order of detention was made under
Section 3(1) of COFEPOSA Act. The grounds of
detention were served on him on 23-12-1974. On 25-6-
E 1975, emergency was proclaimed under Article 352(1)
on the ground of internal disturbance, which continued to
be in force up to 21-3-1977. The respondent was
released on 23-3-1977. Notice under Section 6(1) of
SAFEMA Act was issued to him, his relatives and
F
associates whereupon he filed a writ petition in the
Bombay High Court challenging the validity of the order
of detention dated 19-12-1974 on the ground inter
alia that he was not supplied with the documents
G clearly and unmistakably relied upon for arriving at the
requisite satisfaction and which documents were also
referred to in the grounds of detention served upon
him. The Bombay High Court allowed the writ petition,
against which the Union of India appealed to this
H Court. Varadarajan, J. speaking forthe Bench referred
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1101
GUJARAT [JAGDISH SINGH KHEHAR, J.]
to the provisions of Sections 2, 6 and 7 of SAFEMAAct A
and observed thus: (SCC p. 432, para 10)
"Therefore, a valid order of detention under
COFEPOSA Act is a condition precedent to
proceedings being taken under Sections 6 and 7 of B
SAFEMAAct. If the impugned order of detention dated
19-12-1974 is set aside for any reason, the
proceedings taken under Sections 6 and 7 of
SAFEMA Act cannot stand.Therefore, we have to
consider whether the impugned order of detention C
dated 19-12-1974 under COFEPOSAAct is void and
has to be quashed."
· 41. From the facts stated above, it is clear that the order
of detention was made long prior to the proclamation o
of emergency on 25-6-1975. He was served with the
grounds of detention but not the documents relied upon
therein. It does not appear from the judgment whether
a declaration under Section 12-A of COFEPOSAAct was
made with respect to the said respondent, though it can E
be so presumed from the fact that his detention was
continued up to 23-3-1977. In the above circumstances,
this Court said that it was open to the respondent-detenu
to question the validity of the order of detention when
proceedings are taken against him under Sections 6 F
and 7 of SAFEMAAct. It is not possible to agree with
the reasoning of the decision. There are two ways of
looking at the issue. If it is a normal order of detention[not
governed by Section 12-A nor protected by an order
under Article 359(1) suspending the enforcement of G
Article 221 and if the detenu does not challenge it when
he was deprived of his liberty, or challenges it
unsuccessfully, there is no reason why he should be
allowed to challenge it when action under SAFEMAAct H
1102 SUPREME COURT REPORTS [2015] 11 S.C.R.
A is taken against him for action under SAFEMAAct is
not automatic upon the fact of detention but only the
starting point. On the other hand, if it is an order of
detention governed by Section 12-A for. by a Presidential
Order under Article 359(1) suspending Article 221. it
B perhaps could still be challenged even during the period
of emergency on grounds not barred by the said
provisions. Secondly, even if such an order is allowed
to be challenged when action under SAFEMAAct is
taken, the challenge must be confined to grounds which
c were open or available during the period of emergency;
otherwise there would be no meaning behind the
concluding words in Article 358(1) and Article 359(1A).
Hence, we say that a person who did not choose.to
challenge such an order of detention during the
D
emergency when he was detained, or challenged it
unsuccessfully, cannot be allowed to challenge it when it
is sought to be made the basis for applying SAFEMA
Act to him. In either of the two situations mentioned
E above, i.e., whether the challenge is made during the
period of detention or later when proceedings under
SAFEMA Act are taken against him, the grounds of
challenge and scope of judicial scrutiny would be the
same. Failure to challenge the detention directly when
F he was detained, precludes him from challenging it after
the cessation of detention, where it is made the basis
for initiating action under SAFEMAAct."
(emphasis is ours}
G 18.0ur pointed attention was drawn to the factual
position depicted in paragraph 41, namely, that the detenu
therein, had an opportunity to assail the impugned order of
detention under COFEPOSAAct, and it is therefore, that this
Court arrived at the conclusion, that a challenge having not
H been raised by the respondent in the above case, it would not
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1103
GUJARAT [JAGDISH SINGH KHEHAR, J ]
now be open to him to raise such a challenge, after the A
detention order stood r.evoked. Insofar as the present
controversy is concerned, learned counsel wishes us to believe,
that there was no opportunity whatsoever for the appellant to
assail the impugned order of detention dated 11.6.1976.
Insofar as the instant aspect of the matter is concerned, it was B
the submission of the learned counsel, that immediately on
the passing of the order of detention on 11.6.1976 under
Section 3 of the COFEPOSAAct, a declaration came to be
issued under Section 12A thereof. It was submitted, that the
challenge to an order of detention under section 3 of the C
COFEPOSAAct read with section 12A is extremely limited,
inasmuch as, the challenge would be sustainable only if the
procedure contemplated under Section 12A had not been
followed. The remedy would be limited to the above technical D
challenge. It was submitted that as against the above, the
challenge to an order of detention passed under Section 3 of
COFEPOSA Act, can be based on a variety of reasons,
wherein it is open to the appellant to assail the non~compliance
of the procedure contemplated under Section 8, and also, any E
infirmity or illegality, on the basis and reasons which constitute
the ground(s) of detention.
19. It was the vehement contention of the learned counsel,
that the order of detention under section 3 read with section . F
12A of the COFEPOSAAct, subsisted from 11.6.1976 when
the order of detention under Section 3 was passed, till the order
of detention was revoked on the lifting of the emergency on
21.3.1977. It was submitted, that Section 12A is invoked.
merely by a d_eclaration, whereas, the substantive order of G
detention is passed under Section 3 of COFEPOSAAct. It
was contended, that as soon as the emergency was lifted on
21.3.1977, the original position stood revived, inasmuch as,
the order of detention would thereafter be an order under
Section 3 of COFEPOSA Act without a Section 12A H
1104 SUPREME COURT REPORTS [2015) 11 S.C.R.
A declaration super-added, and as such, was assailable in terms
of the grounds available to a detenu under Section 8, and the
other grounds referred to above. It was the assertion of the
learned counsel, in the present case, that the order under
section 3 of the COFEPOSAAct, could not be assailed by the
B appellant as he was released on the same day, i.e., on
21.3.1977. There was therefore no occasion for the appellant,
to assail the order of his detention, based on pleas and
contentions, as would have been available to the appellant,
under Section 8 of the COFEPOSAAct, and the other grounds
C expressed above.
20. Learned counsel for the appellant, in order to
substantiate his claim, placed emphatic reliance on Section 2
(2)(b) of the SAFEMAAct. It was asserted, that the right to
D assail an order of preventive detention is a valuable right, and
has been recognised in proviso (iv) to Section 2(2)(b)(extracted
above). It was the assertion of the learned counsel for the
appellant, that an order of detention under the COFEPOSA
Act, would inter alia constitute the basis for initiation of
E proceedings under Section 6 of the SAFEMAAct. However,
every detenu has the right to assail the same, and if the
challenge raised against an order of detention under Section
3 of COFEPOSA Act, results in the setting aside of the
F detention order, proceedings cannot be initiated against him
under Section 6 of the SAFEMAAct.
21. The question that arises for our consideration, is
based on the assertion, that the appellant did not raise any
such challenge to the order of his preventive detention, during
G the subsistence of the order of his detention. It is clear, that the
appellant came to be released on 21.3.1977, and Special Civil
Application No. 1276 of 1977 was filed by him for the first time
on 19.09.1977. According to the learned counsel, that however
should make no difference whatsoever. In order to substantiate
H
BIPINCHANDRA GAMANLAL CHOKSHI'! STATE OF 11"05
GUJARAT[JAGDISH SINGH KHEHAR, J.]
his instant contention, he placed reliance on proviso (iii) of A
Section 2(2)(b) of the SAFEMAACt, which provides for two
further eventualities, wherein proceedings under the SAFEMA
Act cannoi be initiated, despite the detention of an individua.1
under the COFEPOSAAct. Firstly, when an order of detention
has been revoked under Section 12A of the COFEPOSAAct. B
. And secondly, where such an order of detention was revoked
under Section 8 thereof. Learned counsel seeks to emphasise,
that a closer examination of proviso (iii) of Section 2(2)(b)
indicates, that for computing the periods mentioned in Section
8, the period during which a declaration under Seciion 12A is C
in force shall not be taken into account. For this, reference
has been made to Section 12A(6), which expressly finds
mention in proviso (iii) of Section (2)2(b) of SAFE MA Act. It is
the submission of the learned counsel, that proviso (iii)
0
expressly postulates the possibility of a revocation of an order
of detention, even after the declaration under Section 12A
ceases to operate, under section 8 of the COFEPOSAAct. It
is submitted, that this right which was available to the appellant
after the declaration under Section 12A came to be ievoked, E
was really not available to him, because the appellant came to
be released ori 21.3.1977. Therefore, the appellant could not
have availed of the right to challenge his order of detention, for
the simple reason, that on the revival of the order of detention
within the framework of Section 3 of the COFEPOSAAct, the F
appellant came to be released forthwith, namely, on the same
day.
22. We find merit in the contention of the learned counsel
forthe appellant. The proviso (iv) to Section 2(2)(b) cannot be G
an empty formality. It should be an effective right available to a
detenu, so as to enable him to assail the order of his preventive
detention. A detenu may be advised not to raise a challenge
'
to his order of detention, while it subsists under the stringent
conditions of Section 12A, on account of the fact that his H
1106 SUPREME COURT REPORTS [2015) 11 S.C.R.
A remedy would be wider and the grounds available would be
far more, when the order of detention is limited to the scope of
Section 3 of the COFEPOSA Act. Illustratively it may be
mentioned, that on passing of an order of detention under
Section 3 of the COFEPOSA Act, a detenu must be
B communicated the grounds on which the detention order was
made within five days, and in exceptional circumstances (for.
reasons to be recorded in writing), within fifteen days of the
passing of the order of detention (refer to Section 3(3) of the
COFEPOSA Act). Accordingly, non-maintenance of the
·c aforesaid pn;icedural parameters would be a justifiable ground
to assail the order of detention. Additionally, the grounds on
which an order of detention has been passed under Section 3
of the COFEPOSAAct, have to be furnished to the detenue.
The non-communication of the grounds could constitute-the
0
basis to assail an order of detention. In case the grounds
furnished to the detenu are either vague or irrelevant, and even
if they can be shown to be patently false and incorrect, a detenu
can successfully challenge an order of his preventive detention.
E A detenu can also assail an order of his detention, if he is in a
position to establish, that the grounds of his detention had not
been recorded and signed before the order of detention was
passed (as in Krishna MurariAggarwala v. Union of India, AIR
1975 SC 1877). The above grounds are not available, in case
F a declaration is issued (as in the instant case), under Section
12A of the COFEPOSAAct, wherein it is not essential to furnish
grounds of detention to the detenue (refer to Section 12A(5)
of the COFEPOSA Act). In case an order of detention is
passed under Section 3 of the COFEPOSA Act, the
G Government ordering the detention, rids.to make a reference
to tl1e Advisory Board within five weeks (in terms of Section
8(b) of the COFEPOSAAct). On receipt of a reference from
the Government, the Advisory Board has to submit a report
within eleven weeks from the date of 9etention (under Section
H 8(c) of the COFEPOSAAct). And, an order passed by the
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1107
GUJARAT [JAGDISH SINGH KHEHAR, J.]
Advisory Board opining that there .was" .... no sufficient cause A
forthe detention of the person concerned ... " has to be released
forthwith (under Section 8(f) of the COFEPOSAAct Act). A
detenu whose order of detention has been passed only under
Section 3,without there being a declaration under Section 12A
of the COFEPOSAAct, would therefore be entitled to seek B
revocation of an order of detention, if the procedure
contemplated under Section 8 was not complied with, and/or
even if the detenu was not released, despite the opinion
expressed by the Advisory Board, that the order of detention
was not passed on sufficient cause. Or even if it can be shown C
that the grounds of detention are vague, irrelevant, false or
incorrect. None of these grounds are available to a detenu,
where a declaration has been issued under section 12A of the
COFEPOSAAct. The substantive challenge to an order of
0
preventive detention when the order of detention is limited to
the scope of Section 3 of the COFEPOSAAct, are far greater.
This, because after the declaration under Section 12A of the
COFEPOSAAct, the challenge is only on technical grounds of
violation of procedure under Section 12A of the COFEPOSA E
Act, as expressed above.
23. In the facts and circumstances of the present case, it
is apparent, that the order of detention under Section 3 of the·
COFEPOSAAct was passed on 11.6.1976. Immediately after F
the passing of the aforesaid order, on the same day, the
Government of Gujarat issues a declaration under Section 12A,
with reference to the detention of the appellant. Again, on the
lifting of the emergency on 21.3.1977, the declaration under
Section 12A ceased to be operative, with reference to the G
detention of the appellant. At the beginning of the or.der of
detention, and at the time of revocation thereof, whilst the
detention order subsisted only within the limited scope of
Section 3 of the COFEPOSA Act read with Section 12A
thereof, there was really no occasion for the appellant to assail H
1108 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the same thereafter, on any of the grounds as may have been
available to him.
24. We are satisfied, that in the facts and circumstances
of this case, specially the position highlighted by the learned
B counsel for the appellant, as has been noticed hereinabove,
the appellant had no occasion whatsoever to challenge to the
order of his detention, on the grounds available to him, while
the detention order subsisted u1;Jer the limited scope of
Section 3 of the COFEPOSA Act read with Section 12A
C thereof after 21.3.1977, as the order under Section 3 could
not have been the subject matter of challenge as the detenu
was released on the same day.
25. The factual position depicted in paragraph 41 of the
o order passed by this Court in Attorney General for India's case
(supra) deals with a situation where the appellant had ample
opportunity to assail the order of detention, but had chosen
not to do so. In paragraph 41, this Court in Attorney General
for India's case (supra) held "... If it is a normal order of detention
E (not governed by Section 12-A nor protected by an order under
Article 359(1) suspending the enforcement of Article 22) and
if the detenu does not challenge it when he was deprived of
his liberty, or challenges it unsuccessfully, there is no reason
why he should be allowed to challenge it when action under
F SAFEMAAct is taken against him ... " The High Court recorded
"... lnAttorney General for India's case (supra), it was 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
G SAFEMAAct to him .. "
26. In the present controversy, the appellant had no
opportunity whatsoever to assail the order of his detention,
after his release. As soon as the declaration under Section
H 12A of the COFEPOSAAct was revoked, the appellant was
BIPINCHANDRA GAMANLAL CHOKSHI v. STATE OF 1109
GUJARAT[JAGDISH SINGH KHEHAR, J.]
ordered to be released. His release undoubtedly was a release A
from detention under Section 3 of the COFEPOSAAct. The
factual position taken into consideration in Attorney. General '
for India's case(supra), as highlighted in paragraph 41
(extracted above), in our considered view, would clearly not
be applicable to the controversy in hand. B
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 C
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.
D
28. In the above view ofthe 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. E
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 F
authorities to proceed with the action taken against the
appellant under Section 6 of the SAFEMAAct, and that too, if
the appellant fails in his attempt, to successfully assail the order
of his detention.
G
29. The instant appeal is allowed in the above terms.
Kalpana K. Tripathy Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search