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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14352 OF 2015

(Asiring from SLP(C) No. 10771/2013)

Bipinchandra Gamanlal Chokshi and another ..Appellants

versus

State of Gujarat and others ..Respondents

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

Leave granted.

2. The State of Gujarat on 11.6.1976 ordered the detention

of the appellant – Bipinchandra Gamanlal Chokshi, under Section

3(1) of the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 (hereinafter referred to as the

'COFEPOSA Act'). Section 3, whereunder the above order of

detention was passed, is being extracted hereunder:

“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 Government, or any officer of a State

Government, not 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 the conservation or

augmentation of foreign exchange or with a

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view to preventing him from-

i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(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 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 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 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).]

(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.

(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 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 the

COFEPOSA Act, is contemplated inter alia under Section 8 of the

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COFEPOSA Act. Section 8, which is also relevant in the

determination of the present controversy, is also reproduced

hereunder:

“

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 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;

(b) save as otherwise provided in section 9,

the appropriate Government shall, within five

weeks from the date of detention of a person

under a detention order make a reference in

respect thereof to the Advisory 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 clause (b) shall after

considering the reference and the materials

placed before it and after calling for such

further 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 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 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 opinion of the

Board;

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(e) a 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 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) 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 the detention order and continue the

detention of the person concerned for such

period as it thinks fit and in every case

where the Advisory Board has reported that

there is in its opinion no sufficient cause

for the detention of the person concerned,

the appropriate Government shall revoke the

detention order and cause the person to be

released forthwith.”

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 COFEPOSA Act, that the detention of the appellant was

necessary for dealing effectively with the emergency contemplated

under section 12(A)(2) of the COFEPOSA Act.

5. Section 12A provides for a procedure, separate and

distinct from the procedure contemplated for revocation of an order

passed under Section 3 of the COFEPOSA Act. Section 12A is being

reproduced hereunder:

“12A. Special provisions for dealing with

emergency.- (1) Notwithstanding anything

contained in this Act or any rules of natural

Justice, the provisions of this section shall

have effect during the period of operation of

the Proclamation of Emergency issued under

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clause (1) of Article 352 of the Constitution

on the 3rd day of December 1971, or the

Proclamation of Emergency issued under that

clause on the 25

th

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 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 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 such

consideration, the Central Government or the

State Government or, as the case may be, the

officer is satisfied 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 declaration to

the person concerned:

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, 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 dealing with the

emergency shall be reconsidered by the

appropriate Government within four months

from the date of such declaration and

thereafter at intervals not exceeding four

months, and if, on such reconsideration, it

appears to the appropriate Government that

the detention of the person is no longer

necessary for effectively dealing with the

emergency, that Government may revoke the

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declaration.

(4) In making any consideration, review or

reconsideration under sub-section (2) or (3),

the appropriate Government or officer may, if

such Government or officer considers it to be

against the public interest to do otherwise,

act on the basis of the information and

materials in its or his possession without

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 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

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

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 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" specified in sub-section

(3) of section 9.]”

6. It is apparent, that under sub-section (2) of Section 12A

of the COFEPOSA Act, every detention order has to be reviewed

within fifteen days. It is in consonance with sub-section (2)

aforementioned, that the detention order passed against the

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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 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 contemplated under sub-section (3) took place on 04.10.1976.

Yet again, the order of detention of the appellant was affirmed.

Still further, the second review under Section 12A(3) of the

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 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

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 (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 the

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COFEPOSA Act) assumed significance, on account of a show cause

notice issued to the appellant on 28.4.1977, under Section 6 of

the Smugglers and Foreign Exchange Manipulators (Forfeiture of

Property) Act, 1976 (hereinafter referred to as 'SAFEMA Act'). The

short show cause notice issued to the appellant, is extracted

hereunder:

“Shri Bipinchandra Gamanlal Choksy,

Nanavat Main Road,

Surat.

Whereas, I S.N. Sastri, being the competent

Authority Under Section-5 of the Smugglers and

Foreign Exchange Manipulators (Forfeiture of

Property) Act, 1976 (13 of 1976), have, on the

basis of relevant information and relevant

material available to me, reason to believe

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.

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 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.

Sd/-

(S.N. Sastri)

Competent Authority

Bombay”

10. It would be relevant to mention, that the initiation of

proceedings under the SAFEMA Act against the appellant, were based

on Section 2 of SAFEMA Act. During the course of hearing, learned

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counsel for the rival parties agitated their claims, on the basis

of the interpretation of Section 2(2)(b) of the SAFEMA Act.

Whilst, it was the contention of the learned counsel for the

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 Competent Authority, as well 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 well within the justification

of law. Section 2(2)(b) of the SAFEMA Act is extracted below:

“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 (52 of 1974):

Provided that--

(i) such order of detention being an order

to which the provisions of section 9 or section

12A of the said Act do not apply, has not been

revoked on the report of 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

(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 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, has not been revoked before the

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expiry of the time for, or on the basis of, the

first review 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

(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,

namely, Niranjan Dahyabhai Chokshi approached the High Court, so as

to assail a similar order of detention, as was also passed against

him. The challenge was raised through Special Criminal Application

Nos. 289, 704 and 723 of 1990, and 745, 747 and 748 of 1991. The

challenge to the detention of Niranjan Dahyabhai Chokshi was

raised on the ground of the law declared by this Court in Krishna

Murari Aggarwala v. Union of India AIR 1975 SC 1877, wherein it was

held, that recording of the grounds of detention is an essential

prerequisite, before the passing of the order of detention.

Accordingly it was held, that if the grounds of detention are not

recorded and signed, before passing an order of detention, the

“satisfaction” of the concerned Government or the concerned

officer, contemplated under Section 3 of the COFEPOSA Act, would be

purely illusory, and such order of detention would be liable to be

set aside. Having arrived at the finding, that the grounds of

detention were not formulated at the time of passing of the order

of detention, the High Court of Gujarat concluded, that the

detention order, clearly violated the constitutional mandate

contained in Article 22(5), and as such, set aside the order of

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detention of Niranjan Dahyabhai Chokshi (the appellant's brother).

Simultaneously with the setting aside of the above order,

proceedings initiated against Niranjan Dahyabhai Chokshi under

Section 6 of the SAFEMA Act were also set aside as unsustainable.

12. Two other brothers of the appellant – Bipinchandra

Gamanlal Chokshi, namely, Rameshchandra Gamanlal Chokshi and

Pravinchandra Kikabhai Choksy had likewise 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 COFEPOSA Act, and

initiation of proceedings under Section 6 of the SAFEMA Act. Yet

again, the High Court by its order dated 12.04.1993 set aside their

orders of detention, based 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.

Accordingly, proceedings initiated against these two brothers of

the appellant, under Section 6 of the SAFEMA Act were also set

aside.

13. Insofar as the challenge raised by the appellant herein,

to the order of his detention dated 11.6.1976, as well as, the

order of initiation of proceedings under Section 6 of the SAFEMA

Act 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 No. 3716 of 1995) on

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27.2.1997 by holding as under:

“Special Civil Application No. 3716 of 1995:

This Special Civil Application has been filed by

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 Section 12-A of the COFEPOSA Act 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. 1499 of 1994. It was subsequently, on conversion,

registered as Special Civil Application No. 3716 of

1995. 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 been filed on

10-10-1994. The necessary facts are that the

appellant No. 1 was detained under the provisions of

COFEPOSA Act 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 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 6(1) of SAFEMA Act 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 the Division

Bench of this Court on 9-8-1994. The order reads as

follows:

“The challenge to the Constitutional validity of

SAFEMA Act and COFEPOSA Act no longer survives,

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 withdraw the writ petition. He

wishes to file fresh 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 Addl. Central Government

Standing Counsel appearing for the respondent

states that all the questions had been answered

by the Supreme Court and nothing survives. As the

appellant is wanting to withdraw this writ

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petition with a view to file fresh petition, we

express no opinion on any of the questions on

merit. Permission to withdraw the petition is

granted. The petition stands disposed of as

withdrawn. The interim relief order stands

vacated.”

Mr. J.N. Patel, learned Addl. Central Government

Standing Counsel has raised two preliminary

objections - firstly that since the appellant did not

challenge the order of 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 judicata, inasmuch as that in his earlier

petition being Special Civil Application No. 1276 of

1977, he had challenged the order of detention as

well as the notice under SAFEMA Act and the same has

been disposed of by the order of the Division Bench

of this Court dated 9-8-1994.

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

(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 challenge the validity of the detention

order as the same is being made foundation for

forfeiting the properties under SAFEMA Act. The

learned Advocate has placed reliance on the

observations of the Supreme Court in para 12 which

reads as follows:

“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 it is

now being made foundation for forfeiting her

properties under SAFEMA Act.”

I cannot agree with the submissions made by Mr.

Sanjanwala, learned Advocate for the appellant. Smt.

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 admitted and notices were issued to the State. On

11-3-1976, notices under Section 6 of the SAFEMA Act

were issued. On May 1,1976, the said

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detenu-Sreekrishna Gopilal Solanki died while under

detention. Another notice under Section 6 of the

SAFEMA Act was issued 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 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 basis of the

proceedings under SAFEMA Act 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 of Emergency. In Attorney General of

India's case (supra), it is held that the person who

could have challenged the order of detention yet does

not choose to do so, cannot be allowed to do so when

such order of detention is made the basis of applying

SAFEMA Act to him . In view of this clear position of

law, the appellant cannot be permitted now to

challenge the order of detention. It is next

contended by Mr. Sanjanwala that since the order of

detention has been made foundation for SAFEMA Act

proceedings, it is open for the relatives and friends

of the detenu to challenge the order of detention.

This question has also been decided by the Apex Court

in Attorney General's case (supra). It is held that a

person who do not challenge either by himself or

through his best friends, the order of detention

challenged but failed, cannot be allowed to challenge

the order of detention, when action is taken against

him under SAFEMA Act . Thus, this contention also

fails. It is lastly contended by Mr. Sanjanwala that

the order of detention has been revoked by the

wireless message dated 21-3-1977 - Annexure "C" and

as such the very foundation of SAFEMA Act notices

disappears. This aspect I have dealt with in my

earlier part of the judgment and in view of that this

contention also does not survive and it is

accordingly rejected.”

(emphasis is ours)

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

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Bench of this Court, in Attorney General for India 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. 478 of 1997. 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 LPA No. 478 of 1997, have been impugned by the appellant

before this Court.

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 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 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 (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

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following effect:

“(2) Whether an order of detention under Section 3

read with Section 12-A of COFEPOSA Act made during

the period of emergency proclaimed under Article

352(1) of the Constitution of India, – with the

consequent '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 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 SAFEMA Act, even though the said

order of detention has ceased to be operative and

was not either challenged – or not successfully

challenged – during its 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 obtaining on the date of issuance

of the show-cause notice under Section 6 of SAFEMA

Act?”

While determining question no.2, this Court noticed the factual

position as under:

“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 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 – 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 the foundation, the

basis for taking action under SAFEMA Act against

the detenus, their relatives and their associates.

SAFEMA Act is made applicable to them by virtue of

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Section 2(2)(b) read with clauses (c), (d) and (e)

of sub-section (2). The appellants say that since

the order of detention under COFEPOSA Act is made

the basis for action under SAFEMA Act against them,

they are entitled to challenge the validity of the

order of detention. They may not have been able to

question the validity of detention during their

detention by virtue of Section 12-A of COFEPOSA Act

(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

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 under SAFEMA Act, 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 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 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 SAFEMA Act. They also stress the

drastic nature of the provisions of SAFEMA Act. 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 the

said detention orders has to be judged with

reference to the law then obtaining and not with

reference to the law obtaining on the date of

issuance of notice under Section 6 of SAFEMA Act.

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 cannot conceive of a right without

a remedy. There is no distinction, he says, between

Article 358 and an order 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 hand, we

Page 18 18

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. 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 determination rendered 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 to 41. The same are relevant, and are accordingly

being reproduced hereunder:

“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 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) of SAFEMA Act. In view of the

fact that SAFEMA Act as well as COFEPOSA Act are

included in the Ninth Schedule by the 39th and

40th (Amendment) Acts to the Constitution,

clause(b) of Section 2(2) of SAFEMA Act

[including proviso (iii) appended to it] are

beyond 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 COFEPOSA Act, to

which the provisions in Section 12-A applied, is an

order of detention within the meaning of and for

the purposes of Section 2(2)(b) of SAFEMA Act and

can, therefore, constitute the basis for applying

SAFEMA Act to such person.

Page 19 19

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

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 25-6-1975, 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

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 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 Court.

Varadarajan, J. speaking for the Bench referred

to the provisions of Sections 2, 6 and 7 of SAFEMA

Act 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 SAFEMA Act.

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 dated 19-12-1974

under COFEPOSA Act 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 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 COFEPOSA Act was made with

respect to the said respondent, though it can be so

Page 20 20

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 and 7 of

SAFEMA Act. 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 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 SAFEMA

Act is taken against him for action under

SAFEMA Act 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 [or by a

Presidential Order under Article 359(1) suspending

Article 22], it 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 SAFEMA Act is

taken, the challenge must be confined to grounds

which 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 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 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 he was detained, precludes him from

challenging it after the cessation of detention,

where it is made the basis for initiating action

under SAFEMA Act.”

(emphasis is ours}

18. Our pointed attention was drawn to the factual position

depicted in paragraph 41, namely, that the detenu therein, had an

Page 21 21

opportunity to assail the impugned order of detention under

COFEPOSA Act, and it is therefore, that this Court arrived at the

conclusion, that a challenge having not been raised by the

respondent in the above case, it would not now be open to him to

raise such a challenge, after the detention order stood revoked.

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 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 COFEPOSA Act, 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 COFEPOSA

Act 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 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 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 12A

of the COFEPOSA Act, subsisted from 11.6.1976 when the order of

Page 22 22

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 declaration,

whereas, the substantive order of detention is passed under Section

3 of COFEPOSA Act. 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 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 COFEPOSA

Act, could not be assailed by the 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 COFEPOSA Act, and the other

grounds expressed above.

20. Learned counsel for the appellant, in order to

substantiate his claim, placed emphatic reliance on Section 2 (2)

(b) of the SAFEMA Act. It was asserted, that the right to 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 proceedings under Section 6

of the SAFEMA Act. However, every detenu has the right to assail

Page 23 23

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 detention order, proceedings cannot be initiated against him

under Section 6 of the SAFEMA Act.

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 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 his

instant contention, he placed reliance on proviso (iii) of Section

2(2)(b) of the SAFEMA ACt, which provides for two further

eventualities, wherein proceedings under the SAFEMA Act cannot be

initiated, despite the detention of an individual under the

COFEPOSA Act. Firstly, when an order of detention has been revoked

under Section 12A of the COFEPOSA Act. 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

Section 12A is 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 SAFEMA Act. It is

the submission of the learned counsel, that proviso (iii) expressly

postulates the possibility of a revocation of an order of

Page 24 24

detention, even after the declaration under Section 12A ceases to

operate, under section 8 of the COFEPOSA Act. It is submitted,

that this right which was available to the appellant after the

declaration under Section 12A came to be revoked, was really not

available to him, because the appellant came to be released on

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 COFEPOSA Act, the appellant came to be released

forthwith, namely, on the same day.

22. We find merit in the contention of the learned counsel

for the appellant. The proviso (iv) to Section 2(2)(b) cannot be

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 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 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 aforesaid

procedural parameters would be a justifiable ground to assail the

Page 25 25

order of detention. Additionally, the grounds on which an order

of detention has been passed under Section 3 of the COFEPOSA Act,

have to be furnished to the detenue. The non-communication of the

grounds could constitute the 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. 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 Murari Aggarwala

v. Union of India, AIR 1975 SC 1877). The above grounds are not

available, in case a declaration is issued (as in the instant

case), under Section 12A of the COFEPOSA Act, 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 Government

ordering the detention, has to make a reference to the Advisory

Board within five weeks (in terms of Section 8(b) of the COFEPOSA

Act). On receipt of a reference from the Government, the Advisory

Board has to submit a report within eleven weeks from the date of

detention (under Section 8(c) of the COFEPOSA Act). And, an order

passed by the Advisory Board opining that there was “… no

sufficient cause for the detention of the person concerned…” has to

be released forthwith (under Section 8(f) of the COFEPOSA Act Act).

A detenu whose order of detention has been passed only under

Section 3, without there being a declaration under Section 12A of

Page 26 26

the COFEPOSA Act, would therefore be entitled to seek 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 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 COFEPOSA Act. The substantive challenge to an

order of preventive detention when the order of detention is

limited to the scope of Section 3 of the COFEPOSA Act, are far

greater. This, because after the declaration under Section 12A of

the COFEPOSA Act, the challenge is only on technical grounds of

violation of procedure under Section 12A of the COFEPOSA 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

COFEPOSA Act was passed on 11.6.1976. Immediately after 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 detention of the appellant. At the

beginning of the order 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

Page 27 27

assail 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

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 under the limited scope of Section 3 of the

COFEPOSA Act read with Section 12A 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

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

(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 SAFEMA Act is taken

against him...” The High Court recorded “...In Attorney 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 SAFEMA Act to him...”

Page 28 28

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 12A of the

COFEPOSA Act was revoked, the appellant was ordered to be released.

His release undoubtedly was a release from detention under Section

3 of the COFEPOSA Act. 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.

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. 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,

Page 29 29

that it will be open to the authorities to proceed with the action

taken against the appellant under Section 6 of the SAFEMA Act, and

that too, if the appellant fails in his attempt, to successfully

assail the order of his detention.

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

….....................J.

[JAGDISH SINGH KHEHAR]

NEW DELHI; ….....................J.

DECEMBER 10, 2015. [ROHINTON FALI NARIMAN]

Page 30 30

ITEM NO.1 COURT NO.3 SECTION IX

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 10771/2013

(Arising out of impugned final judgment and order dated 06/12/2012

in LPA No. 478/1997 in SCA No. 3716/1995 passed by the High Court

Of Gujarat At Ahmedabad)

BIPINCHANDRA GAMANLAL CHOKSHI & ORS. appellant(s)

VERSUS

STATE OF GUJARAT & ORS. Respondent(s)

(with prayer for interim relief and office report)

Date : 10/12/2015 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR

HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For appellant(s) Mr. C.A. Sundaran, Sr. Adv.

Mr. Shirish H. Sanjanwala, Sr. Adv.

Mr. Shamik Sanjanwala, Adv.

Mr. Zafar Inayat, Adv.

Ms. Rohini Musa, Adv.

Mr. Abhishek Gupta, Adv.

Mr. Kailash Pandey, Adv.

Mr. Ranjeet Singh, Adv.

for Mr. K. V. Sreekumar,A OR

For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.

Ms. Sunita Rani Singh, Adv.

Mr. R.K. Verma, Adv.

for Ms. Binu Tamta,AOR

Ms. Hemantika Wahi, Adv.

Ms. Jesal Wahi, Adv.

UPON hearing the counsel the Court made the following

O R D E R

The appeal is allowed in terms of the Reportable

judgment, which is placed on the file.

(Renuka Sadana) (Parveen Kr. Chawla)

Court Master AR-cum-PS