BIPINCHANDRA G CHOCKSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is dragged for all these 21 years for no valid reason when the issue involved in the petition has already been decided by several decisions of different High Courts as well as the Hon'ble Supreme Court of India. However, the respondents have instead of conceding to the settled legal position so also the admitted position on the face of the present case itself, selected to argue and oppose the petition and therefore, though petition can be disposed of summarily, it becomes necessary to recollect several factual details.

(2.) It is undisputed fact that there is an order of detention dated 11.6.1976 u/s.12A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA', for short) so also the order dated 11.6.1976 u/s.6(1) of the Smugglers and Foreign Exchange Manipulations (Forfeiture of Property) Act, 1976 ('SAFEMA', for short), against the petitioner therefore the petitioner has prayed to quash and set -aside such orders by issuance of appropriate writ under Article 226 of the Constitution of India, claiming that the detention order and notice to forfeit his property is illegal and violative of Articles 14 and 21 of Constitution of India. It is also undisputed fact that similar order was passed against other three brothers of the present petitioner and they all have filed separate writ petitions and challenged the similar order of detention wherein they succeeded in quashing and setting aside such order of detention. Such judgment is in Special Criminal Application Nos.125 and 127 of 1974 by Division Bench of this High Court as back as on 5.11.1974. It is also undisputed fact that while quashing and setting aside the detention orders of all the brothers of the present petitioner, the Division Bench has categorically observed as under: -

(3.) It is also undisputed fact that there is no evidence on record that whether such order is ever challenged before the Hon'ble Supreme Court of India and interfered with in any manner whatsoever. Therefore, the above findings are now conclusive findings so far as order of detention is concerned. Therefore, prima facie, on this ground itself, this petition needs to be allowed since it is also undisputed fact that detention of present petitioner is based upon the same facts and circumstances, which are very well described in the pleadings as well as in above -referred decision of Division Bench of this High Court and therefore, I do not want to make this judgment bulky by reproducing the same. It is also undisputed fact that in the present petition, the petitioner has disclosed the factual details of one Special Criminal Application No.1276 of 1977 preferred by him, in paragraph 5.3 and 5.4 of the petition and there is no reply to such facts in affidavit in reply filed by the respondent No.3 and therefore, it is to be considered as admitted fact and hence, conclusion in Special Criminal Application would be binding on the respondents. So far as the merits of the impugned orders are concerned, petitioner is relying upon decision of Division Bench of this High Court in Special Criminal Application No.447 of 1989 wherein it is held that detaining authority is under an obligation to comply with the requirements of the Act by formulating the grounds before passing the order of detention and if such grounds were not formulated by the detaining authority before passing the order of detention, then, the order of detention is to be considered as illegal.