2016 (4) TMI 677 - HC - FEMA

High Court quashes detention & forfeiture orders citing lack of procedural compliance.

Bipinchandra G. Chockshi And 1 Versus State of Gujarat And 2

The High Court quashed the detention order dated 11.6.1976 under COFEPOSA and the forfeiture notices under SAFEMA. It relied on previous judgments ... Order of detention - Held that:- There are previous decisions of Division Bench of this High Court that detaining authority is under obligation to comply with the requirements by formulating grounds for detention and on factual aspect also, there is no reason to detain such person and therefore, as recorded herein above, the Division Bench has gone to the extent of saying that 'a grosser case than this is yet to be seen. Thus the impugned order of detention cannot sustain. The petition is allowed resulting into quashing and setting-aside the impugned order of detention dated 11.6.1976 at Annexure 'A' to the petition and declaration under Section 12A of the COFEPOSA, 1974 at Annexure 'B' dated 11.6.1976 and quash and set-aside three notices under Section 6 of SAFEMA, 1976, Annexure 'D' Collectively dated 28.4.1977, 20.1.1997 and 23.3.1977. Issues Involved:1. Legality of the detention order dated 11.6.1976 under COFEPOSA.2. Validity of the forfeiture notice under SAFEMA.3. Applicability of previous judgments to the present case.4. Compliance with procedural requirements by the detaining authority.5. Impact of the principle of res judicata on the writ petition.6. Right to challenge the detention order post-Supreme Court's remand.Issue-wise Detailed Analysis:1. Legality of the Detention Order:The petitioner challenged the detention order dated 11.6.1976 under Section 12A of COFEPOSA, asserting it was illegal and violated Articles 14 and 21 of the Constitution of India. It was noted that similar detention orders against the petitioner's brothers were quashed by the High Court in 1974, with the court observing that the detaining authority did not apply its mind properly and relied on defective evidence. The court concluded that the detention order against the petitioner was based on the same facts and circumstances, rendering it unsustainable.2. Validity of the Forfeiture Notice:The petitioner sought to quash the notice to forfeit his property under Section 6(1) of SAFEMA, issued on the same date as the detention order. The court noted that the Division Bench had previously quashed similar orders, and there was no evidence of these decisions being challenged before the Supreme Court, making them conclusive. Consequently, the forfeiture notice was also deemed invalid.3. Applicability of Previous Judgments:The court emphasized that the quashing of detention orders against the petitioner's brothers, based on identical facts, was binding. The Division Bench's observations in 1974 highlighted the improper application of mind by the detaining authority and the lack of rational satisfaction required by law. These findings were directly applicable to the present case, necessitating the quashing of the detention order against the petitioner.4. Compliance with Procedural Requirements:The petitioner relied on a Division Bench decision in Special Criminal Application No.447 of 1989, which held that the detaining authority must formulate grounds before passing a detention order. The court found that this requirement was not met, further invalidating the detention order.5. Impact of the Principle of Res Judicata:The writ petition was initially dismissed by a Single Judge on 27.2.1997, citing res judicata. However, this decision was later challenged and ultimately set aside by the Supreme Court, which remanded the matter back to the High Court to consider the merits of the case. The Supreme Court observed that the petitioner should have the same right to challenge the detention order as his brothers, who had successfully done so.6. Right to Challenge the Detention Order Post-Supreme Court's Remand:The Supreme Court's remand allowed the petitioner to press his claim against the detention order. The High Court noted that the remand was primarily due to the previous failure to consider the merits of the case. Given the conclusive findings in favor of the petitioner's brothers and the lack of any higher authority's interference, the court found no grounds to sustain the detention order or the forfeiture notices.Conclusion:The High Court allowed the petition, quashing the detention order dated 11.6.1976, the declaration under Section 12A of COFEPOSA, and the three notices under Section 6 of SAFEMA. The court relied on previous judgments and the lack of procedural compliance by the detaining authority, emphasizing the importance of individual liberty and rational satisfaction in preventive detention cases. The request for a stay of the judgment was denied.