{"id":110615,"date":"1979-07-23T00:00:00","date_gmt":"1979-07-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanchanlal-maneklal-chokshi-vs-the-state-of-gujarat-and-ors-on-23-july-1979"},"modified":"2017-02-17T23:28:38","modified_gmt":"2017-02-17T17:58:38","slug":"kanchanlal-maneklal-chokshi-vs-the-state-of-gujarat-and-ors-on-23-july-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanchanlal-maneklal-chokshi-vs-the-state-of-gujarat-and-ors-on-23-july-1979","title":{"rendered":"Kanchanlal Maneklal Chokshi vs The State Of Gujarat And Ors on 23 July, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kanchanlal Maneklal Chokshi vs The State Of Gujarat And Ors on 23 July, 1979<\/div>\n
Equivalent citations: 1979 AIR 1945, \t\t 1980 SCR (1)\t 54<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nKANCHANLAL MANEKLAL CHOKSHI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT AND ORS.\n\nDATE OF JUDGMENT23\/07\/1979\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nSARKARIA, RANJIT SINGH\nSHINGAL, P.N.\n\nCITATION:\n 1979 AIR 1945\t\t  1980 SCR  (1)\t 54\n 1979 SCC  (4)\t14\n CITATOR INFO :\n RF\t    1981 SC1191\t (9)\n F\t    1982 SC   8\t (8,10)\n R\t    1983 SC1130\t (11)\n F\t    1987 SC2332\t (14)\n\n\nACT:\n     Conservation of  Foreign  Exchange\t and  Prevention  of\nSmuggling  Activities\tAct,   1974-Failure   of   detaining\nauthority  to  consider\t possibility  of  prosecution  being\nlaunched-If could  lead to  the\t conclusion  that  it  never\napplied its mind-Order of detention if void on that ground.\n\n\n\nHEADNOTE:\n     In Ashok Murlidhar v. State of Gujarat a Division Bench\nof the\tHigh Court thought that this Court in Hardhan Saha &\nAnr. v.\t The State  of West  Bengal & Ors., [1975] 1 SCR 778\nlaid down  that where  a person\t was sought  to be  detained\npreventively the possibility of a prosecution being launched\nwas an\tirrelevant consideration which need never be present\nto the mind of the detaining authority. Purporting to follow\nthis decision  another Division\t Bench\tof  the\t High  Court\nrejected the habeas corpus petition of the appellant who was\nin preventive detention under the provisions of Conservation\nof Foreign  Exchange and  Prevention of Smuggling Activities\nAct, 1974.  The Division  Bench certified that a substantial\nquestion whether it is necessary for the detaining authority\nto consider  whether a person should be prosecuted before an\norder of  detention is made against him needed to be decided\nby this Court.\n     In appeal\tto this\t Court it was contended on behalf of\nthe appellant  that it\twas  axiomatic\tthat  the  detaining\nauthority  must\t  invariably  consider\tthe  possibility  of\nlaunching a prosecution before making an order of detention,\nin the\tabsence of which the order of detention must be held\nto be bad.\n     Dismissing the appeal,\n^\n     HELD: 1.  In Hardhan Saha's case this Court did not say\nthat the  possibility of a prosecution being launched was an\nirrelevant consideration  which need never be present to the\nmind of\t the detaining\tauthority. All that was laid down in\nthat case  was that  the mere circumstance that a detenu was\nliable to  be prosecuted  was not  by itself  a bar  to\t the\nmaking of  an order  of preventive  detention. It  does\t not\nfollow therefrom that failure to consider the possibility of\na  prosecution\tbeing  launched\t cannot\t ever  lead  to\t the\nconclusion that\t the detaining\tauthority never\t applied its\nmind and  the order of detention was, therefore, bad. [57 F-\nG]\n     2. The  principles emerging  from a review of the cases\ndecided by this Court are that the ordinary criminal process\nis not to be circumvented or short-circuited by ready resort\nto  preventive\t detention,  but  that\tthe  possibility  of\nlaunching a  criminal prosecution  is not an absolute bar to\nan order  of preventive\t detention. Nor is it correct to say\nthat if\t such possibility  is not present to the mind of the\ndetaining authority  the order\tof detention  is necessarily\nbad. However,  the failure  of the  detaining  authority  to\nconsider the possibility of launching a criminal prosecution\nmay, in\t the circumstances of a case, lead to the conclusion\nthat the detaining authority had not applied\n55\nits mind  to the  vital question whether it was necessary to\nmake an\t order of   preventive\tdetention. Where  an express\nallegation is made that the order of detention was issued in\na mechanical fashion without keeping present to its mind the\nquestion whether it was necessary to make such an order when\nan  ordinary  criminal\tprosecution  could  well  serve\t the\npurpose, the detaining authority must satisfy the court that\nthe question  too was  borne in\t mind before  the  order  of\ndetention was  made. If\t the detaining\tauthority  fails  to\nsatisfy the  court that the detaining authority so borne the\nquestion in mind the court would be justified in drawing the\ninference that\tthere was  no application of the mind of the\ndetaining authority  to the  vital question  whether it\t was\nnecessary to preventively detain the detenu. [60 A-D]\n     In the  instant case the grounds of detention served on\nthe appellant  contained a very elaborate statement of facts\nquite clearly  pointing to an application of the mind by the\ndetaining authority.  The appellant  did not complain in his\npetition that  the detaining  authority had  not applied its\nmind and  in particular\t had not  considered the question of\nthe possibility\t of a  prosecution nor\twere there any facts\nappearing from the record which could lead to the conclusion\nthat the  detaining authority  did not\tapply  its  mind  to\nrelevant considerations.  The  order  of  detention  is\t not\ninfirm in any manner. [60 E-F]\n     Bhuthnath Mate  v. The  State of  West Bengal, [1974] 3\nSCR 315;  Srilal Shaw  v. State\t of West  Bengal & Ors., AIR<\/a>\n1975 SC\t 393; Abdul Gaffer v. State of West Bengal, AIR<\/a> 1975\nSC 1496;  Dulal Roy  v. The  District Magistrate,  Burdwan &\nOrs.,<\/a> [1975]  3 SCR  186; Salim\t v. State  of  West  Bengal<\/a>;\n[1975] 3 SCR 394; explained.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal\t No.
\n193 of 1979.\n<\/p>\n
     From the  Judgment and  Order dated  23-1-1979  of\t the
\nGujarat High Court in Special Criminal Application No. 8\/79.\n<\/p>\n
     P. H. Parekh and M. Mudgol for the Appellant.
\n     N. M.  Phadke, S.\tP. Nayyar  and M.  N. Shroff for the
\nRespondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     CHINNAPPA REDDY,  J.-Kanchanlal Maneklal Chokshi who is
\nin  preventive\t detention  under   the\t provisions  of\t the
\nConservation of Foreign Exchange and Prevention of Smuggling
\nActivities Act,\t 1974 and  whose petition for the issue of a
\nwrit of\t Habeas Corpus\twas rejected  by the  High Court  of
\nGujarat is  the appellant  in this  appeal. The\t High Court,
\nwhile rejecting\t the petition,\tgranted a  certificate under
\nArticle 133(1)\tof the Constitution that the case involved a
\nsubstantial question  of law  of  general  importance  which
\nneeded to  be decided  by the Supreme Court. The substantial
\nquestion of  law so  certified was  ‘whether it is necessary
\nfor the\t detaining authority  to consider  whether a  person
\nshould be  prosecuted before  an order\tof detention is made
\nagainst him’.  The Division  Bench of the Gujarat High Court
\nin rejecting  the particular  contention of the appellant 5-
\n475 SCI\/79
\n56<\/span>
\npurported to  follow an earlier decision of another Division
\nBench of  the same  Court in  Ashok Murlidhar  v.  State  of
\nGujarat.(1) In\tthat case  Divan C.  J., and  Majumdar,\t J.,
\nthough inclined\t to the\t view  that  the  possibility  of  a
\ncriminal prosecution being launched should be present to the
\nmind of\t the detaining\tauthority, felt\t constrained to hold
\notherwise because  of what, they thought had been decided by
\nthis Court  in Hardhan Saha & Anr. v. State of West Bengal &
\nOrs.(2). In our view, this Court did not say in Hardhan Saha
\nv.  State   of\tWest   Bengal  that  the  possibility  of  a
\nprosecution being  launched was\t an irrelevant consideration
\nwhich need  never be  present to  the mind  of the detaining
\nauthority. On  the other  hand, we do not also think that it
\nis axiomatic,  as sought  to be\t contended  by\tthe  learned
\nCounsel for the appellant, that the detaining authority must
\ninvariably  consider   the  possibility\t  of   launching   a
\nprosecution before making an order of detention and that, if
\nnot, the  order of  detention must necessarily be held to be
\nbad.\n<\/p>\n
     In Hardhan\t Saha v.  State of West Bengal, the vires of
\nthe provisions\tof the\tMaintenance of Internal Security Act
\nwas in\tquestion. One  of the contentions was that Section 3
\nof the\tAct offended  Article 14  of the  Constitution as it
\npermitted ‘the\tsame offence to be a ground for detention in
\ndifferent and  discriminatory ways’.  It was  submitted that
\nwhile A\t might be  prosecuted but not detained preventively,
\nmight not be prosecuted but only detained preventively and C
\nmight be  both prosecuted and detained preventively. Dealing
\nwith the  contention, a\t Bench of  five judges of this Court
\nexplained the basic distinction between preventive detention
\nand detention following upon conviction and observed:\n<\/p>\n
\t  “The\t power\t  of   preventive    detention\t  is
\n     qualitatively different  from punitive  detention.\t The
\n     power of  preventive detention  is precautionary  power
\n     exercised in reasonable anticipation. It may or may not
\n     relate to\tan offence. It is not a parallel proceeding.
\n     It does  not overlap with prosecution even if it relies
\n     on certain\t facts for which prosecution may be launched
\n     or may  have been\tlaunched.  An  order  of  preventive
\n     detention may  be made before or during prosecution. An
\n     order of  preventive detention  may  be  made  with  or
\n     without  prosecution   and\t in  anticipation  or  after
\n     discharge\tor   even   acquittal.\t The   pendency\t  of
\n     prosecution  is  no  bar  to  an  order  of  preventive
\n     detention. An order of preventive detention is also not
\n     a bar to prosecution”.\n<\/p>\n
57<\/span><\/p>\n
The Court  then referred  to various  earlier decisions\t and
\ndeduced the following principles:\n<\/p>\n
\t  “First merely\t because a  detenu is  liable to  be
\n     tried in  a criminal  court for  the  commission  of  a
\n     criminal  offence\t or  to\t be  proceeded\tagainst\t for
\n     preventing him  from committing  offences dealt with in
\n     Chapter VIII  of the  Code of  Criminal Procedure would
\n     not by  itself debar  the Government from taking action
\n     for his  detention under the Act. Second, the fact that
\n     the police\t arrests a  person and later on enlarges him
\n     on bail  and initiates steps to prosecute him under the
\n     Code of  Criminal Procedure  and even  lodges  a  first
\n     information report\t may be\t no bar against the District
\n     Magistrate\t issuing   an  order  under  the  preventive
\n     detention.\t Third,\t  where\t the   concerned  person  is
\n     actually in  jail custody\tat the time when an order of
\n     detention is passed against him and is not likely to be
\n     released for  a fair length of time, it may be possible
\n     to contend\t that there  could be no satisfaction on the
\n     part of the detaining authority as to the likelihood of
\n     such a  person  indulging\tin  activities\twhich  would
\n     jeopardise the  security of  the State  or\t the  public
\n     order. Fourth,  the mere  circumstance that a detention
\n     order is  passed during the pendency of the prosecution
\n     will  not\tviolate\t the  order.  Fifth,  the  order  of
\n     detention is  a precautionary measure. It is based on a
\n     reasonable prognosis  of  the  future  behaviour  of  a
\n     person based  on his  past conduct\t in the light of the
\n     surrounding circumstances”.<\/p><\/blockquote>\n
     Clearly,  the   Court  did\t  not  lay   down  that\t the
\npossibility  of\t  a  prosecution   being  launched   was  an
\nirrelevant consideration,  not to  be borne  in mind  by the
\ndetaining authority.  All that\twas laid  down was  that the
\nmere circumstance  that a detenu was liable to be prosecuted
\nwas not\t by itself  a bar  to the  making  of  an  order  of
\npreventive detention.  It does\tnot  follow  therefrom\tthat
\nfailure to  consider the  possibility of a prosecution being
\nlaunched  cannot  ever\tlead  to  the  conclusion  that\t the
\ndetaining authority  never applied its mind and the order of
\ndetention was, therefore, bad.\n<\/p>\n
     In Bhutnath  Mate v.  State of  West Bengal(1)  Krishna
\nIyer and  Sarkaria JJ.,\t declared the  detention illegal for
\ndenial of  opportunity to  make effective representation. On
\nthe question whether the failure of criminal prosecution was
\na bar  to preventive  detention the  answer was\t a  definite
\n‘no’. The learned judges however expressed
\n58<\/span>
\napprehension against  the danger  to the  democratic way  of
\nlife inherent in ‘the potential executive tendency to shy at
\nCourts for  prosecution of  ordinary offences  and  to\trely
\ngenerously   on\t   the\t easier\t  strategy   of\t  subjective
\nsatisfaction’. The  question presently\tunder consideration,
\nnamely, whether\t the failure  of the  detaining authority to
\nkeep  in   mind\t the  possibility  of  a  prosecution  would
\nnecessarily  vitiate   the  order   of\tdetention   was\t not
\nconsidered by the learned judges.\n<\/p>\n
     In Srilal\tShaw v.\t State of West Bengal & Ors.<\/a>(1), the
\nprosecution  was   dropped  and\t  thereafter  an   order  of
\npreventive  detention  was  passed.  The  substance  of\t the
\nallegation against  the detenu\twas that  he was in unlawful
\npossession of  scrap metal  belonging to  the  Railway.\t The
\nCourt came  to the conclusion that on the material which was
\navailable to  the detaining  authority, it was impossible to
\narrive\tat   the  conclusion  that  the\t possession  of\t the
\npetitioner was\tunlawful. The  Court found  that the  reason
\ngiven  by   the\t District   Magistrate\tfor   dropping\t the
\nprosecution was\t unacceptable.\tIt  was\t observed  that\t the
\nprosecution was in all probability dropped as the petitioner
\nmight have been able to establish that his possession of the
\ngoods was  not unlawful.  The case  struck the\tCourt  as  a
\ntypical case  in which\tfor no\tapparent reason a person who
\ncould easily  be prosecuted under the punitive law was being
\npreventively detained.\tIt is  seen that the decision turned
\non the peculiar facts of the case and throws no light on the
\nquestion presently raised before us.\n<\/p>\n
     In Abdul Gaffer v. State of West Bengal<\/a>(2) the order of
\ndetention was  passed on  the basis  of a  few instances  of
\ntheft of  Railway property  for which  the detenu could well
\nand easily  have been  prosecuted. The contention before the
\nCourt was  that the  order of  detention was  passed by\t the
\ndetaining authority  mechanically without  applying its mind
\nto the\tquestion whether the facts disclosed the tendency of
\nthe petitioner\tto act prejudicially in the manner mentioned
\nin the detention order. The bald and sweeping allegation was
\nmade in\t the counter  filed on\tbehalf\tof  the\t State\tthat
\nmaterial witnesses  were afraid\t of giving  evidence in\t the
\nCourt  against\tthe  detenu.  The  material  witnesses\twere
\nmembers of  the Railway\t Protection Force. In that situation
\nSarkaria J.,  observed that the version given in the counter
\nwas incredible and could not be swallowed. The learned Judge
\nthen observed  “the conclusion therefore is inescapable that
\nthe  petitioner\t  has  been  proventively  detained  without
\napplication of\tmind as\t to whether  the prosecution against
\nhim was\t foredoomed to\tfailure on  the ground\tof witnesses
\nbeing afraid to depose against the detenu
\n59<\/span>
\nin Court.  The impugned\t order has been made in a casual and
\ncavalier manner”.  It is  seen that  there  was\t an  express
\nallegation that\t recourse was  had to  preventive  detention
\ndespite the  fact that criminal prosecutions could well have
\nbeen successfully  launched, based  as the  case was  on the
\nevidence of  members of\t the Railway  Protection Force.\t The
\nreason given  by the State for taking recourse to preventive
\ndetention was  found to\t be  fantastic.\t The  decision\tthus
\nstands on the special facts of the case.\n<\/p>\n
     In Dulal  Roy v.  The District  Magistrate,  Burdwan  &
\nOrs.,<\/a>(1) the Court had to consider a situation where a month
\nafter a\t person was  arrested in  connection with a criminal
\ncase he\t was discharged\t but was  taken into  custody on the
\nsame day pursuant to an order of detention. Krishna Iyer and
\nSarkaria, JJ.,\twhile observing\t that as  an abstract  legal
\nproposition  an\t order\tof  preventive\tdetention  could  be
\nvalidly passed against a  person in jail custody on the same
\nfacts on  which he  was being  prosecuted for  a substantive
\noffence in  a Court,  pointed out  that\t such  an  order  of
\ndetention was  readily vulnerable  to the  charge  that\t the
\ndetaining  authority   was  taking  recourse  to  preventive
\ndetention in  order to\tcircumvent the\tpenal  law  and\t the
\nprocess of the Court. The learned Judges were satisfied that
\nthe discharge  of the  detenu in a criminal case was not due
\nto any\tshortcoming in\tthe evidence  or difficulty  in\t its
\nproduction in  Court. The order of detention was, therefore,
\nquashed on  the ground\tof non\tapplication of\tmind by\t the
\ndetaining authority.\n<\/p>\n
     In Salim  v. State\t of West  Bengal,<\/a>(2) Chandrachud J.,
\nspeaking for  the Court\t observed that\tthe  fact  that\t the
\ndetenu could have been prosecuted for the acts attributed to
\nhim did\t not affect  the validity of the order of preventive
\ndetention. The\tfurther question whether it was incumbent on
\nthe  detaining\t authority  to\t consider  the\tquestion  of
\npossibility of prosecution was not considered by the Court.\n<\/p>\n
     In Ashok  Murlidhar v.  State of Gujarat, (supra) Divan
\nC.J., and  Majumdar, J., appeared to think that the Bench of
\nfive Judges  of this Court which decided Hardhan Saha & Anr.
\nv. State  of West  Bengal &  Ors., (supra)  had taken a view
\ndifferent from\tthat expressed in Bhuthnath Mate v. State of
\nWest Bengal,  Abdul Gaffer  v. State  of West Bengal, Srilal
\nShaw v.\t State of  West Bengal\t& Ors.,\t Dulal\tRoy<\/a>  v.\t The
\nDistrict Magistrate, Burdwan & Ors., (supra) We do not think
\nthat there  is any  such conflict as thought by the Division
\nBench of  the Gujarat  High Court.  The principles  emerging
\nfrom a review of the
\n60<\/span>
\nabove cases may be summarised in the following way:\n<\/p>\n
     The ordinary criminal process is not to be circumvented
\nor short-circuited  by ready resort to preventive detention.
\nBut, the  possibility of launching a criminal prosecution is
\nnot an absolute bar to an order of preventive detention. Nor
\nis it correct to say that if such possibility is not present
\nto  the\t mind  of  the\tdetaining  authority  the  order  of
\ndetention is  necessarily bad.\tHowever, the  failure of the
\ndetaining authority to consider the possibility of launching
\na criminal  prosecution may, in the circumstances of a case,
\nlead to\t the conclusion that the detaining authority had not
\napplied its  mind to  the  vital  question  whether  it\t was
\nnecessary to make an order of preventive detention. Where an
\nexpress allegation  is made  that the order of detention was
\nissued in  a mechanical\t fashion without  keeping present to
\nits mind  the question whether it was necessary to make such
\nan order  when an  ordinary criminal  prosecution could well
\nserve the  purpose, the detaining authority must satisfy the
\nCourt that  that question  too was  borne in mind before the
\norder of  detention was\t made. If  the\tdetaining  authority
\nfails to  satisfy the  Court that the detaining authority so
\nbore the  question in  mind the\t Court would be justified in
\ndrawing the  inference that  there was no application of the
\nmind by\t the  detaining\t authority  to\tthe  vital  question
\nwhether it was necessary to preventively detain the detenu.\n<\/p>\n
     The facts\tof the\tpresent case are that the grounds of
\ndetention served  on the  appellant contain a very elaborate
\nstatement of  facts quite clearly pointing to an application
\nof the\tmind by\t the detaining\tauthority. The appellant did
\nnot  complain  in  the\tWrit  Petition\tthat  the  detaining
\nauthority had not applied its mind and in particular had not
\nconsidered the question of the possibility of a prosecution.
\nNor are\t there any facts appearing from the record which can
\nlead us\t to infer that the detaining authority did not apply
\nits mind  to relevant  considerations. We do not, therefore,
\nthink that  the order  of detention is in any manner infirm.
\nThe appeal is accordingly dismissed.\n<\/p>\n
P.B.R.\t\t\t\t\t   Appeal dismissed.\n61<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kanchanlal Maneklal Chokshi vs The State Of Gujarat And Ors on 23 July, 1979 Equivalent citations: 1979 AIR 1945, 1980 SCR (1) 54 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: KANCHANLAL MANEKLAL CHOKSHI Vs. RESPONDENT: THE STATE OF GUJARAT AND ORS. DATE OF JUDGMENT23\/07\/1979 BENCH: REDDY, O. CHINNAPPA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-110615","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKanchanlal Maneklal Chokshi vs The State Of Gujarat And Ors on 23 July, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kanchanlal-maneklal-chokshi-vs-the-state-of-gujarat-and-ors-on-23-july-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kanchanlal Maneklal Chokshi vs The State Of Gujarat And Ors on 23 July, 1979 - 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