{"id":69995,"date":"2009-11-09T00:00:00","date_gmt":"2009-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chunara-vs-the-union-of-india-on-9-november-2009"},"modified":"2017-03-31T09:00:11","modified_gmt":"2017-03-31T03:30:11","slug":"chunara-vs-the-union-of-india-on-9-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chunara-vs-the-union-of-india-on-9-november-2009","title":{"rendered":"Chunara vs The Union Of India on 9 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Chunara vs The Union Of India on 9 November, 2009<\/div>\n
Bench: Bilal Nazki, A. R. Joshi<\/div>\n
                           -1-\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                           \n                      APPELLATE SIDE\n          CRIMINAL WRIT PETITION NO.1479 OF 2008\n\n\n\n\n                                   \n     Smt. Sughrabai Sadruddin\n\n\n\n\n                                  \n     Chunara, Age 67 years,\n     an Indian inhabitant,\n     residing at 104, Megji\n     Building, A-Block, 2nd\n     Floor, Room No.25,\n\n\n\n\n                         \n     Shivdas Chapsi Marg,\n     Mazgaon, Mumbai-400 010.\n                 ig                ....         Petitioner\n\n         - Versus -\n               \n     1. The Union of India\n        through the Secretary\n        to the Government of\n        India, Ministry of\n      \n\n\n        Finance, Department of\n        Revenue, North Block,\n   \n\n\n\n        Central Secretariat,\n        New Delhi.\n\n     2. Shri D.S. Negi,\n\n\n\n\n\n        the Competent Authority\n        under the SAFEMA. having\n        his office at Mittal\n        Court, C-Wing, 3rd\n        Floor, Nariman Point,\n\n\n\n\n\n        Mumbai-400 021.\n\n     3. The State of Maharashtra\n        through the Secretary\n        to the Government of\n        Maharashtra, Home\n        Department (Special),\n        Mantralaya, Mumbai-32.\n\n     4. Ms Neela Satyanarayana,\n\n\n\n                                   ::: Downloaded on - 09\/06\/2013 15:17:32 :::\n                                -2-\n\n          the Principal Secretary\n\n\n\n\n                                                                \n          (Appeals and Security)\n          to the Government of\n\n\n\n\n                                        \n          Maharashtra, Home\n          Department (Special),\n          Mantralaya, Mumbai-32.        ....         Respondents\n\n\n\n\n                                       \n     Ms A.M.Z. Ansari for the Petitioner.\n\n     Ms A.S. Pai, Addl. Public Prosecutor,\n     for the State.\n\n\n\n\n                              \n                  \n                   CORAM: BILAL NAZKI &\n                          A.R. JOSHI, JJ.\n                 \n                   RESERVED ON       : SEPTEMBER 18, 2009\n\n                   PRONOUNCED ON: NOVEMBER 09, 2009\n      \n\n\n     JUDGMENT (Per Bilal Nazki, J.):\n<\/pre>\n
     1.        The petitioner is the mother of one<\/p>\n
     Sadik   Sadruddin   Chunara.       Against            the       said<\/p>\n
     Sadik, an order of detention has been issued on<\/p>\n
     31-10-2005   in   terms   of    Section       3(1)        of      the<\/p>\n
     Conservation of Foreign Exchange and Prevention<\/p>\n
     of Smuggling Activities Act, 1974 (hereinafter<\/p>\n
     referred to as “the COFEPOSA”) by the Competent<\/p>\n
     Authority.    This order has neither been revoked<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                          -3-<\/span><\/p>\n
     nor quashed.           On 25-1-2008, a Notice in terms<\/p>\n
     of Section 6(1) of the Smugglers and Foreign<\/p>\n
     Exchange Manipulators (Forfeiture of Property)<\/p>\n
     Act,    1976        (hereinafter          referred         to      as      “the<\/p>\n
     SAFEMA”) was issued against the petitioner and<\/p>\n
     her     son    Sadik         by   the       Competent           Authority<\/p>\n
     wherein it was mentioned that on 31-10-2005 an<\/p>\n
     order    was<\/p>\n
                         passed    for    detaining            Sadik.             The<\/p>\n
     petitioner was informed that she was a person<\/p>\n
     covered       under    Section        2(2)(b)        of      the       SAFEMA<\/p>\n
     and, therefore, there were reasons to believe<\/p>\n
     that the property set out in the schedule to<\/p>\n
     the Notice was an illegally acquired property<\/p>\n
     within the meaning of clause (c) of sub-section<\/p>\n
     (1) of Section 3 of the SAFEMA.                       The petitioner<\/p>\n
     was called upon to show cause as to why the<\/p>\n
     said    property        should       not     be    declared             to     be<\/p>\n
     illegally acquired and forfeited to the Central<\/p>\n
     Government.\n<\/p>\n
     2.            The    petitioner           claims     an     independent<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                       -4-<\/span><\/p>\n
     right    to   challenge          the     order       of     detention<\/p>\n
     passed against Sadik as the said order is the<\/p>\n
     basis for issuance of the Notice under Section<\/p>\n
     6(1) of the SAFEMA and visits her with civil<\/p>\n
     consequences.<\/p>\n
\n\n\n\n\n                                   \n     3.         The        order    of      detention            has        been\n\n     challenged\n                      \n                       by     the     petitioner            on       various\n\n     grounds.       The      petitioner's          son    was      arrested\n                     \n<\/pre>\n
     along with one Dattatraya Chandrakant Bodke on<\/p>\n
     4-3-2005      for      their     alleged        involvement                in<\/p>\n
     smuggling activities.             The petitioner’s son was<\/p>\n
     released on bail on 6-4-2005.                    The seizure of<\/p>\n
     the    alleged      offending       goods      was     effected            on<\/p>\n
     26-2-2005.          Statements         alleged      to     have        been<\/p>\n
     made by the petitioner’s son were recorded on<\/p>\n
     3-3-2005,     7-3-2005,        16-3-2005         and      29-4-2005.\n<\/p>\n
     The petitioner’s grievance is that even though<\/p>\n
     the     crucial part of the investigation in the<\/p>\n
     case    qua      the    son      of     the     petitioner               was<\/p>\n
     completed        in     April,        2005,      the        order          of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                         -5-<\/span><\/p>\n
     detention was passed only on 31-10-2005, that<\/p>\n
     is    to    say    there    was        an    undue       delay         of      six<\/p>\n
     months in passing the order of detention and<\/p>\n
     within this period if there were any links of<\/p>\n
     the     petitioner’s             son        with       any        smuggling<\/p>\n
     activity,         those      had         been        cut         off.          The<\/p>\n
     petitioner does not have either the copy of the<\/p>\n
     order of detention or the grounds of detention<\/p>\n
     passed against her son but she assumes that the<\/p>\n
     grounds of detention and the order of detention<\/p>\n
     would be same as is passed in the case of the<\/p>\n
     said Bodke as her son and Bodke were arrested<\/p>\n
     on similar allegations.                  The petitioner submits<\/p>\n
     that       the    order    of     detention           passed           by      the<\/p>\n
     detaining authority with respect to Bodke does<\/p>\n
     not     record       satisfaction             of       the        detaining<\/p>\n
     authority         that     the    detenu           was      involved             in<\/p>\n
     smuggling and as such the order of detention<\/p>\n
     was bad.          She presumes that such defect was<\/p>\n
     there       in    the     order    so        passed         against            the<\/p>\n
     petitioner’s son as well.                     Counter affidavits<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                -6-<\/span><\/p>\n
     have been filed in which it is stated that the<\/p>\n
     writ petition has been filed at a pre-execution<\/p>\n
     stage and the detenu has not surrendered and is<\/p>\n
     absconding.      Therefore, the writ petition is<\/p>\n
     not maintainable.      It is also stated that all<\/p>\n
     the   material    which   was    placed          before           the<\/p>\n
     detaining     authority   was    considered              by       the<\/p>\n
     detaining<\/p>\n
                   authority    before       the         order           of<\/p>\n
     detention came to be passed.         It is denied that<\/p>\n
     there was any undue delay in passing the order<\/p>\n
     of detention.    In the light of these pleadings,<\/p>\n
     two questions arise for         consideration by this<\/p>\n
     Court.   Firstly, whether the present petition<\/p>\n
     is maintainable or not and secondly, if the<\/p>\n
     petition is maintainable, whether the order of<\/p>\n
     detention     passed   against     the        son        of       the<\/p>\n
     petitioner can be quashed?\n<\/p>\n
     4.       The Notice under Section 6(1) of the<\/p>\n
     SAFEMA was issued on 25-1-2008.             While in para<\/p>\n
     1 thereof it is stated that an order had been<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                              -7-<\/span><\/p>\n
     passed on 31-10-2005 under Section 3(1) of the<\/p>\n
     Conservation of Foreign Exchange and Prevention<\/p>\n
     of Smuggling Activities Act, 1974 against Sadik<\/p>\n
     Sadruddin Chunara, in para 2 it is stated that<\/p>\n
     since the petitioner was the mother of Sadik,<\/p>\n
     therefore, she was covered under the provisions<\/p>\n
     of Section 2(2)(c) of the SAFEMA.                 The basis<\/p>\n
     for issuance of the Notice under Section 6(1)<\/p>\n
     is the order of detention passed against Sadik<\/p>\n
     on 31-10-2005.     The learned counsel appearing<\/p>\n
     for the petitioner, therefore, submits that if<\/p>\n
     she is able to demonstrate that the order of<\/p>\n
     detention    was       illegal       and         bad,           the<\/p>\n
     consequential notice, which is impugned in the<\/p>\n
     present   petition,   will    have   to      be      quashed.\n<\/p>\n
     Otherwise, the petitioner will suffer as her<\/p>\n
     son has not chosen to challenge the order of<\/p>\n
     detention.   The learned APP, on the other hand,<\/p>\n
     submits that it is not possible to challenge an<\/p>\n
     order of detention prior to detention except on<\/p>\n
     the limited grounds, as has been held by the<\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                     -8-<\/span><\/p>\n
     Supreme      Court    in     the     matter        of      Additional<\/p>\n
     Secretary to the Government of India and others<\/p>\n
     v.    Smt.     Alka     Subhash       Gadia         and        another,<\/p>\n
     reported in (1992) Supp 1 SCC 496.                       She further<\/p>\n
     submits that merely because the petitioner may<\/p>\n
     suffer       some    civil    consequences,              she        cannot<\/p>\n
     challenge      the    order    of    detention            at      a     pre-\n<\/p>\n
     detention stage.\n<\/p>\n
                      ig        Various authorities have been<\/p>\n
     cited.       Before considering those authorities,<\/p>\n
     it    will     be    important       to    refer         to      certain<\/p>\n
     provisions of the SAFEMA.\n<\/p>\n
     5.           Section 2 lays down the category of<\/p>\n
     the persons to whom the SAFEMA would apply.                                 We<\/p>\n
     are   concerned       with    Clauses         (b)       and       (c)       of<\/p>\n
     Section 2(2).         While Clause (b) lays down that<\/p>\n
     every person in respect of whom an order of<\/p>\n
     detention      has    been    made        under      the       COFEPOSA<\/p>\n
     would be subject           to the SAFEMA and the Act<\/p>\n
     would apply to him\/her, Clause (c) says that<\/p>\n
     every person who is a relative of a person<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>
\n                                    -9-<\/span><\/p>\n
     referred to in Clause (b) would also be subject<\/p>\n
     to   the   SAFEMA     and    the     Act      would         apply          to<\/p>\n
     him\/her.     Therefore, it follows that since an<\/p>\n
     order of detention was passed against the son<\/p>\n
     of   the   petitioner,       the    Notice         under        Section<\/p>\n
     6(1) of the SAFEMA could be issued to her. Had<\/p>\n
     there been no order of detention passed against<\/p>\n
     the son of the petitioner, the Notice under<\/p>\n
     Section 6(1) could not have been issued unless<\/p>\n
     it   had   satisfied        some    other         provisions               of<\/p>\n
     Section 2.     Further, under sub-section (2)(b)<\/p>\n
     (iv) of Section 2, the Act would not apply if<\/p>\n
     such an order of detention has been set aside<\/p>\n
     by    a    Court      of      competent             jurisdiction.\n<\/p>\n
     Therefore,     the     learned         counsel               for         the<\/p>\n
     petitioner    submits       that     if      she       is      able        to<\/p>\n
     convince the Court that the order of detention<\/p>\n
     was illegal and bad, the SAFEMA would not at<\/p>\n
     all apply to the petitioner.                   The application<\/p>\n
     of   the    SAFEMA,     in     the     present              case,          is<\/p>\n
     dependent on the legality or otherwise of the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                    – 10 –\n<\/p>\n
     order of detention.            The learned counsel has<\/p>\n
     relied on various judgments of this High Court<\/p>\n
     to submit that a person who is affected by an<\/p>\n
     order of detention has an independent right to<\/p>\n
     challenge such order of detention without even<\/p>\n
     asking for a habeas corpus.                    She refers to a<\/p>\n
     Division Bench Judgment of this Court delivered<\/p>\n
     in   Criminal
\n                    igWrit    Petition             No.1380         of       1986<\/p>\n
     {Mohideen Tayab Sony v. K.K. Dwivedi & Ors.} on<\/p>\n
     20-8-1987.      The Division Bench relied on two<\/p>\n
     judgments,    the   first        being        in     the       case        of<\/p>\n
     Jayantilal      Bhagwandas             Shah      v.        State           of<\/p>\n
     Maharashtra<\/a> {1981 Cri.L.J. 767} and the other<\/p>\n
     in Criminal Writ Petition No.622 of 1982, dated<\/p>\n
     21-11-1983.     According to the Division Bench,<\/p>\n
     the effect of these two                 authorities is that<\/p>\n
     the legality of an order of detention can be<\/p>\n
     questioned    where     the     claimants            do      not       want<\/p>\n
     Court to issue writs of habeas corpus.                                   The<\/p>\n
     learned counsel has also drawn our attention to<\/p>\n
     various   orders    passed        by     the       Supreme           Court<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                    – 11 –\n<\/p>\n
     where the orders of detention were challenged<\/p>\n
     but the State made a submission that they would<\/p>\n
     not proceed under the SAFEMA.                        These orders<\/p>\n
     would not be a precedent for this Court to be<\/p>\n
     followed.        In Criminal Writ Petition No.1379 of<\/p>\n
     1991, an order was passed by this Court on the<\/p>\n
     assurance      of   the   State        that     they         will        not<\/p>\n
     proceed against the petitioner under the SAFEMA<\/p>\n
     but an observation was made that the petitioner<\/p>\n
     was not challenging the order of detention in<\/p>\n
     her    representative        capacity         as     the       wife        of<\/p>\n
     detenu-designate.            The       learned       APP,        on      the<\/p>\n
     other hand, has placed reliance on a judgment<\/p>\n
     of the Supreme Court delivered by a Bench of<\/p>\n
     Nine Judges in Attorney General for India and<\/p>\n
     others    v.      Amratlal    Prajivandas             and       others,<\/p>\n
     reported in AIR 1994 SC 2179.                  This was a case<\/p>\n
     which fell under Section 12-A of the COFEPOSA,<\/p>\n
     a     provision      applicable          during           emergency.\n<\/p>\n
     Orders      of      detention          and      forfeiture                 of<\/p>\n
     properties had been passed during the emergency<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                   – 12 –\n<\/p>\n
     and they were challenged after the lifting of<\/p>\n
     emergency as the orders could not have been<\/p>\n
     challenged during the emergency because of a<\/p>\n
     judgment of the Supreme in Additional District<\/p>\n
     Magistrate,       Jabalpur      v.      Shivakant              Shukla,<\/a><\/p>\n
     reported    in (1976) 2 SCC 521.                      The Supreme<\/p>\n
     Court    framed    as   many     as     six      questions              and<\/p>\n
     answered these questions in the light of the<\/p>\n
     fact that the impugned orders had been passed<\/p>\n
     during the emergency.                 Para 35 of the said<\/p>\n
     judgment mentions the respective cases of the<\/p>\n
     parties before the Supreme Court.                           The said<\/p>\n
     para reads thus:\n<\/p>\n
             “35. On the other hand, the learned<\/p>\n
             counsel for the petitioners contend
\n             that the order of detention made
\n             under   S.3   read   with   S.12A   of
\n             COFEPOSA    is    void    for    being
\n             inconsistent with the provisions in<\/p>\n
             Art.22 which were not suspended.
\n             The mere suspension of enforcement
\n             of the said Article does not amount
\n             to suspension of the right.        The
\n             orders of detention were, therefore,
\n             void and they remained in operation
\n             only because the detenus were barred
\n             from questioning the validity of the
\n             said orders on account of the ban
\n             imposed by the Presidential Order
\n             under Article 359(1).     They submit<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p><\/blockquote>\n
                            – 13 –\n<\/p><\/blockquote>\n
          that the detention orders governed<\/p>\n
          by S.12A of COFEPOSA are inherently
\n          arbitrary and unjust.     An order of<\/p>\n
          preventive detention is made without
\n          even telling the detenu of the
\n          grounds of his detention and without
\n          giving him an opportunity to make a<\/p>\n
          representation. Even the protection
\n          of consideration of his case by an
\n          independent body (Advisory Board) is
\n          taken away.   The detenu is rendered
\n          totally helpless.    He is left with<\/p>\n
          no remedy.     He cannot prove his
\n          innocence.\n<\/p><\/blockquote>\n
                 ig       Such   an    order  of
\n          detention is opposed to all concepts
\n          of fairness, civilised     conduct and
\n          democratic norms.    They submit that<\/p>\n
          such   orders    cannot     form   the
\n          foundation or the basis for applying
\n          SAFEMA to them.    Their argument is
\n          evocative of what Justice Cardozo<\/p>\n
          once said:    “We must always take
\n          care to safeguard the law against<\/p>\n
          the assaults of opportunism, the
\n          expediency of the passing hour, the
\n          erosion of the small encroachments,
\n          and the scorn and derision of those<\/p>\n
          who have no patience with general
\n          principles.”\n<\/p><\/blockquote>\n
     It further said:\n<\/p>\n
          “36.   The contending view points
\n          aforesaid give rise to two strands
\n          of thought.     One line of thought
\n          runs thus: By virtue of Cl.(A) of
\n          Art.359,      inserted      by    the
\n          Constitution 38th (Amendment) Act
\n          with   retrospective   effect,  S.12A
\n          must   be   deemed    to   have  been
\n          competently enacted, no doubt for
\n          the duration of and limited to the<\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p><\/blockquote>\n
                         – 14 –\n<\/p><\/blockquote>\n
      period of the Presidential Order.\n<\/p>\n
      If so, the detention thereunder
\n      cannot be said to be invalid. While<\/p>\n
      the   order    of    detention    cannot
\n      certainly     subsist      beyond    the
\n      cessation of the Presidential Order
\n      because S.12A cannot itself subsist<\/p>\n
      beyond each cessation, neither S.12A
\n      nor the order of detention governed
\n      by   it   can   be    characterised   as
\n      illegal or invalid during the period
\n      the Presidential Order was in force.\n<\/p>\n
      Once this is so, such order of
\n      detention does undoubtedly represent<\/p>\n
      an order of detention within the
\n      meaning and contemplation of S.2(2)\n<\/p>\n
      (b) of SAFEMA. That it was not open<\/p>\n
      to challenge during the period of
\n      the Presidential Order, or that it
\n      was     not      subject      to     the
\n      constitutional safeguards provided<\/p>\n
      by   Art.22   does    not   affect   its
\n      validity or legality.         It was a<\/p>\n
      valid order of detention when made.
\n      It is not being enforced or acted
\n      upon    beyond      the     period    of
\n      Presidential Order.      Since it is an<\/p>\n
      existing fact, it is merely being
\n      taken notice of – and that is enough
\n      to attract SAFEMA to such detenu,
\n      his relatives and associates.         S.
\n      2(1) of SAFEMA says, “the provisions<\/p>\n
      of this Act shall apply only to the
\n      persons specified in sub-sec.(2)”
\n      and sub-sec.(2) speaks inter alia of
\n      a person “in respect of whom an
\n      order of detention has been made
\n      under the COFEPOSA, 1974”.       Indeed,
\n      provisos (i), (ii) and (iii) to Cl.\n<\/p>\n
      (b) of sub-sec.(2) of S.2 of SAFEMA
\n      expressly refer to the order of
\n      detention    made    under   S.12A   and<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                         – 15 –\n<\/p>\n
      expressly affirm that such an order<\/p>\n
      of   detention     is    an    order   of
\n      detention for the purposes of the<\/p>\n
      said clause.     The fact remains that
\n      provisions of SAFEMA were enacted in
\n      the first instance as an Ordinance
\n      issued on 5th November, 1975, i.e.,<\/p>\n
      during the period of emergency and
\n      later enacted into an Act and given
\n      effect   from     the    date    of   the
\n      Ordinance.     An order of detention
\n      governed by S.12A of COFEPOSA must,<\/p>\n
      therefore, be held to be an order of
\n      detention for the purpose of and<\/p>\n
      within the meaning of Section 2(2)\n<\/p>\n
      (b) of SAFEMA.      The other line of
\n      reasoning goes along the following<\/p>\n
      lines:    an    order     of    detention
\n      governed by S.12A is a special type
\n      of   order   made    for    the   limited
\n      purpose of dealing effectively with<\/p>\n
      the emergency. It has no existence,
\n      relevance or effect except for the<\/p>\n
      said limited purpose.       Outside such
\n      purpose, it is non est. It does not
\n      exist. If so, such an order of
\n      detention     cannot      furnish     the<\/p>\n
      foundation, the connecting link, or
\n      the basis for applying SAFEMA.          A
\n      normal order of preventive detention
\n      is itself an uncivilized action. An
\n      order of detention governed by S.12A<\/p>\n
      of COFEPOSA – denying as it does
\n      even the minimum safeguards provided
\n      by Cls.(4) and (5) of Art.22 – is an
\n      abhorrent    action.        It   may   be
\n      tolerated as a cruel necessity when
\n      the very life of the Nation is
\n      threatened but it cannot certainly
\n      be recognised or taken note of for
\n      any other purpose – much less made
\n      the basis of applying an extremely<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                – 16 –\n<\/p>\n
             drastic    enactment    like    SAFEMA.\n<\/p>\n
             Treating such order of detention as
\n             an   order   of  detention    for   the<\/p>\n
             purpose of and within the meaning of
\n             S.2(2)(b)   of   SAFEMA    amounts   to
\n             enforcing or giving effect to the
\n             said order of detention beyond and<\/p>\n
             outside the period of emergency and
\n             for purposes foreign to emergency.
\n             This is totally impermissible.       S.
\n             12A does not sanction this – though
\n             it sanctions a lot many things.”\n<\/p>\n
     This     judgment,\n                    ig    however,      takes       note         of       an\n\n<\/pre>\n
     earlier judgment of the Supreme Court in the<\/p>\n
     matter of Union of India v. Haji Mastan Mirza,<\/p>\n
     reported in AIR 1984 SC 681.          In this judgment,<\/p>\n
     the Supreme Court observed thus:\n<\/p>\n
             \"Therefore,      a   valid  order   of\n             detention    under   COFEPOSA   is   a\n<\/pre>\n
             condition precedent to proceedings
\n             being taken under Ss.6 and 7 of<\/p>\n
             SAFEMA.   If the impugned order of
\n             detention dated 19-12-1974 is set
\n             aside    for     any    reason,    the
\n             proceedings taken under Ss.6 and 7
\n             of SAFEMA cannot stand.     Therefore,<\/p>\n
             we have to consider whether the
\n             impugned order of detention dated
\n             19-12-1974 under COFEPOSA is void
\n             and has to be quashed.”\n<\/p>\n
     The Court did not find itself in agreement with<\/p>\n
     these      observations      in     the          facts             and<\/p>\n
     circumstances of the case because the order of<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                  – 17 –\n<\/p>\n
     detention although had been passed before the<\/p>\n
     emergency,   but    it    was        challenged             after         the<\/p>\n
     emergency    and    after       Section             12-A         of       the<\/p>\n
     COFEPOSA had come into force.                  The Court said,<\/p>\n
          “Hence, we say that a person who did
\n          not choose to challenge such an
\n          order   of   detention  during   the
\n          emergency when he was detained, or<\/p>\n
          challenged it unsuccessfully cannot
\n          be allowed to challenge it is sought<\/p>\n
          to be made the basis for applying
\n          SAFEMA to him.”\n<\/p>\n
     Then it also said,<\/p>\n
          “Failure to challenge the detention
\n          directly   when  he   was   detained,<\/p>\n
          precludes him from challenging it
\n          after the cessation of detention,<\/p>\n
          where it is made the basis for
\n          initiating action under SAFEMA.”\n<\/p>\n
     Therefore,   we     are   of         the      view         that         this<\/p>\n
     judgment would not apply to the facts of the<\/p>\n
     present case.\n<\/p>\n
     6.      In    any   case,       the        petitioner               herein<\/p>\n
     might not have been aggrieved by the order of<\/p>\n
     detention as such but she is aggrieved by the<\/p>\n
     Notice issued to her under Section 6(1) of the<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                      – 18 –\n<\/p>\n
     SAFEMA.        Therefore,         after         the      Notice           was<\/p>\n
     issued,      she    has     immediately          challenged               the<\/p>\n
     order of detention.\n<\/p>\n
     7.        In view of the discussion as above, we<\/p>\n
     hold that a person              who is aggrieved by the<\/p>\n
     application of the SAFEMA to him\/her consequent<\/p>\n
     to   passing
\n                     ig an   order    of      detention          under         the<\/p>\n
     COFEPOSA,      such     a   person        has    an      independent<\/p>\n
     right   to    challenge         the      order     of      detention,<\/p>\n
     although such person may not seek a writ of<\/p>\n
     habeas corpus.          After holding as above, it will<\/p>\n
     have to be seen whether the order of detention<\/p>\n
     is bad.\n<\/p>\n
     8.        Only one ground was agitated by the<\/p>\n
     learned counsel for the petitioner, as has been<\/p>\n
     mentioned above, that there was undue delay in<\/p>\n
     passing the order of detention.                    The petitioner<\/p>\n
     could not have pointed out other defect, if<\/p>\n
     any, because she did not have the grounds of<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                  – 19 –\n<\/p>\n
     detention.\n<\/p>\n
     9.       We called for the record of the case<\/p>\n
     and   have   also   gone     through         the       same.             The<\/p>\n
     record   shows    that     the    Deputy        Director,              DRI,<\/p>\n
     MZU, Nhava Sheva Unit, Raigad wrote a letter on<\/p>\n
     23-6-2005    in     which    he      proposed             preventive<\/p>\n
     detention<\/p>\n
                  of     the     son      of      the        petitioner.\n<\/p>\n
     According to this letter, the date of seizure<\/p>\n
     was 4-3-2005 and the date of arrest was also<\/p>\n
     4-3-2005.     This letter also shows the date of<\/p>\n
     the last statement recorded under Section 108<\/p>\n
     of the Customs Act as 29-4-2005.                      A retraction<\/p>\n
     of the statement          by the detenu was made on<\/p>\n
     10-3-2005.       The record also shows that after<\/p>\n
     the letter was scrutinized in the office of the<\/p>\n
     detaining    authority,      it      was      found          that        the<\/p>\n
     documents relied upon and furnished along with<\/p>\n
     the letter at page Nos.61, 168, 235, 246, 252,<\/p>\n
     354, 360, 363, 378, 393, 401, 417, 480 and 606<\/p>\n
     were not legible.         When a note was put to the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                      – 20 –\n<\/p>\n
     detaining authority, it went through the normal<\/p>\n
     channel of the Under Secretary and the Deputy<\/p>\n
     Secretary and the Deputy Secretary on 16-7-2005<\/p>\n
     made a note that, “The legible documents should<\/p>\n
     be called as at ‘A’ from S.A.”.                     Two things are<\/p>\n
     clear     from       this     note:      firstly,             that         for<\/p>\n
     scrutiny of the application moved by the Deputy<\/p>\n
     Director,       it
\n                       ig   took    about     two      months           in      the<\/p>\n
     office of the Principal Secretary (A&S) & D.A.\n<\/p>\n
     and secondly, the copies of the relied upon<\/p>\n
     documents       were    not     legible.          Thereafter,                it<\/p>\n
     appears    that       the     file    was    put       up      again         on<\/p>\n
     6-8-2005 by the Under Secretary with the note<\/p>\n
     that the copies of the documents which were<\/p>\n
     called for were furnished except the legible<\/p>\n
     copy of page No.606.              It was also pointed out<\/p>\n
     that      the        proposed        detenu         had         made           a<\/p>\n
     representation          on    26-7-2005       which          was       being<\/p>\n
     considered.          The file was put up before the<\/p>\n
     Principal Secretary (A&S) & D.A. on 22-9-2005<\/p>\n
     and it has the following note:\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span><\/p>\n
                                      – 21 –\n<\/p><\/blockquote>\n
            “Discussed with the P.S.(A&S) & D.A.\n<\/p><\/blockquote>\n
            D.A.   instructed   to    prepare   a
\n            detailed note showing evidences &<\/p>\n
            corroborative   evidences    of   the
\n            involvement of the P.D.”\n<\/p><\/blockquote>\n
     The    file    was   again       put     up    by      the       Deputy<\/p>\n
     Secretary      before     the     detaining         authority             on<\/p>\n
     4-10-2005.        Although the entire material was<\/p>\n
     before    him,    but    he     found    that       the      proposed<\/p>\n
     detenu    had<\/p>\n
                       made     another       representation                   on<\/p>\n
     3-10-2005.       Therefore, he called for a detailed<\/p>\n
     note     showing        evidences        and        corroborative<\/p>\n
     evidences of the involvement of the proposed<\/p>\n
     detenu.       Ultimately, on 19-10-2005 when another<\/p>\n
     note was placed before the detaining authority,<\/p>\n
     she recorded that,<\/p>\n
            “There appears to be enough evidence
\n            to detain the PDs.    Shri Chunara &
\n            Shri Bodke.     Detention Orders be
\n            issued.”\n<\/p>\n
     Now this is interesting.\n<\/p>\n
     10.       Section 3 of the COFEPOSA lays down<\/p>\n
     that     the     detaining          authority          should             be<\/p>\n
     satisfied that, with a view to preventing a<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                            – 22 –\n<\/p>\n
     person from acting in any manner prejudicial to<\/p>\n
     the    conservation           or      augmentation                 of     foreign<\/p>\n
     exchange    or        with       a    view      to      preventing               such<\/p>\n
     person from indulging in certain acts, it was<\/p>\n
     necessary so to do, make an order directing<\/p>\n
     that    such     person          be     detained.                 Perusal            of<\/p>\n
     Section 3 clearly discloses that the detaining<\/p>\n
     authority before making an order directing that<\/p>\n
     a person be detained, should be satisfied that<\/p>\n
     such     person            was       acting           in        the         manner<\/p>\n
     prejudicial to the conservation or augmentation<\/p>\n
     of     foreign        exchange            or        was        involved              in<\/p>\n
     smuggling of goods, or abetting the smuggling<\/p>\n
     of     goods,        or     engaging           in      transporting                  or<\/p>\n
     concealing           or     keeping            smuggled            goods,            or<\/p>\n
     dealing    in        smuggled         goods         otherwise            than        by<\/p>\n
     engaging        in        transporting           or        concealing                or<\/p>\n
     keeping smuggled goods, or harbouring persons<\/p>\n
     engaged in smuggling goods or in abetting the<\/p>\n
     smuggling of goods and such satisfaction should<\/p>\n
     be recorded on the file.                       This satisfaction can<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                     – 23 –\n<\/p>\n
     be    arrived     at    only      after       the       grounds            of<\/p>\n
     detention have been formulated by the detaining<\/p>\n
     authority.        In    the    case      in    hand,         when        the<\/p>\n
     detaining authority on 19-10-2005 directed the<\/p>\n
     issuance    of    detention       orders,        there         were        no<\/p>\n
     grounds formulated.            It is also unfortunate to<\/p>\n
     note that the detaining authority did not even<\/p>\n
     apply    her<\/p>\n
                      mind   to     formulate          or      frame          the<\/p>\n
     grounds of detention because the note put up to<\/p>\n
     the Under Secretary on 25-10-2005, obviously by<\/p>\n
     a person lower in rank to the Under Secretary,<\/p>\n
     reads as under:\n<\/p>\n
             “As   directed    by   the   Detaining
\n             Authority draft grounds of detention
\n             in respect of Shri Sadik Chunara are<\/p>\n
             formulated     and    submitted    for
\n             approval     of      the     Detaining
\n             Authority.”\n<\/p><\/blockquote>\n
     From the above it is clear that the grounds of<\/p>\n
     detention were formulated by a person below the<\/p>\n
     rank of Under Secretary.                 The application of<\/p>\n
     mind is by the person of such a rank and not by<\/p>\n
     the detaining authority.                The Under Secretary,<\/p>\n
     the     Deputy     Secretary            and     the         detaining<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n<\/p>\n
                                – 24 –\n<\/p>\n
     authority      merely    singed    this       note        and       on<\/p>\n
     31-10-2005 another note was submitted to the<\/p>\n
     detaining authority which reads thus:\n<\/p>\n
           “Relied upon documents are arranged.\n<\/p><\/blockquote>\n
           Fair copies of detention order,
\n           grounds of detention are submitted
\n           for   signature  of   the  Detaining
\n           Authority.”\n<\/p><\/blockquote>\n
     11.       From the above discussion, it appears<\/p>\n
     that there was undue and unexplained delay in<\/p>\n
     issuing the order of detention and also there<\/p>\n
     was non-application of mind by the detaining<\/p>\n
     authority.     Therefore, the order of detention<\/p>\n
     bearing      No.PSA-1205\/12(2)       SPL-3(A),                dated<\/p>\n
     31-10-2005,     and     the   proceedings            initiated<\/p>\n
     pursuant to the Notice dated 25-1-2008, issued<\/p>\n
     under Section 6(1) of the SAFEMA,              are       quashed<\/p>\n
     and   set aside.      The rule is made absolute in<\/p>\n
     above terms with no order as to costs.\n<\/p>\n
                                                 Sd\/-\n<\/p>\n
                                        (BILAL NAZKI, J.)<\/p>\n
                                                 Sd\/-\n<\/p>\n
                                        (A.R. JOSHI, J.)<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:17:32 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Chunara vs The Union Of India on 9 November, 2009 Bench: Bilal Nazki, A. R. Joshi -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1479 OF 2008 Smt. Sughrabai Sadruddin Chunara, Age 67 years, an Indian inhabitant, residing at 104, Megji Building, A-Block, 2nd Floor, Room […]<\/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":[11,8],"tags":[],"class_list":["post-69995","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nChunara vs The Union Of India on 9 November, 2009 - 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\/chunara-vs-the-union-of-india-on-9-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chunara vs The Union Of India on 9 November, 2009 - 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