BIPINCHANDRA GAMANLAL CHOKSHI AND ANOTHER versus STATE OF GUJARAT AND OTHERS

Citation: [2015] 11 S.C.R. 1077 · Decided: 10-12-2015 · Supreme Court of India · Bench: J.S. KHEHAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2015] 11 S.C.R. 1077 
BIPINCHANDRA"GAMANLALCHOKSHIANDANOTHER · A 
v. 
STATE OF GUJARAT AND OTHERS 
(Civil Appeal No. 14352 of 2015) 
DECEMBER 10, 2015 
[JAGDISH SINGH KHEHAR AND ROHINTON FALi 
NARIMAN, JJ.] 
B 
Conservation of Foreign Exchange and Prevention of 
Smuggling Activities Act, 197 4 - ss. 3 and 12A - Detention C 
under both ·the provisions -
On the same date -
On 
revocation of declaration uls. 12A, the detenu was released 
u/s. 3 on the very same day -
Thereafter initiation of 
proceedings u/s. 6 of SAFEMA Act on the basis of s. 2 of the 
SAFEMA Act- The detenu then challenged his.detention u/ D 
s. 3 of COFEPOSA Act - High Court rejected the petition 
holding that the detenu was not allowed to challenge the 
detention order after its revocation - On appeal, held: Scope 
of challenge to detention u/s. 3 is wider than the scope of 
challenge u/s. 12A ~ Thus when the. detention uls. 3 is rlw s. 
E 
12A, the scope to challenge the detention is only on technical 
grounds - The detention of the detenu u/s. 3, in the present 
case, was althrough·rlw. s. 12A- Thus there was no occasion 
for the detenu to challenge his detention under limited scope 
of s. 3 - Therefore the challenge to detention uls. 3 can be F 
allowed to be raised even after revocation of the detention -
Smugglers and Foreign Exchange Manipulators (Forfeiture 
of Property) Act, 1976 - s. 2(2)(b) Proviso iv and s. 6 -
Constitution oflndia, 1950-Article 352(1 ). 
Allowing the appeal, the Court. 
HELD: 1. The substantive challenge to an order of 
preventive detention when the order of detention is 
limited to the scope of Sec.tion 3 of the COFEPOSA Act, 
G 
is far greater. After the declaration under Section 12A of H 
1077 
. 
1078 
SUPREME COURT REPORTS 
[2015] 11 S.C.R. 
A the COFEPOSA Act, the challenge is only on technical 
grounds of violation of procedure under Section 12A of 
the COFEPOSAAct. [Para 22] [1107-D-E] 
2. The proviso (iv) to Section 2(2)(b) of SAFEMAAct 
8 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 
c Section 12A of COFEPOSA Act, 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. [Para 22] [1105-G-H; 1106-A-B] 
D 
3. 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 
E 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 cieclaration under Section 
12A ceased to be operative, with reference to the 
F detention of the appellant. As soon as the declaration 
under Section 12A of the COFEPOSA Act was revoked, 
the appellant was ordered to be released. At the 
beginning of the order of detention, and at the time of 
revocation thereof, whilst the detention order subsisted 
G only within the limited scope of Section 3 of the 
COFEPOSAAct read with Section 12A thereof, there was 
really no occasion for the appellant to assail the same 
thereafter, on any of the grounds as may have been 
available to him. [Paras 23 & 26] [1107-F-H; 1108-A; 
H 1109-A] 
BIPINCHANDRAGAMANLALCHOKSHI v. STATE OF 
1079 
GUJARA1 
4. Thus, the appellant had no occasion whatsoever A 
to challenge 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 CO FE POSA 
Act read with Section 12A thereof after 21.3.1977, as the 
order under Section 3_ could not have been the subject B 
matter of challenge as the detenu was released on the 
same day. [Para 24) [1108-8-D] 
5. Another reason to enable the appellant to raise a 
challenge to the order of his detention is, that three of c 
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 D 
brothers. [Para 27) [1109-C-D] 
6. Therefore, the

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