MUKESH TIKAJI BORA versus UNION OF INDIA AND ORS.

Citation: [2007] 5 S.C.R. 26 · Decided: 11-04-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
MUKESH TIKAJI BORA 
v. 
UNION OF INDIA AND ORS. 
APRIL 11, 2007 
B 
[DR. ARIJIT PASA YAT ANDS. H. KAPADIA, JJ.] 
COFEPOSA, 1974-S.3(1)-Detention order-Exoneration in 
adjudication proceedings-Held, cannot be ground to nullify the order of 
C detention. 
On 16.1.1997 residence of detenu was searched by some officers of the 
Enforcement Directorate. Then detention order dated 27.8.1998 was passed. 
The show cause notice was given to the detenu on 18.1.1999 for contravention 
of the provisions of s. 9(1 Xa) of the FERA. The Detenu submitted his written 
D explanation on 30.3.1999 and adjudication order dated 29.11.1999 was passed 
by the Special Director of Enforcement 
Appellant filed the writ petition challenging the detention of his brother, 
detenu on the ground that there was no necessity of passing any detention 
order as the detenu was exonerated fully in the adjudicating proceedings and 
E this aspect of exoneration of the detenu should have been taken note of by the 
detaining authority. 
High Court dismissed the writ petition holding that exoneration in the 
adjudication proceedings cannot be a ground to nullify the order of detention. 
F 
In appeal to this Court, appellant contended that certain documents which 
G 
H 
had relevance were not supplied to the detenu and he was, therefore, not in a 
position to make an effective representation. 
Dismissing the appeal, the Court 
HELD: I. The materials placed by the respondents on record clearly 
show that all possible efforts were made to take the detenu to custody but he 
successfully managed to evade. Ultimately proclamation was issued under 
Section 7 (1) (b) of the COFEPOSA. [Para 12) [29-FJ 
2. Though there can be no quarrel with the preposition that in some 
26 
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MUKESHTIKAJI BORA v. U.0.1. [PASAYAT, J.] 
27 
·-.!, 
cases new grounds can be permitted to be urged but the factual background A 
here is different. (Para 14) (30-B) 
Sadhu Roy v. The State of West Bengal, [1975) I SCC 660; Bhawarlal 
Ganeshmalji v. The State of Tamil Nadu and Anr., AIR (1979) SC 541; and 
Adishwar Jain v. Union of India & Anr., [2006) IO SCALE 553, referred to. 
B 
3. The first order of detention and the grounds of detention were served 
on 23.11.2005. The writ petition was filed on 2.12.2005 under Article 226 of 
),. 
the Constitution of India, 1950 for setting aside the order of detention. In 
March, 2006, Writ Petition (Criminal) was filed under Article 32 of the 
Constitution for quashing and setting aside the order of detention during the c 
pendency of Writ Petition before the Bombay High Court. On 26.6.2006, this 
Court disposed of the petition under Article 32 of the Constitution directing 
the High Court to dispose of the matter within a. period of one month and that 
is how the impugned order dated 6.7.2006 was passed. Looked from any angle, 
·order of High Court does not suffer from infirmity. [Para 15) (30-G-H; 31-A) 
D 
CRIMINAL APPELLATE JURISDICTION: Cirminal Appeal No. 533 of 
2007. 
From the Judgment and Order dated 06.07.2006 of the High Court of 
Judicature at Bombay in Criminal Writ Petition No. 2930 of2005. 
Vikram Choudhary, Nikhil Jain, Rakesh Dahiya and D. Mahesh Babu for E 
the Appellant. 
Vikas Singh, ASG., T.A. Khan, Shiva Lakshm~ Amrita Narayan, B. Krishna 
Prasad and V.N. Raghupathy for the Respondents. 
F 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. I. Leave granted. 
2. Challenge in this appeal is to the judgment rendered by a Division 
Bench of the Bombay High Court dismissing the Habeas Corpus Petition filed G 
by the appellant. In the writ petition challenge was to the order of detention 
)' 
dated 27th August, 1998 passed under Section 3(1) of the Conservation of 
Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (in short 
the 'COFEPOSA ') in respect of one Bherchand Tikaji Bora alias Bharat alias 
Bhermal alias Dimple alias Dhayabhai (hereinafter referred to as the 'detenu'). 
H 
28 
SUPREME COURT REPORTS 
[2007] 5 S.C.R. 
A 
3. The appellant had filed the writ petition challenging the detention of 
his brother-Bherchand Tikaji Bora the 'detenu.' 
Ir-
4. Though several grounds were urged in support of the writ petition 
at the time of hearing only two grounds were urged. Firstly (a) with reference 
to the facts given in grounds of challenge l(a) to l(f) it was argued that when 
B the detenu was exonerated fully in the adjudicating proceeding, then there 
was no necessity of passing any detention order a
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