Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14352 OF 2015
(Asiring from SLP(C) No. 10771/2013)
Bipinchandra Gamanlal Chokshi and another ..Appellants
versus
State of Gujarat and others ..Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
Leave granted.
2. The State of Gujarat on 11.6.1976 ordered the detention
of the appellant – Bipinchandra Gamanlal Chokshi, under Section
3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as the
JUDGMENT
'COFEPOSA Act'). Section 3, whereunder the above order of
detention was passed, is being extracted hereunder:
“3. Power to make orders detaining certain
persons.- (1) The Central Government or the
State Government or any officer of the
Central Government, not below the rank of a
Joint Secretary to that Government, specially
empowered for the purposes of this section by
that Government, or any officer of a State
Government, not below the rank of a Secretary
to that Government, specially empowered for
the purposes of this section by that
Government, may, if satisfied, with respect
to any person (including a foreigner), that,
with a view to preventing him from acting in
any manner prejudicial to the conservation or
augmentation of foreign exchange or with a
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view to preventing him from-
i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing
or keeping smuggled goods, or
(iv) dealing in, smuggled goods otherwise
than by engaging in transporting or
concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling
goods or in abetting the smuggling of goods,
it is necessary so to do, make an order
directing that such person be detained:
[Provided that no order of detention shall be
made on any of the grounds specified in this
sub-section on which an order of detention
may be made under section 3 of the Prevention
of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 or under
section 3 of the Jammu & Kashmir Prevention
of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Ordinance, 1988 (J&K
Ordinance 1 of 1988).]
(2) When any order of detention is made by a
State Government or by an officer empowered
by a State Government, the State Government
shall, within ten days, forward to the
Central Government a report in respect of the
order.
JUDGMENT
(3) For the purposes of clause (5) of Article
22 of the Constitution, the communication to
a person detained in pursuance of a detention
order of the grounds on which the order has
been made shall be made as soon as may be
after the detention, but ordinarily not later
than five days, and in exceptional
circumstances and for reasons to be recorded
in writing not later than fifteen days, from
the date of detention.”
3. The revocation of an order passed under Section 3 of the
COFEPOSA Act, is contemplated inter alia under Section 8 of the
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COFEPOSA Act. Section 8, which is also relevant in the
determination of the present controversy, is also reproduced
hereunder:
“
8. Advisory boards.- For the purposes of sub-clause
(a) of clause (4), and sub-clause (c) of clause
(7), of Article 22 of the Constitution,-
(a) the Central Government and each State
Government shall, whenever necessary,
constitute one or more Advisory Boards each
of which shall consist of a chairman and two
other persons possessing the qualifications
specified in sub-clause (a) of clause (4) of
Article 22 of the Constitution;
(b) save as otherwise provided in section 9,
the appropriate Government shall, within five
weeks from the date of detention of a person
under a detention order make a reference in
respect thereof to the Advisory Board
constituted under clause (a) to enable the
Advisory Board to make the report under
sub-clause (a) of clause (4) of Article 22 of
the Constitution;
(c) the Advisory Board to which a reference
is made under clause (b) shall after
considering the reference and the materials
placed before it and after calling for such
further information as it may deem necessary
from, the appropriate Government or from any
person called for the purpose through the
appropriate Government or from the person
concerned, and if, in any particular case, it
considers it essential so to do or if the
person concerned desired to be heard in
person, after hearing him in person, prepare
its report specifying in a separate paragraph
thereof its opinion as to whether or not
there is sufficient cause for the detention
of the person concerned and submit the same
within eleven weeks from the date of
detention of the person concerned;
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(d) when there is a difference of opinion
among the members forming the Advisory Board,
the opinion of the majority of such members
shall be deemed to be the opinion of the
Board;
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(e) a person against whom an order of
detention has been made under this Act shall
not be entitled to appear by any legal
practitioner in any matter connected with the
reference to the Advisory Board, and the
proceedings of the Advisory Board and its
report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential;
(f) in every case where the Advisory Board
has reported that there is in its opinion
sufficient cause for the detention of a
person, the appropriate Government may
confirm the detention order and continue the
detention of the person concerned for such
period as it thinks fit and in every case
where the Advisory Board has reported that
there is in its opinion no sufficient cause
for the detention of the person concerned,
the appropriate Government shall revoke the
detention order and cause the person to be
released forthwith.”
4. Proclamation of emergency under Article 352(1) of the
Constitution of India was declared on 25.06.1975. Based on the
above, the State of Gujarat issued a declaration under Section 12A
of the COFEPOSA Act, that the detention of the appellant was
JUDGMENT
necessary for dealing effectively with the emergency contemplated
under section 12(A)(2) of the COFEPOSA Act.
5. Section 12A provides for a procedure, separate and
distinct from the procedure contemplated for revocation of an order
passed under Section 3 of the COFEPOSA Act. Section 12A is being
reproduced hereunder:
“12A. Special provisions for dealing with
emergency.- (1) Notwithstanding anything
contained in this Act or any rules of natural
Justice, the provisions of this section shall
have effect during the period of operation of
the Proclamation of Emergency issued under
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clause (1) of Article 352 of the Constitution
on the 3rd day of December 1971, or the
Proclamation of Emergency issued under that
th
clause on the 25 day of June, 1975, or a
period of twenty-four months from the 25th
day of June, 1975, whichever period is the
shortest.
(2) When making an order of detention under
this Act against any person after the
commencement of the Conservation of Foreign
Exchange and Prevention of Smuggling
Activities (Amendment) Act, 1975, the Central
Government or the State Government or, as the
case may be, the officer making the order of
detention shall consider whether the
detention of such person under this Act is
necessary for dealing effectively with the
emergency in respect of which the
Proclamations referred to in sub-section (1)
have been issued (hereafter in this section
referred to as the emergency) and if, on such
consideration, the Central Government or the
State Government or, as the case may be, the
officer is satisfied that it is necessary to
detain such person for effectively dealing
with the emergency, that Government or
officer may make a declaration to that effect
and communicate a copy of the declaration to
the person concerned:
Provided that where such declaration is made
by an officer, it shall be reviewed by the
appropriate Government within fifteen days
from the date of making of the declaration
and such declaration shall cease to have
effect unless it is confirmed by that
Government, after such review, within the
said period of fifteen days.
JUDGMENT
(3) The question whether the detention of any
person in respect of whom a declaration has
been made under sub-section (2) continues to
be necessary for effectively dealing with the
emergency shall be reconsidered by the
appropriate Government within four months
from the date of such declaration and
thereafter at intervals not exceeding four
months, and if, on such reconsideration, it
appears to the appropriate Government that
the detention of the person is no longer
necessary for effectively dealing with the
emergency, that Government may revoke the
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declaration.
(4) In making any consideration, review or
reconsideration under sub-section (2) or (3),
the appropriate Government or officer may, if
such Government or officer considers it to be
against the public interest to do otherwise,
act on the basis of the information and
materials in its or his possession without
disclosing the facts or giving an opportunity
of making a representation to the person
concerned.
(5) It shall not be necessary to disclose to
any person detained under a detention order
to which the provisions of sub-section (2)
apply, the grounds on which the order has
been made during the period the declaration
made in respect of such person under that
sub- section in is force, and, accordingly,
such period shall not be taken into account
for the purpose of sub-section (3) of section
3.
(6) In the case of every person detained
under a detention order to which the
provisions of sub-section (2) apply, being a
person in respect of whom a declaration has
been made thereunder, the period during which
such declaration is in force shall not be
taken into account for the purpose of
computing-
(i) the periods specified in clauses (b)
and (c) of section 8;
JUDGMENT
(ii) the periods of "one year" and "five
weeks" specified in sub-section (1), the
period of "one year" specified in
sub-section (2)(i), and the period of
"six months" specified in sub-section
(3) of section 9.]”
6. It is apparent, that under sub-section (2) of Section 12A
of the COFEPOSA Act, every detention order has to be reviewed
within fifteen days. It is in consonance with sub-section (2)
aforementioned, that the detention order passed against the
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appellant was reviewed on 26.6.1976. The Competent Authority
arrived at the conclusion in the above review, that the detention
of the appellant should continue. Under Section 12A of the
COFEPOSA Act, every detention order is to be reviewed before the
expiry of every four months. The instant review is contemplated
under sub-section (3) of Section 12A of the COFEPOSA Act. In
compliance with Section 12A(3) of the COFEPOSA Act, the first
review contemplated under sub-section (3) took place on 04.10.1976.
Yet again, the order of detention of the appellant was affirmed.
Still further, the second review under Section 12A(3) of the
COFEPOSA Act, was held on 9.2.1977. Yet again, the Competent
Authority arrived at the conclusion, that the detention of the
appellant should be continued.
7. Emergency declared under Article 352 of the Constitution
of India, was revoked by the President of India, on 21.3.1977. On
the same day, as the revocation of the emergency, i.e., on
21.3.1977 itself, the State of Gujarat, revoked the order of
JUDGMENT
detention passed against the appellant.
8. It is sufficient to record herein, that the appellant
Bipinchandra Gamanlal Chokshi assailed the order of his detention
dated 11.6.1976, by filing Special Civil Application No. 1276 of
1977. It is apparent, that the aforesaid challenge was made by the
appellant, well after the order of his detention (dated 11.6.1976),
had been revoked (by the order dated 21.3.1977). Further details
in this behalf, shall be referred to at a later juncture.
9. The grievance of the appellant in assailing the order of
his detention (passed under Sections 3 read with 12A of the
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COFEPOSA Act) assumed significance, on account of a show cause
notice issued to the appellant on 28.4.1977, under Section 6 of
the Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976 (hereinafter referred to as 'SAFEMA Act'). The
short show cause notice issued to the appellant, is extracted
hereunder:
“Shri Bipinchandra Gamanlal Choksy,
Nanavat Main Road,
Surat.
Whereas, I S.N. Sastri, being the competent
Authority Under Section-5 of the Smugglers and
Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976 (13 of 1976), have, on the
basis of relevant information and relevant
material available to me, reason to believe
that the properties described in the schedule
enclosed hereto which are held by you or on
your behalf, are illegally acquired properties
within the meaning of clause (c) of sub-section
(1) of section-3 of the said Act.
2. Now, therefore, in pursuance of
sub-section (1) of section-6 of the said Act, I
hereby call upon you by this notice to indicate
to me within 35 days of service of this notice,
the sources of your income, earnings or assets,
out of which or by means of which you have
acquired the aforesaid properties, the evidence
on which you rely and other relevant
information and particulars and to show cause
why the aforesaid properties should not be
declared to be illegally acquired properties
and forfeited to the Central Government under
the said Act.
JUDGMENT
Sd/-
(S.N. Sastri)
Competent Authority
Bombay”
10. It would be relevant to mention, that the initiation of
proceedings under the SAFEMA Act against the appellant, were based
on Section 2 of SAFEMA Act. During the course of hearing, learned
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counsel for the rival parties agitated their claims, on the basis
of the interpretation of Section 2(2)(b) of the SAFEMA Act.
Whilst, it was the contention of the learned counsel for the
appellant, that proceedings could not be initiated against the
appellant, under clause (b) of sub-section (2) of Section 2 of the
SAFEMA Act, it was the contention of the learned counsel
representing the Competent Authority, as well as, the State of
Gujarat, that the mandate of Section 2(2)(b)is clear and explicit.
Because the appellant does not fall in any of the exceptions
contemplated through provisos (i) to (iv) thereof, the proceedings
initiated against the appellant were well within the justification
of law. Section 2(2)(b) of the SAFEMA Act is extracted below:
“Section 2(2)(b): every person in respect of
whom an order of detention has been made under the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (52 of 1974):
Provided that--
(i) such order of detention being an order
to which the provisions of section 9 or section
12A of the said Act do not apply, has not been
revoked on the report of the Advisory Board
under section 8 of the said Act or before the
receipt of the report of the Advisory Board or
before making a reference to the Advisory
Board; or
JUDGMENT
(ii) such order of detention being an order
to which the provisions of section 9 of the
said Act apply, has not been revoked before the
expiry of the time for, or on the basis of, the
review under sub-section (3) of section 9 or on
the report of the Advisory Board under section
8, read with sub-section (2) of section 9 of
the said Act; or
(iii) such order of detention, being an order
to which the provisions of section 12A of the
said Act apply, has not been revoked before the
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expiry of the time for, or on the basis of, the
first review under sub-section (3) of that
section, or on the basis of the report of the
Advisory Board under section 8, read with
sub-section (6) of section 12A, of that Act; or
(iv) such order of detention has not been
set aside by a Court of competent
jurisdiction.”
11. In order to complete the sequence of facts, it is
essential to notice, that one of the brothers of the appellant,
namely, Niranjan Dahyabhai Chokshi approached the High Court, so as
to assail a similar order of detention, as was also passed against
him. The challenge was raised through Special Criminal Application
Nos. 289, 704 and 723 of 1990, and 745, 747 and 748 of 1991. The
challenge to the detention of Niranjan Dahyabhai Chokshi was
raised on the ground of the law declared by this Court in Krishna
Murari Aggarwala v. Union of India AIR 1975 SC 1877, wherein it was
held, that recording of the grounds of detention is an essential
prerequisite, before the passing of the order of detention.
Accordingly it was held, that if the grounds of detention are not
JUDGMENT
recorded and signed, before passing an order of detention, the
“satisfaction” of the concerned Government or the concerned
officer, contemplated under Section 3 of the COFEPOSA Act, would be
purely illusory, and such order of detention would be liable to be
set aside. Having arrived at the finding, that the grounds of
detention were not formulated at the time of passing of the order
of detention, the High Court of Gujarat concluded, that the
detention order, clearly violated the constitutional mandate
contained in Article 22(5), and as such, set aside the order of
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detention of Niranjan Dahyabhai Chokshi (the appellant's brother).
Simultaneously with the setting aside of the above order,
proceedings initiated against Niranjan Dahyabhai Chokshi under
Section 6 of the SAFEMA Act were also set aside as unsustainable.
12. Two other brothers of the appellant – Bipinchandra
Gamanlal Chokshi, namely, Rameshchandra Gamanlal Chokshi and
Pravinchandra Kikabhai Choksy had likewise approached the High
Court of Gujarat by filing Special Criminal Application Nos. 331
and 332 of 1992 respectively, to likewise assail the orders of
their detention under the provisions of COFEPOSA Act, and
initiation of proceedings under Section 6 of the SAFEMA Act. Yet
again, the High Court by its order dated 12.04.1993 set aside their
orders of detention, based on the decision rendered by this Court
in Krishna Murari Aggarwala's case (supra). The High Court
concluded similarly as in the other brother's case, that their
orders of detention had been passed, before the grounds of
detention were prepared and signed by the authorities concerned.
JUDGMENT
Accordingly, proceedings initiated against these two brothers of
the appellant, under Section 6 of the SAFEMA Act were also set
aside.
13. Insofar as the challenge raised by the appellant herein,
to the order of his detention dated 11.6.1976, as well as, the
order of initiation of proceedings under Section 6 of the SAFEMA
Act on 28.4.1977 is concerned, the claim raised by the appellant
was rejected by a learned Single Judge of the High Court (while
disposing of Special Civil Application No. 3716 of 1995) on
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27.2.1997 by holding as under:
“Special Civil Application No. 3716 of 1995:
This Special Civil Application has been filed by
Bipinchandra G. Choksi - detenu as appellant No. 1,
Smt. Jayashree Bipinchandra Choksi, wife of appellant
No. 1 and Bipinchandra Ramanlal Choksi, H.U.F. as
appellant No. 3. The appellants have challenged the
order of detention dated 11-6-1976 and declaration
under Section 12-A of the COFEPOSA Act dated
11-6-1976 and the notice issued under Section 6(1) of
SAFEMA Act - Annexure "D". This petition was
initially registered as Special Criminal Application
No. 1499 of 1994. It was subsequently, on conversion,
registered as Special Civil Application No. 3716 of
1995. The petition appears to have been not affirmed.
A non-affirmed affidavit filed is dated 24-8-1993.
However, it is signed by the learned Advocate on
7-10-1994. The petition appears to have been filed on
10-10-1994. The necessary facts are that the
appellant No. 1 was detained under the provisions of
COFEPOSA Act by the order of detention dated
11-6-1976. Simultaneously, a declaration under
Section 12-A was issued on the same day declaring
that it was necessary to detain the detenu for
dealing effectively with the Emergency which was then
proclaimed. Upon the Emergency being lifted, the
order of detention was revoked by the State
Government under a wireless message dated 21-3-1977.
The notices under Section 6(1) of SAFEMA Act dated
28-4-1977 were issued. The appellants have challenged
the order of detention as well as the SAFEMA Act
notices by way of filing Special Criminal Application
No. 1276 of 1977. However, the said writ petition was
dismissed as withdrawn by the order of the Division
Bench of this Court on 9-8-1994. The order reads as
follows:
JUDGMENT
“The challenge to the Constitutional validity of
SAFEMA Act and COFEPOSA Act no longer survives,
in view of the decision of the Supreme Court in
the case of Attorney General of India v.
Pranjivandas and Ors., reported in JT 1994(3) SC
583. The learned Advocate for the appellant,
however, wishes to withdraw the writ petition. He
wishes to file fresh petition in the light of the
said judgment raising such contention, as may be
open to the appellant in accordance with law. Mr.
J.N. Patel, learned Addl. Central Government
Standing Counsel appearing for the respondent
states that all the questions had been answered
by the Supreme Court and nothing survives. As the
appellant is wanting to withdraw this writ
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petition with a view to file fresh petition, we
express no opinion on any of the questions on
merit. Permission to withdraw the petition is
granted. The petition stands disposed of as
withdrawn. The interim relief order stands
vacated.”
Mr. J.N. Patel, learned Addl. Central Government
Standing Counsel has raised two preliminary
objections - firstly that since the appellant did not
challenge the order of detention during the
subsistence of Emergency in view of the judgment of
the Apex Court in Attorney General of India's case
(supra), he cannot be permitted to challenge the
order of detention. Secondly, that the present
Special Civil Application is barred by the principles
of res judicata, inasmuch as that in his earlier
petition being Special Civil Application No. 1276 of
1977, he had challenged the order of detention as
well as the notice under SAFEMA Act and the same has
been disposed of by the order of the Division Bench
of this Court dated 9-8-1994.
18. Mr. R.S. Sanjanwala, learned Advocate for the
appellants submits that the 9-Bench judgment of the
Supreme Court in Attorney General of India's case
(supra) has been explained in subsequent judgment in
the case of Smt. Gangadevi v. Union of India & Ors..
It is held in Gangadevi's case (supra) that where
there has been no pronouncement by any Court upon the
validity of the order of detention, the detenu is
entitled to challenge the validity of the detention
order as the same is being made foundation for
forfeiting the properties under SAFEMA Act. The
learned Advocate has placed reliance on the
observations of the Supreme Court in para 12 which
reads as follows:
JUDGMENT
“There has been no pronouncement by any Court
upon the validity of the detention order dated
12-9-1975. The appellant is entitled to challenge
the validity of the aforesaid order because it is
now being made foundation for forfeiting her
properties under SAFEMA Act.”
I cannot agree with the submissions made by Mr.
Sanjanwala, learned Advocate for the appellant. Smt.
Gangadevi's case (supra) does not advance the case of
the appellant. The observations quoted above by the
Apex Court cannot be read in isolation. In the said
case, the order of detention was challenged by the
detenu Sreekrishna Gopilal Solanki. The writ petition
was admitted and notices were issued to the State. On
11-3-1976, notices under Section 6 of the SAFEMA Act
were issued. On May 1,1976, the said
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detenu-Sreekrishna Gopilal Solanki died while under
detention. Another notice under Section 6 of the
SAFEMA Act was issued to the widow of the detenu,
i.e., Gangadevi on April 17, 1977. The writ petition
filed by detenu Sreekrishna Solanki was dismissed as
infructuous on a representation made by the Public
Prosecutor appearing for the State that the detenu
has been released. The Apex Court found that it was
an incorrect representation as the detenu expired
while he was in detention. In that context, the Apex
Court said that the order of detention was challenged
by detenu Sreekrishna Solanki himself and unless the
challenge is repealed, it cannot be made basis of the
proceedings under SAFEMA Act against the wife of the
detenu.
19. In the present case, it is not in dispute that
the order of detention was never challenged during
the subsistence of Emergency. In Attorney General of
India's case (supra), it is held that the person who
could have challenged the order of detention yet does
not choose to do so, cannot be allowed to do so when
such order of detention is made the basis of applying
SAFEMA Act to him. In view of this clear position of
law, the appellant cannot be permitted now to
challenge the order of detention. It is next
contended by Mr. Sanjanwala that since the order of
detention has been made foundation for SAFEMA Act
proceedings, it is open for the relatives and friends
of the detenu to challenge the order of detention.
This question has also been decided by the Apex Court
in Attorney General's case (supra). It is held that a
person who do not challenge either by himself or
through his best friends, the order of detention
challenged but failed, cannot be allowed to challenge
the order of detention, when action is taken against
him under SAFEMA Act. Thus, this contention also
fails. It is lastly contended by Mr. Sanjanwala that
the order of detention has been revoked by the
wireless message dated 21-3-1977 - Annexure "C" and
as such the very foundation of SAFEMA Act notices
disappears. This aspect I have dealt with in my
earlier part of the judgment and in view of that this
contention also does not survive and it is
accordingly rejected.”
JUDGMENT
(emphasis is ours)
14. A perusal of the order passed by the High Court reveals,
that the High Court relied on the decision rendered by a nine-Judge
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Bench of this Court, in Attorney General for India and others vs.
Amratlal Prajivandas and others (1994) 5 SCC 54.
15. Dissatisfied with the order passed by the learned Single
Judge, the appellant preferred LPA No. 478 of 1997. The said
appeal came to be dismissed by a Division Bench of the High Court
on 06.12.2012. The orders passed by the learned Single Judge in
Special Civil Application No. 3716 of 1995, and by the Division
Bench in LPA No. 478 of 1997, have been impugned by the appellant
before this Court.
16. The primary question that arises for our consideration
is, whether in view of the judgment rendered by this Court in
Attorney General for India's case (supra), the right of the
appellant to assail the order of his detention dated 11.6.1976
stood foreclosed. This is indeed, the contention before us by the
learned counsel representing the respondent. Whereas, the
submission of the learned counsel for the appellant is, that he had
been deprived of the right to assail/impugn the order dated
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11.6.1976, which was a valuable right, and the same could not have
been taken away, so as to expose him to extremely harsh
consequences. In order to determine the above submission, it will
be imperative for us to examine, whether or not the claim of the
appellant had been rightfully determined by the High Court, on the
basis of the judgment rendered by this Court in Attorney General
for India's case (supra). In examining the instant aspect of the
matter, it is essential to notice that this Court (in Attorney
General for India's case) while adjudicating upon the issues raised
before it, had framed six questions. Question No.2 was to the
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following effect:
“(2) Whether an order of detention under Section 3
read with Section 12-A of COFEPOSA Act made during
the period of emergency proclaimed under Article
352(1) of the Constitution of India, – with the
consequent 'suspension' of Article 19 and during
which period the right to move the court to enforce
the rights conferred by Articles 14, 21 and 22 was
suspended – can form the foundation for taking
action under Section 6 of SAFEMA Act against the
detenu, his relatives and associates? And if it
does, can the validity of such order of detention
be challenged by the detenu and/or his relatives
and associates, when proceedings are taken against
him/them under SAFEMA Act, even though the said
order of detention has ceased to be operative and
was not either challenged – or not successfully
challenged – during its operation? (3) If the
answer to Question 1 is in the affirmative, should
the validity of the order of detention be tested
with reference to the position of law obtaining at
the time of making the said order and during its
period of operation or with reference to the
position of law obtaining on the date of issuance
of the show-cause notice under Section 6 of SAFEMA
Act?”
While determining question no.2, this Court noticed the factual
position as under:
JUDGMENT
“24. These questions arise this way. The orders
of detention concerned herein were made on or after
the date of the proclamation of emergency to which
Section 12-A was applicable. None of theme are,
what may be called, 'normal' orders of detention.
For that reason, the detenus were neither supplied
with the grounds of detention, nor were they given
an opportunity to make a representation against
their detention nor does it appear that their cases
were referred to the Advisory Board – not at any
rate within the period prescribed by Section 8, or
for that matter, Section 9. They were released on
or within a day or two of the date on which the
emergency was lifted. In this sense, the order of
detention has worked itself out. But that order of
detention is now being made the foundation, the
basis for taking action under SAFEMA Act against
the detenus, their relatives and their associates.
SAFEMA Act is made applicable to them by virtue of
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Section 2(2)(b) read with clauses (c), (d) and (e)
of sub-section (2). The appellants say that since
the order of detention under COFEPOSA Act is made
the basis for action under SAFEMA Act against them,
they are entitled to challenge the validity of the
order of detention. They may not have been able to
question the validity of detention during their
detention by virtue of Section 12-A of COFEPOSA Act
(non-supply of grounds and non-reference to
Advisory Board) and also because their right to
move the court for enforcement of the rights
guaranteed to them by Articles 14, 21 and 22 was
suspended during the period of emergency by an
order made by the President of India under Article
359 (1) of the Constitution – even Article 19 did
not avail them by virtue of Article 358 – but when
the said orders of detention are sought to be made
the bases of action under SAFEMA Act, after the
lifting of emergency, they are now entitled to
question them. They point out that by virtue of the
order made under Article 359(1), the fundamental
rights guarateed to them by Articles 14,21 and 22
were not suspended, but only the right to move for
their enforcement was suspended. If so, they say,
the detention orders made against them are invalid
and illegal for violation of clauses (4) and (5) of
Article 22. They may have been barred from
enforcing their rights under Article 22,21 and 19
because of the said order of the President, but
that did not render the orders of detention
valid. Such invalid, indeed void orders, they say,
cannot serve as the basis or as the foundation of
action under SAFEMA Act. They also stress the
drastic nature of the provisions of SAFEMA Act. On
the other hand, the learned Additional Solicitor
General relies upon the provisions of clause (1-A)
of Article 359 and submits that the validity of the
said detention orders has to be judged with
reference to the law then obtaining and not with
reference to the law obtaining on the date of
issuance of notice under Section 6 of SAFEMA Act.
At any rate, he submits, clause (1-A) of Article
359 saves all such orders. Suspension of remedy, he
says,, is tantamount to suspension of the right
itself since one cannot conceive of a right without
a remedy. There is no distinction, he says, between
Article 358 and an order under Article 359(1) in
this regard. He places strong reliance upon the
observations (SCR at p. 812) of the decision in
Makhan Singh v. State of Punjab.”
JUDGMENT
Having given our thoughtful consideration to the issue in hand, we
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are satisfied, that insofar as the factual position is concerned,
the present case is apparently similar to the one adjudicated in
Attorney General for India's case (supra), on account of the
apparent similarity herein within the factual position recorded in
paragraph 24, extracted hereinabove. Thus viewed, the conclusions
on the issue, should ordinarily follow the determination rendered
by this Court in Attorney General for India's case (supra).
17. In order to wriggle out of the determination rendered by
this Court in Attorney General for India's case (supra), learned
counsel for the appellant has placed reliance on the findings
recorded in respect to question no.2 (extracted hereinabove), in
paragraphs 39 to 41. The same are relevant, and are accordingly
being reproduced hereunder:
“39. Proviso (iii) expressly treats "an order (of
detention)to which the provisions of Section 12-A
of the said Act apply" and which "has not been
revoked before the expiry of time for, or on the
basis of, the first review under sub- section (3)
of that section (Section 12-A) or on the basis of
the report of the Advisory Board under Section
8,read with sub-section (6) of Section 12-A, of
that Act", as an order of detention for the
purpose of and within the meaning of clause (b)
of Section 2(2) of SAFEMA Act. In view of the
fact that SAFEMA Act as well as COFEPOSA Act are
included in the Ninth Schedule by the 39th and
40th (Amendment) Acts to the Constitution,
clause(b) of Section 2(2) of SAFEMA Act
[including proviso (iii) appended to it] are
beyond constitutional reproach. One has to
take the said provisions as they stand and they
stand solidly against the appellants' contentions.
On this single ground, we hold, as we must, that
an order of detention made under COFEPOSA Act, to
which the provisions in Section 12-A applied, is an
order of detention within the meaning of and for
the purposes of Section 2(2)(b) of SAFEMA Act and
can, therefore, constitute the basis for applying
SAFEMA Act to such person.
JUDGMENT
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19
40. At this juncture, it would be appropriate to
deal with two decisions of this Court brought to
our notice. The first one is in Union of
India v. Haji Mastan Mirza11 rendered by a
Bench of three Judges. The respondent therein was
first detained under Maintenance of Internal
Security Act (MISA) under an order dated
17-9-1974. On 19-12-1974 the said order was
revoked but simultaneously an order of detention
was made under Section 3(1) of COFEPOSA Act.
The grounds of detention were served on him on
23-12-1974. On 25-6-1975, emergency was proclaimed
under Article 352(1) on the ground of internal
disturbance, which continued to be in force up to
21-3-1977. The respondent was released on
23-3-1977. Notice under Section 6(1) of SAFEMA
Act was issued to him, his relatives and
associates whereupon he filed a writ petition
in the Bombay High Court challenging the
validity of the order of detention dated
19-12-1974 on the ground inter alia that he
was not supplied with the documents clearly
and unmistakably relied upon for arriving at the
requisite satisfaction and which documents were
also referred to in the grounds of detention
served upon him. The Bombay High Court
allowed the writ petition, against which the
Union of India appealed to this Court.
Varadarajan, J. speaking for the Bench referred
to the provisions of Sections 2, 6 and 7 of SAFEMA
Act and observed thus: (SCC p. 432, para 10)
"Therefore, a valid order of detention
under COFEPOSA Act is a
condition precedent to proceedings being
taken under Sections 6 and 7 of SAFEMA Act.
If the impugned order of detention dated
19-12-1974 is set aside for any reason, the
proceedings taken under Sections 6 and 7 of
SAFEMA Act cannot stand. Therefore, we have
to consider whether the impugned order
of detention dated 19-12-1974
under COFEPOSA Act is void and has to be
quashed."
JUDGMENT
41. From the facts stated above, it is clear that
the order of detention was made long prior to
the proclamation of emergency on 25-6-1975. He
was served with the grounds of detention but not
the documents relied upon therein. It does not
appear from the judgment whether a declaration
under Section 12-A of COFEPOSA Act was made with
respect to the said respondent, though it can be so
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20
presumed from the fact that his detention was
continued up to 23-3-1977. In the above
circumstances, this Court said that it was open to
the respondent-detenu to question the validity of
the order of detention when proceedings are
taken against him under Sections 6 and 7 of
SAFEMA Act. It is not possible to agree with
the reasoning of the decision. There are two ways
of looking at the issue. If it is a normal order of
detention[not governed by Section 12-A nor
protected by an order under Article 359(1)
suspending the enforcement of Article 22] and if
the detenu does not challenge it when he was
deprived of his liberty, or challenges it
unsuccessfully, there is no reason why he should be
allowed to challenge it when action under SAFEMA
Act is taken against him for action under
SAFEMA Act is not automatic upon the fact of
detention but only the starting point. On the
other hand, if it is an order of detention
governed by Section 12-A [or by a
Presidential Order under Article 359(1) suspending
Article 22], it perhaps could still be challenged
even during the period of emergency on
grounds not barred by the said provisions.
Secondly, even if such an order is allowed to be
challenged when action under SAFEMA Act is
taken, the challenge must be confined to grounds
which were open or available during the period
of emergency; otherwise there would be no
meaning behind the concluding words in Article
358(1) and Article 359(1A). Hence, we say that a
person who did not choose to challenge such an
order of detention during the emergency when he was
detained, or challenged it unsuccessfully, cannot
be allowed to challenge it when it is sought to be
made the basis for applying SAFEMA Act to him. In
either of the two situations mentioned above,
i.e., whether the challenge is made during the
period of detention or later when proceedings
under SAFEMA Act are taken against him, the grounds
of challenge and scope of judicial scrutiny would
be the same. Failure to challenge the detention
directly when he was detained, precludes him from
challenging it after the cessation of detention,
where it is made the basis for initiating action
under SAFEMA Act.”
JUDGMENT
(emphasis is ours}
18. Our pointed attention was drawn to the factual position
depicted in paragraph 41, namely, that the detenu therein, had an
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21
opportunity to assail the impugned order of detention under
COFEPOSA Act, and it is therefore, that this Court arrived at the
conclusion, that a challenge having not been raised by the
respondent in the above case, it would not now be open to him to
raise such a challenge, after the detention order stood revoked.
Insofar as the present controversy is concerned, learned counsel
wishes us to believe, that there was no opportunity whatsoever for
the appellant to assail the impugned order of detention dated
11.6.1976. Insofar as the instant aspect of the matter is
concerned, it was the submission of the learned counsel, that
immediately on the passing of the order of detention on 11.6.1976
under Section 3 of the COFEPOSA Act, a declaration came to be
issued under Section 12A thereof. It was submitted, that the
challenge to an order of detention under section 3 of the COFEPOSA
Act read with section 12A is extremely limited, inasmuch as, the
challenge would be sustainable only if the procedure contemplated
under Section 12A had not been followed. The remedy would be
JUDGMENT
limited to the above technical challenge. It was submitted that as
against the above, the challenge to an order of detention passed
under Section 3 of COFEPOSA Act, can be based on a variety of
reasons, wherein it is open to the appellant to assail the
non-compliance of the procedure contemplated under Section 8, and
also, any infirmity or illegality, on the basis and reasons which
constitute the ground(s) of detention.
19. It was the vehement contention of the learned counsel,
that the order of detention under section 3 read with section 12A
of the COFEPOSA Act, subsisted from 11.6.1976 when the order of
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22
detention under Section 3 was passed, till the order of detention
was revoked on the lifting of the emergency on 21.3.1977. It was
submitted, that Section 12A is invoked merely by a declaration,
whereas, the substantive order of detention is passed under Section
3 of COFEPOSA Act. It was contended, that as soon as the emergency
was lifted on 21.3.1977, the original position stood revived,
inasmuch as, the order of detention would thereafter be an order
under Section 3 of COFEPOSA Act without a Section 12A declaration
super-added, and as such, was assailable in terms of the grounds
available to a detenu under Section 8, and the other grounds
referred to above. It was the assertion of the learned counsel, in
the present case, that the order under section 3 of the COFEPOSA
Act, could not be assailed by the appellant as he was released on
the same day, i.e., on 21.3.1977. There was therefore no occasion
for the appellant, to assail the order of his detention, based on
pleas and contentions, as would have been available to the
appellant, under Section 8 of the COFEPOSA Act, and the other
JUDGMENT
grounds expressed above.
20. Learned counsel for the appellant, in order to
substantiate his claim, placed emphatic reliance on Section 2 (2)
(b) of the SAFEMA Act. It was asserted, that the right to assail
an order of preventive detention is a valuable right, and has been
recognised in proviso (iv) to Section 2(2)(b)(extracted above). It
was the assertion of the learned counsel for the appellant, that an
order of detention under the COFEPOSA Act, would inter alia
constitute the basis for initiation of proceedings under Section 6
of the SAFEMA Act. However, every detenu has the right to assail
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23
the same, and if the challenge raised against an order of detention
under Section 3 of COFEPOSA Act, results in the setting aside of
the detention order, proceedings cannot be initiated against him
under Section 6 of the SAFEMA Act.
21. The question that arises for our consideration, is based
on the assertion, that the appellant did not raise any such
challenge to the order of his preventive detention, during the
subsistence of the order of his detention. It is clear, that the
appellant came to be released on 21.3.1977, and Special Civil
Application No. 1276 of 1977 was filed by him for the first time on
19.09.1977. According to the learned counsel, that however should
make no difference whatsoever. In order to substantiate his
instant contention, he placed reliance on proviso (iii) of Section
2(2)(b) of the SAFEMA ACt, which provides for two further
eventualities, wherein proceedings under the SAFEMA Act cannot be
initiated, despite the detention of an individual under the
COFEPOSA Act. Firstly, when an order of detention has been revoked
JUDGMENT
under Section 12A of the COFEPOSA Act. And secondly, where such an
order of detention was revoked under Section 8 thereof. Learned
counsel seeks to emphasise, that a closer examination of proviso
(iii) of Section 2(2)(b) indicates, that for computing the periods
mentioned in Section 8, the period during which a declaration under
Section 12A is in force shall not be taken into account. For this,
reference has been made to Section 12A(6), which expressly finds
mention in proviso (iii) of Section (2)2(b) of SAFEMA Act. It is
the submission of the learned counsel, that proviso (iii) expressly
postulates the possibility of a revocation of an order of
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24
detention, even after the declaration under Section 12A ceases to
operate, under section 8 of the COFEPOSA Act. It is submitted,
that this right which was available to the appellant after the
declaration under Section 12A came to be revoked, was really not
available to him, because the appellant came to be released on
21.3.1977. Therefore, the appellant could not have availed of the
right to challenge his order of detention, for the simple reason,
that on the revival of the order of detention within the framework
of Section 3 of the COFEPOSA Act, the appellant came to be released
forthwith, namely, on the same day.
22. We find merit in the contention of the learned counsel
for the appellant. The proviso (iv) to Section 2(2)(b) 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 Section 12A, on account of the fact that his remedy
JUDGMENT
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. Illustratively it may be mentioned, that on passing
of an order of detention under Section 3 of the COFEPOSA Act, a
detenu must be communicated the grounds on which the detention
order was made within five days, and in exceptional circumstances
(for reasons to be recorded in writing), within fifteen days of the
passing of the order of detention (refer to Section 3(3) of the
COFEPOSA Act). Accordingly, non-maintenance of the aforesaid
procedural parameters would be a justifiable ground to assail the
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order of detention. Additionally, the grounds on which an order
of detention has been passed under Section 3 of the COFEPOSA Act,
have to be furnished to the detenue. The non-communication of the
grounds could constitute the basis to assail an order of
detention. In case the grounds furnished to the detenu are either
vague or irrelevant, and even if they can be shown to be patently
false and incorrect, a detenu can successfully challenge an order
of his preventive detention. A detenu can also assail an order of
his detention, if he is in a position to establish, that the
grounds of his detention had not been recorded and signed before
the order of detention was passed (as in Krishna Murari Aggarwala
v. Union of India, AIR 1975 SC 1877). The above grounds are not
available, in case a declaration is issued (as in the instant
case), under Section 12A of the COFEPOSA Act, wherein it is not
essential to furnish grounds of detention to the detenue (refer to
Section 12A(5) of the COFEPOSA Act). In case an order of detention
is passed under Section 3 of the COFEPOSA Act, the Government
JUDGMENT
ordering the detention, has to make a reference to the Advisory
Board within five weeks (in terms of Section 8(b) of the COFEPOSA
Act). On receipt of a reference from the Government, the Advisory
Board has to submit a report within eleven weeks from the date of
detention (under Section 8(c) of the COFEPOSA Act). And, an order
passed by the Advisory Board opining that there was “… no
sufficient cause for the detention of the person concerned…” has to
be released forthwith (under Section 8(f) of the COFEPOSA Act Act).
A detenu whose order of detention has been passed only under
Section 3, without there being a declaration under Section 12A of
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26
the COFEPOSA Act, would therefore be entitled to seek revocation of
an order of detention, if the procedure contemplated under Section
8 was not complied with, and/or even if the detenu was not
released, despite the opinion expressed by the Advisory Board, that
the order of detention was not passed on sufficient cause. Or even
if it can be shown that the grounds of detention are vague,
irrelevant, false or incorrect. None of these grounds are
available to a detenu, where a declaration has been issued under
section 12A of the COFEPOSA Act. The substantive challenge to an
order of preventive detention when the order of detention is
limited to the scope of Section 3 of the COFEPOSA Act, are far
greater. This, because after the declaration under Section 12A of
the COFEPOSA Act, the challenge is only on technical grounds of
violation of procedure under Section 12A of the COFEPOSA Act, as
expressed above.
23. In the facts and circumstances of the present case, it is
apparent, that the order of detention under Section 3 of the
JUDGMENT
COFEPOSA Act was passed on 11.6.1976. Immediately after the passing
of the aforesaid 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 declaration under Section 12A ceased to be
operative, with reference to the detention of the appellant. At the
beginning of the order of detention, and at the time of revocation
thereof, whilst the detention order subsisted only within the
limited scope of Section 3 of the COFEPOSA Act read with Section
12A thereof, there was really no occasion for the appellant to
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27
assail the same thereafter, on any of the grounds as may have been
available to him.
24. We are satisfied, that in the facts and circumstances of
this case, specially the position highlighted by the learned
counsel for the appellant, as has been noticed hereinabove, the
appellant had no occasion whatsoever to challenge to 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
COFEPOSA Act read with Section 12A thereof after 21.3.1977, as the
order under Section 3 could not have been the subject matter of
challenge as the detenu was released on the same day.
25. The factual position depicted in paragraph 41 of the
order passed by this Court in Attorney General for India's case
(supra) deals with a situation where the appellant had ample
opportunity to assail the order of detention, but had chosen not to
do so. In paragraph 41, this Court in Attorney General for
India's case (supra) held “...If it is a normal order of detention
JUDGMENT
(not governed by Section 12-A nor protected by an order under
Article 359(1) suspending the enforcement of Article 22) and if the
detenu does not challenge it when he was deprived of his liberty,
or challenges it unsuccessfully, there is no reason why he should
be allowed to challenge it when action under SAFEMA Act is taken
against him...” The High Court recorded “...In Attorney General
for India's case (supra), it was held that the person who could
have challenged the order of detention yet does not choose to do
so, cannot be allowed to do so when such order of detention is made
the basis of applying SAFEMA Act to him...”
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26. In the present controversy, the appellant had no
opportunity whatsoever to assail the order of his detention, after
his release. As soon as the declaration under Section 12A of the
COFEPOSA Act was revoked, the appellant was ordered to be released.
His release undoubtedly was a release from detention under Section
3 of the COFEPOSA Act. The factual position taken into
consideration in Attorney General for India's case(supra), as
highlighted in paragraph 41 (extracted above), in our considered
view, would clearly not be applicable to the controversy in hand.
27. We are even otherwise persuaded to accept the contention
of the appellant, to enable him to raise a challenge to the order
of his detention, for the simple reason, that three of 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 brothers.
JUDGMENT
28. In the above view of the matter, we are of the view, that
the determination rendered by the High Court in not allowing the
appellant to raise a challenge to the order of his detention dated
11.6.1976, was wholly unjustified. The order passed by the High
Court is therefore liable to be set aside. The same is accordingly
hereby set aside. The appellant is relegated back to the High
Court, so as to enable him to press his claim, on the grounds as
may be available to him (to assail the order of his detention dated
11.6.1976). It is only after the determination of the High Court,
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29
that it will be open to the authorities to proceed with the action
taken against the appellant under Section 6 of the SAFEMA Act, and
that too, if the appellant fails in his attempt, to successfully
assail the order of his detention.
29. The instant appeal is allowed in the above terms.
….....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; ….....................J.
DECEMBER 10, 2015. [ROHINTON FALI NARIMAN]
JUDGMENT
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ITEM NO.1 COURT NO.3 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 10771/2013
(Arising out of impugned final judgment and order dated 06/12/2012
in LPA No. 478/1997 in SCA No. 3716/1995 passed by the High Court
Of Gujarat At Ahmedabad)
BIPINCHANDRA GAMANLAL CHOKSHI & ORS. appellant(s)
VERSUS
STATE OF GUJARAT & ORS. Respondent(s)
(with prayer for interim relief and office report)
Date : 10/12/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For appellant(s) Mr. C.A. Sundaran, Sr. Adv.
Mr. Shirish H. Sanjanwala, Sr. Adv.
Mr. Shamik Sanjanwala, Adv.
Mr. Zafar Inayat, Adv.
Ms. Rohini Musa, Adv.
Mr. Abhishek Gupta, Adv.
Mr. Kailash Pandey, Adv.
Mr. Ranjeet Singh, Adv.
for Mr. K. V. Sreekumar,AOR
For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.
Ms. Sunita Rani Singh, Adv.
Mr. R.K. Verma, Adv.
for Ms. Binu Tamta,AOR
JUDGMENT
Ms. Hemantika Wahi, Adv.
Ms. Jesal Wahi, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the Reportable
judgment, which is placed on the file.
(Renuka Sadana) (Parveen Kr. Chawla)
Court Master AR-cum-PS
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