TMI Blog2012 (12) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... herein-original petitioner No. 1 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [hereinafter referred to as COFEPOSA ] and also to quash and set aside the declaration dated 11.06.1976 issued under Section 12-A of the COFEPOSA and also the notices issued under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (For Forfeiture of Property) Act, 1976 [hereinafter referred to as SAFEMA ] (Annexure 'D collectively' to the main petition). Facts and the chronological events which led to the present Letters Patent Appeal in nut-shell are as under: 1.1. That the order of detention was passed against the appellant No. 1 herein-original petitioner No. 1 on 11.06.1976 under the COFEPOSA. Simultaneously, a declaration under Section 12-A of the COFEPOSA was also issued on the same day declaring that it was necessary to detain the said detenu for dealing effectively with the emergency which was then proclaimed. It is required to be noted at this stage that at the time when the order of detention was passed against appellant No. 1 herein under the COFEPOSA, there was already a subsisting emergency declared/pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. In some of the petitions inclusive of Special Civil Application No. 1276 of 1977 preferred by the appellants herein-original petitioners, the learned advocate appearing for petitioners prayed for withdrawal of the said petitions and those petitions inclusive of the aforesaid Special Civil Application No. 1276 of 1977 were dismissed as withdrawn and the following order was passed. The challenge to the Constitutional validity of SAFEMA and COFEPOSA no longer survive, in view of the decision of the Supreme Court in the case of Attorney General of India v. Amratlal Prajivandas Ors. JT 1994 (3) SC 583. Counsel for the petitioner, however, wishes to withdraw the writ petition as he wishes to file a fresh petition in the light of the aforesaid judgment, raising such contentions as may be open to the petitioner in accordance with law. Mr. Jayant Patel, Addl. Central Government Standing Counsel for the respondent states that all questions had been answered by the Supreme Court and nothing survives. As the petitioner is wanting to withdraw this writ petition with a view to file a fresh petition, we express no opinion on any of the questions on merit. Permission to withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon judgment and order dated 27.02.1997 passed by the learned single Judge in Special Civil Application No. 3714 of 1995, the petitioners of Special Civil Application No. 3716 of 1995 have preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent. 1.3. It is also required to be noted at this stage that during the pendency of the present Letters Patent Appeal, the proceedings under the SAFEMA proceeded further and continued and at that stage the present appellants and other relatives filed a group of petitions being Special Civil Application No. 11063 of 2001 challenging the proceedings under the SAFEMA as well as the order of detention dated 11.06.1976, in the year 2001 and the aforesaid Special Civil Application came to be withdrawn on 26.04.2002 with a liberty to approach the authority who issued a show-cause notice and to raise all contentions including the preliminary point which were raised in the said petition and the aforesaid Special Civil Application came to be dismissed as withdrawn with above liberty. Not only that, thereafter one another Special Civil Application No. 6678 of 2002 came to be filed by the present appellants praying for various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alienating the disputed property in any manner. That is how the order passed by the competent authority under the SAFEMA has not been implemented. 2.0. Shri S.H. Sanjanwala, learned Senior Advocate has appeared on behalf of the appellants herein-original petitioners and Shri Hriday Buch, learned Additional Central Government Standing Counsel has appeared on behalf of the competent authority under the SAFEMA and Ms. Nisha Thakore, learned Assistant Government Pleader has appeared on behalf of the State. 2.1. Shri Sanjanwala, learned Counsel appearing on behalf of the appellants has vehemently submitted that though the learned single Judge has specifically held that despite the withdrawal of Special Civil Application No. 1276 of 1977, there is no bar to entertain the subsequent petition on the ground of res judicata, the learned single Judge has not decided the petition on merits challenging the order of detention dated 11.06.1976. It is submitted that the learned single Judge has materially erred in not entertaining the petition and/or not deciding the petition on merits challenging the order of detention dated 11.06.1976. It is submitted by Shri Sanjanwala, learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Ghelubhai R. Madam through heirs L.Rs. vs. A.K. Mehta or his successor, Competent Authority and SAFEMA/NDPS, Mumbai Ors. reported in 2004 (2) GLR 1431. Relying upon the above decisions, it is submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellants that the learned single Judge ought to have considered the legality and validity of the order of detention dated 11.06.1976 on merits and ought to have considered the petition challenging the order of detention dated 11.06.1976 on merits on the grounds available to the petitioners, more particularly, non-following the procedure as required under Section 12-A of the COFEPOSA. It is submitted that in the present case, the learned single Judge while dismissing the Special Civil Application has not dealt with and/or considered the case on behalf of the petitioners on merits challenging the order of detention dated 11.06.1976. It is submitted that in the aforesaid decisions, the Hon'ble Supreme Court has specifically held that the order of detention even if it is challenged subsequently and as and when proceedings under the SAFEMA are initiated, which are based upon the order of detention, the same is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Attorney General For India (Supra) [paras 41, 42 and 56], the Hon'ble Supreme Court has specifically held that once the order of detention passed during the emergency is not challenged either during the subsistence of emergency or during the existence of the order of detention, thereafter it is not open for the detenu to challenge the order of detention when the proceedings under the SAFEMA are initiated. It is submitted that as such in the aforesaid decision the Hon'ble Supreme Court has specifically held that the order of detention could have been challenged during the subsistence of the emergency on the grounds which were available during the emergency. It is submitted that as such the decision of the Hon'ble Supreme Court in the case of Attorney General For India (Supra) is of a Bench consisting of 9 Hon'ble Judges and the same still holds the field so far as the aforesaid aspect is concerned. 3.1. Now, so far as the decisions relied upon by Shri Sanjanwala, learned Counsel appearing on behalf of the appellants referred to herein above, it is submitted by Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in the said case, similar submissions were made which came to be negatived by the Division Bench. Relying upon the aforesaid decisions and making above submissions, it is requested to dismiss the present Letters Patent Appeal with exemplary cost. 3.3. Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the competent Authority has submitted that despite the fact that the proceedings under the SAFEMA have been initiated in the year 1977 still the Authority is not in a position to implement the order passed by the competent Authority under the SAFEMA as the appellants have initiated various proceedings/petitions/appeals one after another and at every stage they have tried to delay the proceedings and even implementation of the order passed by the Authority. 3.4. Ms. Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the State Government has adopted the submissions made by Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the competent Authority and has requested to dismiss the present Letters Patent Appeal also with exemplary cost. 4.0. Heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, even though the said order of detention has ceased to be operative and was not either challenged or not successfully challenged during its operation? While dealing with the aforesaid issue or question, Bench of the 9 Judges of the Hon'ble Supreme Court has observed and held in paras 41 and 42 as under: 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 was made with respect to the said respondent, though it can be so pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An order of detention under Section 3(1) of COFEPOSA was made against Ram Lat Narang on 19-12-1974. He challenged the same before the Delhi High Court in Writ Petition No. 10 of 1975 which was allowed on 30-4-1975 and the order of detention quashed. The Union of India preferred an appeal against the said order of the High Court to this Court along with an application for stay. On 1-5-1975, this Court declined stay but imposed certain conditions on the movement of Ram Lal Narang (later, the said appeal was dismissed for non-prosecution). After the proclamation of emergency on the ground of internal disturbance on 25-6-1975, a fresh order of detention was made on 1-7-1975 against Ram Lal on the very same facts and grounds on which he was detained earlier. The said order of detention was challenged in Delhi Court in Writ Petition No. 115 of 1975 filed by a relative of Ram Lal but was dismissed on 25-11-1975. An appeal was preferred against the said order to this Court being Appeal No. 399 of 1977. At this stage, notice under Sections 6 and 7 of SAFEMA was issued against Ram Lal which he questioned in Delhi High Court in Writ Petition No. 720 of 1975. While the said writ petition was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of mind to certain highly relevant and material circumstances. We must, however, say that the validity of an order of detention to which Section 12-A of COFEPOSA applied, could yet be examined even during the emergency on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359(1) say on the ground that the provisions of Section 12-A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for applying SAFEMA to him this is for the reason that even if he is allowed to challenge the said order when he is served with the notice under Section 6 of SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said order was made and the law in force during the period the said order of detention was in operation. Same would be the position in the case of a person who challenged the order but failed in his challenge. Even in the case of a normal order of detention under COFEPOSA, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order was made and the law in force during the period the said order of detention was in operation. So far as this contention is concerned, the entire paragraph and the order is required to be read as a whole. One cannot pick and choose and rely upon few sentences. From the reading of the entire judgment and the observations, it appears that the aforesaid observations are made dealing with the submission made on behalf of the detenu that during the period of emergency the detenu could not have challenged the order of detention. In any case, in the concluding portion while answering the aforesaid issue, the Hon'ble Supreme Court has specifically and categorically held that once the order of detention was challenged during the subsistence of the emergency or during the period of order of detention [on the grounds which were available at the relevant time] or challenged but failed, detenu and/or concerned persons cannot be allowed and challenge the order of detention when the action is taken against him/them under the SAFEMA. At this stage it is required to be noted that the decision of the Hon'ble Supreme Court in the case of Attorney General of India (Supra), is a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that despite non-challenge of the order of detention either during the subsistence of the emergency or during the period the order of detention, subsequently, when the proceedings under the SAFEMA are initiated, the order of detention can be challenged. In the aforesaid decision, no contrary view has been taken by the Hon'ble Supreme Court to the view taken by the Special Bench of the 9 Judges of the Hon'ble Supreme Court in the case of Attorney General For India (Supra). 4.4. Similar is the case in the case of Amritlal Chandmal Jain (Supra). Even in the said decision in para 8 the Hon'ble Supreme Court has specifically observed that if Amritlal (detenu) had not challenged his order of detention, during the period of orders of detention were in force, Shri Goswamy (learned Counsel appearing on behalf of the Authority) would have been right but, unfortunately, for him that is not so. Even in the said decision also, the Hon'ble Supreme Court has not taken any contrary view to the decision taken in the case of Attorney General For India (Supra). Even in the case of Narendra Kumar (Supra) also, it appears that the detenu was detained on 19.12.1974 and the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and held that the detenu and/or his relatives could have challenged the order of detention on the grounds which were available during the emergency or on the grounds which might be available under Section 12-A of the COFEPOSA. Therefore, what is required to be considered is, whether the detenu and/or his relatives had challenged the order of detention at the relevant time i.e. during the subsistence of the emergency or during the period of order of detention. Even in the aforesaid decision in para 42, the Hon'ble Supreme Court has further observed that a person who could have so challenged the order of detention and yet not choose to do so, he cannot be allowed to do so when such an order is made basis for applying SAFEMA to him. 4.6. Even in the case of Ghelubhai R. Madam (Supra) which has been relied upon by the learned Counsel appearing on behalf of the appellants, the learned single Judge in para 31(i) has specifically observed that if the detention order has not been challenged during its life time, it cannot be subsequently challenged when proceeding under Section 6(1) of SAFEMA have been undertaken. 4.7. Considering the aforesaid facts and circumstances, no error ..... X X X X Extracts X X X X X X X X Extracts X X X X
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