1999 (5) TMI 578 - AT - FEMA

Summary

Issues:
Challenge to order of detention under COFEPOSA Act, 1974; Forfeiture of property under SAFEMA; Jurisdiction of Appellate Tribunal; Interpretation of proviso to section 2(2) of SAFEMA.

Analysis:
The appeal before the Appellate Tribunal concerned the challenge to the order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), and the subsequent forfeiture of property under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The appellant, widow of the detained individual, contended that the order of detention stood automatically revoked due to the lack of confirmation within the specified period, as per the proviso to sub-section (2) of section 2 of SAFEMA. The primary argument was that the deceased detenu was not a person to whom the provisions of SAFEMA were applicable, as the order of detention was not confirmed within the required timeframe. The appellant's counsel relied on the Supreme Court decision in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155, emphasizing the importance of confirmation by the appropriate Government to continue detention beyond the initial period.

The Tribunal extensively discussed the necessity of confirmation of detention orders by the appropriate Government within the prescribed period, as highlighted in various Supreme Court judgments related to preventive detention laws. The Tribunal emphasized that the Advisory Board's opinion on the sufficiency of cause for detention is crucial, and failure to confirm the detention within the stipulated time renders it illegal. The Tribunal reiterated that the appropriate Government must act based on the Advisory Board's report, either revoking the detention order or confirming it for further detention. The Tribunal emphasized that the Advisory Board's composition includes high dignitaries, and the Government must release the detenu if the Board deems the detention unjustified.

Further, the Tribunal referred to the strict construction of statutes encroaching on individual rights, such as SAFEMA, and highlighted the need for a reference to the Advisory Board to determine the sufficiency of cause for detention. The Tribunal clarified that it did not have jurisdiction to question the validity of the detention order but focused on whether the order stood revoked within the meaning of the proviso to section 2(2) of SAFEMA. Ultimately, the Tribunal concluded that the automatic revocation of the detention order, as per the Supreme Court precedent, rendered the appellant ineligible for the application of SAFEMA, leading to the setting aside of the Competent Authority's forfeiture order.

In summary, the Tribunal's decision revolved around the automatic revocation of the detention order due to non-confirmation within the specified period, emphasizing the importance of the Advisory Board's opinion and the Government's actions based on it. The Tribunal's interpretation of the proviso to section 2(2) of SAFEMA led to the setting aside of the forfeiture order, as the deceased detenu was not considered a person to whom the provisions of SAFEMA applied.