1994 (5) TMI 235 - SC - FEMA

Whether Parliament was not competent to enact COFEPOSA and SAFEMA?

Whether an order of detention under Section 3 read with Section 12-A of COFEPOSA 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 against the detenu, his relatives and associates?

Whether the application of SAFEMA to the relatives and associates of detenus is violative of Articles 14, 19 and 21? Whether the inclusion of the said Act in the Ninth Schedule cures such violation, if any?

Whether Section 5-A of COFEPOSA is violative of clause (5) of Article 22?

Held that:- Appeal dismissed. Parliament was perfectly competent to enact both the COFEPOSA and the SAFEMA.

No opinion on the validity of the 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule as assume them to be good and valid. No arguments have also been addressed with respect to the validity of 42nd Amendment Act to the Constitution either.

An order of detention made under Section 3 of COFEPOSA, which was governed by Section 12-A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. An order of detention to which Section 12-A is applicable as well as an order of detention to which Section 12-A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub-clauses in the proviso to Section 2(2)(b).

The definition of "illegally acquired properties" in clause (c) of Section 3 of SAFEMA is not invalid or ineffective.

The application of SAFEMA to the relatives and associates [in clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the case may be, wherever they are, howsoever they are held and by whomsoever they are held.

Section 5-A of COFEPOSA is not invalid or void. It is not violative of clause (5) of Article 22.

Petitioners have failed to establish that any of the provisions of SAFEMA are violative of Articles 14, 19 or 21 apart from the protection they enjoy by virtue of the inclusion of the Act in the Ninth Schedule to the Constitution.