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• 2019 (4) TMI 1355
  

  Offence under FEMA - writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre-deposit amount - High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority - Whether the High Court was justified in allowing the appeals filed by the Union of India.

  HELD THAT:- High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material.

  High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants’ case as contemplated under Section 8 of FEMA.

  High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for.

  The proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law.

  Appeals succeed and are accordingly allowed. The impugned order is set aside. The case is remanded to the High Court for deciding the appeals afresh on merits in accordance with law keeping in view the observations made above.

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• 2019 (4) TMI 592
  

  Detention orders u/s 3 read with Section 12A of COFEPOSA - orders made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India - grounds of detention were not communicated to the detenu in a language known to him - notice under Section 6(1) of SAFEMA to show cause why properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA - HELD THAT:- In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency was issued on 25.06.1975. The detenu was released after the lifting of the emergency. All through, the Writ Petition was alive and pending in High Court and it was disposed of as having become infructuous on the statement made by the counsel for the Writ Petitioner on 24.02.1978. The instant case is thus covered by para 41 of the decision of this Court in Amratla [1994 (5) TMI 235 - SUPREME COURT]. However, since the matter was remitted by this Court on 24.02.2004, to be disposed of on merits, we now proceed to consider whether merits were rightly considered.

  The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detention “had run right through the duration or continuance of the emergency”. Though the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits.

  In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods. Having considered the factual aspects of the matter, the grounds raised by Mr. Bagai, learned Advocate are without any substance and merit. We, therefore, affirm the view taken by the High Court and dismiss said submission.

  The challenge to order of detention dated 19.12.1974 passed under the provisions of COFEPOSA in respect of Roshan Lal must fail. The Competent Authority and the Appellate Tribunal constituted under the provisions of SAFEMA had, after issuance of due notice and granting every opportunity to the noticees, arrived at findings that the properties mentioned in the schedules to the notices were illegally acquired and that they stood forfeited to the Central Government free from all encumbrances. All the prayers made in Civil Writ Petition being meritless said Writ Petition deserved to be rejected and was rightly dismissed by the High Court. No reason to take a different view in the matter and this Criminal Appeal is dismissed.

  Detention under Section 3(1) of COFEPOSA - HELD THAT:- The detention order was sought to be assailed before the High Court inter alia on the grounds of non-supply of documents; delay in passing the order of detention and supply of illegible documents. Those grounds were found to be without any substance by the High Court and the challenge so raised was negated. Having gone through the record, we do not find any error in the view taken by the High Court. We, therefore, dismiss this Appeal.

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