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TMI Blog1994 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... all-out. They gave rise to a class of smugglers and foreign exchange manipulators who were out to frustrate the regulations and restrictions profit being their sole motive, and success in life the sole earthly judge of right and wrong. As early as 1947, the Central Legislature found it necessary to enact the Foreign Exchange Regulation Act, 1947 and Imports and Exports (Control) Act, 1947. Then came the Import (Control) Order, 1955 to place the policy regarding imports on a surer footing. In the year 1962, a new Customs Act replaced the antiquated Sea Customs Act, 1878. The menace of smuggling and foreign exchange violations, however, continued to rise unabated. Parliament then came forward with the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). It provided for preventive detention of these antisocial elements. 2. On 25-6-1975, the President of India proclaimed an emergency under Article 352(1) of the Constitution of India on the ground that "the security of India is threatened by internal disturbance". A proclamation of emergency dated 3- 12-1971 issued under Article 352(1) on the ground that "the security of India is threatened by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpur v. Shivakant Shuklal (1976) 2 SCC 521 they could not approach the High Court or this Court for relief. The 1 emergency was revoked on 21-3-1977 and the detenus released. Subsequently notices were issued under Section 6 of the SAFEMA to the said detenus, their relatives and associates calling upon them to show cause why the properties mentioned in the notices be not declared as illegally acquired properties and forfeited. SAFEMA was being invoked against them because of the orders of detention made against the detenus under COFEPOSA during the period of emergency. The said orders of detention were the connecting link, the foundation for the action being taken against the detenus, their friends and relatives under SAFEMA. .[The orders of detention, it is not in dispute, were not revoked or set aside as contemplated by clause (b) of sub-section (2) of Section 2 of SAFEMA]. It is then that the said persons approached the High Courts under Article 226 and this Court under Article 32 for quashing the said notices. In these writ petitions, the constitutional validity of the COFEPOSA, SAFEMA and of the 39th, 40th and 42nd Amendments to the Constitution of India were questioned. (In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Section 6 of SAFEMA? (4) Whether the definition of "illegally acquired property" in clause (c) of Section 3(1) of SAFEMA is violative of the fundamental in rights of the petitioners guaranteed by Articles 14, 19 and 21 and whether the inclusion of SAFEMA in the Ninth Schedule to the Constitution cures such violation, if any? (5) 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? (6) Whether Section 5-A of COFEPOSA is violative of clause (5) of Article 22? For a proper appreciation of the aforesaid questions, it is necessary to briefly refer to the relevant provisions of both the enactments. 9. COFEPOSA: The preamble to the Act explains the reasons for which and the objectives to achieve which the Act was made. It reads: "An Act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. Whereas violations of foreign exchange regulations and smuggling activities are having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub- section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds." More about this section later. 14. Section 8 provides for constitution of an Advisory Board as- required by clause (4) of Article 22 and for reference of each detenu's case to it. The opinion of the Advisory Board is bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 is in force and, accordingly, such period shall not be taken into account for the purposes of sub-section (3) of Section 3. (6) In the case of ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a as follows:" 16. Section 2 specifies the persons to whom the Act applies. Sub-section (1) declares that the provisions of the Act shall apply "only to the persons specified in sub-section (2)". Sub- section (2) mentions five categories of persons to whom the provisions of the Act apply. The first category mentioned under clause (a) comprises persons convicted under Sea Customs Act, 1878 or the Customs Act, 1962 of an offence in relation to goods of a value exceeding one lakh rupees. The requirement of value exceeding Rupees one lakh does not apply in case of second or subsequent conviction. Persons convicted under FERA, 1947/1973 of an offence, the amount and value involved in which exceeds one lakh rupees are also included under clause (a). The requirement of value (above one lakh), however, does not apply in the case of second or subsequent conviction. The second category [clause (b)] comprises of persons in respect of whom an order of detention has been made under COFEPOSA, but which order was not revoked or set 'de in any of the situations set out in the four sub-clauses of the proviso. It as would be appropriate to set out clause (b) in full. It reads: "(b) every perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws; or (ii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets in respect of which any such law has been contravened; or (iii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source of which cannot be proved and which cannot be shown to be attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; or (iv) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in subclauses (i) to (iii) or the income or earnings from such property; and includes- (A) any property held by such person which would have been, in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic structure. This simplistic argument overlooks the raison d'etre of Article 31-B at any rate, its continuance and relevance after Bharati2 and of the 39th and 40th Amendments placing the said enactments in the Ninth Schedule. Acceptance of the petitioners' argument would mean that in case of post-Bharati2 constitutional amendments placing Acts in the Ninth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31-B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14. 21. COFEPOSA is a law relating to preventive detention. It has, therefore, to conform to the provisions in clauses (4) to (7) of Article 22. Insofar as SAFEMA is concerned, it is, of course, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities o rpossibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues." (emphasis added) To the same effect are the observations (SCC at p. 663) in Federation of Hotel and Restaurant Assn. of India v. Union of India 5, a decision of the Constitution Bench. 22. It is not necessary to multiply the authorities. Question No. 1 23. It is argued for the petitioners that COFEPOSA is not relatable to Entry 9 of List I of the Seventh Schedule to the Constitution inasmuch as the preventive detention provided therefore is not for reasons connected with defence, foreign affairs or security of India. Even Entry 3 of List III, it is submitted, does not w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries. If the statute does not relate to any of the entries in List II, no further inquiry is necessary. It must be held that Parliament is competent to enact that statute whether by virtue of the entries in List I and List III or by virtue of Article 248 read with Entry 97 of List I. In this case, it is not even suggested that either of the two enactments in question are relatable to any of the entries in List II. If so, we need not go further and enquire to which entry or entries do these Acts relate. It should be held that Parliament did have the competence to enact them. Question Nos. 2 and 3 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 them 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 7 . 25. Article 352 of the Constitution empowers the President, if he is satisfied that a grave emergency exists whereby the security of India or of any part thereof is threatened, whether by war or external aggression or internal disturbance*, to declare by a proclamation that an emergency exists. One of the consequences of such declaration is provided in Article 358. Article 358, as it stood prior to 44th Amendment, read thus: "358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would, but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged even after the emergency is over. In other words, the suspension of Article 19 is complete during the period in question and legislative and executive action which contravenes Article 19 cannot be questioned even after the emergency is over." Next the Bench took up the meaning and purport of Article 359(1) and held: "Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on the President by Article 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement. That is one important distinction bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened, and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order." The law enunciated by the Special Bench is clear and explicit. It requires no elaboration at our hands. 29. After the said decision, however, clause (1-A) was introduced in Article 359 by the Constitution 38th (Amendment) Act, 1975. The clause was introduced with retrospective effect from the date of the Constitution. Clause (1-A), as introduced by the said Amendment Act read as follows: "1-A. While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Order made under Article 359(1) is in operation "... nothing in that Part (Part III) conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." Of course, while Article 358 is confined only to Article 19, clause (1-A) extends to those rights whose enforcement may have been suspended by an order under Article 359(1). The other distinction is that while the " suspension" of Article 19 under Article 358 is co-extensive with the duration of the proclamation of emergency, clause (1-A) is confined to the It should be noticed that only the heading of Article 358 speaks of "suspension of provisions of Article 19"; in the body of the article, there is no reference to suspension of the article. period for which the Presidential Order remains in force. Yet another distinction is that while A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a law may have been made or an executive action may have been taken unduly restricting the freedom of speech and the freedom of press. during the emergency. Such restriction insofar as it is not warranted by Article 19(2) ceases to operate or to have effect with the cessation of emergency. But the citizen whose right has been unreasonably curtailed cannot sue the State for damages or other relief nor can he take any other proceeding against the State for imposing such unreasonable restriction during the period of emergency. This is because of the protection provided to the State by Article 358. It should be remembered that Article 358 sanctions such a course because the Founding Fathers thought and not without justification that when the security of India or any part thereof is threatened as contemplated by Article 352, the State should be left free to make such law or to take such executive action as is necessary to safeguard the security of the country unfettered by the provisions in Article 19. This subordination of Article 19, however, is only for the period the proclamation of emergency under Article 352 is in operation. 32. Now coming to clauses (1) and (1-A) of Article 359 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory to be alive, yet we must also give effect to clause (1-A), which is equally a part of Article 359 now and must be deemed to be such a part at all points of time commencing from 26-1-1950. The conclusion is, therefore, inescapable that during the period the Presidential Order under Article 359(1) suspending enforcement of certain rights conferred by Part III is in operation, the State is empowered to make any law or to take any executive action inconsistent with such rights. All this is so because the emergency proclaimed to meet the threat to the security of India has to be effectively implemented. The requirements of emergency constitute both the foundation as well as an implied limitation upon the power. What is warranted is what is necessary for effective implementation of emergency. 33. It may be appropriate at this juncture to refer to a few decisions of this Court relevant in this behalf. In Jaichand Lall Sethia v. State of W.B. 1966 Supp SCR 464: AIR 1967 SC 483 it is held by a Constitution Bench: "But the appellant can challenge the validity of the order on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1). Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be continued beyond the said cessation, but they were certainly competent, legal and effective when they were made and continued to be so until the cessation of the Presidential Order. They can, therefore, certainly be treated as orders of detention under COFEPOSA for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. 36. On the other hand, the learned counsel for the petitioners contend that the order of detention made under Section 3 read with Section 12-A of COFEPOSA is void for being inconsistent with the provisions in Article 22 which were not suspended. The mere suspension of enforcement of the said article does not amount to suspension of the right. The orders of detention were, therefore, void and they remained in operation only because the detenus were barred from questioning the validity of the said orders on account of the ban imposed by the Presidential Order under Article 359(1). They submit that the detention orders governed by Section 12-A of COFEPOSA are inherently arbitrary and unjust. An order of preventive detention is made without even telling the detenu of the grounds of his detention and without giving him an opportunity to make a rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (ii) and (iii) to clause (b) of sub-section (2) of Section 2 of SAFEMA expressly refer to the order of detention made under Section 12-A and expressly affirm that such an order of detention is an order of detention for the purposes of the said clause. The fact remains that provisions of SAFEMA were enacted in the first instance as an Ordinance issued on 5-11-1975, i.e., during the period of emergency and later enacted into an Act and given effect from the date of the Ordinance. An order of detention governed by Section 12-A of COFEPOSA must, therefore, be held to be an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. The other line of reasoning goes along the following lines: An order of detention governed by Section 12-A is a special type of order made for the limited purpose of dealing effectively with the emergency. It has no existence, relevance or effect except for the said limited purpose. Outside such purpose, it is non est. It does not exist. If so, such an order of detention cannot furnish the foundation, the connecting link, or the basis for applying SAFEMA. A normal order of preventive detention is itself an uncivilised action. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act apply, has not been revoked before the 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 12-A, of that Act; or (iv) such order of detention has not been set aside by a court of competent jurisdiction." 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. In view of the fact that SAFEMA as well as COFEPOSA are included in the Ninth Schedule by the 39th and 40th (Amendment) Acts to the Constitution, clause (b) of Section 2(2) of SAFEMA [including proviso (iii) appended to it] are beyond constitutional reproach. One has to take the said provisions as they stand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 is taken against him for action under SAFEMA 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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 pending in Delhi High Court, Appeal No. 399 of 1975 pending in this Court came up for hearing and was disposed of saying that it would be open to Ram Lal to raise all such contentions as are available to him in Writ Petition No. 720 of 1975, notwithstanding the fact that those grounds were raised in Writ Petition No. 115 of 1975 (from which the said appeal No. 399 of 1975 arose). Writ Petition No. 720 of 1975 was heard and dismissed by the Delhi High Court against which Ram Lal filed SLP No. 9361 of 1982 wherein leave was granted and the appeal was numbered as CA No. 2790 of 1985 which was said to be pending on the date of the said judgment. An order of detention under Section 3 of COFEPOSA was made against the respondent, Manohar Lal Narang, as well on 31-1-1975. He was then in England. He was brought to India and detained. He challenged the same by way of WP No. 2752 of 1975 in the Bombay High Court which was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 position would be the same, A person who did not challenge, (either by himself or through his next friend) the order of detention or challenged it but failed, cannot be allowed to challenge the order of detention when action is taken against him under SAFEMA. Question No. 4 43. The definition of "illegally acquired properties" in clause (c) of Section 3(1) of SAFEMA is undoubtedly quite wide. It means and includes any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws" [vide sub-clause (i)]. Sub-clauses (ii), (iii) and (iv) of clause (c) further widen and elaborate its ambit. The definition thus takes in not only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge manipulations do not keep regular and proper accounts with respect to such activity or its income or of the assets acquired therefrom. If such person indulges in other illegal activity, the position would be no different. The violation of foreign exchange laws and laws relating to export and import necessarily involves violation of tax laws. Indeed, it is a well-known fact that over the last few decades, smuggling, foreign exchange violations, tax evasion, drugs and crime have all got mixed-up. Evasion of taxes is integral to such activity. It would be difficult for any authority to say, in the absence of any accounts or other relevant material that among the properties acquired by a smuggler, which of them or which portions of them are attributable to smuggling and foreign exchange violations and which properties or which portions thereof are attributable to violation of other laws (which Parliament has the power to make). It is probably for this reason that the burden of proving that the properties specified in the show-cause notice are not illegally acquired properties is placed upon the person concerned. May be this is a case where a dangerous disease requires a radical tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t person. It is held further that if the value of the property representing the bribe depreciated the fiduciary had to pay to the injured person the difference between that value and the initial amount of the bribe, and if the property increased in value the fiduciary was not entitled to retain the excess since equity would not allow him to make any profit from his breach of duty. Accordingly, it is held that to the extent that they represented bribes received by the first respondent, the New Zealand properties were held in trust for the Crown, and the Crown had an equitable interest therein. The learned Law Lord observed further that if the theory of constructive trust is not applied and properties interdicted when available, the properties "can be sold and the proceeds whisked away to, some Shangri La which hides bribes and other corrupt moneys in numbered bank accounts" to which we are tempted to add one can understand the immorality of the Bankers who maintained numbered accounts but it is difficult to understand the amorality of the Governments and their laws which sanction such practices in effect encouraging them. The ratio of this decision applies equally where a person acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title. In fact, it is immaterial how such relative or associate holds the properties of convict/detenu whether as a benami or as a mere name-lender or as a bona fide transferee for value or in any other manner. He cannot claim those properties and must surrender them to the State under the Act. Since he is a relative or associate, as defined by the Act, he cannot put forward any defence once it is proved that that property was acquired by the detenu whether in his own name or in thename of his relatives and associates. It is to counteract the several devices that are or may be adopted by persons mentioned in clauses (a) and (b) of Section 2(2) that their relatives and associates mentioned in clauses (c) and (d) of the said sub-section are also brought within the purview of the Act. The fact of their holding or possessing the properties of convict/detenu furnishes the link between the convict/detenu and his relatives and associates. Only the properties of the convict/detenu are sought to be forfeited, wherever they are. The idea is to reach his properties in whosoever's name they are kept or by whosoever they are held. The independent properties of relatives and friends, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act is evident from para 4 of the preamble which states: "And whereas such persons have in many cases been holding the properties acquired by them through such gains in the names of their relatives, associates and confidants." We are not saying that the preamble can be utilised for restricting the scope of the Act, we are only referring to it to ascertain the object of the enactment and to reassure ourselves that the construction placed by us accords with the said object. any illegally acquired property either by himself or through any other person on his behalf". All such property is liable to be forfeited. The language of this section is indicative of the ambit of the Act. Clauses (c) and (d) in Section 2(2) and the Explanations (2) and (3) occurring therein shall have to be construed and understood in the light of the overall scheme and purpose of the enactment. The idea is to forfeit the illegally acquired properties of the convict/detenu irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned above, is upon the relative/associate. In this view of the matter, the apprehension and contention of the petitioners in this behalf must be held to be based upon a mistaken premise. The bringing in of the relatives and associates or of the persons mentioned in clause (e) of Section 2(2) is thus neither discriminatory nor incompetent apart from the protection of Article 31-B. Question No. 6 45. Petitioners challenged the validity of Section 5-A of COFEPOSA on the ground of it being violative of the twin safeguards provided by clause (5) of Article 22. It is submitted that the said clause gives two rights to the detenu, viz., (i) to have the grounds on which the order of detention is based communicated to him as soon as possible and (ii) to be afforded the earliest opportunity of making representation against the order of detention (see State of Bombay v. Atma Ram Sridhar Vaidya 1951 SCR 167 : AIR 1951 SC 157 :52 Cri LJ 373 ). If the grounds included irrelevant or non-existent grounds, it is submitted, the first right is violated and if the grounds included vague grounds, the second right is violated. According to the teamed counsel, Article 22(5), as interpretated by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative merely for the reason that one or some of the grounds are either vague, non-existent, irrelevant or unconnected. That the second part is merely a continuation of and consequential to the first part is evident from the connecting words "and accordingly". The second part goes further and says that the order of detention must be deemed to have been made on being satisfied with the remaining good ground or grounds, as the case may be. Both the parts are joined by the word "and". 48. Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decisions of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In Debu Mahato v. State of W.B. (1974) 4 SCC 1351974 SCC (Cri) 274it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of W. B. (1974) 4 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for making or sustaining an order of detention. 49. Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word "accordingly" apart from the fact that it is joined to the first part by the word "and". In such a situation, we are unable to see how can the section be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her ground or grounds does not or do not suffer from any such infirmity." 52. The Andhra Pradesh provision thus contained a provision approximating to the second part of Section 5-A but did not contain any provision corresponding to or approximating to the first (the main) part of Section 5-A. It is the first part of Section 5-A that creates the deeming fiction; the second part merely elaborates the effect and consequence of the legal fiction in the first part. The second part, had it stood alone, could perhaps have been characterised as being in the teeth of Article 22(5), as understood and construed by this Court and that is what the Andhra Pradesh High Court says but that is not the situation herein as explained hereinabove. The said decision, therefore, does not advance the case of the petitioners in any manner herein. Having said this, we must reiterate the admonition of Gajendragadkar, J. regarding the exercise of the power of detention under the various detention laws in force. Speaking for the Constitution Bench in G. Sadanandan v. State of Kerala AIR 1966 SC 1925 :(1966) 3 SCR 590 : 1966 Cri LJ 1533 97, the learned Judge observed: "... we feel rudely disturbed by the tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditional legislation still the fact remains that such power too must have to be exercised reasonably and within reasonable time. Can the Central Government wait for few more years and would the Court be powerless to command the Central Government to bring into force the said Amendment? If no such command can be given, would it not mean that Parliament was, in the year 1979, amending the Constitution, not for that generation but for the next generation? Section 1(2) of the 44th (Amendment) Act is indeed an instance of abdication of or delegation of essential constituent power and, therefore, bad. Such a thing has never happened and cannot be allowed to happen; the Central Government ought not to be allowed to play with a constitutional amendment an amendment which, in particular, tends to strengthen the safeguard contained in clause (4) of Article 22, says the counsel. 55. We do not, however, think it necessary for the purposes of these cases to express any opinion on Dr Ghatate's submission, for the reason that acceptance of his contention assuming we do makes no difference to the result of these petitions. We have already held that the orders of detention made under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable 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). If such detenu did not choose to question the said detention (either by himself or through his next friend) before the Court during the period when such order of detention was in force, or is unsuccessful in his attack thereon he, or his relatives and associates cannot attack or question its validity when it is made the basis for applying SAFEMA to him or to his relatives or associates. (4) The definition of "illegally acquired properties" in clause (c) of Section 3 of SAFEMA is not invalid or ineffective. (5) 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. They are not conceived with a view to forfeit the independent properties of such relativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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