TMI Blog2008 (4) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... dy pursuant to the order of detention. Admittedly again, Appellant has several properties in her name. A proceeding was initiated against her in terms of Chapter V-A of the Act, wherefor, she was served with a show cause notice dated 9.5.1995 asking her to furnish the proof and/or source of income and/or the channels from which the assets being Flat Nos.501 and 502A along with stilt parking No.19 in Milton Apartments at Juhu Tara Road, Santacruz (W) had been acquired as also to show cause why the said properties should not be held to be illegally acquired properties and forfeited by the Central Government under the Act. 4. An appeal thereagainst was preferred before the Appellate Tribunal. By an order dated 10.2.1999, the properties were directed to be confiscated. A writ petition was filed by her before the Bombay High Court which was marked as Writ Petition No.1867 of 1999. The said writ petition was dismissed by a judgment and order dated 15.12.1999 insofar as the order of confiscation of flat No.501 and 502 and stilt parking in Milton Apartments were concerned. However, in regard to the confiscation of three bank accounts, the matter was remitted to the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the said writ petition has been dismissed. 8. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant, at the outset, did not press the first contention raised before the Appellate Authority as also before the High Court. The learned counsel, however, would submit that a classification made in a statute by way of under inclusion would not validate the proviso to Section 68E of the Act as it stood prior to 2001 insofar as there did not exist any valid or cogent reason for not providing the period of limitation of six years in respect of a person who was charged for commission of an offence relating to illicit traffic vis- -vis a person who is sought to be detained under a preventive detention. 9. The learned counsel would submit that the show cause notice did not contain any reason which was required to be recorded in terms of Section 68E read with Section 68H of the NDPS Act, and, thus, the impugned judgment cannot be sustained. Admittedly, the order of the Appellate Authority was the subject matter of the writ petition. The contentions raised herein were not raised before the said Authority or before the High Court.. The order of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me position. 15. A law is amended by the Parliament having regard to its experience. It is a matter of legislative policy and for that purpose mere inequality cannot be the sole factor for determining the constitutionality of the impugned provision. 16. Whereas Article 14 forbids classification, it is trite, it does not forbid reasonable classification. {See M.P. Rural Agriculture Extension Officers Association v. State of M.P. Anr. [(2004) 4 SCC 646]; and State of Bihar Ors. v. Bihar State +2 Lecturers Associations Ors. [(2007) 7 SCALE 697]}. 17. This court in State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75] as also Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors. [1959 SCR 279], categorically laid down the twin test of classification. The classification, however, should be based on reasonable and rational differentia and should not be arbitrary. 18. It is not a case where validity of the statute itself is in question. Ordinarily, a statute providing for under inclusion would not be held to be attracting the wrath of Article 14. A Constitution Bench of this Court held so in State of Gujarat Anr. v. Shri Ambika Mills Ltd. Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under- inclusive classifications, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched. What, then, are the fair reasons for non-extension? What should a court do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters? Should it, by its judgment, force the legislature to choose between inaction or perfection? The said ratio was followed by this Court in The Superintendent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. [(1975) 4 SCC 754, holding: 8. Oftentimes the courts hold that under-inclusion does not deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under-inclusion is often explained by saying that the legislature is free to remedy parts of a mischief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght have been indulging in drug trafficking for a long time. Whereas in the former an order of preventive detention may not be necessary, in case of the latter, it may be found to be necessary. The distinction although appears to be fine, but real. 21. This Court in Re : The Special Courts Bill, 1978 [(1979) 1 SCC 380 , held that the offences which were emergency related form a class of offences, stating : 72. As long back as in 1960, it was said by this Court in Kangsari Haldar that the propositions applicable to cases arising under Article 14 have been repeated so many times during the past few years that they now sound almost platitudinous . What was considered to be platitudinous some 18 years ago has, in the natural course of events, become even more platitudinous today, especially in view of the avalanche of cases which have flooded this Court. Many a learned Judge of this Court has said that it is not in the formulation of principles under Article 14 but in their application to concrete cases that difficulties generally arise. But, considering that we are sitting in a larger Bench than some which decided similar cases under Article 14, and in view of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. XXX XXX XXX (11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. 22. In view of the settled legal position as noticed above, we are of the opinion that no case has been made out for us to invoke Article 14 of the Constitution of India so as to hold that the proviso amended in the year 2001 shall also apply to the present category of cases. Accordingly, the appeal is dismissed with costs. Counsel s fee assessed to ₹ 50,000/- (Rupees fifty thousan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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