TMI Blog2004 (4) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... and void and that they stand vitiated on account of the absence of a valid detention order. 1.2 The petitioners have, therefore, prayed for appropriate writ, order or direction to declare that since the order of detention has been revoked, it was not in existence in the eye of law, and consequently, the proceedings under the SAFEMA, based on the said order of detention, which has already been revoked, are patently bad and illegal, and therefore also, the order u/s.7 of the SAFEMA passed by the competent authority and confirmed in Appeal by the Appellate Tribunal, be quashed and set aside and it be held that SAFEMA is not applicable to the petitioners. 2. The petitioners have set out a list of events along with the memo of petition. It would be useful to narrate the same in the same chronology. LIST OF EVENTS ========================================================= 22/12/75 Order of detention in respect of 1st Petitioner u/s.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 04/12/76 Notice u/s.6(1) of the SAFEMA to deceased Usmangani (who was alive at that time). 21/03/77 Order of revocation of detention order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid Special Civil Application did not survive, and therefore, it came to be dismissed by this Court by order dated 09/08/94. 7. Since the petition was dismissed, a proceeding u/s.6(1) of the SAFEMA was undertaken against the petitioner and a Notice u/s.6(1) was issued to and served upon the petitioners, as the legal representatives of deceased Usmangani. It seems that on completion of the hearing, the competent authority passed an order on 17/02/2000, forfeiting the property in question, belonging to deceased Usmangani. The petitioners had preferred Appeal being FPA 26/Bom/2000 before the SAFEMA Tribunal unsuccessfully. The said Appeal came to be dismissed on 20/03/01. 8. Therefore, by way of filing the present petition, the petitioners have challenged the aforesaid proceedings, including the order of the competent authority as well as the order of the Tribunal. 9. The petitioner has challenged these orders on several counts. 9.1 It has been contended that when the proceedings u/s.6(1) and the order u/s.7 of the SAFEMA have been based on an order of detention and when the order of detention was revoked by the competent authority, then in that event, the competent aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property in question. Consequently, the order of the competent authority u/s.7 of the SAFEMA is illegal and consequently, the order in Appeal by the Appellate Tribunal is also illegal. 9.6 On the aforesaid set of facts, the petitioners have contended that the orders u/s.7 of the SAFEMA are illegal and they may quashed and set aside. The petitioners have, therefore, preferred this petition before this Court. 10. On receipt of the petition, Rule was issued and in response to the service of notice of Rule, Mr. Dhaval Barot learned Addl.Standing Counsel has appeared for respondents no. 1 2. It seems that the Government of Goa, Daman Diu was impleaded as co-respondents being Respondents no. 3 4. Though duly served, the said respondents have not thought it proper to appear before this Court and to defend their case. Therefore, this Court did not get an opportunity to have the assistance of Respondents no. 3 4. Therefore, at the final hearing stage, I have heard Mr. S H Sanjanwala learned Sr.Advocate appearing with Mr. R S Sanjanwala and Mr. Dhaval Barot learned Addl. Standing Counsel for the Union of India. They have taken me through the petition and other materials on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the competent authority referred to hereinabove. The relevant observations can be gathered from the bottom of Para 22 at page 24 as follows: The order of revocation of the detention of Shri Nazir Ahmed U. Digmar dtd. 21/03/77 was made pursuant to the lifting of emergency on the same date and was not a conscious revocation. Therefore, in view of the provisions of section 2(2)(b) of the Act, judgment of Gujarat High Court referred above and the ATFP's order dtd. 08/06/99, the revocation of the detention order would not be an impediment to the present proceedings. 16. From the above observations, it is absolutely clear that the order of detention was passed by invoking the provisions contained in Section 12-A of the COFEPOSA and on lifting of the Emergency, the order of detention was revoked on the very first day of the lifting of Emergency. This clearly shows that the order of detention was passed by applying the provisions laid down in Section 12-A of the said Act. 17. Any way, the order of detention against the first petitioner passed u/s.3(1) of the COFEPOSA was revoked by the competent authority in exercise of the powers u/s.11(1) of the said Act. Now, it is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. It has, therefore, been argued that in the present case, the order of revocation was passed in exercise of the powers u/s.11(1) of the said Act. Therefore, since it is not a revocation u/s.2(2)(b) of the SAFEMA, there would not be bar against prosecuting the proceedings u/s.6(1) of the SAFEMA against the petitioners. 22. Here, it is required to be considered that the provision contained in s.11(1) has not been included in the provisions made in s.2(2)(b) of the SAFEMA. At the same time, it is required to be considered that the revocation u/s.2(2)(b) has a limited sphere of application. It can be gathered from the said provision that it will apply to limited cases only. In the present case, we find that the order of detention in respect of the first petitioner was not revoked in any of the aforesaid contingencies. There cannot be any dispute about the same. 23. However, the first portion of Clause 1 to Section 2(2)(b) of the said Act relates to Section 9 12-A of the said Act. In the present case, we find that in view of the aforesaid factual background and fact situation, it has to be accepted that the first order of detention was passed by invoking the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention under COFEPOSA and therefore in absence of valid orders of detention under COFEPOSA the proceedings under SAFEMA could not have been instituted. It would therefore become clear that in the abovesaid six petitions the proceedings under SAFEMA would be bad for the above said reasons alone. 26.1 Therefore, according to the aforesaid observations of this Court, an order may have been revoked by a competent authority or it may have been quashed by a competent Court. But the resultant effect of both would be the same. Therefore, on construing the observations made by this Court in the aforesaid decision, it is very clear that when the order of detention has been revoked, it has an effect of cancellation thereof by a competent Court. In other words, the revocation of an order of detention and the cancellation thereof by an appropriate Court, have equal and identical effects. 27. In the case of Ibrahim Bachu Bafan V/s. State of Gujarat and Ors. reported in AIR 1985 SC 697, it has been clearly observed that when an order of detention has been revoked, in exercise of the powers u/s.11(1) of the said Act, then a fresh order of detention u/s.11(2) can be passed. It has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in subsection (2). (2) The persons referred to in subsection (1) are the following namely: (a) ........................ ........................ (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1947 (52 of 1947): Provided that.--- (i) Such order of detention, being an order to which the provisions of section 9 or section 12-A of the said Act do not apply, has not bee revoked on the report of the Advisory Board under Section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) Such order of detention, being an order to which the provisions of Section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under subsection 3 of section 9, or on the report of the Advisory Board u/s. 8, read with subsection 2 of section 9 of the said Act; or (iii) Such order of detention, being an order to which the provisions of section 12-A of the said Act apply, has not been revoked before the expiry of the time for, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Attorney General's case (supra). 36. In the case of Attorney General for India V/s. Amratlal Prajivandas Ors. reported in (1994) 5 SCC 54, it has been observed that: The validity of an order of detention to which section 12-A of COFEPOSA applied, could yet be examined even during the emergency, on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359(1) - say on the ground that the provisions of Section 12-A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for supplying SAFEMA to him - this is for the reason that even if he is allowed to challenge the said order when he is served with a Notice u/s.6 of the SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Appeal No. 1046/1997 dated 24/02/04 in the case of Narendra Kumar V/s. Union of India Ors. In the said matter, the father of the appellant was detained on 19/12/74 u/s.3 of the COFEPOSA. The said detention order was challenged by the appellant's brother in a writ petition. During the pendency of the said petition, the appellant's father was released from detention much before the period of his detention was over. Since the detenu was released, the writ petition was dismissed by the High Court holding that the same had become infructuous. The correctness or merits of the grounds for detention and the validity of the detention order were not adjudicated upon in the said matter. 40.1 After the release of the appellant's father, Notice u/s.6(1) of the SAFEMA was issued on the father of the appellant. The appellant's father and other similarly situated persons had approached the Hon'ble the Supreme Court in order to challenge the provisions of SAFEMA. By a pronouncement in Attorney General's case (supra), the Hon'ble the Supreme Court upheld the validity of the said Act. 40.2 Thereafter, the appellant in the aforesaid matter challenged the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble the Supreme Court had brought an end to the aforesaid controversy, by upholding the constitutional validity of the said two Enactments, this Court could not decide the issue afresh and therefore, this Court had no other alternative, but to dismiss the said petition without going into the merits of the case. 42. In that view of the matter, disposal of the earlier petition will have no bearing on the factual merits of the present petition, and consequently, it cannot be said that since the earlier petition was dismissed by this Court, this petition would not be maintainable. Therefore, the said ground would not be available to the respondents. 43. The learned Addl. Standing Counsel has lastly argued that neither the petitioners nor anyone else had challenged the order of detention, when the said order was in force and before it was revoked, and therefore, the present petition challenging the order of detention, after its revocation, would not be maintainable. The above argument has been substantiated by the pronouncement of the Hon'ble the Supreme Court dated 24/02/04 in Criminal Appeal No. 1046/1997. At the same time, it is required to be considered that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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