9911796707
TMI Blog2019 (4) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 3 of COFEPOSA detaining said Roshan Lal with a view to prevent him from dealing in smuggled goods. In the grounds of detention in support of the detention order, it was inter alia stated that in the first week of July 1974 one Yusuf, resident of Lahore, Pakistan, a notorious smuggler in gold had contacted Roshan Lal who had agreed to purchase smuggled gold at the rate of Rs. 600/- per tola; that Roshan Lal had purchased 50 smuggled gold biscuits and had paid Rs. 3 lakhs; and that later he had also purchased 25 Gold biscuits of ten tolas each, that were smuggled on 18.08.1974 and paid Rs. 1.5 lakhs. 4. On 17.01.1975 Roshan Lal preferred a representation against the order of detention dated 19.12.1974 addressed to State of Punjab, through Superintendent of Police, Patiala. The representation was rejected by the State on 11.02.1975. On or about 29.04.1975 Om Prakash, son of Roshan Lal filed Writ Petition No.138 of 1975 in the High Court of Punjab and Haryana seeking writ of habeas corpus and praying for quashing of aforesaid detention orders dated 05.11.1974 as well as 19.12.1974. 5. With effect from 01.07.1995 Section 12A titled "Special Provisions for dealing with Emergency" w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in the matter arising out of notice issued to Sheelawati. Appeals, being F.P.A. No.41/78-79 and F.P.A. No.42/78-79, preferred by Roshan Lal and Sheelawati were dismissed by the Appellate Authority by its separate orders dated 02.02.1979 and the view taken by the Competent Authority was affirmed. 10. Roshan Lal approached this Court by filing Writ Petition No.220 of 1979 under Article 32 of the Constitution of India and challenged the aforesaid orders passed by the Competent Authority and the Appellate Tribunal. The Writ Petition was taken up along with certain similar matters including Transfer Petitions filed by the Attorney General for India. All these matters were disposed by a Bench of nine Judges of this Court on 12.05.1994 vide its decision in Attorney General for India and Others vs. Amratlal Prajivandas and Others (1994) 5 SCC 54. The conclusions arrived at by this Court and the directions issued were as under:- "56. To summarise: (1) Parliament was perfectly competent to enact both the COFEPOSA and the SAFEMA. (2) For the reasons given in the body of this judgment, we do not express any opinion on the validity of the 39th and 40th Amendment Acts to the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EMA 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 relatives and associates as explained in this judgment. The position of 'holders' dealt with by clause (e) of Section 2(2) is different as explained in the body of the judgment. (6) Section 5-A of COFEPOSA is not invalid or void. It is not violative of clause (5) of Article 22. (7) 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. 57. All the writ petitions, transferred cases and appeals are disposed of accordingly. The court and authorities before whom proceedings are pending under SAFEMA shall proceed to dispose them of in accordance with law and in the light of this judgment. It is in the interest of all concerned that the proceedings are concluded with all deliberate speed." 11. Thereafter, Civil Writ Petition No.509 of 1996 was filed on 12.08.1996 by the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no revocation of detention before the expiry of the Emergency and as such provisions of Section 2(2)(b) of SAFEMA would get attracted. The High Court, thereafter, considered the challenge to the detention order on the grounds as were urged. The submissions that the detention order was passed on the same material as was relied upon in the order passed under the provisions of MISA; that the representation dated 17.01.1975 was not considered; that the documents demanded in said representation were not supplied and that a report in terms of Section 3(2) of COFEPOSA was not forwarded by the State Government to the Central Government, were found to be without any substance and merit. The Writ Petition was thus dismissed by the High Court which decision is presently under appeal. 14. We heard Mr. R.M. Bagai, learned advocate for the appellant and Mr. Aman Lekhi, learned Additional Solicitor General for the respondents. 15. It was submitted by Mr. Bagai, learned advocate that though the matter was specifically remanded to the High Court for disposal on merits, the judgment under appeal had virtually overruled the order dated 24.02.2004 passed by this Court. It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 1 is in the affirmative, should the validity of the order of detention be tested with reference to the position of law obtaining at the time of making the said order and during its period of operation or with reference to the position of law obtaining on the date of issuance of the show-cause 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 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." 18. While dealing with questions 2 and 3, this Court considered decision of this Court in Union of India vs. Haji Mastan M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-3-1977. 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 under Article 359(1) suspending Article 22], it perhaps could still be challenged even during the period of emergency on grounds not barred by the said provisions. Secondly, even if such an order is allowed to be challenged when action under SAFEMA is taken, the challenge must be confined to groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiating action in SAFEMA. 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 Amratlal1. 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. 20. We may at this stage quote the relevant provisions of COFEPOSA and SAFEMA. A] Sections 10, 10A and 12A of COFEPOSA are as under:- "10. Maximum period of detention. - The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply which has been confirmed under clause (f) of section 8 shall be a period of one year from the date of detention or the specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for a period shorter than two years from the date of his detention, continue until the expiry of a period of two years from the date of his detention under such order or until the expiry of the specified period, whichever period expires later: Provided that nothing contained in this sub-section shall affect the power of the appropriate Government to revoke or modify such detention order at any earlier time." "12A. Special provisions for dealing with emergency. (1) Notwithstanding anything contained in this Act or any rules of natural Justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution on the 3rd day of December 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of [twenty-four months] from the 25th day of June, 1975, whichever period is the shortest. (2) When making an order of detention under this Act against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1975, the Central Government or the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of every person detained under a detention order to which the provisions of subsection (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into account for the purpose of computing- (i) the periods specified in clauses (b) and (c) of section 8; (ii) the periods of "one year" and "five weeks" specified in sub-section (1), the period of "one year" specified in sub-section (2)(i), and the period of "six months" specified in subsection (3) of section 9". B] Section 2 of SAFEMA is as follows:- "2. Application. (1) The provisions of this Act shall apply only to the persons specified in sub-section (2). (2) The persons referred to in sub-section (1) are the following, namely: - (a) every person- (i) who has been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of an offence in relation to goods of a value exceeding one lakh of rupees ; or (ii) who has been convicted under the Foreign Exchange Regulation Act, 1947 ( 7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (a), the value of any goods in relation to which a person has been convicted of an offence shall be the wholesale price of the goods in the ordinary course of trade in India as on the date of the commission of the offence. Explanation 2.--For the purposes of clause (c), "relative", in relation to a person, means- (i) spouse of the person; (ii) brother or sister of the person; (iii) brother or sister of the spouse of the person; (iv) any lineal ascendant or descendant of the person; (v) any lineal ascendant or descendant of the spouse of the person; (vi) spouse of a person referred to in clause (ii), clause (iii), clause (iv) or clause (v); (vii)any lineal descendant of a person referred to in clause (ii) or clause (iii). Explanation 3.-For the purposes of clause (d), "associate", in relation to a person, means- (i) any individual who had been or is residing in the residential premises (including outhouses) of such person; (ii) any individual who had been or is managing the affairs or keeping the accounts of such person; (iii) any association of persons, body of individuals, partnership firm, or private company within the meaning of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the commencement of the Amendment Act of 1975 and the officer making the order of detention considered the detention of such person to be necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. The effect of such order passed under Section 3 read with Section 12A of the Act was primarily the subject matter of consideration in the case in Amratlal1. Thus, orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A. 23. In terms of Section 2 of SAFEMA, the provisions of said Act would apply inter alia to every person in respect of whom an order of detention had been made under COFEPOSA, subject to proviso contained in Section 2(2) (b). Proviso to said Section 2(2)(b) of SAFEMA then carves out four exceptions to the applicability of substantive provisions to Section 2(2)(b). First three parts of the Proviso deal with three kinds of orders of detention u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. 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 grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
