TMI Blog2019 (4) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2008 passed by the High Court of Delhi at New Delhi in Writ Petition (Criminal) No.509 of 1996. 2. In exercise of power under Section 3(2) of the Maintenance of Internal Security Act, 1971 ( MISA for short), as amended by Section 6(6)(c) of Defence of India Act, 1971 and Section 2(1)(c)(iii) of Internal Security (Amendment) Ordinance, 1974, by order dated 05.11.1974, the Superintendent of Police, Amritsar directed that one Roshan Lal be detained with a view to prevent him from dealing in smuggled goods. 3. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( COFEPOSA for short) came into force on 13.12.1974. Deputy Secretary to the Government of Punjab, Home Department, Chandigarh, passed an order on 19.12.1974 under Section 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 ₹ 600/- per tola; that Roshan Lal had pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition No.138 of 1975 came up before the High Court of Punjab and Haryana at Chandigarh on 24.02.1978 and on the statement of the counsel for the Writ Petitioner that the petitioner had been released from custody which had come about in pursuance of the order of detention, it was observed that the petition had become infructuous and was, therefore, dismissed. 9. After considering the replies to the notices under Section 6(1) of SAFEMA submitted by Roshan Lal and after considering the material on record, an order under Section 7(1) of SAFEMA was passed by the Competent Authority on 29.05.1978. It was held that the property mentioned in the Schedule to the order was illegally acquired and that it stood forfeited to the Central Government free from all encumbrances. Similar order was passed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention 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 relatives and associates as explained in this judgment. The position of holders dealt with by clause (e) of Section 2(2) is different as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed back to the High Court for fresh disposal of the Writ Petition on merits. During the course of its order, this Court observed:- It is relevant to note that correctness or merit of the grounds of detention and the validity of the detention order was not adjudicated upon. We think since the proceedings under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, has very serious consequences, the appellant should have an opportunity of establishing the fact that the detention of his father was not in accordance with the law. 13. The matter was, therefore, reheard by the High Court and by its judgment and order dated 02.05.2008 said Writ Petition was dismissed. It was observed that the detention of Roshan Lal had run right through the duration or continuance of the Emergency and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enact COFEPOSA and SAFEMA? (2) Whether an order of detention under Section 3 read with Section 12-A of COFEPOSA made during the period of emergency proclaimed under Article 352(1) of the Constitution of India, - with the consequent suspension of Article 19 and during which period the right to move the court to enforce the rights conferred by Articles 14, 21 and 22 was suspended - can form the foundation for taking action under Section 6 of SAFEMA against the detenu, his relatives and associates? And if it does, can the validity of such order of detention be challenged by the detenu and/or his relatives and associates, when proceedings are taken against him/them under SAFEMA, even though the said order of detention has ceased to be operative and was not either challenged - or not successfully challenged - during its operation? (3) If the answer to Question 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 432, para 10) Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under Sections 6 and 7 of SAFEMA. If the impugned order of detention dated 19-12-1974 is set aside for any reason, the proceedings taken under Sections 6 and 7 of SAFEMA cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19-12-1974 under COFEPOSA is void and has to be quashed. 41. From the facts stated above, it is clear that the order of detention was made long prior to the proclamation of emergency on 25-6-1975. He was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the view taken in Haji Mastan Mirza 2 . It was observed that the matter could be considered from two perspectives; First, if it was an order of detention to which Section 12A of COFEPOSA did not apply and if the detenu did not challenge the order of detention or challenged it unsuccessfully, there was no reason why he should be allowed to challenge it when action under SAFEMA was taken against him. Secondly, if the order of detention was governed under Section 12A, such order of detention could still be challenged during the period of Emergency and the challenge could be confined to grounds which were open or available during the period of Emergency. In the concluding part of the paragraph it was observed that failure to challenge the detention directly when he was detained, precluded the detenu from challenging it after the cessation of detention where such detention was made the basis for initiating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of his detention, continue until the expiry of a period of one year 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. (2) Notwithstanding anything contained in any other provision of this Act, the detention of every person detained under a detention order which has been confirmed under clause (f) of section 8 read with sub-section (2) of section 9 before the commencement of the Conversation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976, and which is in force immediately before such commencement, shall, unless his detention has been continued by the appropriate Government under the said clause (f) read with the said sub-section (2), 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the person is no longer necessary for effectively dealing with the emergency, the 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 subsection 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 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of section 12A 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 12A, of that Act ; or (iv) such order of detention has not been set aside by a court of competent jurisdiction ; (c) every person who is a relative of a person referred to in clause (a) or clause (b) ; (d) every associate of a person referred to in clause (a) or clause (b); (e) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously held by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration. Explanation 1.-For the purposes of sub-clause (i) of clause (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention) which occurred or took place before the commencement of this Act. 22. An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view to prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from indulging in activities mentioned in said Section 3(1). If the Advisory Board finds that there is sufficient cause for detention under Section 8(f), the period of detention under Section 10 could be one year or the specified period whichever expires later. In cases where a declaration under Section 9 was issued, the maximum period of detention in terms of said Section 10, upon approval being accorded by the Advisory Board, could be two years or the specified period whichever period expires later. Explanation to Section 10 states the specified period to be the period during which the proclamation of Emergency issued under Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which provisions of Section 9 and Section 12A respectively apply and as such they are not relevant for the present consideration. Part (iv) of the proviso which speaks of cases where order of detention is set aside by a court of competent jurisdiction, applies irrespective whether the matter comes under Section 3(1) simplicitor or comes under Section 9 or Section 12A. The order of detention was not set aside in the present matter and as such Part (iv) is also inapplicable to the present case. 25. 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 deten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
