IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3962 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GHELUBHAI R MADAM THRO' HEIRS AND LEGAL REPRES. Versus AK MEHTA OR SUCCESSOR COMPT AUTHORITY AND SAFEMA/ -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3962 of 1999 MR RS SANJANWALA for Petitioner No. 1-1/5 Mr Dhaval Barot Addl.Central Govt.Standing Counsel for Respondent No. 1,3 Mr A D Oza, G.P. for the State of Gujarat -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 22/04/2004 ORAL JUDGEMENT The petitioners above named have preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the impugned order dated 25.8.1975 passed against the detenu and placed at Annexure 'A' to the petition. The petitioners have also prayed for appropriate writ order or direction for quashing and setting aside a notice issued under section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short, 'SAFEMA') placed at Annexure 'B' to the petition and also an order passed on 29.6.1998 under section 7 of the SAFEMA. 2. The facts leading to the present petition can be briefly stated as follows: A declaration under section 12-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for Short, 'COFEPOSA') was made about detenu-Hemantbhai R Madam on 25.8.1975 placed at Annexure 'B'. The said declaration was made in exercise of power under section 12-A of the COFEPOSA Act on the ground that it was necessary to detain the said detenu for effectively dealing with emergency. It seems that the emergency was lifted on 25th March, 1977 and on account of the said position, persons under detention, in exercise of the powers under section 12-A of the said Act were released from detention. Accordingly, by order dated 25.3.1977, the said detenu came to be released from detention under wireless messages received from the appropriate authority. Therefore, the said detenu was not required to undergo the entire period of detention as required by the said provisions of law. In other words, the order of detention was revoked on lifting of Emergency period during which the detention and the detention order were in existence. In other words the detenu was not required to remain under the detention for the entire period for which the order was passed i.e. for 12 years. Thereafter, notice under section 6 was issued against the deceased and the family members of the said detenu on the basis of the aforesaid detention order passed against the said detenu, though it was subsequently revoked as aforesaid on 25.3.1977. It appears that by filing Special Civil Application being Special Civil Application No.125/77, the said detenu had challenged the order of his detention before this Court. However, on 9.8.1994, the said petition came to be dismissed in terms of the order passed by this court. 3. Then on 25.8.1994, the competent authority issued notice under section 6(1) of the COFEPOSA to the heirs and the legal representatives of the deceased as the deceased has already passed away by that time. On 29.6.1998, an order was passed under section 7 of the SAFEMA. The property of the deceased was forfeited to the State under the said order. The petitioners have challenged the aforesaid orders of the respondent. It has been mainly contended here that the proceedings under the SAFEMA are not maintainable in view of the position that the detention order dated 25.8.1975 at page 17 to the petition had already been revoked on 25.3.1977 as said hereinabove. That since the order of detention was revoked, there was no question of commencing or continuing the proceedings under section 6(1) and 7 of the SAFEMA against the present petitioner. That therefore, in absence of a valid existing detention order under the COFEPOSA, the competent authority had no power, function, authority or jurisdiction to proceed against the petitioners under section 6(1) of the SAFEMA and, therefore, there could not be any order under section 7 of the said Act against the petitioners. That therefore, initiation of proceedings under section 6(1) and the order under section 7 of the said Act are both illegal and deserve to be quashed and set aside. 4. The petitioners have challenged the aforesaid detention order also. 5. It has also been contended that the detention order was passed without formulating grounds for the detention. That though they were not required to be communicated to the petitioners or to the detenu during the life time of emergency, it was obligatory on the part of the competent authority to formulate grounds for passing the order of detention against the detenu. That therefore, without formulation of grounds, the order of detention could not have been passed and, therefore, the order of detention is illegal on that count also. 6. It has also been contended that once the proclamation of Emergency was lifted, the competent authority was required to supply grounds of detention to the detenu and since the grounds have not been communicated to the detenu after lifting of Emergency, the further proceedings under sections 6 and 7 of the SAFEMA were illegal. It has also been contended that the detention order or grounds of detention did not convey information to the detenu that he had a right to submit effective representation to a particular authority or authorities. That therefore, the detenu was not aware of his right of submission of effective representation under Article 22 (5) of the Constitution and, therefore, also the order of detention is illegal. That under the provisions of COFEPOSA, appropriate authority is required to review the order of detention from time to time. That in the present case, this process was not undertaken within the stipulated period and, therefore, also the order of detention is not valid or legal. 7. It has also been contended that a copy of the order of detention and grounds of detention were not supplied to the petitioners when the proceedings were undertaken under section 6(1) of the SAFEMA. That therefore, the petitioners were not aware of the detention order and the grounds of detention recorded by the competent authority and, therefore, the petitioners could not make effective representation or could not effectively deal with the said issue in proceeding under section 6(1) of the said Act and, therefore, there was clear violation of principles of natural justice and, therefore, also the order under section 6 of the SAFEMA is not legal and valid. It has also been contended that the order of detention was passed after unexplained inordinate delay which would show that the competent authority was not required to immediately detain the detenu and, therefore, because of the said inordinate delay, the order of detention is not legal and valid. That even otherwise, the order of detention is not legal and valid and it deserves to be set aside. On the strength of the aforesaid contentions, the petitioners had preferred this petition before this court for quashing and setting aside the proceedings under section 6 and order under section 7 of SAFEMA and the order of detention under COFEPOSA against the detenu. 8. On receiving the petition, rule was issued and in response to the service of notice of rule, Mr Dhaval Barot, learned Addl.Central Government Standing Counsel has appeared for respondents no.1 and 3 and Mr A D Oza, learned Government Pleader has appeared for the State of Gujarat. On behalf of Union of India and the competent authority, the learned Counsel has submitted affidavit of Dy.Director of office of respondent no.2 at page 90 onwards. Certain documents have also been produced along with the said affidavit. They are taken on record. 9. At the stage of final hearing, the learned Sr.Advocate for the petitioner has argued at length that the order of detention is not legal and even the proceedings under the SAFEMA are not legal. In support of the said contention, he has narrated the facts situation which has already been referred hereinabove. For the sake of convenience, it may be reproduced for ready reference as under: i. 25.8.1975 Detention against Hemantbhai R Madam and declaration under section 12-A of the COFEPOSA against the detenu. ii. 25.3.77 emergency was lifted and the detenu was released from detention. iii. 1977 The detenu challenged the order of detention by filing Special Civil Application No.125/77 before this Court. iv. 9.8.1994 Above petition was dismissed with other similarly situated petitions. v. 25.8.1995 Proceedings under section 6(1) against the petitioners. vi. 29.6.1998 Order under section 7 of SAFEMA against the petitioners. 10. It is, therefore, not in dispute that though an order of detention was passed against detenu-Hemant R Madam, the said order came to be revoked or withdrawn by subsequent order when the Emergency was lifted on 25.3.1977. This fact has not been seriously disputed by or on behalf of the respondents. 11. It has, therefore, been contended by the learned Sr.Counsel for the petitioner that when the order of detention was revoked or withdrawn then in that event, the proceedings under section 6 (1) of the SAFEMA could not have been undertaken by the competent authority. 12. On the other hand, Mr Dhaval Barot, learned Addl.Central Govt.Counsel for the contesting respondent makes it clear that for proceedings against any person under section 6(1) of the SAFEMA, an order of detention under the COFEPOSA is sine quo non. In other words, it is his contention that before passing an order under section 7 of SAFEMA and before proceeding under section 6(1) of SAFEMA, an order under the COFEPOSA for the detention of the detenu is a basic requirement. He also agrees that if no order has been passed under COFEPOSA for the detention of the detenu then in that event, the proceedings under section 6(1) cannot be vitiated or an order under section 7 of the said Act can also not be passed. In other words, an order of detention under the provisions of COFEPOSA is a basic requirement for proceedings against any person under the provisions of SAFEMA. 13. In the present case, it is not much in dispute that though the order of detention was passed against the detenu, the said order came to be withdrawn and the detenu came to be released from detention when the Emergency was lifted. On the strength of the above facts situation, the learned Sr.Counsel for the petitioner has argued at length that when the order of detention was not in existence at the relevant point of time, the competent authority could not have proceeded under section 6(1) of SAFEMA against the present petitioners. In order to understand the position, it may be stated here that Ghelubhai R Madam and Hemantbhai R Madam were real brothers. An order of detention referred to hereinabove was passed against Hemantbhai Madam and proceedings under section 6 of the SAFEMA had commenced against Ghelubhai Madam. However, in between Ghelubhai Madam passed away and, therefore, fresh proceedings were initiated against the present petitioners. Incidently, it may be noted that petitioner no.1 Ramilaben is the widow of deceased Ghelubhai Madam whereas other petitioners No.2,3,4 and 5 are sons of deceased Ghelubhai Madam. These facts are not dispute before this Court. 14. The learned Addl.Central Govt.Standing Counsel has contended that in the present case, the order of detention was withdrawn because the emergency was lifted. However, it is also his argument that the substantive petition filed by the detenu challenging his detention was dismissed by this court and, therefore, when the said petition was dismissed on merit, the present petition filed by the present petitioners would not lie. 15. It is required to be considered here that so far as the earlier petition is concerned, Special Civil Application No.125/77 came to be dismissed by this court in view of the position that in the said earlier petition, the challenge was to COFEPOSA as well as to the SAFEMA as contended by the learned Sr.Counsel for the petitioner. It has also been contended by him that on account of pronouncement of the decision in the case of Attorney General for India v. Amratlal Pranjivandas & Ors. (1995) 5 SCC 54, the constitutional validity of the said two Enactments was upheld. It is also the argument of the learned Sr.Counsel for the petitioner that the detenu in the earlier petition, had challenged the constitutional validity of the said two enactments but when the Hon'ble the Supreme Court had dealt with and decided the said issue and when the said issue was finally brought at rest by upholding the constitutional validity of the enactments, the said two issues could not be dealt with and decided by this court and, therefore, on account of the aforesaid pronouncement of the Supreme Court in the aforesaid decision, the petition filed by the detenu being Special Civil Application No.125/77 came to be dismissed under order of this Court. The said fact is also is not much in dispute. However, the learned Addl.Central Government Standing Counsel for the Union of India has argued that the said order of this Court should be treated to be an order on merit and, therefore, when the detention order was confirmed and the petition challenging the detention order was dismissed on merit, the present petition would not fall in terms of the aforesaid pronouncement of (1994) 5 SCC 52 (supra). 16. Now copy of the order passed by this court can be gathered at page 81. It is a short order which is reproduced for ready reference as under: "Special Civil Application No.125/1978 ORAL ORDER (Per. B N Kirpal, C.J.) In view of the decision of the Supreme Court in the case of Attorney General of India v. Amratlal Pranjivandas & Ors. reported in Judgment today 1994 (3) S.C. 583, this petition is dismissed." On a bare reading of the aforesaid order, it becomes very clear that this court had not dealt with and decided numerous issues which had arisen in the aforesaid petition. The order itself makes it clear that the petition was dismissed on account of the decision of the Supreme Court in the case of Attorney General for India (supra). Therefore, it has to be accepted that the earlier petition of the detenu was not disposed of on merit and, therefore, it would not be open to the Union of India or to the State of Gujarat to argue that since the earlier petition was disposed of on merit and since the detention order was confirmed, the present petition would not lie. 17. It has also been argued on behalf of the respondents that while dismissing the earlier petition, no reservation was made in favour of the petitioners. In other words, the argument is that the right of the detenu for filing fresh petition was not kept alive or reserved by the order of this Court. This fact cannot be disputed. However, a right to file fresh petition can be reserved more particularly when the petition is sought to be withdrawn. Now in the present case, the earlier petition was not withdrawn by the detenu or by the petitioners. In the said petition, the petition came to be dismissed under the order of this court. Therefore, when the order was passed by the court itself, then in that event, the Court may not mention in its order that the petition was being dismissed reserving the right of the petitioner to file fresh petition. 18. Even otherwise, the earlier petition was simply filed for the purpose of challenging the aforesaid two enactments namely; COFEPOSA and SAFEMA. There the order of detention was challenged on the ground that the aforesaid two enactments were not constitutionally valid. The detention order was not challenged on its on fact. 19. The learned Addl. Central Government Standing Counsel argues that the earlier petition was filed challenging the factual merit of the detention order. However, the copy of the said petition is not on record and, therefore, it becomes difficult for this court to verify the position and to state the correct position on record. Any way it becomes clear that the earlier petition was dismissed on a solitary consideration that in the case of Attorney General of India (supra), the Supreme Court had decided in favour of the constitutional validity of the aforesaid two enactments. Therefore, the said petition did not survive. This would clearly show that this court had not applied its mind to the factual dispute which might have arisen in the earlier petition. 20. Therefore, when the earlier petition was not decided on merit, then in that case, it cannot be said that the second petition challenging the factual merit would not lie. In this aspect of the case, it would be relevant to refer to certain decisions also. 20.1. In the case of International Wollen Mills v. Standard Wool (U.K.) Ltd. reported in 2001 (5) SCC 265, the matter related to the principles of res judicata under section 11 of the Civil Procedure Code, 1908. Here the court had passed decree in favour of the plaintiff after considering the plaint filed by the plaintiff. Though it was termed as a decree on merit, it was observed that no evidence was recorded but the decree was passed in presence of defendants and, therefore, it could not be termed as decree on merit and, therefore, a second proceeding would not be barred by the principles of res judicata under section 11 of the Code of Civil Procedure. 20.2. The learned Addl.Central Govt.Standing Counsel for the Union of India has also argued that in view of the decision of Attorney General of India (supra) referred to hereinabove also the present petition of the petitioner is not maintainable. For this purpose, he has referred to the observations of the Supreme Court in para 42 of the said judgment. There it has been observed as follows: "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 applying SAFEMA to him - this is for the reason that even if he is allowed to challenge the said order when he is served with the notice under section 6 of 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 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. Thus, the conclusion is that an order of detention to which section 12-A is applicable as well as an order of detention to which section 12-A was not applicable 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 nota 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." Thus, it can be seen that the order of detention to which section 12-A of COFEPOSA applies, the validity thereof can be examined during the Emergency period on the ground other than those barred during the emergency operation, if the said challenge has not been made or such challenge has been made unsuccessfully then on a subsequent challenge to the order of detention could not be undertaken when the proceedings under section 6(1) have been initiated. 21. In the present case, we find that the said observation will not be helpful to the present respondents. The reason is that as per the case of the petitioners the detenu had challenged the order of detention only on the ground that the COFEPOSA and SAFEMA were not constitutionally valid and, therefore, the order of detention was not valid and legal. Therefore, according to the argument of the learned Advocate for the petitioner, the earlier petition did not challenge the factual merits of the detention order and therefore, subsequent petition would not be a bar. When the aforesaid objections have been raised on behalf of the respondents, when the copy of the earlier petition has not been produced on record. It would be difficult for this court to hold that the earlier petition also contains challenge to the factual merit of the detention order and, therefore, it would be difficult to accept the arguments of the learned Standing Counsel that the second petition challenging the factual merit of the detention is not maintainable. 22. It has also been argued by the learned Sr.Counsel for the petitioner that an order of COFEPOSA for the detention of a detenu is a sine qua non for passing an order under SAFEMA and also for proceeding under section 6(1) thereof. This legal proposition has not been disputed at any point of time. Therefore, an order of detention has become an accepted basic requirement for passing an order under section 7 of the SAFEMA. In this connection we may refer to a decision in the case of Karimaben K Bagad v. State of Gujarat, reported in AIR 1998 SC 2938. There it has been clearly laid down that a valid order of detention is a condition precedent for proceeding under section 6 of SAFEMA. There the order of detention was passed on 25.2.1997. The said order was challenged by filing a writ petition being Special Criminal Application No.101/77. The order of detention came to be withdrawn on lifting of emergency. The petition was ordered to be disposed of on 8.8.1977 on the ground that the said detention order was revoked and the petition did not survive. Thereafter the proceedings had commenced under section 6(1) of SAFEMA. The said proceedings were challenged in the aforesaid matter and the observations of the Supreme Court in the said matter in paras 6, 7 and 8 may be reproduced for ready reference: "To deny her that right on the ground that after twenty years the challenge to the order of detention could not be revived was unjust and improper. Since, there had been no adjudication on the merits of the order of detention by the High Court, though the order had been challenged, the High Court ought to have gone into the question of