- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1479 OF 2008 Smt. Sughrabai Sadruddin Chunara, Age 67 years, an Indian inhabitant, residing at 104, Megji Building, A-Block, 2nd Floor, Room No.25, Shivdas Chapsi Marg, Mazgaon, Mumbai-400 010. .... Petitioner - Versus - 1. The Union of India through the Secretary to the Government of India, Ministry of Finance, Department of Revenue, North Block, Central Secretariat, New Delhi. 2. Shri D.S. Negi, the Competent Authority under the SAFEMA. having his office at Mittal Court, C-Wing, 3rd Floor, Nariman Point, Mumbai-400 021. 3. The State of Maharashtra through the Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai-32. 4. Ms Neela Satyanarayana, - 2 - the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai-32. .... Respondents Ms A.M.Z. Ansari for the Petitioner. Ms A.S. Pai, Addl. Public Prosecutor, for the State. CORAM: BILAL NAZKI & A.R. JOSHI, JJ. RESERVED ON : SEPTEMBER 18, 2009 PRONOUNCED ON: NOVEMBER 09, 2009 JUDGMENT (Per Bilal Nazki, J.): 1. The petitioner is the mother of one Sadik Sadruddin Chunara. Against the said Sadik, an order of detention has been issued on 31-10-2005 in terms of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA") by the Competent Authority. This order has neither been revoked - 3 - nor quashed. On 25-1-2008, a Notice in terms of Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the SAFEMA") was issued against the petitioner and her son Sadik by the Competent Authority wherein it was mentioned that on 31-10-2005 an order was passed for detaining Sadik. The petitioner was informed that she was a person covered under Section 2(2)(b) of the SAFEMA and, therefore, there were reasons to believe that the property set out in the schedule to the Notice was an illegally acquired property within the meaning of clause (c) of sub-section (1) of Section 3 of the SAFEMA. The petitioner was called upon to show cause as to why the said property should not be declared to be illegally acquired and forfeited to the Central Government. 2. The petitioner claims an independent - 4 - right to challenge the order of detention passed against Sadik as the said order is the basis for issuance of the Notice under Section 6(1) of the SAFEMA and visits her with civil consequences. 3. The order of detention has been challenged by the petitioner on various grounds. The petitioner's son was arrested along with one Dattatraya Chandrakant Bodke on 4-3-2005 for their alleged involvement in smuggling activities. The petitioner's son was released on bail on 6-4-2005. The seizure of the alleged offending goods was effected on 26-2-2005. Statements alleged to have been made by the petitioner's son were recorded on 3-3-2005, 7-3-2005, 16-3-2005 and 29-4-2005. The petitioner's grievance is that even though the crucial part of the investigation in the case qua the son of the petitioner was completed in April, 2005, the order of - 5 - detention was passed only on 31-10-2005, that is to say there was an undue delay of six months in passing the order of detention and within this period if there were any links of the petitioner's son with any smuggling activity, those had been cut off. The petitioner does not have either the copy of the order of detention or the grounds of detention passed against her son but she assumes that the grounds of detention and the order of detention would be same as is passed in the case of the said Bodke as her son and Bodke were arrested on similar allegations. The petitioner submits that the order of detention passed by the detaining authority with respect to Bodke does not record satisfaction of the detaining authority that the detenu was involved in smuggling and as such the order of detention was bad. She presumes that such defect was there in the order so passed against the petitioner's son as well. Counter affidavits - 6 - have been filed in which it is stated that the writ petition has been filed at a pre-execution stage and the detenu has not surrendered and is absconding. Therefore, the writ petition is not maintainable. It is also stated that all the material which was placed before the detaining authority was considered by the detaining authority before the order of detention came to be passed. It is denied that there was any undue delay in passing the order of detention. In the light of these pleadings, two questions arise for consideration by this Court. Firstly, whether the present petition is maintainable or not and secondly, if the petition is maintainable, whether the order of detention passed against the son of the petitioner can be quashed? 4. The Notice under Section 6(1) of the SAFEMA was issued on 25-1-2008. While in para 1 thereof it is stated that an order had been - 7 - passed on 31-10-2005 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against Sadik Sadruddin Chunara, in para 2 it is stated that since the petitioner was the mother of Sadik, therefore, she was covered under the provisions of Section 2(2)(c) of the SAFEMA. The basis for issuance of the Notice under Section 6(1) is the order of detention passed against Sadik on 31-10-2005. The learned counsel appearing for the petitioner, therefore, submits that if she is able to demonstrate that the order of detention was illegal and bad, the consequential notice, which is impugned in the present petition, will have to be quashed. Otherwise, the petitioner will suffer as her son has not chosen to challenge the order of detention. The learned APP, on the other hand, submits that it is not possible to challenge an order of detention prior to detention except on the limited grounds, as has been held by the - 8 - Supreme Court in the matter of Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, reported in (1992) Supp 1 SCC 496. She further submits that merely because the petitioner may suffer some civil consequences, she cannot challenge the order of detention at a pre- detention stage. Various authorities have been cited. Before considering those authorities, it will be important to refer to certain provisions of the SAFEMA. 5. Section 2 lays down the category of the persons to whom the SAFEMA would apply. We are concerned with Clauses (b) and (c) of Section 2(2). While Clause (b) lays down that every person in respect of whom an order of detention has been made under the COFEPOSA would be subject to the SAFEMA and the Act would apply to him/her, Clause (c) says that every person who is a relative of a person - 9 - referred to in Clause (b) would also be subject to the SAFEMA and the Act would apply to him/her. Therefore, it follows that since an order of detention was passed against the son of the petitioner, the Notice under Section 6(1) of the SAFEMA could be issued to her. Had there been no order of detention passed against the son of the petitioner, the Notice under Section 6(1) could not have been issued unless it had satisfied some other provisions of Section 2. Further, under sub-section (2)(b) (iv) of Section 2, the Act would not apply if such an order of detention has been set aside by a Court of competent jurisdiction. Therefore, the learned counsel for the petitioner submits that if she is able to convince the Court that the order of detention was illegal and bad, the SAFEMA would not at all apply to the petitioner. The application of the SAFEMA, in the present case, is dependent on the legality or otherwise of the - 10 - order of detention. The learned counsel has relied on various judgments of this High Court to submit that a person who is affected by an order of detention has an independent right to challenge such order of detention without even asking for a habeas corpus. She refers to a Division Bench Judgment of this Court delivered in Criminal Writ Petition No.1380 of 1986 {Mohideen Tayab Sony v. K.K. Dwivedi & Ors.} on 20-8-1987. The Division Bench relied on two judgments, the first being in the case of Jayantilal Bhagwandas Shah v. State of Maharashtra {1981 Cri.L.J. 767} and the other in Criminal Writ Petition No.622 of 1982, dated 21-11-1983. According to the Division Bench, the effect of these two authorities is that the legality of an order of detention can be questioned where the claimants do not want Court to issue writs of habeas corpus. The learned counsel has also drawn our attention to various orders passed by the Supreme Court - 11 - where the orders of detention were challenged but the State made a submission that they would not proceed under the SAFEMA. These orders would not be a precedent for this Court to be followed. In Criminal Writ Petition No.1379 of 1991, an order was passed by this Court on the assurance of the State that they will not proceed against the petitioner under the SAFEMA but an observation was made that the petitioner was not challenging the order of detention in her representative capacity as the wife of detenu-designate. The learned APP, on the other hand, has placed reliance on a judgment of the Supreme Court delivered by a Bench of Nine Judges in Attorney General for India and others v. Amratlal Prajivandas and others, reported in AIR 1994 SC 2179. This was a case which fell under Section 12-A of the COFEPOSA, a provision applicable during emergency. Orders of detention and forfeiture of properties had been passed during the emergency - 12 - and they were challenged after the lifting of emergency as the orders could not have been challenged during the emergency because of a judgment of the Supreme in Additional District Magistrate, Jabalpur v. Shivakant Shukla, reported in (1976) 2 SCC 521. The Supreme Court framed as many as six questions and answered these questions in the light of the fact that the impugned orders had been passed during the emergency. Para 35 of the said judgment mentions the respective cases of the parties before the Supreme Court. The said para reads thus: "35. On the other hand, the learned counsel for the petitioners contend that the order of detention made under S.3 read with S.12A of COFEPOSA is void for being inconsistent with the provisions in Art.22 which were not suspended. The mere suspension of enforcement of the said Article does not amount to suspension of the right. The orders of detention were, therefore, void and they remained in operation only because the detenus were barred from questioning the validity of the said orders on account of the ban imposed by the Presidential Order under Article 359(1). They submit - 13 - that the detention orders governed by S.12A of COFEPOSA are inherently arbitrary and unjust. An order of preventive detention is made without even telling the detenu of the grounds of his detention and without giving him an opportunity to make a representation. Even the protection of consideration of his case by an independent body (Advisory Board) is taken away. The detenu is rendered totally helpless. He is left with no remedy. He cannot prove his innocence. Such an order of detention is opposed to all concepts of fairness, civilised conduct and democratic norms. They submit that such orders cannot form the foundation or the basis for applying SAFEMA to them. Their argument is evocative of what Justice Cardozo once said: "We must always take care to safeguard the law against the assaults of opportunism, the expediency of the passing hour, the erosion of the small encroachments, and the scorn and derision of those who have no patience with general principles." It further said: "36. The contending view points aforesaid give rise to two strands of thought. One line of thought runs thus: By virtue of Cl.(A) of Art.359, inserted by the Constitution 38th (Amendment) Act with retrospective effect, S.12A must be deemed to have been competently enacted, no doubt for the duration of and limited to the - 14 - period of the Presidential Order. If so, the detention thereunder cannot be said to be invalid. While the order of detention cannot certainly subsist beyond the cessation of the Presidential Order because S.12A cannot itself subsist beyond each cessation, neither S.12A nor the order of detention governed by it can be characterised as illegal or invalid during the period the Presidential Order was in force. Once this is so, such order of detention does undoubtedly represent an order of detention within the meaning and contemplation of S.2(2) (b) of SAFEMA. That it was not open to challenge during the period of the Presidential Order, or that it was not subject to the constitutional safeguards provided by Art.22 does not affect its validity or legality. It was a valid order of detention when made. It is not being enforced or acted upon beyond the period of Presidential Order. Since it is an existing fact, it is merely being taken notice of - and that is enough to attract SAFEMA to such detenu, his relatives and associates. S. 2(1) of SAFEMA says, "the provisions of this Act shall apply only to the persons specified in sub-sec.(2)" and sub-sec.(2) speaks inter alia of a person "in respect of whom an order of detention has been made under the COFEPOSA, 1974". Indeed, provisos (i), (ii) and (iii) to Cl. (b) of sub-sec.(2) of S.2 of SAFEMA expressly refer to the order of detention made under S.12A and - 15 - expressly affirm that such an order of detention is an order of detention for the purposes of the said clause. The fact remains that provisions of SAFEMA were enacted in the first instance as an Ordinance issued on 5th November, 1975, i.e., during the period of emergency and later enacted into an Act and given effect from the date of the Ordinance. An order of detention governed by S.12A of COFEPOSA must, therefore, be held to be an order of detention for the purpose of and within the meaning of Section 2(2) (b) of SAFEMA. The other line of reasoning goes along the following lines: an order of detention governed by S.12A is a special type of order made for the limited purpose of dealing effectively with the emergency. It has no existence, relevance or effect except for the said limited purpose. Outside such purpose, it is non est. It does not exist. If so, such an order of detention cannot furnish the foundation, the connecting link, or the basis for applying SAFEMA. A normal order of preventive detention is itself an uncivilized action. An order of detention governed by S.12A of COFEPOSA - denying as it does even the minimum safeguards provided by Cls.(4) and (5) of Art.22 - is an abhorrent action. It may be tolerated as a cruel necessity when the very life of the Nation is threatened but it cannot certainly be recognised or taken note of for any other purpose - much less made the basis of applying an extremely - 16 - drastic enactment like SAFEMA. Treating such order of detention as an order of detention for the purpose of and within the meaning of S.2(2)(b) of SAFEMA amounts to enforcing or giving effect to the said order of detention beyond and outside the period of emergency and for purposes foreign to emergency. This is totally impermissible. S. 12A does not sanction this - though it sanctions a lot many things." This judgment, however, takes note of an earlier judgment of the Supreme Court in the matter of Union of India v. Haji Mastan Mirza, reported in AIR 1984 SC 681. In this judgment, the Supreme Court observed thus: "Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under Ss.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 Ss.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." The Court did not find itself in agreement with these observations in the facts and circumstances of the case because the order of - 17 - detention although had been passed before the emergency, but it was challenged after the emergency and after Section 12-A of the COFEPOSA had come into force. The Court said, "Hence, we say that a person who did not choose to challenge such an order of detention during the emergency when he was detained, or challenged it unsuccessfully cannot be allowed to challenge it is sought to be made the basis for applying SAFEMA to him." Then it also said, "Failure to challenge the detention directly when he was detained, precludes him from challenging it after the cessation of detention, where it is made the basis for initiating action under SAFEMA." Therefore, we are of the view that this judgment would not apply to the facts of the present case. 6. In any case, the petitioner herein might not have been aggrieved by the order of detention as such but she is aggrieved by the Notice issued to her under Section 6(1) of the - 18 - SAFEMA. Therefore, after the Notice was issued, she has immediately challenged the order of detention. 7. In view of the discussion as above, we hold that a person who is aggrieved by the application of the SAFEMA to him/her consequent to passing an order of detention under the COFEPOSA, such a person has an independent right to challenge the order of detention, although such person may not seek a writ of habeas corpus. After holding as above, it will have to be seen whether the order of detention is bad. 8. Only one ground was agitated by the learned counsel for the petitioner, as has been mentioned above, that there was undue delay in passing the order of detention. The petitioner could not have pointed out other defect, if any, because she did not have the grounds of - 19 - detention. 9. We called for the record of the case and have also gone through the same. The record shows that the Deputy Director, DRI, MZU, Nhava Sheva Unit, Raigad wrote a letter on 23-6-2005 in which he proposed preventive detention of the son of the petitioner. According to this letter, the date of seizure was 4-3-2005 and the date of arrest was also 4-3-2005. This letter also shows the date of the last statement recorded under Section 108 of the Customs Act as 29-4-2005. A retraction of the statement by the detenu was made on 10-3-2005. The record also shows that after the letter was scrutinized in the office of the detaining authority, it was found that the documents relied upon and furnished along with the letter at page Nos.61, 168, 235, 246, 252, 354, 360, 363, 378, 393, 401, 417, 480 and 606 were not legible. When a note was put to the - 20 - detaining authority, it went through the normal channel of the Under Secretary and the Deputy Secretary and the Deputy Secretary on 16-7-2005 made a note that, "The legible documents should be called as at 'A' from S.A.". Two things are clear from this note: firstly, that for scrutiny of the application moved by the Deputy Director, it took about two months in the office of the Principal Secretary (A&S) & D.A. and secondly, the copies of the relied upon documents were not legible. Thereafter, it appears that the file was put up again on 6-8-2005 by the Under Secretary with the note that the copies of the documents which were called for were furnished except the legible copy of page No.606. It was also pointed out that the proposed detenu had made a representation on 26-7-2005 which was being considered. The file was put up before the Principal Secretary (A&S) & D.A. on 22-9-2005 and it has the following note: - 21 - "Discussed with the P.S.(A&S) & D.A. D.A. instructed to prepare a detailed note showing evidences & corroborative evidences of the involvement of the P.D." The file was again put up by the Deputy Secretary before the detaining authority on 4-10-2005. Although the entire material was before him, but he found that the proposed detenu had made another representation on 3-10-2005. Therefore, he called for a detailed note showing evidences and corroborative evidences of the involvement of the proposed detenu. Ultimately, on 19-10-2005 when another note was placed before the detaining authority, she recorded that, "There appears to be enough evidence to detain the PDs. Shri Chunara & Shri Bodke. Detention Orders be issued." Now this is interesting. 10. Section 3 of the COFEPOSA lays down that the detaining authority should be satisfied that, with a view to preventing a - 22 - person from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing such person from indulging in certain acts, it was necessary so to do, make an order directing that such person be detained. Perusal of Section 3 clearly discloses that the detaining authority before making an order directing that a person be detained, should be satisfied that such person was acting in the manner prejudicial to the conservation or augmentation of foreign exchange or was involved in smuggling of goods, or abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods, or dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods and such satisfaction should be recorded on the file. This satisfaction can - 23 - be arrived at only after the grounds of detention have been formulated by the detaining authority. In the case in hand, when the detaining authority on 19-10-2005 directed the issuance of detention orders, there were no grounds formulated. It is also unfortunate to note that the detaining authority did not even apply her mind to formulate or frame the grounds of detention because the note put up to the Under Secretary on 25-10-2005, obviously by a person lower in rank to the Under Secretary, reads as under: "As directed by the Detaining Authority draft grounds of detention in respect of Shri Sadik Chunara are formulated and submitted for approval of the Detaining Authority." From the above it is clear that the grounds of detention were formulated by a person below the rank of Under Secretary. The application of mind is by the person of such a rank and not by the detaining authority. The Under Secretary, the Deputy Secretary and the detaining - 24 - authority merely singed this note and on 31-10-2005 another note was submitted to the detaining authority which reads thus: "Relied upon documents are arranged. Fair copies of detention order, grounds of detention are submitted for signature of the Detaining Authority." 11. From the above discussion, it appears that there was undue and unexplained delay in issuing the order of detention and also there was non-application of mind by the detaining authority. Therefore, the order of detention bearing No.PSA-1205/12(2) SPL-3(A), dated 31-10-2005, and the proceedings initiated pursuant to the Notice dated 25-1-2008, issued under Section 6(1) of the SAFEMA, are quashed and set aside. The rule is made absolute in above terms with no order as to costs. Sd/- (BILAL NAZKI, J.) Sd/- (A.R. JOSHI, J.)