Case: NARENDER KUMAR Vs. UNION OF INDIA

to whom the provisions of this 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." 21. 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 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 Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). 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.22. 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the Proviso deal with three kinds of orders of detention under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.23. Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to 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.24. 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 merits.25. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. Question No.2 framed in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975) related to cases where orders of detention under Section 3 read with Section 12A of COFEPOSA were made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India. The decision in Haji Mastan Mirzawhich was considered in paras 40 and 41, however, pertained to different factual scenario. In Haji Mastan Mirza, as indicated in para 41 in the decision of Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975), the order of detention was made long prior to the proclamation of emergency on 25.6.1975. The Bench of nine Judges in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975) found that it was not possible to agree with the view taken in Haji Mastan Mirza. 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 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 Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). 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.An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view tohim from acting in any manner prejudicial to the conservation or augmentation of foreignor 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 theer 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 theer period expires later. Explanation to Section 10 states theto 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 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 Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). 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.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 under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to 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.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 detentionrun right through the duration or continuance of theThough 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 merits.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.The detention order was sought to be assailed before the High Court inter alia on the grounds of non-supply of documents; delay in passing the order of detention and supply of illegible documents. Those grounds were found to be without any substance by the High Court and the challenge so raised was negated.