Case: NARENDER KUMAR Vs. UNION OF INDIA

3. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974for 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 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 titledProvisions for dealing withwas inserted in COFEPOSA by Amendment Act of 1975 Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). Shortly thereafter, Amendment Act of 1976 Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (20 of 1976), which came into force on 12.12.1975 inserted Section 10A titledof Period ofLater, the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976for short) came into force with effect from 25.01.1976.6. The Emergency which came into force as a result of proclamation issued by the President on 25.06.1975, was lifted on 21.03.1977. On the very next day i.e. on 22 nd March, 1977 detention orders in respect of 49 detenus, including Roshan Lal, were revoked by the State Government.7. A notice under Section 6(1) of SAFEMA was issued by the Competent Authority to Roshan Lal on 30.04.1977 calling upon him to show the source of his income, earnings or acts or by means of which he had acquired properties mentioned in the schedule to said notice and to show cause why said properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA. A similar notice was also issued to Smt. Sheelawati, wife of Roshan Lal under the provisions of Section 6(1) of SAFEMA on 11.01.1978 to show cause why the properties mentioned in the schedule to the notice be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA.8. 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 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 asTo 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 Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule. We assume them to be good and valid. No arguments have also been addressed with respect to the validity of 42nd Amendment Act to the Constitution either.(3) (a) An order of detention made under Section 3 of COFEPOSA, which was governed by Section 12-A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. Since the President had issued an order under Article 359(1) suspending Articles 14, 21 and 22, it became competent for Parliament, by virtue of clause (1-A) of Article 359 to enact Section 12-A of COFEPOSA for the duration of and limited to the period for which the Presidential Order was in force. It was meant to achieve the purposes of emergency. Once Section 12-A is held to be a competent piece of legislation, orders of detention made thereunder (i.e. orders of detention to which the said provision applied) cannot be held to be not amounting to orders of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA, particularly in view of the express language of Section 2(2) (b) [including proviso (iii) thereto] — and the protection enjoyed by both the enactments by virtue of their inclusion in the Ninth Schedule to the Constitution.(b) 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 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 ofin 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 ofdealt 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.Thereafter, Civil Writ Petition No.509 of 1996 was filed on 12.08.1996 by the present appellant, as son of late Shri Roshan Lal, seeking to challenge the order of detention dated 19.12.1974 as aforesaid as well as the order dated 29.05.1978 passed by the Competent Authority. The prayers in the petition were(a) Quash the detention order dated 19.12.1974 passed by respondent No.3 under Section 3(1) of COFEPOSA Act.(b) Quash the order dated 29.05.1978 passed by the respondent No. 2 under Section 19(1) of Smugglers & Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.(c) Restrain the respondent from acquiring/dispossessing the petitioners of the said properties, namely, house property municipal No.1115/X-5, Dhab Khatika, RB Seindas Road, Amritsar and factory premises bearing No.76, 78-Min Private, Khewat/Khatauni No.31, Khasra No.745, Jawahar Nagar, Batala Road, Amritsar along with some machinery installed therein.(d) Issue such other writ, order or direction as thisCourt may deem just and equitable on the facts and in the circumstances of the present case.The High Court found that the dismissal of Writ Petition No.138 of 1975 against the order of detention not having been challenged by Roshan Lal, Writ Petition No.509 of 1996 was barred by principles of res judicata. A challenge was raised to the correctness of said decision of the High Court by filing Criminal Appeal No.1046 of 1997 in this Court by the appellant. The Appeal was allowed by this Court by its order dated 24.02.2004. While setting aside the decision of the High Court, the matter was remanded back to the High Court for fresh disposal of the Writ Petition on merits. During the course of its order, this Court…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.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 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 underappellant came to be detained on 17.12.2002. Criminal Writ Petition No.296 of 2003 preferred by the appellant was dismissed by the High Court of Punjab and Haryana on the ground that said High Court had no jurisdiction to entertain the petition. The appellant, thereafter, filed Writ Petition (Criminal)No.997 of 2003 in the High Court of Delhi on 21.08.2003. The appellant was released on completion of one year on 17.12.2003. After such release, proceedings under SAFEMA were initiated by the Competent Authority on 29.03.2005. Writ Petition (Criminal) No.997 of 2003 was dismissed by the High Court of Delhi on 02.05.2008 against which present appeal has been preferred by the appellant. The appeal was tagged with the earlier appeal viz. Criminal Appeal No.1492 of 2009.

Reasoning:
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.