Narender Kumar vs Union Of India

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 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.

9. After considering the replies to the notices under Section 6(1) of SAFEMA submitted by Roshan Lal and after considering the material on CRIMINAL APPEAL NO. 1492 OF 2009 NARENDER KUMAR VS. UNION OF INDIA AND OTHERS 5 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.

The grounds of detention were served on him on 23-12- 1974. On 25-6-1975, emergency was proclaimed under Article 352(1) on the ground of internal disturbance, which continued to be in force up to 21-3-1977. The respondent was released on 23-3-1977. Notice under Section 6(1) of SAFEMA was issued to him, his relatives and associates whereupon he filed a writ petition in the Bombay High Court challenging the validity of the order of detention dated 19-12-1974 on the ground inter alia that he was not supplied with the documents clearly and unmistakably relied upon for arriving at the requisite satisfaction and which documents were also referred to in the grounds of detention served upon him. The Bombay High Court allowed the writ petition, against which the Union of India appealed to this Court. Varadarajan, J. speaking for the Bench referred to the provisions of Sections 2, 6 and 7 of SAFEMA and observed thus: (SCC p. 432, para 10) 4 (1984) 2 SCC 427 CRIMINAL APPEAL NO. 1492 OF 2009 NARENDER KUMAR VS. UNION OF INDIA AND OTHERS 14 “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.”

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.” CRIMINAL APPEAL NO. 1492 OF 2009 NARENDER KUMAR VS. UNION OF INDIA AND OTHERS 8

(ii) the periods of "one year" and "five weeks"

Explanation 2.--For the purposes of clause (c), "relative", in relation to a person, means-

(i) spouse of the person;

(ii) brother or sister of the person;

(iii) brother or sister of the spouse of the person;

son;

(vi) spouse of a person referred to in clause (ii), clause (iii), clause (iv) or clause (v);

(vii)any lineal descendant of a person referred to in clause (ii) or clause (iii).

Explanation 3.-For the purposes of clause (d), "associate", in relation to a person, means-

(i) any individual who had been or is residing in the residential premises (including outhouses) of such person;

(v) any person who had been or is managing the affairs, or keeping the accounts, of any association of persons, body of individuals, partnership firm or private company referred to in clause (iii);

(vii)where the competent authority, for reasons to be recorded in writing, considers that any properties of such person are held on his behalf by any other person, such other person.

27. In the aforesaid circumstances, the challenge to order of detention dated 19.12.1974 passed under the provisions of COFEPOSA in respect of Roshan Lal must fail. Further, the Competent Authority and the Appellate CRIMINAL APPEAL NO. 1492 OF 2009 NARENDER KUMAR VS. UNION OF INDIA AND OTHERS 29 Tribunal constituted under the provisions of SAFEMA had, after issuance of due notice and granting every opportunity to the noticees, arrived at findings that the properties mentioned in the schedules to the notices were illegally acquired and that they stood forfeited to the Central Government free from all encumbrances. All the prayers made in Civil Writ Petition No.509 of 1996 being meritless said Writ Petition deserved to be rejected and was rightly dismissed by the High Court.

28. We, therefore, see no reason to take a different view in the matter and this Criminal Appeal is dismissed.

CRIMINAL APPEAL NO.1493 OF 2009

29. In this Appeal, an order of detention was passed against the appellant on 14.08.2002 under Section 3(1) of COFEPOSA. The appellant 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 APPEAL NO. 1492 OF 2009 NARENDER KUMAR VS. UNION OF INDIA AND OTHERS 30 (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.

30. 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. Having gone through the record, we do not find any error in the view taken by the High Court. We, therefore, dismiss this Appeal.