NARENDER KUMAR versus UNION OF INDIA AND OTHERS

[2019] 6 S.C.R.

NARENDER KUMAR

UNION OF INDIA AND OTHERS

(Criminal Appeal No.1492 of 2009)

APRIL 08, 2019

[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]

Smugglers and Foreign Exchange Manipulators (Forfeitureof Property) Act, 1976 (SAFEMA) : s.2(2)(b) and its proviso – Ap-plicability of – Competent Authority under MISA directed detentionCof one ‘R’ on 5.11.1974 with view to prevent him from dealing insmuggled goods prior to COFEPOSA came into force on 13.12.1974– On 19.12.1974, the competent authority under COFEPOSA di-rected his detention with view to prevent him from dealing insmuggled goods – Representation of detenu was rejected – OnD29.4.1975, his son filed writ of habeas corpus and prayed for quash-ing of detention orders dated 5.11.1974 and 19.12.1974 – Procla-mation of Emergency on 25.6.1975 – With effect from 1.7.1975,s.12A was inserted in COFEPOSA by Amendment Act of 1975 –s.10A was inserted on 12.12.1975 dealing with extension of periodof detention – Later SAFEMA came into force w.e.f. 25.1.1976 –EEmergency was lifted on 21.3.1977 – Next day, i.e. on 22.3.1977,detention orders in respect of 49 detenus including ‘R’ were re-voked by the State Government and detenu was released – On30.4.1977, Competent Authority under SAFEMA issued notice todetenu and his wife to show cause the source of their income orFacts or by means of which they had acquired properties and whysaid properties be not declared illegally acquired and forfeited –Writ Petition for quashing of orders dated 5.11.1974 and19.12.1974 which was alive and pending in High Court was dis-posed of as having become infructuous – After considering repliesto the notices under SAFEMA, on 29.5.1978, the Competent Au-Gthority held that the property mentioned in the schedule to the orderwas illegally acquired and that it stood forfeited – Writ petitionfiled against the said order was dismissed holding that there was norevocation of detention before the expiry of the Emergency and assuch provisions of s.2(2)(b) of SAFEMA would get attracted – On

appeal, held: For the substantive provision under s.2(2)(b) to ap-ply, the matter must not be covered under any of the four parts ofthe proviso – Part (i) of the proviso to s.2(2)(b) deals with cases towhich s.9 or s.12A of COFEPOSA did not apply – In the instantcase, there was neither any declaration under s.9 nor any procla-mation under s.12A – Thus, s.9 and s.12A did not apply – In termsof Part (i) of the proviso, if the order of detention was not revokedunder the conditions stipulated therein, the substantive provisionsof s.2(2)(b) must apply – The order of detention was not revokedunder any of the postulates of the proviso to s.2(2)(b) nor was it setaside by any competent court and as such the provisions of SAFEMAmust apply – In terms of Part (i) of the proviso, if the order of deten-tion was not revoked under the conditions stipulated therein, thesubstantive provisions of s.2(2)(b) must apply – In the instant case,there was no such revocation and in view of Part (i) of the proviso,the provisions of SAFEMA must apply – High Court rightly ob-served that the detention “had run right through the duration orcontinuance of the emergency” – Maintenance of Internal SecurityAct, 1971 (MISA) – s.3(2) – Conservation of Foreign Exchangeand Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

Dismissing the appeals, the Court

HELD: 1. An order of detention under Section 3(1) ofCOFEPOSA can be made against person with view to“prevent him from acting in any manner prejudicial to theconservation or augmentation of foreign exchange” or with viewto prevent him from indulging in activities mentioned in saidSection 3(1). If the Advisory Board finds that there is sufficientcause for detention under Section 8(f), the period of detentionunder Section 10 could be one year or the “specified period”whichever expires later. In cases where declaration underSection 9 was issued, the maximum period of detention in termsof said Section 10, upon approval being accorded by theAdvisory Board, could be two years or the “specified period”whichever period expires later. Explanation to Section 10 statesthe “specified period” to be the period during which theproclamation of Emergency issued under Article 352 of theConstitution, inter alia, on 25.06.1975 would be in operation. Ifan order of detention was passed after the commencement of the

AAmendment Act of 1975 and the officer making the order ofdetention considered the detention of such person to benecessary for dealing effectively with the Emergency, procla-mation under Section 12A could be issued. [Para 22][503-C-F]

2. In terms of Section 2 of SAFEMA, the provisions ofBsaid Act would apply inter alia to every person in respect of whoman order of detention had been made under COFEPOSA, subjectto proviso contained in Section 2(2)(b). Proviso to Section 2(2)(b)of SAFEMA then carves out four exceptions to the applicabilityof substantive provisions to Section 2(2)(b). First three parts ofthe Proviso deal with three kinds of orders of detention underCCOFEPOSA and stipulate that if the order was revoked duringthe period mentioned therein, the substantive provision wouldnot apply. Part (iv) of the proviso get attracted where the orderof detention is set aside by court of competent jurisdiction. Forthe substantive provision under Section 2(2)(b) to apply the matter

Dmust not be covered under any of those four parts of the proviso.[Para 23][503-G-H; 504-A-C]

3. Part (i) of the proviso to Section 2(2)(b) deals with casesto which Section 9 or Section 12A of COFEPOSA do not apply.In the instant case, there was neither any declaration underESection 9 nor was there any proclamation under Section 12A.The order of detention was also not passed after the AmendmentAct of 1975 came into force. Thus, Section 9 and Section 12A didnot apply. In terms of said Part (i) of the proviso, if the order ofdetention was not revoked under the conditions stipulatedtherein, the substantive provisions of Section 2(2)(b) must apply.FIn the instant case, there was no such revocation and going bythe text of Part (i) of the proviso, the provisions of SAFEMAmust apply in the instant case. Parts (ii) and (iii) of the provisoare cases where substantive orders of detention to whichprovisions of Section 9 and Section 12A respectively apply andGas such they are not relevant for the present consideration. Part(iv) of the proviso which speaks of cases where order of detentionis set aside by court of competent jurisdiction, appliesirrespective whether the matter comes under Section 3(1)simplicitor or comes under Section 9 or Section 12A. The orderof detention was not set aside in the present matter and as suchH

Part (iv) is also inapplicable to the instant case. [Para 24][504-C-F]

4. The order of detention in this case was not revokedunder any of the postulates of the proviso nor was it set aside byany competent court and as such the provisions of SAFEMA mustapply. The High Court was right in observing that the detention“had run right through the duration or continuance of theemergency”. Though the petition was pending during the lengthof this time and was taken up for hearing after the lifting of theemergency, no attempts were made to have the petition disposedof on merits. The notices under SAFEMA were issued to thedetenu and his wife while the possibility that the SAFEMAproceedings could be premised on the validity of the detentionorder was very much alive and yet, the matter was chosen not tobe agitated on merits. [Para 25][504-F-H; 505-A-B]

5. In the instant case, the representation dated 17.01.1975was considered by the State on 11.02.1975 and the rejection wascommunicated to the detenu. Moreover, at no stage, anygrievance was raised that the grounds of detention were notcommunicated to him in language known to him. Similarly, thesubmission that the grounds of detention were identical, is alsowithout any merit. Insofar as the order of detention underCOFEPOSA was concerned, the grounds dealt with instanceswhere the detenu had indulged in smuggling of goods, on thebasis of which subjective satisfaction was arrived at as regardshis propensity to deal in smuggled goods. In the saidcircumstances, the challenge to order of detention dated19.12.1974 passed under the provisions of COFEPOSA fail.Further, the Competent Authority and the Appellate Tribunalconstituted under the provisions of SAFEMA had, after issuanceof due notice and granting every opportunity to the noticees,arrived at findings that the properties mentioned in the schedulesto the notices were illegally acquired and that they stood forfeitedto the Central Government free from all encumbrances. All theprayers made in Civil Writ Petition No.509 of 1996 beingmeritless said Writ Petition deserved to be rejected and wasrightly dismissed by the High Court. [Paras 26, 27][505-B-D;E-F]

AAttorney General for India and Others v. AmratlalPrajivandas and Others (1994) 5 SCC 54: [1994] 1Suppl. SCR 1 – relied on.

Union of India v. Haji Mastan Mirza (1984) 2 SCC427 : [1984] 3 SCR 1 - Distinguished.

Case Law Reference

[1994] 1 Suppl. SCR 1 relied onPara 10[1984] 3 SCR 1 DistinguishedPara 18

CCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1492 of 2009

From the Judgment and Order dated 02.05.2008 of the High Courtof Delhi at New Delhi in Writ Petition (Crl.) No. 509 of 1996

With

Criminal Appeal No. 1493 of 2009.

R.M. Bagai, Ms. Amita Singh Kalkal, Ms. Aditi Gupta, AmlanKumar Ghosh, Advs. for the appellant.

Aman Lekhi, ASG, Saurabh Mishra, R. Singh, B. K. Prasad,EMrs. Anil Katiyar, Saurabh Mishra, Ranvijay Singh, B.V. Balaram Das,Ms. Jaspreet Gogia, Advs. with him for the respondents.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.FCRIMINAL APPEAL NO.1492 OF 2009

1. This appeal questions the correctness of the judgment and or-der dated 02.05.2008 passed by the High Court of Delhi at New Delhi inWrit Petition (Criminal) No.509 of 1996.

2. In exercise of power under Section 3(2) of the Maintenance ofGInternal Security Act, 1971 (‘MISA’ for short), as amended by Section6(6)(c) of Defence of India Act, 1971 and Section 2(1)(c)(iii) of InternalSecurity (Amendment) Ordinance, 1974, by order dated 05.11.1974, theSuperintendent of Police, Amritsar directed that one Roshan Lal bedetained with view to prevent him from dealing in smuggled goods.

3. The Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 (‘COFEPOSA’ for short) came into forceon 13.12.1974. Deputy Secretary to the Government of Punjab, HomeDepartment, Chandigarh, passed an order on 19.12.1974 under Section3 of COFEPOSA detaining said Roshan Lal with view to prevent himfrom dealing in smuggled goods. In the grounds of detention in supportof the detention order, it was inter alia stated that in the first week ofJuly 1974 one Yusuf, resident of Lahore, Pakistan, notorious smugglerin gold had contacted Roshan Lal who had agreed to purchase smuggledgold at the rate of Rs.600/- per tola; that Roshan Lal had purchased 50smuggled gold biscuits and had paid Rs.3 lakhs; and that later he hadalso purchased 25 Gold biscuits of ten tolas each, that were smuggled on18.08.1974 and paid Rs.1.5 lakhs.

4. On 17.01.1975 Roshan Lal preferred representation againstthe order of detention dated 19.12.1974 addressed to State of Punjab,through Superintendent of Police, Patiala. The representation wasrejected 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 Courtof Punjab and Haryana seeking writ of habeas corpus and praying forquashing of aforesaid detention orders dated 05.11.1974 as well as19.12.1974.

5. With effect from 01.07.1995 Section 12A titled “SpecialProvisions for dealing with Emergency” was inserted in COFEPOSAby Amendment Act of 1975[1]. Shortly thereafter, Amendment Act of1976[2], which came into force on 12.12.1975 inserted Section 10A titled“Extension of Period of Detention”. Later, the Smugglers and ForeignExchange Manipulators (Forfeiture of Property) Act, 1976 (‘SAFEMA’for short) came into force with effect from 25.01.1976.

6. The Emergency which came into force as result ofproclamation issued by the President on 25.06.1975, was lifted on21.03.1977. On the very next day i.e. on 22[nd] March, 1977 detentionorders in respect of 49 detenus, including Roshan Lal, were revoked bythe State Government.

1 Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment)Act (35 of 1975)

2 Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment)Act (20 of 1976)

ABC

A7. notice under Section 6(1) of SAFEMA was issued by theCompetent Authority to Roshan Lal on 30.04.1977 calling upon him toshow the source of his income, earnings or acts or by means of whichhe had acquired properties mentioned in the schedule to said notice andto show cause why said properties be not declared to be illegally acquiredproperties and forfeited to the Central Government under the provisionsBof SAFEMA. similar notice was also issued to Smt. Sheelawati, wifeof Roshan Lal under the provisions of Section 6(1) of SAFEMA on11.01.1978 to show cause why the properties mentioned in the scheduleto the notice be not declared to be illegally acquired properties andforfeited to the Central Government under the provisions of SAFEMA.

8. Writ Petition No.138 of 1975 came up before the High Court ofPunjab and Haryana at Chandigarh on 24.02.1978 and on the statementof the counsel for the Writ Petitioner that the petitioner had been releasedfrom custody which had come about in pursuance of the order ofdetention, it was observed that the petition had become infructuous andDwas, therefore, dismissed.

9. After considering the replies to the notices under Section 6(1)of SAFEMA submitted by Roshan Lal and after considering the materialon record, an order under Section 7(1) of SAFEMA was passed by theCompetent Authority on 29.05.1978. It was held that the propertyEmentioned in the Schedule to the order was illegally acquired and that itstood forfeited to the Central Government free from all encumbrances.Similar order was passed in the matter arising out of notice issued toSheelawati. 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 theAppellate Authority by its separate orders dated 02.02.1979 and theFview taken by the Competent Authority was affirmed.

10. Roshan Lal approached this Court by filing Writ Petition No.220of 1979 under Article 32 of the Constitution of India and challenged theaforesaid orders passed by the Competent Authority and the AppellateTribunal. The Writ Petition was taken up along with certain similarGmatters including Transfer Petitions filed by the Attorney General forIndia. All these matters were disposed by Bench of nine Judges ofthis Court on 12.05.1994 vide its decision in Attorney General for Indiaand Others vs. Amratlal Prajivandas and Others[3]. The conclusionsarrived at by this Court and the directions issued were as under:-

H3(1994) 5 SCC 54

“56. To summarise:

(1) Parliament was perfectly competent to enact both theCOFEPOSA and the SAFEMA.

(2) For the reasons given in the body of this judgment, we do notexpress any opinion on the validity of the 39th and 40thAmendment Acts to the Constitution of India placing COFEPOSAand SAFEMA in the Ninth Schedule. We assume them to be goodand valid. No arguments have also been addressed with respectto 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 ofdetention for the purpose of and within the meaning of Section2(2)(b) of SAFEMA. Since the President had issued an orderunder Article 359(1) suspending Articles 14, 21 and 22, it becamecompetent for Parliament, by virtue of clause (1-A) of Article359 to enact Section 12-A of COFEPOSA for the duration of andlimited to the period for which the Presidential Order was in force.It was meant to achieve the purposes of emergency. OnceSection 12-A is held to be competent piece of legislation, ordersof detention made thereunder (i.e. orders of detention to whichthe said provision applied) cannot be held to be not amounting toorders of detention for the purpose of and within the meaning ofSection 2(2)(b) of SAFEMA, particularly in view of the expresslanguage of Section 2(2)(b) [including proviso (iii) thereto] —and the protection enjoyed by both the enactments by virtue oftheir inclusion in the Ninth Schedule to the Constitution.

(b) An order of detention to which Section 12-A is applicable aswell as an order of detention to which Section 12-A was notapplicable can serve as the foundation, as the basis, for applyingSAFEMA to such detenu and to his relatives and associatesprovided such order of detention does not attract any of thesub-clauses in the proviso to Section 2(2)(b). If such detenu didnot choose to question the said detention (either by himself orthrough his next friend) before the Court during the period whensuch order of detention was in force, — or is unsuccessful in hisattack thereon — he, or his relatives and associates cannot attackor question its validity when it is made the basis for applying

SAFEMA to him or to his relatives or associates.

(4) The definition of “illegally acquired properties” in 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 effectiveinasmuch as the purpose and object of bringing such persons withinthe net of SAFEMA is to reach the properties of the detenu orconvict, as the case may be, wherever they are, howsoever theyare held and by whomsoever they are held. They are not conceivedwith view to forfeit the independent properties of such relativesand associates as explained in this judgment. The position of‘holders’ dealt with by clause (e) of Section 2(2) is different asexplained in the body of the judgment.

(6) Section 5-A of COFEPOSA is not invalid or void. It is notviolative of clause (5) of Article 22.

(7) Petitioners have failed to establish that any of the provisionsof SAFEMA are violative of Articles 14, 19 or 21 — apart fromthe protection they enjoy by virtue of the inclusion of the Act inthe Ninth Schedule to the Constitution.

57. All the writ petitions, transferred cases and appeals are disposedof accordingly. The court and authorities before whom proceedingsare pending under SAFEMA shall proceed to dispose them of inaccordance with law and in the light of this judgment. It is in theinterest of all concerned that the proceedings are concluded withall deliberate speed.”

11. Thereafter, Civil Writ Petition No.509 of 1996 was filed on12.08.1996 by the present appellant, as son of late Shri Roshan Lal,seeking to challenge the order of detention dated 19.12.1974 as aforesaidas 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 byrespondent No.3 under Section 3(1) of COFEPOSA Act.

(b) Quash the order dated 29.05.1978 passed by the respondentNo. 2 under Section 19(1) of Smugglers & Foreign ExchangeManipulators (Forfeiture of Property) Act, 1976.

(c) Restrain the respondent from acquiring/dispossessing thepetitioners of the said properties, namely, house property municipalNo.1115/X-5, Dhab Khatika, RB Seindas Road, Amritsar andfactory premises bearing No.76, 78-Min Private, Khewat/KhatauniNo.31, Khasra No.745, Jawahar Nagar, Batala Road, Amritsaralong with some machinery installed therein.

(d) Issue such other writ, order or direction as this Hon’ble Courtmay deem just and equitable on the facts and in the circumstancesof the present case.”

12. The High Court found that the dismissal of Writ Petition No.138of 1975 against the order of detention not having been challenged byRoshan Lal, Writ Petition No.509 of 1996 was barred by principles ofres judicata. challenge was raised to the correctness of said decisionof the High Court by filing Criminal Appeal No.1046 of 1997 in thisCourt by the appellant. The Appeal was allowed by this Court by itsorder dated 24.02.2004. While setting aside the decision of the HighCourt, the matter was remanded back to the High Court for fresh disposalof the Writ Petition on merits. During the course of its order, this Courtobserved:-

“… …It is relevant to note that correctness or merit of the groundsof detention and the validity of the detention order was notadjudicated upon.

… … ....

……We think since the proceedings under Smugglers andForeign Exchange Manipulators (Forfeiture of Property) Act, 1976,has very serious consequences, the appellant should have anopportunity of establishing the fact that the detention of his fatherwas not in accordance with the law.”

13. The matter was, therefore, reheard by the High Court and byits judgment and order dated 02.05.2008 said Writ Petition was dismissed.It was observed that the detention of Roshan Lal had run right throughthe duration or continuance of the Emergency and that there was norevocation of detention before the expiry of the Emergency and as suchprovisions of Section 2(2)(b) of SAFEMA would get attracted. TheHigh Court, thereafter, considered the challenge to the detention orderon the grounds as were urged. The submissions that the detention order

Awas passed on the same material as was relied upon in the order passedunder the provisions of MISA; that the representation dated 17.01.1975was not considered; that the documents demanded in said representationwere not supplied and that report in terms of Section 3(2) ofCOFEPOSA was not forwarded by the State Government to the CentralGovernment, were found to be without any substance and merit. TheBWrit Petition was thus dismissed by the High Court which decision ispresently under appeal.

14. We heard Mr. R.M. Bagai, learned advocate for the appellantand Mr. Aman Lekhi, learned Additional Solicitor General for therespondents.C

15. It was submitted by Mr. Bagai, learned advocate that thoughthe matter was specifically remanded to the High Court for disposal onmerits, the judgment under appeal had virtually overruled the order dated24.02.2004 passed by this Court. It was further submitted that thedetention order suffered on account of following infirmities:-D

a) The relevant assertions in the grounds of detentions wereidentical and were repeated from the earlier order passed underMISA and as such, the detention order suffered fromnon-application of mind.

Eb) The grounds of detention were not framed in language knownto the detenu.

c) The representation dated 17.01.1975 was not considered at all.

16. Mr. Lekhi, learned Additional Solicitor General, on the otherhand, submitted that the view taken by the High Court was quite correctFand that the so-called infirmities, as alleged, did not exist at all. It wassubmitted that the order did not suffer from non-application of mind; thatthe representation dated 17.01.1975 was rejected by the State on11.02.1975, the rejection was communicated to the detenu and that at nostage any grievance was raised that the grounds of detention were notcommunicated to the detenu in language known to him.G

17. In Amratlal[1 ]following questions were framed by this Court,the answers to which were summarised in paragraph 56 as extractedabove. The questions were framed in para 8 as under:-

“8. The counsel appearing for the petitioners urged severalHcontentions all of which have been contested by Shri Altaf Ahmed,

learned Additional Solicitor General. The issues arising from therival contentions urged at the bar may be formulated in the shapeof questions. They are to the following effect:

(1) Whether Parliament was not competent to enact COFEPOSAand SAFEMA?

(2) Whether an order of detention under Section 3 read with Section12-A of COFEPOSA made during the period of emergencyproclaimed under Article 352(1) of the Constitution of India, —with the consequent ‘suspension’ of Article 19 and during whichperiod the right to move the court to enforce the rights conferredby Articles 14, 21 and 22 was suspended — can form thefoundation for taking action under Section 6 of SAFEMA againstthe detenu, his relatives and associates? And if it does, can thevalidity of such order of detention be challenged by the detenuand/or his relatives and associates, when proceedings are takenagainst him/them under SAFEMA, even though the said order ofdetention has ceased to be operative and was not either challenged— or not successfully challenged — during its operation? (3) Ifthe answer to Question 1 is in the affirmative, should the validityof the order of detention be tested with reference to the positionof law obtaining at the time of making the said order and during itsperiod of operation or with reference to the position of law obtainingon the date of issuance of the show-cause notice under Section 6of SAFEMA?

(4) Whether the definition of “illegally acquired property” in clause(c) of Section 3(1) of SAFEMA is violative of the fundamentalrights of the petitioners guaranteed by Articles 14, 19 and 21 andwhether the inclusion of SAFEMA in the Ninth Schedule to theConstitution cures such violation, if any?

(5) Whether the application of SAFEMA to the relatives andassociates of detenus is violative of Articles 14, 19 and 21? Whetherthe inclusion of the said Act in the Ninth Schedule cures suchviolation, if any?

(6) Whether Section 5-A of COFEPOSA is violative of clause (5)of Article 22?

For proper appreciation of the aforesaid questions, it is necessaryto briefly refer to the relevant provisions of both the enactments.”

18. While dealing with questions 2 and 3, this Court considereddecision of this Court in Union of India vs. Haji Mastan Mirza[4]rendered by Bench of three learned Judges in paragraphs 40-41. Saidparagraphs were:-

“40. At this juncture, it would be appropriate to deal with twoBdecisions of this Court brought to our notice. The first one is inUnion of India v. Haji Mastan Mirza[2] rendered by Bench ofthree Judges. The respondent therein was first detained underMaintenance of Internal Security Act (MISA) under an orderdated 17-9-1974. On 19-12-1974 the said order was revoked butsimultaneously an order of detention was made under SectionC3(1) of COFEPOSA. The grounds of detention were served onhim on 23-12-1974. On 25-6-1975, emergency was proclaimedunder Article 352(1) on the ground of internal disturbance, whichcontinued to be in force up to 21-3-1977. The respondent wasreleased on 23-3-1977. Notice under Section 6(1) of SAFEMADwas issued to him, his relatives and associates whereupon he fileda writ petition in the Bombay High Court challenging the validityof the order of detention dated 19-12-1974 on the ground interalia that he was not supplied with the documents clearly andunmistakably relied upon for arriving at the requisite satisfactionand which documents were also referred to in the grounds ofEdetention served upon him. The Bombay High Court allowed thewrit petition, against which the Union of India appealed to thisCourt. Varadarajan, J. speaking for the Bench referred to theprovisions of Sections 2, 6 and 7 of SAFEMA and observed thus:(SCC p. 432, para 10)

“Therefore, valid order of detention under COFEPOSA is acondition precedent to proceedings being taken under Sections6 and 7 of SAFEMA. If the impugned order of detention dated19-12-1974 is set aside for any reason, the proceedings takenunder Sections 6 and 7 of SAFEMA cannot stand. Therefore,Gwe have to consider whether the impugned order of detentiondated 19-12-1974 under COFEPOSA is void and has to bequashed.”

41. From the facts stated above, it is clear that the order ofdetention was made long prior to the proclamation of emergencyH4 (1984) 2 SCC 427

on 25-6-1975. He was served with the grounds of detention butnot the documents relied upon therein. It does not appear fromthe judgment whether declaration under Section 12-A ofCOFEPOSA was made with respect to the said respondent,though it can be so presumed from the fact that his detention wascontinued up to 23-3-1977. In the above circumstances, this Courtsaid that it was open to the respondent-detenu to question thevalidity of the order of detention when proceedings are takenagainst him under Sections 6 and 7 of SAFEMA. It is not possibleto agree with the reasoning of the decision. There are two waysof looking at the issue. If it is normal order of detention [notgoverned by Section 12-A nor protected by an order under Article359(1) suspending the enforcement of Article 22] and if the detenudoes not challenge it when he was deprived of his liberty, orchallenges it unsuccessfully, there is no reason why he should beallowed to challenge it when action under SAFEMA is takenagainst him — for action under SAFEMA is not automatic uponthe fact of detention but only the starting point. On the other hand,if it is an order of detention governed by Section 12-A [or by aPresidential Order under Article 359(1) suspending Article 22], itperhaps could still be challenged even during the period ofemergency on grounds not barred by the said provisions. Secondly,even if such an order is allowed to be challenged when actionunder SAFEMA is taken, the challenge must be confined togrounds which were open or available during the period ofemergency; otherwise there would be no meaning behind theconcluding words in Article 358(1) and Article 359(1-A). Hence,we say that person who did not choose to challenge such anorder of detention during the emergency when he was detained,or challenged it unsuccessfully, cannot be allowed to challenge itwhen it is sought to be made the basis for applying SAFEMA tohim. In either of the two situations mentioned above, i.e., whetherthe challenge is made during the period of detention or later whenproceedings under SAFEMA are taken against him, the groundsof challenge and scope of judicial scrutiny would be the same.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.”

ABCDEFG

A19. Question No.2 framed in Amratlal[1]related to cases whereorders of detention under Section 3 read with Section 12A of COFEPOSAwere made during the period of Emergency proclaimed under Article352(1) of the Constitution of India. The decision in Haji MastanMirza[2]whichwas considered in paras 40 and 41, however, pertained todifferent factual scenario. In Haji Mastan Mirza[2], as indicated in paraB41 in the decision of Amratlal[1], the order of detention was made longprior to the proclamation of emergency on 25.6.1975. The Bench ofnine Judges in Amratlal[1]found that it was not possible to agree with theview taken in Haji Mastan Mirza[2]. It was observed that the mattercould be considered from two perspectives; First, if it was an order ofCdetention to which Section 12A of COFEPOSA did not apply and if thedetenu did not challenge the order of detention or challenged itunsuccessfully, there was no reason why he should be allowed tochallenge 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 ofDEmergency and the challenge could be confined to grounds which wereopen or available during the period of Emergency. In the concludingpart of the paragraph it was observed that failure to challenge thedetention directly when he was detained, precluded the detenu fromchallenging it after the cessation of detention where such detention wasEmade the basis for initiating action in SAFEMA.

In the present case the order of detention under COFEPOSAwas passed on 19.12.1974 and the petition challenging the detentionwas filed on 29.04.1975 i.e. before the proclamation of emergency wasissued on 25.06.1975. The detenu was released after the lifting of theFemergency. All through, the Writ Petition was alive and pending in HighCourt and it was disposed of as having become infructuous on the state-ment made by the counsel for the Writ Petitioner on 24.02.1978. Theinstant case is thus covered by para 41 of the decision of this Court inAmratlal[1]. However, since the matter was remitted by this Court on24.02.2004, to be disposed of on merits, we now proceed to considerGwhether merits were rightly considered.

20. We may at this stage quote the relevant provisions ofCOFEPOSA and SAFEMA.

A] Sections 10, 10A and 12A of COFEPOSA are as under:-

“10. Maximum period of detention. – The maximum periodfor which any person may be detained in pursuance of anydetention order to which the provisions of section 9 do not applywhich has been confirmed under clause (f) of section 8 shall be aperiod of one year from the date of detention or the specifiedperiod, whichever period expires later and the maximum periodfor which any person may be detained in pursuance of anydetention order to which the provisions of section 9 apply andwhich has been confirmed under clause (f) of section 8 read withsub-section (2) of section 9 shall be period of two years fromthe date of detention or the specified period, which ever periodexpires later:

Provided that nothing contained in this section shall affect thepower of the appropriate Government in neither case to revokeor modify the detention order at any earlier time.

Explanation.- In this section and in section 10A, “specifiedperiod” means the period during which the Proclamation ofEmergency issued under clause (1) of article 352 of the Constitutionon the 3[rd] day of December, 1971 and the Proclamation ofEmergency issued under that clause on the 25[th] day of June, 1975,are both in operation

“10A. Extension of period of detention. – (1) Notwithstand-ing anything contained in any other provision of this Act, the de-tention of every person detained under detention order whichhas been confirmed under clause (f) of section 8 before the com-mencement of the Conservation of Foreign Exchange and Pre-vention of Smuggling Activities (Amendment) Act, 1976, and whichis in force immediately before such commencement shall, unlesshis detention has been continued by the appropriate Governmentunder the said clause for period shorter than one year from thedate of his detention, continue until the expiry of period of oneyear from the date of his detention under such order or until theexpiry of the specified period, whichever period expires later:

Provided that nothing contained in this sub-section shall affect thepower of the appropriate Government to revoke or modify suchdetention order at any earlier time.

(2) Notwithstanding anything contained in any other provision ofthis Act, the detention of every person detained under detentionorder which has been confirmed under clause (f) of section 8read with sub-section (2) of section 9 before the commencementof the Conversation of Foreign Exchange and Prevention of Smug-gling Activities (Amendment) Act, 1976, and which is in forceimmediately before such commencement, shall, unless his deten-tion has been continued by the appropriate Government under thesaid clause (f) read with the said sub-section (2), for periodshorter than two years from the date of his detention, continueuntil the expiry of period of two years from the date of hisdetention under such order or until the expiry of the specifiedperiod, whichever period expires later:

Provided that nothing contained in this sub-section shall affect thepower of the appropriate Government to revoke or modify suchdetention order at any earlier time.”

“12A. Special provisions for dealing with emergency. (1)Notwithstanding anything contained in this Act or any rules ofnatural Justice, the provisions of this section shall have effectduring the period of operation of the Proclamation of Emergencyissued under clause (1) of Article 352 of the Constitution on the3rd day of December 1971, or the Proclamation of Emergencyissued under that clause on the 25th day of June, 1975, or periodof [twenty-four months] from the 25th day of June, 1975,whichever period is the shortest.

(2) When making an order of detention under this Act against anyperson after the commencement of the Conservation of ForeignExchange and Prevention of Smuggling Activities (Amendment)Act, 1975, the Central Government or the State Government or,as the case may be, the office making the order of detention shallconsider whether the detention of such person under this Act isnecessary for dealing effectively with the emergency in respectof which the Proclamations referred to in sub-section (1) havebeen issued (hereafter in this section referred to as the emergency)and if, on such consideration, the Central Government or the StateGovernment or, as the case may be, the officer is satisfied that itis necessary to detain such person for effectively dealing with theemergency, that Government or officer may make declaration

to that effect and communicate copy of the declaration to theperson concerned:

Provided that where such declaration is made by an officer, itshall be reviewed by the appropriate Government within fifteendays from the date of making of the declaration and suchdeclaration shall cease to have effect unless it is confirmed bythat Government, after such review, within the said period of fifteendays.

(3) The question whether the detention of any person in respectof whom declaration has been made under sub-section (2)continues to be necessary for effectively dealing with theemergency shall be reconsidered by the appropriate Governmentwithin four months from the date of such declaration and thereafterat intervals not exceeding four months, and if, on suchreconsideration, it appears to the appropriate Government thatthe detention of the person is no longer necessary for effectivelydealing with the emergency, the Government may revoke thedeclaration.

(4) In making any consideration, review or reconsideration undersub-section (2) or (3), the appropriate Government or officer may,if such Government or officer considers it to be against the publicinterest to do otherwise, act on the basis of the information andmaterials in its or his possession without disclosing the facts orgiving an opportunity of making representation to the personconcerned.

(5) It shall not be necessary to disclose to any person detainedunder detention order to which the provisions of sub-section (2)apply, the grounds on which the order has been made during theperiod the declaration made in respect of such person under thatsubsection is in force, and, accordingly, such period shall not betaken into account for the purposes of sub-section (3) ofsection 3.

(6) In the case of every person detained under detention orderto which the provisions of sub-section (2) apply, being person inrespect of whom declaration has been made thereunder, theperiod during which such declaration is in force shall not be takeninto account for the purpose of computing-

(i) the periods specified in clauses (b) and (c) of section 8;

(ii) the periods of “one year” and “five weeks” specified insub-section (1), the period of “one year” specified in sub-section(2)(i), and the period of “six months” specified in subsection(3) of section 9".

B] Section 2 of SAFEMA is as follows:-

“2. Application. (1) The provisions of this Act shall apply onlyto the persons specified in sub-section (2).

(2) The persons referred to in sub-section (1) are the follow-ing, namely: -

(a) every person-

(i) who has been convicted under the Sea Customs Act, 1878 (8of 1878), or the Customs Act, 1962 (52 of 1962), of anoffence in relation to goods of value exceeding one lakh ofDrupees ; or

(ii) who has been convicted under the Foreign ExchangeRegulation Act, 1947 ( 7 of 1947), or the Foreign ExchangeRegulation Act, 1973 (46 of 1973), of an offence, the amountor value involved in which exceeds one lakh of rupees; or

(iii) who having been convicted under the Sea Customs Act, 1878(8 of 1878), or the Customs Act, 1962 (52 of 1962), has beenconvicted subsequently under either of those Acts ; or

(iv) who having been convicted under the Foreign ExchangeRegulation Act, 1947 (7 of 1947), or the Foreign ExchangeFRegulation Act, 1973 (46 of 1973), has been convictedsubsequently under either of those Acts ;

(b) every person in respect of whom an order of detention hasbeen made under the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 (52 of 1974):

Provided that-

(i) such order of detention, being an order to which the provisionsof section 9 or section 12A of the said Act do not apply, hasnot been revoked on the report of the Advisory Board undersection 8 of the said Act or before the receipt of the report ofH

the Advisory Board or before making reference to theAdvisory Board; or

(ii) such order of detention, being an order to which the provisionsof section 9 of the said Act apply, has not been revokedbefore the expiry of the time for, or on the basis of, the reviewunder subsection (3)of section 9, or on the report of theAdvisory Board under section 8, read with sub- section (2) ofsection 9, of the said Act ; or

(iii) such order of detention, being an order to which, theprovisions of section 12A of the said Act apply, has not beenrevoked before the expiry of the time for, or on the basis of,the first review under sub-section (3) of that section, or on thebasis of the report of the Advisory Board under section 8,read with sub-section (6) of section 12A, of that Act ; or

(iv) such order of detention has not been set aside by court ofcompetent jurisdiction ;

(c) every person who is relative of person referred to in clause(a) or clause (b) ;

(d) every associate of person referred to in clause (a) or clause(b);

(e) any holder (hereafter in this clause referred to as the presentholder) of any property which was at any time previously held bya person referred to in clause (a) or clause (b) unless the presentholder or, as the case may be, any one who held such propertyafter such person and before the present holder, is or was trans-feree in good faith for adequate consideration.

Explanation 1.-For the purposes of sub-clause (i) of clause (a),the value of any goods in relation to which person has beenconvicted of an offence shall be the wholesale price of the goodsin the ordinary course of trade in India as on the date of thecommission of the offence.

Explanation 2.—For the purposes of clause (c), “relative”, inrelation to person, means-

(i) spouse of the person;

[2019] 6 S.C.R.

(ii) brother or sister of the person;

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

(iv) any lineal ascendant or descendant of the person;

(v) any lineal ascendant or descendant of the spouse of theperson;

(vi) spouse of person referred to in clause (ii), clause (iii), clause

(iv) or clause (v);

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

Explanation 3.-For the purposes of clause (d), “associate”, inrelation to person, means-

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

(ii) any individual who had been or is managing the affairs orkeeping the accounts of such person;

(iii) any association of persons, body of individuals, partnershipfirm, or private company within the meaning of the CompaniesAct, 1956 ( 1 of 1956), of which such person had been or is amember, partner or director;

(iv) any individual who had been or is member, partner or directorof an association of persons, body of individuals, partnership firmor private company referred to in clause (iii) at any time whensuch person had been or is member, partner or director of suchassociation, body, partnership firm or private company;

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

(vi) the trustee of any trust, where- (a) the trust has been createdby such person; or (b) the value of the assets contributed by suchperson (including the value of the assets, if any, contributed byhim earlier) to the trust amounts, on the date on which thecontribution is made, to not less than twenty per cent. of the valueof the assets of the trust on that date ;

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

Explanation 4.-For the avoidance of doubt, it is hereby providedthat the question whether any person is person to whom theprovisions of this Act apply may be determined with reference toany facts, circumstances or events (including any conviction ordetention) which occurred or took place before the commencementof this Act.

22. An order of detention under Section 3(1) of COFEPOSA canbe made against person with view to “prevent him from acting in anymanner prejudicial to the conservation or augmentation of foreignexchange” or with view to prevent him from indulging in activitiesmentioned in said Section 3(1). If the Advisory Board finds that there issufficient cause for detention under Section 8(f), the period of detentionunder Section 10 could be one year or the “specified period” whicheverexpires later. In cases where declaration under Section 9 was issued,the maximum period of detention in terms of said Section 10, upon approvalbeing accorded by the Advisory Board, could be two years or the“specified period” whichever period expires later. Explanation to Section10 states the “specified period” to be the period during which theproclamation of Emergency issued under Article 352 of the Constitution,inter alia, on 25.06.1975 would be in operation. If an order of detentionwas passed after the commencement of the Amendment Act of 1975and the officer making the order of detention considered the detentionof such person to be necessary for dealing effectively with theEmergency, proclamation under Section 12A could be issued. Theeffect of such order passed under Section 3 read with Section 12A ofthe Act was primarily the subject matter of consideration in the case inAmratlal[1]. Thus, orders of detention under COFEPOSA can be ofthree kinds; (a) under Section 3(1) simplicitor, or (b) one passed underSection 3(1) followed by Declaration under Section 9 or (c) one passedunder Section 3(1) and Section 12A.

23. In terms of Section 2 of SAFEMA, the provisions of said Actwould apply inter alia to every person in respect of whom an order ofdetention had been made under COFEPOSA, subject to proviso containedin Section 2(2)(b). Proviso to said Section 2(2)(b) of SAFEMA thencarves out four exceptions to the applicability of substantive provisions

Ato Section 2(2)(b). First three parts of the Proviso deal with three kindsof orders of detention under COFEPOSA as stated above and stipulatethat if the order was revoked during the period mentioned therein, thesubstantive provision would not apply. Part (iv) of the proviso get attractedwhere the order of detention is set aside by court of competentjurisdiction. For the substantive provision under Section 2(2)(b) to applyBthe matter must not be covered under any of those four parts of theproviso. We now see whether the instant matters come within any ofthose parts of the proviso.24. Part (i) of the proviso to Section 2(2)(b) deals with cases towhich Section 9 or Section 12A of COFEPOSA do not apply. In theCpresent case there was neither any declaration under Section 9 nor wasthere any proclamation under Section 12A. The order of detention wasalso not passed after the Amendment Act of 1975 came into force.Thus, Section 9 and Section 12A do not apply in the present matter. Interms of said Part (i) of the proviso, if the order of detention was notDrevoked under the conditions stipulated therein, the substantive provisionsof Section 2(2)(b) must apply. In the instant case there was no suchrevocation and going by the text of Part (i) of the proviso, the provisionsof SAFEMA must apply in the instant case. Parts (ii) and (iii) of theproviso are cases where substantive orders of detention to whichprovisions of Section 9 and Section 12A respectively apply and as suchEthey are not relevant for the present consideration. Part (iv) of theproviso which speaks of cases where order of detention is set aside bya court of competent jurisdiction, applies irrespective whether the mattercomes under Section 3(1) simplicitor or comes under Section 9 or Section12A. The order of detention was not set aside in the present matter andFas such Part (iv) is also inapplicable to the present case.

25. The order of detention in this case was not revoked under anyof the postulates of the proviso nor was it set aside by any competentcourt and as such the provisions of SAFEMA must apply. The HighCourt was right in observing that the detention “had run right through theGduration or continuance of the emergency”. Though the petition waspending during the length of this time and was taken up for hearing afterthe lifting of the emergency, no attempts were made to have the petitiondisposed of on merits. Pertinently, the notices under SAFEMA wereissued to Roshan Lal and his wife Sheelawati while the possibility thatthe SAFEMA proceedings could be premised on the validity of theH

detention order was very much alive and yet, the matter was chosen notto be agitated on merits. The criticism of Mr. Bagai, learned Advocatethat the High Court had overruled the order dated 24.02.2004 passed bythis Court, is totally incorrect. Nonetheless, we proceed to consider thesubmissions raised by Mr. Bagai, learned Advocate regarding challengeon merits.

26. In the present case, the representation dated 17.01.1975 wasconsidered by the State on 11.02.1975 and the rejection wascommunicated to the detenu. Moreover, at no stage, any grievance wasraised that the grounds of detention were not communicated to him in alanguage known to him. Similarly, the submission that the grounds ofdetention were identical, is also without any merit. Insofar as the orderof detention under COFEPOSA was concerned, the grounds dealt withinstances where the detenu had indulged in smuggling of goods, on thebasis of which subjective satisfaction was arrived at as regards hispropensity to deal in smuggled goods. Having considered the factualaspects of the matter, the grounds raised by Mr. Bagai, learned Advocateare without any substance and merit. We, therefore, affirm the viewtaken by the High Court and dismiss said submission.

27. In the aforesaid circumstances, the challenge to order ofdetention dated 19.12.1974 passed under the provisions of COFEPOSAin respect of Roshan Lal must fail. Further, the Competent Authorityand the Appellate Tribunal constituted under the provisions of SAFEMAhad, after issuance of due notice and granting every opportunity to thenoticees, arrived at findings that the properties mentioned in the schedulesto the notices were illegally acquired and that they stood forfeited to theCentral Government free from all encumbrances. All the prayers madein Civil Writ Petition No.509 of 1996 being meritless said Writ Petitiondeserved to be rejected and was rightly dismissed by the High Court.

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

CRIMINAL APPEAL NO.1493 OF 2009

29. In this Appeal, an order of detention was passed against theappellant on 14.08.2002 under Section 3(1) of COFEPOSA. Theappellant came to be detained on 17.12.2002. Criminal Writ PetitionNo.296 of 2003 preferred by the appellant was dismissed by the HighCourt of Punjab and Haryana on the ground that said High Court had no

Ajurisdiction to entertain the petition. The appellant, thereafter, filed WritPetition (Criminal)No.997 of 2003 in the High Court of Delhi on21.08.2003. The appellant was released on completion of one year on17.12.2003. After such release, proceedings under SAFEMA wereinitiated by the Competent Authority on 29.03.2005. Writ Petition(Criminal) No.997 of 2003 was dismissed by the High Court of Delhi onB02.05.2008 against which present appeal has been preferred by theappellant. The appeal was tagged with the earlier appeal viz. CriminalAppeal No.1492 of 2009.

30. The detention order was sought to be assailed before the HighCourt inter alia on the grounds of non-supply of documents; delay inCpassing the order of detention and supply of illegible documents. Thosegrounds were found to be without any substance by the High Court andthe 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.

Devika Gujral

Appeals dismissed.