NAZIR AHMEDD USMANGANI DIGMAR HEIR AND LEGAL v. COMPETENT AUTHORITY UNDER THE SAFEM ACT
2004-04-16
D.P.BUCH
body2004
DigiLaw.ai
D. P. BUCH, J. ( 1 ) THE petitioners above named have preferred this petition under Article 226 and 227 of the Constitution of india for appropriate writ, order or direction for quashing and setting aside an order of the second respondent dated 20/03/2001 as well as an order of the first respondent dated 17/02/2000 forfeiting the property, namely "roshan Manzil" and for quashing the proceedings under The Smugglers and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 (for short, the "safema" ). 1. 1 the petitioners have also prayed for appropriate writ, order or direction for quashing and setting aside the impugned order of detention dated 22/12/1975 and for the further declaration that since the detention order is not legal and valid, the consequential proceedings under the SAFEMA are also illegal, null and void and that they stand vitiated on account of the absence of a valid detention order. 1. 2 the petitioners have, therefore, prayed for appropriate writ, order or direction to declare that since the order of detention has been revoked, it was not in existence in the eye of law, and consequently, the proceedings under the SAFEMA, based on the said order of detention, which has already been revoked, are patently bad and illegal, and therefore also, the order u/s. 7 of the SAFEMA passed by the competent authority and confirmed in Appeal by the Appellate Tribunal, be quashed and set aside and it be held that SAFEMA is not applicable to the petitioners. ( 2 ) THE petitioners have set out a list of events along with the memo of petition. It would be useful to narrate the same in the same chronology. L I S T O F E V E N T S =========================================================22/12/75 Order of detention in respect of 1st Petitioner u/s. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 04/12/76 Notice u/s. 6 (1) of the SAFEMA to deceased Usmangani (who was alive at that time ). 21/03/77 Order of revocation of detention order dated 22/12/75. 30/01/77 Reply by Usmangani to the above Notice u/s. 6 (1) dated 04/12/76.-/-/1978 Submission of S. C. A. No. 1788/1978 in this Court challenging Notice dated 04/12/76 and seeking interim stay. 09/08/94 Dismissal of the writ petition. 10/02/95 Fresh Notice u/s. 6 (1) of the SAFEMA on the petitioners as the heirs of deceased Usmangani.
30/01/77 Reply by Usmangani to the above Notice u/s. 6 (1) dated 04/12/76.-/-/1978 Submission of S. C. A. No. 1788/1978 in this Court challenging Notice dated 04/12/76 and seeking interim stay. 09/08/94 Dismissal of the writ petition. 10/02/95 Fresh Notice u/s. 6 (1) of the SAFEMA on the petitioners as the heirs of deceased Usmangani. 17/02/00 Order of the competent authority forfeiting the property named "roshan Manzil" belonging to Usmangani. 02/03/00 Filing of FPA 26/bom/2000 before SAMEF Tribunal. April 01 Filing of the present petition. ======================================================== ( 3 ) THE petitioners have contended that an order of detention was passed by the Government of Goa, Daman and diu on 26/12/75 u/s. 3 (1) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (for short, the "cofeposa") for detaining petitioner no. 1. The said order has been placed at Annexure a to the petition. ( 4 ) THERE is no dispute that a Notice u/s. 6 (1) was issued to and served upon the father of the first petitioner, namely Usmangani, on 04/12/76 on the strength of the aforesaid detention order dated 22/12/75. It also appears from the record that the Government of the State of Goa, Daman and Diu had, in exercise of the powers u/s. 11 (1) of the said Act, revoked the said order of detention referred to hereinabove. On revocation of the said order, the first petitioner was ordered to be released from detention forthwith. ( 5 ) IT is not much in dispute that S. C. A. No. 1788/1978 was filed before this Court challenging Notice dated 04/12/76 referred to hereinabove. ( 6 ) THEN, it is also not much in dispute that the said petition came to be dismissed by this Court by order dated 09/08/94. The petitioner has contended that the said petition was filed by deceased Usmangani and it came to be dismissed by this Court on account of the judgment of the Honble the Supreme Court delivered in the case of attorney General V/s. Amritlal Prajivandas and Ors. reported in AIR 1994 (5) SC 54, under which the constitutional validity of the SAFEM Act as well as of the COFEPOSA Act was upheld. In the aforesaid petition also, the constitutional validity of the said two Acts was questioned.
reported in AIR 1994 (5) SC 54, under which the constitutional validity of the SAFEM Act as well as of the COFEPOSA Act was upheld. In the aforesaid petition also, the constitutional validity of the said two Acts was questioned. That when the Honble the Supreme Court had upheld the constitutional validity of the said two enactments, the aforesaid Special Civil Application did not survive, and therefore, it came to be dismissed by this Court by order dated 09/08/94. ( 7 ) SINCE the petition was dismissed, a proceeding u/s. 6 (1) of the SAFEMA was undertaken against the petitioner and a Notice u/s. 6 (1) was issued to and served upon the petitioners, as the legal representatives of deceased Usmangani. It seems that on completion of the hearing, the competent authority passed an order on 17/02/2000, forfeiting the property in question, belonging to deceased Usmangani. The petitioners had preferred Appeal being FPA 26/bom/2000 before the SAFEMA tribunal unsuccessfully. The said Appeal came to be dismissed on 20/03/01. ( 8 ) THEREFORE, by way of filing the present petition, the petitioners have challenged the aforesaid proceedings, including the order of the competent authority as well as the order of the Tribunal. ( 9 ) THE petitioner has challenged these orders on several counts. 9. 1 it has been contended that when the proceedings u/s. 6 (1) and the order u/s. 7 of the SAFEMA have been based on an order of detention and when the order of detention was revoked by the competent authority, then in that event, the competent authority had no reason or power or jurisdiction to proceed u/s. 6 (1) against the petitioners, on the strength of the detention order which was not in existence at the time when the above proceedings u/s. 6 (1) were initiated. Therefore, the Notice u/s. 6 (1) of the SAFEMA and the order u/s. 7 of the said Act passed by the said authority, forfeiting the property in question, are illegal and deserve to be quashed and set aside. 9.
Therefore, the Notice u/s. 6 (1) of the SAFEMA and the order u/s. 7 of the said Act passed by the said authority, forfeiting the property in question, are illegal and deserve to be quashed and set aside. 9. 2 it has also been contended that the proceedings u/s. 6 (1) of the SAFEMA were initiated and order u/s. 7 of the said Act was passed by the appropriate authority and confirmed by the Tribunal in Appeal, on the basis of the aforesaid detention order, and therefore, a copy of the detention order and the grounds for detention were required to be supplied to the petitioners with a view to enable the petitioners to make an effective representation under Article 22 (5) of the Constitution of India. That the petitioners were not supplied those copies and therefore, there was a violation of the principle of natural justice, and consequently, the order u/s. 7 of the said Act passed by the competent authority and confirmed by the Appellate Tribunal is illegal. 9. 3 it has also been contended that the impugned order u/s. 7 of the SAFEMA could not have been passed by the competent authority in absence of a valid order of detention and the grounds were not formulated for passing the order. Therefore also, on the said consideration, the order of detention is illegal and consequently, the proceedings under the SAFEMA are also illegal. 9. 4 in the alternative, it has been contended that after the lifting of the Emergency and the release of the detenu, it would not be open to the competent authority to proceed against the petitioner u/s. 6 (1) or to pass an order u/s. 7 of the SAFEMA against the petitioners. That, in case the competent authority wanted to proceed against the petitioners, then it could be done by providing grounds of detention within five days from the date of revocation of the earlier order of detention. That, this has not been done and therefore, the orders impugned in this petition are not legal and valid. 9. 5 that, even otherwise, the petitioners were successful in explaining their legal proprietary right over the property in question, and therefore, the competent authority could not have passed an order u/s. 7 of the SAFEMA forfeiting the property in question.
That, this has not been done and therefore, the orders impugned in this petition are not legal and valid. 9. 5 that, even otherwise, the petitioners were successful in explaining their legal proprietary right over the property in question, and therefore, the competent authority could not have passed an order u/s. 7 of the SAFEMA forfeiting the property in question. Consequently, the order of the competent authority u/s. 7 of the SAFEMA is illegal and consequently, the order in Appeal by the Appellate Tribunal is also illegal. 9. 6 on the aforesaid set of facts, the petitioners have contended that the orders u/s. 7 of the SAFEMA are illegal and they may quashed and set aside. The petitioners have, therefore, preferred this petition before this Court. ( 10 ) ON receipt of the petition, Rule was issued and in response to the service of notice of Rule, Mr. Dhaval barot learned Addl. Standing Counsel has appeared for respondents no. 1 and 2. It seems that the Government of goa, Daman and Diu was impleaded as co-respondents being respondents no. 3 and 4. Though duly served, the said respondents have not thought it proper to appear before this Court and to defend their case. Therefore, this court did not get an opportunity to have the assistance of Respondents no. 3 and 4. Therefore, at the final hearing stage, I have heard Mr. S H Sanjanwala learned Sr. Advocate appearing with Mr. R S Sanjanwala and Mr. Dhaval Barot learned Addl. Standing Counsel for the Union of India. They have taken me through the petition and other materials on record. ( 11 ) THE chronology mentioned herein has not been seriously disputed by the learned advocates for the parties. It is not much in dispute that had the order of detention page 11 not been revoked by the concerned government, then it would have remained in force for a period of 12 years from the date of actual detention. However, since the order was revoked within a span of less than two years, the first petitioner was required to be released from detention, on account of an order at page 12 referred to hereinabove. ( 12 ) ON the strength of the aforesaid admitted facts, the learned Sr.
However, since the order was revoked within a span of less than two years, the first petitioner was required to be released from detention, on account of an order at page 12 referred to hereinabove. ( 12 ) ON the strength of the aforesaid admitted facts, the learned Sr. Advocate for the petitioner has argued that since the order of detention was revoked by the appropriate authority, then in that event, no proceeding u/s. 6 (1) of the SAFEMA could have been initiated against the petitioners by the competent authority. ( 13 ) IN order to oppose the said arguments, the learned Addl. Standing Counsel for the Union of India has argued that the provisions of Section 12-A of the cofeposa were not attracted and that they were not required to be considered and they have not been considered for any purpose. Therefore, the revocation had no link with the provisions made in Section 12-A of the said Act. In other words, the order of revocation, according to his argument, was independent of the provisions made in Section 12-A of the said Act. ( 14 ) IT is difficult to accept the said argument of mr. Barot. It is required to be considered that the order of detention was passed against the first petitioner on 22/12/75, after the Emergency was imposed w. e. f. 01/07/75. It is also required to be considered that the emergency was lifted w. e. f. 21/03/77 and the order of revocation u/s. 11 (1) was passed on the same date i. e. on 21/03/77. This clearly indicates that the order of detention dated 22/12/75 against the first petitioner was passed by applying the provisions of Section 12-A of the cofeposa. ( 15 ) EVEN from the order of the competent authority placed at Annexure b, it can be gathered from Para 22 that the order of detention as well as the order of revocation, had a direct link with the imposition and lifting of Emergency in 1975 and 1977 respectively and therefore, it can be gathered that the provisions of section 12-A of the COFEPOSA were attracted in the matter. It would be worthwhile to refer to the observations made in the order passed by the competent authority referred to hereinabove.
It would be worthwhile to refer to the observations made in the order passed by the competent authority referred to hereinabove. The relevant observations can be gathered from the bottom of Para 22 at page 24 as follows;"the order of revocation of the detention of Shri Nazir Ahmed U. Digmar dtd. 21/03/77 was made pursuant to the lifting of emergency on the same date and was not a conscious revocation. Therefore, in view of the provisions of section 2 (2) (b) of the Act, judgment of Gujarat High Court referred above and the ATFPs order dtd. 08/06/99, the revocation of the detention order would not be an impediment to the present proceedings. " ( 16 ) FROM the above observations, it is absolutely clear that the order of detention was passed by invoking the provisions contained in Section 12-A of the COFEPOSA and on lifting of the Emergency, the order of detention was revoked on the very first day of the lifting of emergency. This clearly shows that the order of detention was passed by applying the provisions laid down in Section 12-A of the said Act. ( 17 ) ANY way, the order of detention against the first petitioner passed u/s. 3 (1) of the COFEPOSA was revoked by the competent authority in exercise of the powers u/s. 11 (1) of the said Act. Now, it is required to be considered here that when an order of detention u/s. 3 (1) of the said Act has been revoked by a subsequent order u/s. 11 (1) of the said Act, then there would be total nonexistence or absence of an order of detention u/s. 3 (1) of the said Act from and after 21/03/77. ( 18 ) THE Notice against the petitioners u/s. 6 (1) of the said Act was issued on 10/02/95, much after the revocation of the order of detention referred to hereinabove. On the strength of the aforesaid fact situation, the learned Sr. Advocate for the petitioner has argued that when the order of detention has been revoked u/s. 11 (1) of the said Act, then in that event, the competent authority had no jurisdiction or authority to proceed against the petitioners u/s. 6 (1) of the said Act.
On the strength of the aforesaid fact situation, the learned Sr. Advocate for the petitioner has argued that when the order of detention has been revoked u/s. 11 (1) of the said Act, then in that event, the competent authority had no jurisdiction or authority to proceed against the petitioners u/s. 6 (1) of the said Act. ( 19 ) IT is not much in dispute that an order of detention u/s. 3 (1) of the SAFEMA is a sine qua non for proceeding u/s. 6 (1) of the SAFEMA as well as for the purpose of passing an order u/s. 7 of that Act. In other words, before prosecuting a matter u/s. 6 (1) of the SAFEMA there has to be a legal and valid detention order. In the present case, we find that though the order of detention was passed against the first petitioner on 22/12/75, it came to be revoked on 21/03/77. Then, notice u/s. 6 (1) of the SAFEMA was issued on the petitioners on 10/02/95. Admittedly, on that day, there was no order of detention in existence against the petitioners or petitioner no. 1. ( 20 ) AT this stage, the learned Addl. Standing counsel has argued that the order of revocation u/s. 11 (1) of the said Act was not an order of revocation u/s. 2 (2) of the said Act and therefore, the competent authority was at liberty to proceed against the petitioners under the SAFEMA. With a view to appreciate the aforesaid argument, it would be relevant to refer to the provisions made in subsection 2 (2) (b) of the SAFEMA. 2. APPLICATION.- (1) "the provision of this Act shall apply only to the persons specified in subsection (2 ). (2) The persons referred to in subsection (1) are the following namely; (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (52 of 1947):" ( 21 ) IT is true that the above provision does not include revocation in exercise of the powers u/s. 11 (1) of the said Act. It has, therefore, been argued that in the present case, the order of revocation was passed in exercise of the powers u/s. 11 (1) of the said Act. Therefore, since it is not a revocation u/s. 2 (2) (b) of the SAFEMA, there would not be bar against prosecuting the proceedings u/s. 6 (1) of the SAFEMA against the petitioners. ( 22 ) HERE, it is required to be considered that the provision contained in s. 11 (1) has not been included in the provisions made in s. 2 (2) (b) of the SAFEMA. At the same time, it is required to be considered that the revocation u/s. 2 (2) (b) has a limited sphere of application. It can be gathered from the said provision that it will apply to limited cases only. In the present case, we find that the order of detention in respect of the first petitioner was not revoked in any of the aforesaid contingencies. There cannot be any dispute about the same. ( 23 ) HOWEVER, the first portion of Clause 1 to Section 2 (2) (b) of the said Act relates to Section 9 and 12-A of the said Act. In the present case, we find that in view of the aforesaid factual background and fact situation, it has to be accepted that the first order of detention was passed by invoking the provisions contained in section 12-A of the said Act. Therefore, it cannot be said that it was not a matter to which Section 12-A of the said Act did not apply.
Therefore, it cannot be said that it was not a matter to which Section 12-A of the said Act did not apply. Once it is found that the order of detention was passed u/s. 3 (1) of the said Act, by invoking the provisions of Section 12-A of the said act, then in that event, the order of revocation would be considered to be an order of revocation covered by section 2 (2) (b) of the said Act. ( 24 ) EVEN otherwise, it has to be accepted that the order of revocation was passed by the competent authority. The order shows that the revocation was ordered, in exercise of the powers u/s. 11 (1) of the said act. It is required to be seen here that the powers of revocation are required to be exercised at an earlier stage as referred to hereinabove. Once the said period passes, the revocation could not be ordered under the said exigencies. Therefore, the competent authority had no alternative, but to revoke the order, in exercise of the powers u/s. 11 (1) of the said Act. Therefore also, it cannot be said that since the revocation was under section 11 (1) of the said Act, it would not be a revocation u/s. 2 (2) (b) of the said Act and consequently, it cannot be said that an order of detention was not a sine qua non for the purpose of exercising powers u/s. 6 (1) of the said Act. ( 25 ) IN the present case, we find that Notice u/s. 6 (1) was issued on 10/02/95 and the order of revocation was passed as back as on 21/03/77. Therefore, when the order of detention was not in existence in the year 1995, the proceedings u/s. 6 (1) of the said Act could not have been initiated against the petitioners in 1995. ( 26 ) IN this respect, we can refer to a decision of a division Bench of this Court in the case of Niranjan dahyabhai Choksi and Anr. V/s. Union of India and Anr. reported in 1992 (2) GLR 891 .
( 26 ) IN this respect, we can refer to a decision of a division Bench of this Court in the case of Niranjan dahyabhai Choksi and Anr. V/s. Union of India and Anr. reported in 1992 (2) GLR 891 . It would be relevant to refer to the observations made in the bottom part of Para 15 of the said decision which is reproduced for ready reference as follows;"looking to this position as made by the Supreme Court in case of Ibrahim Bachu Bofan (supra) it is clear that the ultimate effect of cancellation of order of detention by the High Court under a high prerogative jurisdiction and the orders of revocation by the Government would be one and the same. It, therefore, shall have to be accepted that in the aforesaid mentioned six petitions, there were no valid orders of detention under COFEPOSA and therefore in absence of valid orders of detention under COFEPOSA the proceedings under SAFEMA could not have been instituted. It would therefore become clear that in the abovesaid six petitions the proceedings under SAFEMA would be bad for the above said reasons alone. "26. 1 therefore, according to the aforesaid observations of this Court, an order may have been revoked by a competent authority or it may have been quashed by a competent Court. But the resultant effect of both would be the same. Therefore, on construing the observations made by this Court in the aforesaid decision, it is very clear that when the order of detention has been revoked, it has an effect of cancellation thereof by a competent Court. In other words, the revocation of an order of detention and the cancellation thereof by an appropriate Court, have equal and identical effects. ( 27 ) IN the case of Ibrahim Bachu Bafan V/s. State of gujarat and Ors. reported in AIR 1985 SC 697 , it has been clearly observed that when an order of detention has been revoked, in exercise of the powers u/s. 11 (1) of the said Act, then a fresh order of detention u/s. 11 (2) can be passed. It has also been observed therein that if the first order of detention has been quashed in exercise of the powers under Article 226 of the Constitution of india, then fresh order u/s. 11 (2) can not be passed.
It has also been observed therein that if the first order of detention has been quashed in exercise of the powers under Article 226 of the Constitution of india, then fresh order u/s. 11 (2) can not be passed. ( 28 ) ANY way, in the present case, we find that after the revocation of the first detention order u/s. 11 (1) of the said Act, there was no subsequent or consequent order u/s. 11 (2) of the said Act. In other words, there was absolutely no order of detention in existence, at the time when proceeding u/s. 6 (1) was initiated against the petitioners. Therefore, now, when it has become an admitted position that a proceeding u/s. 6 (1) of the said act can be initiated only on the strength of a valid and effective detention order u/s. 3 (1) of the COFEPOSA and when the order of detention has been revoked and when it was not in existence on the date when the proceeding u/s. 6 (1) was initiated, then it has to be accepted that the competent authority had no power to proceed against the petitioner u/s. 6 (1) of the SAFEMA. ( 29 ) THEREFORE, the Notice u/s. 6 (1) dated 10/02/95 issued after the revocation of the order of detention against the first petitioner has to be treated to be illegal and without jurisdiction. ( 30 ) SIMILAR view was adopted by this Court in the case of Karimaben K. Bagad V/s. State of Gujarat in s. C. A. No. 3436/1996 decided on 29/03/04. ( 31 ) IT would be relevant to refer to a decision of the Honble the Bombay High Court in the case of Rajesh hansraj Chopra V/s. Competent Authority and Ors. reported in 2002 Bom. C. R. (Cri.) 96. It seems that an argument was advanced in the above matter that there was a revocation u/s. 11 and not u/s. 2 and therefore, the proceedings under the SAFEMA could go on against the persons concerned. The relevant observation can be gathered in Para 4 which is reproduced for ready reference as follows;"4. WE are not very much concerned about the facts which led the authority to believe. We are concerned only the jurisdictional aspect of the notice. It is true that the Show Cause Notice itself shows that the order of detention was revoked. But as contended by Mr.
WE are not very much concerned about the facts which led the authority to believe. We are concerned only the jurisdictional aspect of the notice. It is true that the Show Cause Notice itself shows that the order of detention was revoked. But as contended by Mr. Mehta only those revocation as mentioned in section 2 (2) (b) can be taken into account for excluding the operation of SAFEMA. Section 2 deals with the application of the Act, which reads as follows; 2. Application.- (1) "the provision of this Act shall apply only to the persons specified in subsection (2 ). (2) The persons referred to in subsection (1) are the following namely; (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (52 of 1947); Provided that.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (52 of 1947); Provided that. (i) such order of detention, being an order to which the provisions of section 9 or section 12-A of the said Act do not apply, has not bee revoked on the report of the Advisory Board under Section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) such order of detention, being an order to which the provisions of Section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under subsection 3 of section 9, or on the report of the Advisory Board u/s. 8, read with subsection 2 of section 9 of the said Act; or (iii) such order of detention, being an order to which the provisions of section 12-A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of the first review under subsection 3 of that section, or on the basis of the report of the Advisory Board under section 8, read with subsection 6 of section 12-A, of that Act; or (iv) such order of detention has not been set aside by a Court of competent jurisdiction ( 32 ) THE observation made in this judgment with respect to the applicability of the law relating to revocation of order u/s. 11 and revocation u/s. 2, has been amply supported by the aforesaid pronouncement of the honble the High Court of Bombay. Therefore, considering the observations made in the aforesaid decision, it can again be said that it is immaterial whether a revocation has been ordered u/s. 11 or u/s. 2 of the said Act. In my opinion, the resultant effect of a revocation u/s. 11 and a revocation u/s. 2 is the same.
Therefore, considering the observations made in the aforesaid decision, it can again be said that it is immaterial whether a revocation has been ordered u/s. 11 or u/s. 2 of the said Act. In my opinion, the resultant effect of a revocation u/s. 11 and a revocation u/s. 2 is the same. Therefore, on this solitary count, the proceedings u/s. 6 (1), followed by an order u/s. 7 and further followed by an order in Appeal u/s. 12 of the said Act, cannot also be sustained in the eye of law and all these orders and proceedings would stand vitiated on a single consideration that the order of detention was revoked before the commencement of proceedings u/s. 6 (1) of the SAFEMA. ( 33 ) IT is true that the petitioners have taken up other contentions which have been enumerated hereinabove. They relate to non-observance of the principle of natural justice, non-formulation of the grounds before passing an order of detention etc. . ( 34 ) ON the other hand, the learned Addl. Standing counsel has also argued that the petition would fail on the ground of delay also. It is required to be considered here that after the issuance of Notice dated 10/02/95, the order u/s. 7, forfeiting the property in question, came to be passed on 17/02/2000 and the said order was again challenged before the Appellate Tribunal under the provisions of Section 12 of the said Act. The said Tribunal dismissed the said Appeal on 20/03/01. The present petition has been preferred in April 01. Therefore, considering the aforementioned chronology, it cannot be said that there was a delay on the part of the petitioners in coming late to this Court. Therefore, the ground of delay cannot come to the rescue of the respondents. ( 35 ) IT has then been contended by the learned Addl. Standing Counsel that the earlier petition was disposed of on the strength of the judgment delivered in Attorney generals case (supra ). ( 36 ) IN the case of Attorney General for India V/s. Amratlal Prajivandas and Ors.
( 35 ) IT has then been contended by the learned Addl. Standing Counsel that the earlier petition was disposed of on the strength of the judgment delivered in Attorney generals case (supra ). ( 36 ) IN the case of Attorney General for India V/s. Amratlal Prajivandas and Ors. reported in (1994) 5 SCC 54 , it has been observed that;"the validity of an order of detention to which section 12-A of COFEPOSA applied, could yet be examined even during the emergency, on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359 (1) - say on the ground that the provisions of Section 12-A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for supplying SAFEMA to him - this is for the reason that even if he is allowed to challenge the said order when he is served with a Notice u/s. 6 of the SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said order was made and the law in force during the period the said order of detention was in operation. Same would be the position in the case of a person who challenged the order but failed in his challenge. Even in the case of a normal order of detention under COFEPOSA, the position would be the same. A person who did not challenge (either by himself or through his next friend) the order of detention or challenge it but failed, cannot be allowed to challenge the order of detention when action is taken against him under SAFEMA. " ( 37 ) IT can be gathered that following order was passed by the Division Bench of this Court while dismissing S. C. A. No. 1788/1978: "in view of the decision of the Supreme Court in the case of Attorney General of India V. Amratlal Prajivandas and ors. reported in Judgmemnt Today 1994 (3) SC 583, this petition is dismissed. " ( 38 ) ON the strength of the above order, it has been contended by the learned Addl.
reported in Judgmemnt Today 1994 (3) SC 583, this petition is dismissed. " ( 38 ) ON the strength of the above order, it has been contended by the learned Addl. Standing Counsel that as per Attorney Generals case (supra), the validity of an order of detention could be questioned during the period of Emergency, only on the ground other than those barred during the said period. Failure to challenge or unsuccessful challenge to the order on such grounds would bar subsequent challenge to the order when that order is sought to be made basis for applying SAFEMA. It has also been observed that a person who did not challenge the order of detention either by himself or through his next friend, or if he challenged but has failed, then he could not be allowed to challenge the order of detention when action is taken against him under SAFEMA. In the present case, we find that though the order was passed in 1975, it was revoked by the competent authority in 1977, whereas the Notice u/s. 6 (1) was issued on 10/02/95. ( 39 ) IN view of the aforesaid fact situation, it would be clear that when an order of detention was revoked, in exercise of the powers u/s. 11 (1), then in that case, the person detained was released and therefore, the said person may not be interested in challenging the order of detention. Moreover, when the proceedings u/s. 6 (1) of the said Act had commenced, the order of detention was not in existence, as it was already revoked. Therefore also, it cannot be said that the proceedings u/s. 6 (1) of the said Act had been initiated during the lifetime of the order of detention u/s. 3 (1) of the COFEPOSA. Therefore, the above argument will not help the respondents to any extent. ( 40 ) SIMILAR observations were there in the pronouncement of the Honble the Supreme Court in criminal Appeal No. 1046/1997 dated 24/02/04 in the case of Narendra Kumar V/s. Union of India and Ors. In the said matter, the father of the appellant was detained on 19/12/74 u/s. 3 of the COFEPOSA. The said detention order was challenged by the appellants brother in a writ petition. During the pendency of the said petition, the appellants father was released from detention much before the period of his detention was over.
In the said matter, the father of the appellant was detained on 19/12/74 u/s. 3 of the COFEPOSA. The said detention order was challenged by the appellants brother in a writ petition. During the pendency of the said petition, the appellants father was released from detention much before the period of his detention was over. Since the detenu was released, the writ petition was dismissed by the High Court holding that the same had become infructuous. The correctness or merits of the grounds for detention and the validity of the detention order were not adjudicated upon in the said matter. 40. 1 after the release of the appellants father, Notice u/s. 6 (1) of the SAFEMA was issued on the father of the appellant. The appellants father and other similarly situated persons had approached the Honble the Supreme Court in order to challenge the provisions of SAFEMA. By a pronouncement in Attorney Generals case (supra), the Honble the Supreme Court upheld the validity of the said Act. 40. 2 thereafter, the appellant in the aforesaid matter challenged the order of detention of his father before the Delhi High Court as it was the basis of the Notice u/s. 6 (1) of the SAFEMA. In that writ petition, the Honble the Delhi High Court came to the conclusion that the dismissal of the writ petition as against the order of detention, having not been challenged by the petitioner therein, was hit by the principles of res judicata. However, the High Court of Delhi did not go into the validity of the order of detention. 40. 3 the argument of the learned Addl. Standing Counsel is that since the earlier petition was dismissed on 09/08/94 (S. C. A. No. 1788/1978), a second petition would not lie and the Court will not have jurisdiction to entertain the second petition. Mr. Barot has also argued that since the earlier petition was dismissed by this Court, a second petition of the same nature and on the same disputed question of fact cannot be entertained. He has also argued that the second petition would be barred by the principles of res judicata and constructive res judicata, as can be gathered from Order 2 Rule 2 of C. P. Code, 1908. 40.
He has also argued that the second petition would be barred by the principles of res judicata and constructive res judicata, as can be gathered from Order 2 Rule 2 of C. P. Code, 1908. 40. 4 in view of the aforesaid decision of the Honble the Apex Court in Criminal Appeal No. 1046/1997 dated 24/02/04, it would not be possible for this Court to agree with the aforesaid argument of Mr. Barot that the second petition would not be maintainable as it is barred by the principles of res judicata u/s. 11 of the C. P. Code or under the principles of constructive res judicata under Order 2 Rule 2 of the said Code. It is also required to be considered that the earlier petition was not dealt with and decided on merit. A simple order of three lines referred to hereinabove clearly shows that the earlier petition was dismissed because of the judgment in Attorney Generals Case (supra ). ( 41 ) A copy of the petition being S. C. A. No. 1788/78 has been placed at page 68 to the petition. It can be gathered therefrom that the petitioner in the said petition had challenged the vires and constitutional validity of the SAFEM Act as well as of the COFEPOSA Act. It can be gathered therefrom that the orders of detention or the proceedings under the SAFEMA were not challenged on factual merits. Therefore, the earlier petition was dismissed on the ground that there was a pronouncement of the Honble the Supreme Court upholding the constitutional validity of the said two Enactments. When the Honble the Supreme Court had brought an end to the aforesaid controversy, by upholding the constitutional validity of the said two Enactments, this Court could not decide the issue afresh and therefore, this Court had no other alternative, but to dismiss the said petition without going into the merits of the case. ( 42 ) IN that view of the matter, disposal of the earlier petition will have no bearing on the factual merits of the present petition, and consequently, it cannot be said that since the earlier petition was dismissed by this Court, this petition would not be maintainable. Therefore, the said ground would not be available to the respondents. ( 43 ) THE learned Addl.
Therefore, the said ground would not be available to the respondents. ( 43 ) THE learned Addl. Standing Counsel has lastly argued that neither the petitioners nor anyone else had challenged the order of detention, when the said order was in force and before it was revoked, and therefore, the present petition challenging the order of detention, after its revocation, would not be maintainable. The above argument has been substantiated by the pronouncement of the Honble the Supreme Court dated 24/02/04 in Criminal Appeal No. 1046/1997. At the same time, it is required to be considered that the said order was to remain in force for a period of twelve years. The order was passed on 22/12/75 and it was revoked on 21/03/77. Therefore, the order of detention was revoked before the date of expiry. ( 44 ) NATURALLY, the person concerned could have challenged the said order of detention during the lifetime of the said order. In the present case, we find that the order was revoked before the date of its expiry and therefore, the petitioners may not have been able to challenge the same during the lifetime of the said order. In that view of the matter, it cannot be said that when the order of detention was not challenged during its lifetime, it cannot be challenged subsequently. Even otherwise, it seems that if the competent authority had not proceeded u/s. 6 (1) of the said Act against the petitioners on the strength of the aforesaid order, then probably the petitioners would not have thought it proper to file an earlier petition in 1978 and then to file the present petition, in order to challenge the said order of detention. It is required to be considered that challenge to the order of detention was required to be made by the petitioners because of the fact that the proceedings u/s. 6 (1) were initiated successfully and even the statutory appeal u/s. 12 of the said Act filed by the petitioners had failed. In that view of the matter, it cannot be said that the present petition is not maintainable, in view of the fact that the petitioners had not challenged the order of detention during its lifetime. This is not a case wherein the order of detention remained in existence and in force during the entire span of twelve years.
In that view of the matter, it cannot be said that the present petition is not maintainable, in view of the fact that the petitioners had not challenged the order of detention during its lifetime. This is not a case wherein the order of detention remained in existence and in force during the entire span of twelve years. When the order was revoked before the expiry date, then in that event, the fact that the said order was not challenged, would not be a ground available to the respondents for questioning the maintainability of the present petition. Therefore, the petition would not fail on the ground that the order of detention was not challenged by the petitioners during the lifetime of the said detention order. ( 45 ) HAVING regards to the facts and circumstances of the case, I am of the opinion that since eixstence of a detention order is a basic requirement for proceeding u/s. 6 and 7 of the Smugglers and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 and since an order of detention was not in existence at the time of going ahead with proceeding u/s. 6 (1) of the SAFEMA, the initiation of proceeding u/s. 6 (1) of the said Act would be illegal and even the resultant order u/s. 7 would be illegal. Therefore, the entire proceedings u/s. 6 and 7 of the SAFEMA are required to be set aside as being illegal. ( 46 ) FOR the foregoing reasons, this petition is allowed. 46. 1 the order of detention of the first petitioner dated 22/12/1975 passed by respondent no. 3 and 4 herein u/s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is quashed and set aside. 46. 2 the proceedings u/s. 6 (1) of The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 initiated against the petitioners, based on an order of detention dated 22/12/1975 and the consequential order dated 17/02/2000 passed by the competent authority u/s. 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 forfeiting the property known as "roshan Manzil" is also quashed and set aside. ( 47 ) RULE is made absolute as aforesaid with no orders as to costs. Direct service is permitted. .