# NARENDER KUMAR v. UNION OF INDIA AND OTHERS

- **Citation:** [2019] 6 S.C.R. 482
- **Court:** Supreme Court of India
- **Decided:** 2019-04-08
- **Case number:** Criminal Appeal No.1492 of 2009
- **Bench:** Uday Umesh Lalit, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narender-kumar-v-union-of-india-and-others-33873
- **Pages:** 25

## Headnote

Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976 (SAFEMA) : s.2(2)(b) and its proviso - Applicability of - Competent Authority under MISA directed detention
of one 'R' on 5.11.1974 with a view to prevent him from dealing in
smuggled goods prior to COFEPOSA came into force on 13.12.1974
- On 19.12.1974, the competent authority under COFEPOSA directed his detention with a view to prevent him from dealing in
smuggled goods - Representation of detenu was rejected - On
29.4.1975, his son filed writ of habeas corpus and prayed for quashing of detention orders dated 5.11.1974 and 19.12.1974 - Proclamation 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 period
of detention - Later SAFEMA came into force w.e.f. 25.1.1976 -
Emergency was lifted on 21.3.1977 - Next day, i.e. on 22.3.1977,
detention orders in respect of 49 detenus including 'R' were revoked by the State Government and detenu was released - On
30.4.1977, Competent Authority under SAFEMA issued notice to
detenu and his wife to show cause the source of their income or
acts or by means of which they had acquired properties and why
said properties be not declared illegally acquired and forfeited -
Writ Petition for quashing of orders dated 5.11.1974 and
19.12.1974 which was alive and pending in High Court was disposed of as having become infructuous - After considering replies
to the notices under SAFEMA, on 29.5.1978, the Competent Authority held that the property mentioned in the schedule to the order
was illegally acquired and that it stood forfeited - Writ petition
filed against the said order was dismissed holding that there was no
revocation of detention before the expiry of the Emergency and as
such provisions of s.2(2)(b) of SAFEMA would get attracted - On
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appeal, held: For the substantive provision under s.2(2)(b) to apply, the matter must not be covered under any of the four parts of
the proviso - Part (i) of the proviso to s.2(2)(b) deals with cases to
which s.9 or s.12A of COFEPOSA did not apply - In the instant
case, there was neither any declaration under s.9 nor any proclamation under s.12A - Thus, s.9 and s.12A did not apply - In terms
of Part (i) of the proviso, if the order of detention was not revoked
under the conditions stipulated therein, the substantive provisions
of s.2(2)(b) must apply - The order of detention was not revoked
under any of the postulates of the proviso to s.2(2)(b) nor was it set
aside by any competent court and as such the provisions of SAFEMA
must apply - In terms of Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the
substantive 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 observed that the detention "had run right through the duration or
continuance of the emergency" - Maintenance of Internal Security
Act, 1971 (MISA) - s.3(2) - Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
Dismissing the appeals, the Court
HELD: 1. An order of detention under Section 3(1) of
COFEPOSA can be made against a person with a view to
"prevent him from acting in any manner prejudicial to the
conservation or augmentation of foreign exchange" or with a view
to prevent him from indulging in activities mentioned in said
Section 3(1). If the Advisory Board finds that there is sufficient
cause for detention under Section 8(f), the period of detention
under Section 10 could be one year or the "specified period"
whichever expires later. In cases where a declaration under
Section 9 was issued, the maximum period of detention in terms
of said Section 10, upon approval being accorded by the
Advisory Board, could be two years

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NARENDER KUMAR
v.
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 (Forfeiture
of Property) Act, 1976 (SAFEMA) : s.2(2)(b) and its proviso - Applicability of - Competent Authority under MISA directed detention
of one 'R' on 5.11.1974 with a view to prevent him from dealing in
smuggled goods prior to COFEPOSA came into force on 13.12.1974
- On 19.12.1974, the competent authority under COFEPOSA directed his detention with a view to prevent him from dealing in
smuggled goods - Representation of detenu was rejected - On
29.4.1975, his son filed writ of habeas corpus and prayed for quashing of detention orders dated 5.11.1974 and 19.12.1974 - Proclamation 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 period
of detention - Later SAFEMA came into force w.e.f. 25.1.1976 -
Emergency was lifted on 21.3.1977 - Next day, i.e. on 22.3.1977,
detention orders in respect of 49 detenus including 'R' were revoked by the State Government and detenu was released - On
30.4.1977, Competent Authority under SAFEMA issued notice to
detenu and his wife to show cause the source of their income or
acts or by means of which they had acquired properties and why
said properties be not declared illegally acquired and forfeited -
Writ Petition for quashing of orders dated 5.11.1974 and
19.12.1974 which was alive and pending in High Court was disposed of as having become infructuous - After considering replies
to the notices under SAFEMA, on 29.5.1978, the Competent Authority held that the property mentioned in the schedule to the order
was illegally acquired and that it stood forfeited - Writ petition
filed against the said order was dismissed holding that there was no
revocation of detention before the expiry of the Emergency and as
such provisions of s.2(2)(b) of SAFEMA would get attracted - On
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appeal, held: For the substantive provision under s.2(2)(b) to apply, the matter must not be covered under any of the four parts of
the proviso - Part (i) of the proviso to s.2(2)(b) deals with cases to
which s.9 or s.12A of COFEPOSA did not apply - In the instant
case, there was neither any declaration under s.9 nor any proclamation under s.12A - Thus, s.9 and s.12A did not apply - In terms
of Part (i) of the proviso, if the order of detention was not revoked
under the conditions stipulated therein, the substantive provisions
of s.2(2)(b) must apply - The order of detention was not revoked
under any of the postulates of the proviso to s.2(2)(b) nor was it set
aside by any competent court and as such the provisions of SAFEMA
must apply - In terms of Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the
substantive 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 observed that the detention "had run right through the duration or
continuance of the emergency" - Maintenance of Internal Security
Act, 1971 (MISA) - s.3(2) - Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
Dismissing the appeals, the Court
HELD: 1. An order of detention under Section 3(1) of
COFEPOSA can be made against a person with a view to
"prevent him from acting in any manner prejudicial to the
conservation or augmentation of foreign exchange" or with a view
to prevent him from indulging in activities mentioned in said
Section 3(1). If the Advisory Board finds that there is sufficient
cause for detention under Section 8(f), the period of detention
under Section 10 could be one year or the "specified period"
whichever expires later. In cases where a declaration under
Section 9 was issued, the maximum period of detention in terms
of said Section 10, upon approval being accorded by the
Advisory Board, could be two years or the "specified period"
whichever period expires later. Explanation to Section 10 states
the "specified period" to be the period during which the
proclamation of Emergency issued under Article 352 of the
Constitution, inter alia, on 25.06.1975 would be in operation. If
an order of detention was passed after the commencement of the
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Amendment Act of 1975 and the officer making the order of
detention considered the detention of such person to be
necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. [Para 22][503-C-F]
2. In terms of Section 2 of SAFEMA, the provisions of
said Act would apply inter alia to every person in respect of whom
an order of detention had been made under COFEPOSA, subject
to proviso contained in Section 2(2)(b). Proviso to Section 2(2)(b)
of SAFEMA then carves out four exceptions to the applicability
of substantive provisions to Section 2(2)(b). First three parts of
the Proviso deal with three kinds of orders of detention under
COFEPOSA and stipulate that if the order was revoked during
the period mentioned therein, the substantive provision would
not apply. Part (iv) of the proviso get attracted where the order
of detention is set aside by a court of competent jurisdiction. For
the substantive provision under Section 2(2)(b) to apply the matter
must not be covered under any of those four parts of the proviso.
[Para 23][503-G-H; 504-A-C]
3. Part (i) of the proviso to Section 2(2)(b) deals with cases
to which Section 9 or Section 12A of COFEPOSA do not apply.
In the instant case, there was neither any declaration under
Section 9 nor was there any proclamation under Section 12A.
The order of detention was also not passed after the Amendment
Act of 1975 came into force. Thus, Section 9 and Section 12A did
not apply. In terms of said Part (i) of the proviso, if the order of
detention was not revoked under the conditions stipulated
therein, the substantive provisions of Section 2(2)(b) must apply.
In the instant case, there was no such revocation and going by
the text of Part (i) of the proviso, the provisions of SAFEMA
must apply in the instant case. Parts (ii) and (iii) of the proviso
are cases where substantive orders of detention to which
provisions of Section 9 and Section 12A respectively apply and
as such they are not relevant for the present consideration. Part
(iv) of the proviso which speaks of cases where order of detention
is set aside by a court of competent jurisdiction, applies
irrespective whether the matter comes under Section 3(1)
simplicitor or comes under Section 9 or Section 12A. The order
of detention was not set aside in the present matter and as such
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Part (iv) is also inapplicable to the instant case. [Para 24]
[504-C-F]
4. The order of detention in this case was not revoked
under any of the postulates of the proviso nor was it set aside by
any competent court and as such the provisions of SAFEMA must
apply. The High Court was right in observing that the detention
"had run right through the duration or continuance of the
emergency". Though the petition was pending during the length
of this time and was taken up for hearing after the lifting of the
emergency, no attempts were made to have the petition disposed
of on merits. The notices under SAFEMA were issued to the
detenu and his wife while the possibility that the SAFEMA
proceedings could be premised on the validity of the detention
order was very much alive and yet, the matter was chosen not to
be agitated on merits. [Para 25][504-F-H; 505-A-B]
5. In the instant case, the representation dated 17.01.1975
was considered by the State on 11.02.1975 and the rejection was
communicated to the detenu. Moreover, at no stage, any
grievance was raised that the grounds of detention were not
communicated to him in a language known to him. Similarly, the
submission that the grounds of detention were identical, is also
without any merit. Insofar as the order of detention under
COFEPOSA was concerned, the grounds dealt with instances
where the detenu had indulged in smuggling of goods, on the
basis of which subjective satisfaction was arrived at as regards
his propensity to deal in smuggled goods. In the said
circumstances, the challenge to order of detention dated
19.12.1974 passed under the provisions of COFEPOSA fail.
Further, the Competent Authority and the Appellate Tribunal
constituted under the provisions of SAFEMA had, after issuance
of due notice and granting every opportunity to the noticees,
arrived at findings that the properties mentioned in the schedules
to the notices were illegally acquired and that they stood forfeited
to the Central Government free from all encumbrances. All the
prayers made in Civil Writ Petition No.509 of 1996 being
meritless said Writ Petition deserved to be rejected and was
rightly dismissed by the High Court. [Paras 26, 27][505-B-D;
E-F]
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Attorney General for India and Others v. Amratlal
Prajivandas and Others (1994) 5 SCC 54: [1994] 1
Suppl. SCR 1 - relied on.
Union of India v. Haji Mastan Mirza (1984) 2 SCC
427 : [1984] 3 SCR 1 - Distinguished.
Case Law Reference
[1994] 1 Suppl. SCR 1 relied on
Para 10
[1984] 3 SCR 1
 Distinguished
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1492 of 2009
From the Judgment and Order dated 02.05.2008 of the High Court
of 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, Amlan
Kumar Ghosh, Advs. for the appellant.
Aman Lekhi, ASG, Saurabh Mishra, R. Singh, B. K. Prasad,
Mrs. 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.
CRIMINAL APPEAL NO.1492 OF 2009
1. This appeal questions the correctness of the judgment and order dated 02.05.2008 passed by the High Court of Delhi at New Delhi in
Writ Petition (Criminal) No.509 of 1996.
2. In exercise of power under Section 3(2) of the Maintenance of
Internal Security Act, 1971 ('MISA' for short), as amended by Section
6(6)(c) of Defence of India Act, 1971 and Section 2(1)(c)(iii) of Internal
Security (Amendment) Ordinance, 1974, by order dated 05.11.1974, the
Superintendent of Police, Amritsar directed that one Roshan Lal be
detained with a view to prevent him from dealing in smuggled goods.
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3. The Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 ('COFEPOSA' for short) came into force
on 13.12.1974. Deputy Secretary to the Government of Punjab, Home
Department, Chandigarh, passed an order on 19.12.1974 under Section
3 of COFEPOSA detaining said Roshan Lal with a view to prevent him
from dealing in smuggled goods. In the grounds of detention in support
of the detention order, it was inter alia stated that in the first week of
July 1974 one Yusuf, resident of Lahore, Pakistan, a notorious smuggler
in gold had contacted Roshan Lal who had agreed to purchase smuggled
gold at the rate of Rs.600/- per tola; that Roshan Lal had purchased 50
smuggled gold biscuits and had paid Rs.3 lakhs; and that later he had
also purchased 25 Gold biscuits of ten tolas each, that were smuggled on
18.08.1974 and paid Rs.1.5 lakhs.
4. On 17.01.1975 Roshan Lal preferred a representation against
the order of detention dated 19.12.1974 addressed to State of Punjab,
through Superintendent of Police, Patiala. The representation was
rejected by the State on 11.02.1975. On or about 29.04.1975 Om Prakash,
son of Roshan Lal filed Writ Petition No.138 of 1975 in the High Court
of Punjab and Haryana seeking writ of habeas corpus and praying for
quashing of aforesaid detention orders dated 05.11.1974 as well as
19.12.1974.
5. With effect from 01.07.1995 Section 12A titled "Special
Provisions for dealing with Emergency" was inserted in COFEPOSA
by Amendment Act of 19751. Shortly thereafter, Amendment Act of
19762, which came into force on 12.12.1975 inserted Section 10A titled
"Extension of Period of Detention". Later, the Smugglers and Foreign
Exchange 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 a result of
proclamation issued by the President on 25.06.1975, was lifted on
21.03.1977. On the very next day i.e. on 22nd March, 1977 detention
orders in respect of 49 detenus, including Roshan Lal, were revoked by
the 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)
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7. A notice under Section 6(1) of SAFEMA was issued by the
Competent Authority to Roshan Lal on 30.04.1977 calling upon him to
show the source of his income, earnings or acts or by means of which
he had acquired properties mentioned in the schedule to said notice and
to show cause why said properties be not declared to be illegally acquired
properties and forfeited to the Central Government under the provisions
of SAFEMA. A similar notice was also issued to Smt. Sheelawati, wife
of Roshan Lal under the provisions of Section 6(1) of SAFEMA on
11.01.1978 to show cause why the properties mentioned in the schedule
to the notice be not declared to be illegally acquired properties and
forfeited to the Central Government under the provisions of SAFEMA.
8. Writ Petition No.138 of 1975 came up before the High Court of
Punjab and Haryana at Chandigarh on 24.02.1978 and on the statement
of the counsel for the Writ Petitioner that the petitioner had been released
from custody which had come about in pursuance of the order of
detention, it was observed that the petition had become infructuous and
was, therefore, dismissed.
9. After considering the replies to the notices under Section 6(1)
of SAFEMA submitted by Roshan Lal and after considering the material
on record, an order under Section 7(1) of SAFEMA was passed by the
Competent Authority on 29.05.1978. It was held that the property
mentioned in the Schedule to the order was illegally acquired and that it
stood forfeited to the Central Government free from all encumbrances.
Similar order was passed in the matter arising out of notice issued to
Sheelawati. Appeals, being F.P.A. No.41/78-79 and F.P.A. No.42/7879, preferred by Roshan Lal and Sheelawati were dismissed by the
Appellate Authority by its separate orders dated 02.02.1979 and the
view taken by the Competent Authority was affirmed.
10. Roshan Lal approached this Court by filing Writ Petition No.220
of 1979 under Article 32 of the Constitution of India and challenged the
aforesaid orders passed by the Competent Authority and the Appellate
Tribunal. The Writ Petition was taken up along with certain similar
matters including Transfer Petitions filed by the Attorney General for
India. All these matters were disposed by a Bench of nine Judges of
this Court on 12.05.1994 vide its decision in Attorney General for India
and Others vs. Amratlal Prajivandas and Others3. The conclusions
arrived at by this Court and the directions issued were as under:-
3(1994) 5 SCC 54
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"56. To summarise:
(1) Parliament was perfectly competent to enact both the
COFEPOSA and the SAFEMA.
(2) For the reasons given in the body of this judgment, we do not
express any opinion on the validity of the 39th and 40th
Amendment Acts to the Constitution of India placing COFEPOSA
and SAFEMA in the Ninth Schedule. We assume them to be good
and valid. No arguments have also been addressed with respect
to the validity of 42nd Amendment Act to the Constitution either.
(3) (a) An order of detention made under Section 3 of COFEPOSA,
which was governed by Section 12-A thereof is yet an order of
detention for the purpose of and within the meaning of Section
2(2)(b) of SAFEMA. Since the President had issued an order
under Article 359(1) suspending Articles 14, 21 and 22, it became
competent for Parliament, by virtue of clause (1-A) of Article
359 to enact Section 12-A of COFEPOSA for the duration of and
limited to the period for which the Presidential Order was in force.
It was meant to achieve the purposes of emergency. Once
Section 12-A is held to be a competent piece of legislation, orders
of detention made thereunder (i.e. orders of detention to which
the said provision applied) cannot be held to be not amounting to
orders of detention for the purpose of and within the meaning of
Section 2(2)(b) of SAFEMA, particularly in view of the express
language of Section 2(2)(b) [including proviso (iii) thereto] -
and the protection enjoyed by both the enactments by virtue of
their inclusion in the Ninth Schedule to the Constitution.
(b) An order of detention to which Section 12-A is applicable as
well as an order of detention to which Section 12-A was not
applicable can serve as the foundation, as the basis, for applying
SAFEMA to such detenu and to his relatives and associates
provided such order of detention does not attract any of the
sub-clauses in the proviso to Section 2(2)(b). If such detenu did
not choose to question the said detention (either by himself or
through his next friend) before the Court during the period when
such order of detention was in force, - or is unsuccessful in his
attack thereon - he, or his relatives and associates cannot attack
or question its validity when it is made the basis for applying
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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 effective
inasmuch as the purpose and object of bringing such persons within
the net of SAFEMA is to reach the properties of the detenu or
convict, as the case may be, wherever they are, howsoever they
are held and by whomsoever they are held. They are not conceived
with a view to forfeit the independent properties of such relatives
and associates as explained in this judgment. The position of
'holders' dealt with by clause (e) of Section 2(2) is different as
explained in the body of the judgment.
(6) Section 5-A of COFEPOSA is not invalid or void. It is not
violative of clause (5) of Article 22.
(7) Petitioners have failed to establish that any of the provisions
of SAFEMA are violative of Articles 14, 19 or 21 - apart from
the protection they enjoy by virtue of the inclusion of the Act in
the Ninth Schedule to the Constitution.
57. All the writ petitions, transferred cases and appeals are disposed
of accordingly. The court and authorities before whom proceedings
are pending under SAFEMA shall proceed to dispose them of in
accordance with law and in the light of this judgment. It is in the
interest of all concerned that the proceedings are concluded with
all deliberate speed."
11. Thereafter, Civil Writ Petition No.509 of 1996 was filed on
12.08.1996 by the present appellant, as son of late Shri Roshan Lal,
seeking to challenge the order of detention dated 19.12.1974 as aforesaid
as well as the order dated 29.05.1978 passed by the Competent Authority.
The prayers in the petition were :-
"(a) Quash the detention order dated 19.12.1974 passed by
respondent No.3 under Section 3(1) of COFEPOSA Act.
(b) Quash the order dated 29.05.1978 passed by the respondent
No. 2 under Section 19(1) of Smugglers & Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976.
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(c) Restrain the respondent from acquiring/dispossessing the
petitioners of the said properties, namely, house property municipal
No.1115/X-5, Dhab Khatika, RB Seindas Road, Amritsar and
factory premises bearing No.76, 78-Min Private, Khewat/Khatauni
No.31, Khasra No.745, Jawahar Nagar, Batala Road, Amritsar
along with some machinery installed therein.
(d) Issue such other writ, order or direction as this Hon'ble Court
may deem just and equitable on the facts and in the circumstances
of the present case."
12. The High Court found that the dismissal of Writ Petition No.138
of 1975 against the order of detention not having been challenged by
Roshan Lal, Writ Petition No.509 of 1996 was barred by principles of
res judicata. A challenge was raised to the correctness of said decision
of the High Court by filing Criminal Appeal No.1046 of 1997 in this
Court by the appellant. The Appeal was allowed by this Court by its
order dated 24.02.2004. While setting aside the decision of the High
Court, the matter was remanded back to the High Court for fresh disposal
of the Writ Petition on merits. During the course of its order, this Court
observed:-
"... ...It is relevant to note that correctness or merit of the grounds
of detention and the validity of the detention order was not
adjudicated upon.
... ... ....
...
...We think since the proceedings under Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976,
has very serious consequences, the appellant should have an
opportunity of establishing the fact that the detention of his father
was not in accordance with the law."
13. The matter was, therefore, reheard by the High Court and by
its judgment and order dated 02.05.2008 said Writ Petition was dismissed.
It was observed that the detention of Roshan Lal had run right through
the duration or continuance of the Emergency and that there was no
revocation of detention before the expiry of the Emergency and as such
provisions of Section 2(2)(b) of SAFEMA would get attracted. The
High Court, thereafter, considered the challenge to the detention order
on the grounds as were urged. The submissions that the detention order
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[UDAY UMESH LALIT, J.]
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was passed on the same material as was relied upon in the order passed
under the provisions of MISA; that the representation dated 17.01.1975
was not considered; that the documents demanded in said representation
were not supplied and that a report in terms of Section 3(2) of
COFEPOSA was not forwarded by the State Government to the Central
Government, were found to be without any substance and merit. The
Writ Petition was thus dismissed by the High Court which decision is
presently under appeal.
14. We heard Mr. R.M. Bagai, learned advocate for the appellant
and Mr. Aman Lekhi, learned Additional Solicitor General for the
respondents.
15. It was submitted by Mr. Bagai, learned advocate that though
the matter was specifically remanded to the High Court for disposal on
merits, the judgment under appeal had virtually overruled the order dated
24.02.2004 passed by this Court. It was further submitted that the
detention order suffered on account of following infirmities:-
a) The relevant assertions in the grounds of detentions were
identical and were repeated from the earlier order passed under
MISA and as such, the detention order suffered from
non-application of mind.
b) The grounds of detention were not framed in a language known
to the detenu.
c) The representation dated 17.01.1975 was not considered at all.
16. Mr. Lekhi, learned Additional Solicitor General, on the other
hand, submitted that the view taken by the High Court was quite correct
and that the so-called infirmities, as alleged, did not exist at all. It was
submitted that the order did not suffer from non-application of mind; that
the representation dated 17.01.1975 was rejected by the State on
11.02.1975, the rejection was communicated to the detenu and that at no
stage any grievance was raised that the grounds of detention were not
communicated to the detenu in a language known to him.
17. In Amratlal1 following questions were framed by this Court,
the answers to which were summarised in paragraph 56 as extracted
above. The questions were framed in para 8 as under:-
"8. The counsel appearing for the petitioners urged several
contentions all of which have been contested by Shri Altaf Ahmed,
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learned Additional Solicitor General. The issues arising from the
rival contentions urged at the bar may be formulated in the shape
of questions. They are to the following effect:
(1) Whether Parliament was not competent to enact COFEPOSA
and SAFEMA?
(2) Whether an order of detention under Section 3 read with Section
12-A of COFEPOSA made during the period of emergency
proclaimed under Article 352(1) of the Constitution of India, -
with the consequent 'suspension' of Article 19 and during which
period the right to move the court to enforce the rights conferred
by Articles 14, 21 and 22 was suspended - can form the
foundation for taking action under Section 6 of SAFEMA against
the detenu, his relatives and associates? And if it does, can the
validity of such order of detention be challenged by the detenu
and/or his relatives and associates, when proceedings are taken
against him/them under SAFEMA, even though the said order of
detention has ceased to be operative and was not either challenged
- or not successfully challenged - during its operation? (3) If
the answer to Question 1 is in the affirmative, should the validity
of the order of detention be tested with reference to the position
of law obtaining at the time of making the said order and during its
period of operation or with reference to the position of law obtaining
on the date of issuance of the show-cause notice under Section 6
of SAFEMA?
(4) Whether the definition of "illegally acquired property" in clause
(c) of Section 3(1) of SAFEMA is violative of the fundamental
rights of the petitioners guaranteed by Articles 14, 19 and 21 and
whether the inclusion of SAFEMA in the Ninth Schedule to the
Constitution cures such violation, if any?
(5) Whether the application of SAFEMA to the relatives and
associates of detenus is violative of Articles 14, 19 and 21? Whether
the inclusion of the said Act in the Ninth Schedule cures such
violation, if any?
(6) Whether Section 5-A of COFEPOSA is violative of clause (5)
of Article 22?
For a proper appreciation of the aforesaid questions, it is necessary
to briefly refer to the relevant provisions of both the enactments."
NARENDER KUMAR v. UNION OF INDIA AND OTHERS
[UDAY UMESH LALIT, J.]
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18. While dealing with questions 2 and 3, this Court considered
decision of this Court in Union of India vs. Haji Mastan Mirza4
rendered by a Bench of three learned Judges in paragraphs 40-41. Said
paragraphs were:-
"40. At this juncture, it would be appropriate to deal with two
decisions of this Court brought to our notice. The first one is in
Union of India v. Haji Mastan Mirza2 rendered by a Bench of
three Judges. The respondent therein was first detained under
Maintenance of Internal Security Act (MISA) under an order
dated 17-9-1974. On 19-12-1974 the said order was revoked but
simultaneously an order of detention was made under Section
3(1) of COFEPOSA. The grounds of detention were served on
him on 23-12-1974. On 25-6-1975, emergency was proclaimed
under Article 352(1) on the ground of internal disturbance, which
continued to be in force up to 21-3-1977. The respondent was
released on 23-3-1977. Notice under Section 6(1) of SAFEMA
was issued to him, his relatives and associates whereupon he filed
a writ petition in the Bombay High Court challenging the validity
of the order of detention dated 19-12-1974 on the ground inter
alia that he was not supplied with the documents clearly and
unmistakably relied upon for arriving at the requisite satisfaction
and which documents were also referred to in the grounds of
detention served upon him. The Bombay High Court allowed the
writ petition, against which the Union of India appealed to this
Court. Varadarajan, J. speaking for the Bench referred to the
provisions of Sections 2, 6 and 7 of SAFEMA and observed thus:
(SCC p. 432, para 10)
"Therefore, a valid order of detention under COFEPOSA is a
condition precedent to proceedings being taken under Sections
6 and 7 of SAFEMA. If the impugned order of detention dated
19-12-1974 is set aside for any reason, the proceedings taken
under Sections 6 and 7 of SAFEMA cannot stand. Therefore,
we have to consider whether the impugned order of detention
dated 19-12-1974 under COFEPOSA is void and has to be
quashed."
41. From the facts stated above, it is clear that the order of
detention was made long prior to the proclamation of emergency
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on 25-6-1975. He was served with the grounds of detention but
not the documents relied upon therein. It does not appear from
the judgment whether a declaration under Section 12-A of
COFEPOSA was made with respect to the said respondent,
though it can be so presumed from the fact that his detention was
continued up to 23-3-1977. In the above circumstances, this Court
said that it was open to the respondent-detenu to question the
validity of the order of detention when proceedings are taken
against him under Sections 6 and 7 of SAFEMA. It is not possible
to agree with the reasoning of the decision. There are two ways
of looking at the issue. If it is a normal order of detention [not
governed by Section 12-A nor protected by an order under Article
359(1) suspending the enforcement of Article 22] and if the detenu
does not challenge it when he was deprived of his liberty, or
challenges it unsuccessfully, there is no reason why he should be
allowed to challenge it when action under SAFEMA is taken
against him - for action under SAFEMA is not automatic upon
the 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 a
Presidential Order under Article 359(1) suspending Article 22], it
perhaps could still be challenged even during the period of
emergency on grounds not barred by the said provisions. Secondly,
even if such an order is allowed to be challenged when action
under SAFEMA is taken, the challenge must be confined to
grounds which were open or available during the period of
emergency; otherwise there would be no meaning behind the
concluding words in Article 358(1) and Article 359(1-A). Hence,
we say that a person who did not choose to challenge such an
order of detention during the emergency when he was detained,
or challenged it unsuccessfully, cannot be allowed to challenge it
when it is sought to be made the basis for applying SAFEMA to
him. In either of the two situations mentioned above, i.e., whether
the challenge is made during the period of detention or later when
proceedings under SAFEMA are taken against him, the grounds
of 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."
NARENDER KUMAR v. UNION OF INDIA AND OTHERS
[UDAY UMESH LALIT, J.]
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19. Question No.2 framed in Amratlal1related to cases where
orders of detention under Section 3 read with Section 12A of COFEPOSA
were made during the period of Emergency proclaimed under Article
352(1) of the Constitution of India. The decision in Haji Mastan
Mirza2whichwas considered in paras 40 and 41, however, pertained to
different factual scenario. In Haji Mastan Mirza2, as indicated in para
41 in the decision of Amratlal1, the order of detention was made long
prior to the proclamation of emergency on 25.6.1975. The Bench of
nine Judges in Amratlal1found that it was not possible to agree with the
view taken in Haji Mastan Mirza2. It was observed that the matter
could be considered from two perspectives; First, if it was an order of
detention to which Section 12A of COFEPOSA did not apply and if the
detenu did not challenge the order of detention or challenged it
unsuccessfully, there was no reason why he should be allowed to
challenge it when action under SAFEMA was taken against him.
Secondly, if the order of detention was governed under Section 12A,
such order of detention could still be challenged during the period of
Emergency and the challenge could be confined to grounds which were
open or available during the period of Emergency. In the concluding
part of the paragraph it was observed that failure to challenge the
detention directly when he was detained, precluded the detenu from
challenging it after the cessation of detention where such detention was
made the basis for initiating action in SAFEMA.
In the present case the order of detention under COFEPOSA
was passed on 19.12.1974 and the petition challenging the detention
was filed on 29.04.1975 i.e. before the proclamation of emergency was
issued on 25.06.1975. The detenu was released after the lifting of the
emergency. All through, the Writ Petition was alive and pending in High
Court and it was disposed of as having become infructuous on the statement made by the counsel for the Writ Petitioner on 24.02.1978. The
instant case is thus covered by para 41 of the decision of this Court in
Amratlal1. However, since the matter was remitted by this Court on
24.02.2004, to be disposed of on merits, we now proceed to consider
whether merits were rightly considered.
20. We may at this stage quote the relevant provisions of
COFEPOSA and SAFEMA.
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A] Sections 10, 10A and 12A of COFEPOSA are as under:-
"10. Maximum period of detention. - The maximum period
for which any person may be detained in pursuance of any
detention order to which the provisions of section 9 do not apply
which has been confirmed under clause (f) of section 8 shall be a
period of one year from the date of detention or the specified
period, whichever period expires later and the maximum period
for which any person may be detained in pursuance of any
detention order to which the provisions of section 9 apply and
which has been confirmed under clause (f) of section 8 read with
sub-section (2) of section 9 shall be a period of two years from
the date of detention or the specified period, which ever period
expires later:
Provided that nothing contained in this section shall affect the
power of the appropriate Government in neither case to revoke
or modify the detention order at any earlier time.
Explanation.- In this section and in section 10A, "specified
period" means the period during which the Proclamation of
Emergency issued under clause (1) of article 352 of the Constitution
on the 3rd day of December, 1971 and the Proclamation of
Emergency issued under that clause on the 25th day of June, 1975,
are both in operation
"10A. Extension of period of detention. - (1) Notwithstanding anything contained in any other provision of this Act, the detention of every person detained under a detention order which
has been confirmed under clause (f) of section 8 before the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976, and which
is in force immediately before such commencement shall, unless
his detention has been continued by the appropriate Government
under the said clause for a period shorter than one year from the
date of his detention, continue until the expiry of a period of one
year from the date of his detention under such order or until the
expiry of the specified period, whichever period expires later:
Provided that nothing contained in this sub-section shall affect the
power of the appropriate Government to revoke or modify such
detention order at any earlier time.
NARENDER KUMAR v. UNION OF INDIA AND OTHERS
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(2) Notwithstanding anything contained in any other provision of
this Act, the detention of every person detained under a detention
order which has been confirmed under clause (f) of section 8
read with sub-section (2) of section 9 before the commencement
of the Conversation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976, and which is in force
immediately before such commencement, shall, unless his detention has been continued by the appropriate Government under the
said clause (f) read with the said sub-section (2), for a period
shorter than two years from the date of his detention, continue
until the expiry of a period of two years from the date of his
detention under such order or until the expiry of the specified
period, whichever period expires later:
Provided that nothing contained in this sub-section shall affect the
power of the appropriate Government to revoke or modify such
detention order at any earlier time."
"12A. Special provisions for dealing with emergency.