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

                                      1 Reportable  

       IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1492 OF 2009

NARENDER KUMAR    …Appellant

VERSUS

UNION OF INDIA AND OTHERS …Respondents

WITH

CRIMINAL APPEAL NO.1493 OF 2009

J U D G M E N T

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.

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

                                      2 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.   

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

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

                                      3 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)

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

                                      4 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

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

                                      5 record,  an  order  under  Section  7(1)  of  SAFEMA  was  passed  by  the

Competent Authority on 29.05.1978.  It was held that the property mentioned

in the Schedule to the order was illegally acquired and that it stood forfeited

to the Central Government free from all encumbrances.  Similar order was

passed in the matter arising out of notice issued to Sheelawati. Appeals, being

F.P.A.  No.41/78-79  and  F.P.A.  No.42/78-79,  preferred  by  Roshan  Lal  and

Sheelawati were dismissed by the Appellate Authority by its separate orders

dated  02.02.1979  and  the  view  taken  by  the  Competent  Authority  was

affirmed.   

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:-

“56. To summarise: 3 (1994) 5 SCC 54

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

                                      6

(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

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

                                      7 the said detention (either  by himself or  through his  next friend) before the Court during the period when such order of detention was in force, — or is unsuccessful in his attack thereon — he, or his relatives and associates cannot attack or  question  its  validity  when  it  is  made  the  basis  for applying SAFEMA to him or to his relatives or associates.

(4)  The  definition  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.”

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

                                      8

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.

(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

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

                                      9 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 was passed on the

same material as was relied upon in the order passed under the provisions of

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

                                      10 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.

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

                                      11 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,  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:

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

                                      12

(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?

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

                                      13

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

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)

4 (1984) 2 SCC 427

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

                                      14 “Therefore,  a  valid  order  of  detention  under COFEPOSA is  a  condition  precedent  to  proceedings being taken under Sections 6 and 7 of SAFEMA. If the impugned order of detention dated 19-12-1974 is set aside  for  any  reason,  the  proceedings  taken  under Sections 6 and 7 of SAFEMA cannot stand. Therefore, we have to  consider  whether  the  impugned order  of detention dated 19-12-1974 under COFEPOSA is void and has to be quashed.”

41. From the facts stated above, it is clear that the order of detention  was  made  long  prior  to  the  proclamation  of emergency 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-

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

                                      15 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.”

19. Question No.2 framed in  Amratlal1 related to cases where orders of

detention  under  Section  3  read  with  Section  12A of  COFEPOSA were

made during the period of Emergency proclaimed under Article 352(1) of

the Constitution of India.  The decision in Haji Mastan Mirza2 which was

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 Amratlal1 found

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

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

                                      16 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.

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                                      17

20. We may at this stage quote the relevant provisions of COFEPOSA and

SAFEMA.    

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

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

                                      18 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.

(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.”  

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

                                      19 “12A.  Special  provisions  for  dealing  with emergency. (1) Notwithstanding anything contained in  this  Act  or  any  rules  of  natural  Justice,  the provisions of this section shall have effect during the period  of  operation  of  the  Proclamation  of Emergency issued under clause (1) of Article 352 of the Constitution on the 3rd day of December 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of [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 any person after the commencement of the  Conservation  of  Foreign  Exchange  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 shall consider whether the  detention  of  such  person  under  this  Act  is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1)  have been issued (hereafter  in  this section referred to as the emergency) and if, on such consideration, the Central Government or the State Government  or,  as  the  case  may be,  the  officer is satisfied that it is necessary to detain such person for effectively  dealing  with  the  emergency,  that Government  or  officer  may make a  declaration  to that  effect  and  communicate  a  copy  of  the declaration to the person concerned:  

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

(3) The question whether the detention of any person in  respect  of  whom  a  declaration  has  been  made

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

                                      20 under sub-section (2) continues to be necessary for effectively  dealing  with  the  emergency  shall  be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter  at  intervals  not  exceeding  four  months, and  if,  on  such  reconsideration,  it  appears  to  the appropriate  Government  that  the  detention  of  the person is no longer necessary for effectively dealing with the emergency, the Government may revoke the declaration.  

(4)  In  making  any  consideration,  review  or reconsideration  under  sub-section  (2)  or  (3),  the appropriate  Government  or  officer  may,  if  such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.  

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

(6)  In  the  case  of  every  person  detained  under  a detention  order  to  which  the  provisions  of  sub- section (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into 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 in sub-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”.

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

                                      21

B] Section 2 of SAFEMA is as follows:- “2.  Application.  (1)  The provisions  of  this  Act  shall apply only to the persons specified in sub-section (2).  

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

(a) every person-  

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

(ii) who  has  been  convicted  under  the  Foreign Exchange Regulation Act, 1947 ( 7 of 1947), or  the  Foreign  Exchange  Regulation  Act, 1973 (46 of 1973), of an offence, the amount or 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  been convicted subsequently under either of those Acts ; or  

(iv) who having been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or  the  Foreign  Exchange  Regulation  Act, 1973  (46  of  1973),  has  been  convicted subsequently under either of those Acts ;  

(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, 1974 (52 of 1974):

Provided that-

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

                                      22 (i) such  order  of  detention,  being  an  order  to

which the provisions of section 9 or section 12A of the said Act do not apply, has not been 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  under section 8, read with sub- section (2) of section 9, of the said Act ; or  

(iii) such  order  of  detention,  being  an  order  to which,  the provisions of section 12A 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 sub-section (3) of that section, or on the basis 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 a court of competent jurisdiction ;  

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

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

(e) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time  previously  held  by  a  person  referred  to  in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held  such property after such person and before the present holder, is or

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

                                      23 was  a  transferee  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  a  person  has  been  convicted  of  an  offence shall  be  the  wholesale  price  of  the  goods  in  the ordinary course of trade in India as on the date of the commission of the offence.  Explanation  2.--For  the  purposes  of  clause  (c), "relative", in relation to a person, means-  (i) spouse of the person;  (ii) brother or sister of the person;  (iii) brother or sister of the spouse of the person;  (iv) any lineal ascendant or descendant of the per-

son; (v) any  lineal  ascendant  or  descendant  of  the

spouse of the person;  (vi) spouse of a  person referred to in  clause  (ii),

clause (iii), clause (iv) or clause (v);  (vii)any lineal descendant of a person referred to in

clause (ii) or clause (iii).  

Explanation  3.-For  the  purposes  of  clause  (d), "associate", in relation to a person, means-  (i) any individual who had been or is residing in the residential premises (including outhouses) of such person;  (ii) any individual who had been or is managing the affairs or keeping the accounts of such person;  (iii) any association of persons, body of individuals, partnership  firm,  or  private  company  within  the meaning of the Companies Act, 1956 ( 1 of 1956), of which such person had been or is a member, partner or director;  (iv) any individual who had been or is  a member, partner or director of an association of persons, body of individuals, partnership firm or private company referred  to  in  clause  (iii)  at  any  time  when  such person had been or is a member, partner or director

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

                                      24 of such association, body, partnership firm or private company;  (v)  any  person  who had been or  is  managing the affairs, or keeping the accounts, of any association of persons, body of individuals, partnership firm or private company referred to in clause (iii);  (vi) the trustee of any trust, where- (a) the trust has been created by such person; or (b) the value of the assets  contributed  by  such  person  (including  the value  of  the  assets,  if  any,  contributed  by  him earlier) to the trust amounts, on the date on which the contribution is made, to not less than twenty per cent. of the value of the assets of the trust on that date ; (vii)where the competent authority, for reasons to be recorded in writing, considers that any properties of such  person  are  held  on  his  behalf  by  any  other person, such other person.  

Explanation  4.-For  the  avoidance  of  doubt,  it  is hereby  provided  that  the  question  whether  any person is a person to whom the provisions of this Act apply may be determined with reference to any facts,  circumstances  or  events  (including  any conviction  or  detention)  which  occurred  or  took place before the commencement of this Act.  

22. 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

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

                                      25 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 Amendment Act of 1975

and the officer making the order of detention considered the detention of such

person  to  be  necessary  for  dealing  effectively  with  the  Emergency,  a

proclamation under Section 12A could be issued.    The effect of such order

passed under Section 3 read with Section 12A of the Act was primarily the

subject matter of consideration in the case in  Amratlal1.    Thus, orders of

detention under COFEPOSA can be of three kinds; (a) under Section 3(1)

simplicitor,  or  (b)  one passed under  Section 3(1)  followed by Declaration

under Section 9 or (c) one passed under Section 3(1) and Section 12A.

23. In terms of Section 2 of SAFEMA, the provisions of said Act would

apply inter alia to every person in respect of whom an order of detention had

been made under COFEPOSA, subject to proviso contained in Section 2(2)

(b).  Proviso  to  said  Section  2(2)(b)  of  SAFEMA then  carves  out  four

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

                                      26 exceptions to the applicability of substantive provisions to Section 2(2)(b).

First three parts of the Proviso deal with three kinds of orders of detention

under COFEPOSA as stated above and stipulate that if the order was revoked

during  the  period  mentioned  therein,  the  substantive  provision  would  not

apply.  Part (iv) of the proviso get attracted where the order of detention is set

aside  by a  court  of  competent  jurisdiction.   For  the  substantive  provision

under Section 2(2)(b) to apply the matter must not be covered under any of

those four parts of the proviso.  We now see whether the instant matters come

within any of those parts of the proviso.  

 24. Part (i) of the proviso to Section 2(2)(b) deals with cases to which

Section 9 or Section 12A of COFEPOSA do not apply.  In the present case

there  was  neither  any  declaration  under  Section  9  nor  was  there  any

proclamation under Section 12A.  The order of detention was also not passed

after  the  Amendment  Act  of  1975 came into  force.   Thus,  Section  9  and

Section 12A do not apply in the present matter.  In terms of said Part (i) of the

proviso,  if  the  order  of  detention  was  not  revoked  under  the  conditions

stipulated therein, the substantive provisions of Section 2(2)(b) must apply.

In the instant case there was no such revocation and going by the text of Part

(i) of the proviso, the provisions of SAFEMA must apply in the instant case.

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

                                      27 Parts  (ii)  and  (iii)  of  the  proviso  are  cases  where  substantive  orders  of

detention to which provisions of Section 9 and Section 12A respectively apply

and as such they are not relevant for the present consideration.   Part (iv) of

the proviso which speaks of cases where order of detention is set aside by a

court of competent jurisdiction, applies irrespective whether the matter comes

under Section 3(1) simplicitor or comes under Section 9 or Section 12A.  The

order of detention was not set aside in the present matter and as such Part (iv)

is also inapplicable to the present case.

25.  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.

Pertinently, the notices under SAFEMA were issued to Roshan Lal and his

wife Sheelawati while the possibility that the SAFEMA proceedings could be

premised on the validity of the detention order was very much alive and yet,

the  matter  was  chosen  not  to  be  agitated  on merits.  The criticism of  Mr.

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

                                      28 Bagai, learned Advocate that the High Court had overruled the order dated

24.02.2004 passed by this Court, is totally incorrect.  Nonetheless, we proceed

to consider the submissions raised by Mr. Bagai, learned Advocate regarding

challenge on merits.  

26. In  the  present  case,  the  representation  dated  17.01.1975  was

considered by the State on 11.02.1975 and the rejection was communicated to

the detenu.  Moreover, at no stage, any grievance was raised that the grounds

of detention were not  communicated to him in a  language known to him.

Similarly, the submission that the grounds of detention were identical, is also

without any merit.  Insofar as the order of detention under COFEPOSA was

concerned, the grounds dealt with instances where the detenu had indulged in

smuggling of goods, on the basis of which subjective satisfaction was arrived

at as regards his propensity to deal in smuggled goods.  Having considered the

factual  aspects  of  the  matter,  the  grounds  raised  by  Mr.  Bagai,  learned

Advocate are without any substance and merit.  We, therefore, affirm the view

taken by the High Court and dismiss said submission.

 27. In the aforesaid  circumstances,  the  challenge  to  order  of  detention

dated 19.12.1974 passed under the provisions of COFEPOSA in respect of

Roshan Lal must fail.  Further, the Competent Authority and the Appellate

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

                                      29 Tribunal constituted under the provisions of SAFEMA had, after issuance of

due notice and granting every opportunity to the noticees, arrived at findings

that the properties mentioned in the schedules to the notices were illegally

acquired and that they stood forfeited to the Central Government free from all

encumbrances. All the prayers made in Civil Writ Petition No.509 of 1996

being meritless  said Writ  Petition deserved to  be rejected  and was rightly

dismissed by the High Court.

28. We, therefore, see no reason to take a different view in the matter and

this Criminal Appeal is dismissed.   

CRIMINAL APPEAL NO.1493 OF 2009

29. In this Appeal, an order of detention was passed against the appellant

on 14.08.2002 under Section 3(1) of COFEPOSA.  The appellant came to be

detained on 17.12.2002.  Criminal Writ Petition No.296 of 2003 preferred by

the appellant was dismissed by the High Court of Punjab and Haryana on the

ground that said High Court had no jurisdiction to entertain the petition.  The

appellant, thereafter, filed Writ Petition (Criminal)No.997 of 2003 in the High

Court of Delhi on 21.08.2003.  The appellant was released on completion of

one year on 17.12.2003.  After  such release,  proceedings under SAFEMA

were  initiated  by  the  Competent  Authority  on  29.03.2005.   Writ  Petition

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

                                      30 (Criminal)  No.997 of 2003 was dismissed by the High Court  of  Delhi  on

02.05.2008 against which present appeal has been preferred by the appellant.

The appeal was tagged with the earlier appeal viz. Criminal Appeal No.1492

of 2009.

30. The detention order was sought to be assailed before the High Court

inter alia on the grounds of non-supply of documents; delay in passing the

order of detention and supply of illegible documents.  Those grounds were

found to be without any substance by the High Court and the challenge so

raised was negated. Having gone through the record, we do not find any error

in the view taken by the High Court.  We, therefore, dismiss this Appeal.   

………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                                 (Hemant Gupta)

New Delhi, April 08, 2019