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 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 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 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]
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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