- (1.) THIS writ petition was filed on 9th October 2007 challenging the order dated 7th September, 2007 passed under section 7 (1) and section 7 (3) as also under section 19 (1) of the Smugglers and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 ('safema' for short ). During its pendency, on 25th March, 2008, the wife of the petitioner filed an application being G. A. No. 929 of 2008 for addition of party and also challenging the notice under section 6 (1) of SAFEMA dated 3rd March, 2008. Subsequently, on 16th April, 2008, the writ petitioner filed an application being G. A. No. 1246 of 2008 for amendment of the writ petition for incorporating statements, and grounds challenging the order of detention dated 22nd August, 1995 passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'cofeposa')and for consequential reliefs.
(2.) THE facts of the case are as follows : the petitioner was served with an order of detention dated 22nd August, 1995 under COFEPOSA issued by the Joint Secretary, Ministry of Finance, government of India. Pursuant to the order of detention, the petitioner on 28th August, 1995 was put under detention. On 16th November, 1995 the wife of the petitioner challenged the said order of detention by filing Habeas corpus application being Criminal Misc. Case No. 5039 of 1995 under Article 226 of the Constitution of India on several grounds. The matter was heard. By judgement delivered on 19th December, 1995 the order of detention was set aside and the writ petitioner, the detenue, was directed to be released. The relevant portion of the order is as under: ". . . . . . . . . . . . In this view of the matter we are constrained to hold in the facts and circumstances of the present case that the order of detention has been rendered otiose in view of the non-consideration of all the representation by all the three Authorities on account of which the detenu is liable to be released from detention. In view of the findings as aforesaid, we, accordingly, set aside the order of detention and direct the release of the detenu Bimal Khemka alias Bimal Chandra Khemka with a mandate on the Superintendent, Presidency Jail to release the detenu forthwith let the order of release be communicated to the Superintendent, presidency Jail through a Special Messenger at the cost of the petitioner. The detenu Bimal Khemka is also described as Bimal Chandra Khemka in order No. F. 673/89/95 Cust VIII. "
(3.) BEING aggrieved, the authorities had preferred an appeal before the apex Court. On 23rd January, 2004 the Supreme Court set aside the said judgement and order passed by the High Court. The relevant portion of the judgement and order is as under: "the impugned judgement and order, therefore, cannot be sustained, which is set aside accordingly. However, ordinarily we would have remitted the matter back to the high Court for consideration on other questions raised in the writ petition by the respondent herein but as the period of detention has long expired, we do not intend to do so. We, therefore, do not wish to express any opinion on the validity or otherwise of the order of detention. ";