V.K.SINGHAL, J. - (1.) INITIALLY the petitioner had challenged the validity of the provision of Smugglers and foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter called as SAFEMA Act, 39th, 40th and 42nd Amendments in the Constitution, but on January 2, 1991, the relief prayed in clauses 4 and 5 of prayer was not pressed and therefore the present writ petition was listed before this Bench. The arguments restricted by the learned Counsel for the petitioner are three -fold, namely -(1)(i) that whenever challenge is made regarding forfeiture of the property under the SAFEMA Act, the court is competent to examine the orders passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as the COFEPOSA Act), (ii) that the order of the Competent Authority for detention under the COFEPOSA Act is bad in law as the grounds on which the order has been passed are the same which were considered by the Advisory Board while acquitting the petitioner under MISA in February 1974 and thereafter there being no fresh material and application of mind, the order is vitiated and that the order of the Advisory Board was not placed before the Competent Authority and since it was withheld there could not be any satisfaction of the said authority, (iii) copy of the grounds of detention under COFEPOSA Act was not produced and even for non -communication, there should be recording of reasons that it is so in the public interest not to provide a copy, (2) No reason for belief has been recorded under [Section] 6 of SAFEMA Act and (3) that the acquisition could be of the property which has been acquired by illegal activities as contemplated under Section 3(1)(c) of the SAFEMA Act, and when the appellate authority was satisfied that the sale of ornaments was proved in 1961, the use of sale proceeds in 1963 should have been allowed.
(2.) THE brief facts of the case are that the petitioner is wife of Shri Jagannath Sharma who was detained under MISA on 8.10.1974. It is stated that the detaining authority placed the matter before the Advisory Board along with the representation on which the Advisory Board has not approved the order of detention and recommended to the Government that the order of detention should be revoked. The petitioner's husband was immediately released in November, 1974. On 26.6.1975 when the emergency was promulgated the petitioner's husband was detained on 4.8.1975 under the provisions of COFEPOSA Act. In the order dated 4.8.1975 passed by the Dy. Secretary it was mentioned that with a view to preventing Shri Jagannath Sharma from dealing in smuggled goods otherwise than by engaging' in transporting or concealing or keeping smuggled goods, he is to be detained. The grounds of detention were not served. A declaration to this effect under Section 12A of the COFEPOSA Act was also issued wherein it was mentioned that the detention of Shri Jagannath under Section 3(1) of the COFEPOSA Act is necessary for dealing effectively with the emergency. A copy of this declaration was served on the petitioner. Further extension by telegram dated 3.12.1975 and the order dated 2.8.1976 was made which was served on the petitioner. The emergency was lifted on 21.3.1977 and the order of detention was revoked. A notice dated 29.11.1976 was served on the petitioner under Section 6(1) of SAFEMA Act and reply was submitted by the petitioner. The competent authority issued a notice under Section 7(1) of the Act to furnish proof of acquisition. The petitioner submitted the proof with regard to sale of gold ornaments through Nand Kishore Meghraj, M/s. Roop Narain Rameshwar Lal and Shankerlal Roop Narain. Copies of the electricity and water bills were also submitted. Thereafter, another notice under Section 6(2) was issued on 27.4.1977 in respect of two other properties, namely Haldia house and Mchndi ka chowk property. The competent authority held that the properties - -House No. D -48, Bapunagar is illegally acquired within the meaning of Section 3(1)(c) of SAFEMA Act and declared it to be forfeited to the Central Government free from all encumbrances. An appeal was preferred to the Tribunal which was allowed on 26.10.1977 and the matter was remanded to the competent authority for providing fresh opportunity under Section 7(1) of the Act. Fresh notices were served where certain preliminary objections were raised and reply was submitted. On 1.7.1978 Jagannath Sharma expired. The petitioner moved to the Competent Authority that the proceedings should be dropped on account of his death. Certain documents were also submitted along with the reply. By the order dated 28.11.1978 the competent authority made certain enquiries from the petitioner and also asked to send names and complete addresses of the persons which the petitioner wanted to examine. The said information was furnished and detailed reply along with affidavit of Shri Mishrilal, certificate of Shri G.C. Lunia, Advocate and statement recorded by the Inspector were submitted. Ultimately, the order dated 7.3.1980 under Section 7 of SAFEMA Act was passed in which the three properties were forfeited. Against the said order an appeal was preferred to the Tribunal which accepted the appeal in part on 21.7.1980 and the forfeiture of the property situated at Haldia house and Mehndi Ka chowk was not sustained on technical grounds and forfeiture of property D -48, Bapunagar was upheld. The first ground which the learned Counsel for the petitioner has taken is that while challenging the validity of the order of forfeiture or the property the petitioner can challenge the order of detention under COFEPOSA Act. Reliance has been placed on the decision in the case of Union of India v. Haji Mastan : 1984CriLJ610 , wherein it was observed that -(at page 141 of ECC) A reading of Section 6(1) of the SAFEMA would show that action under Sections 6 and 7 can be taken against only persons to whom that Act applies. Section 2(1) of that Act specifies the persons to whom the Act applies. Sub -section (2) of Section 2 says that the Act applies to every person in respect of whom an order for detention has been made under COFEPOSA provided that such order of detention has not been set aside by a court of competent jurisdiction. In the present case action has been taken against the respondent under Sections 6(1) and 7 read only with Section 2(2) of the Act. 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. Besides the above, the decision of this Court in the case of Prakash Chanel Kaslirial v. Union of India and Ors. 1986 RLR 492 has also been relied upon wherein the Division Bench considered the decision given in the case of Haji Mastan (supra) and observations made therein that 'where the proceedings [for] forfeiture of the property of the detenue were started on the basis of an order of his detention under COFEPOSA, the fact that the copies of the documents relied upon in the grounds of detention were not supplied to the detenue would vitiate his detention and consequent forfeiture of his property' were taken into consideration. The decision of Bombay High Court in the case of Mohd. Abubakar Marwari v. Union of India and Ors. 1982 Cr LJ 53 has also been relied upon. I need not refer in details the various judgments since I am of the view that in view of the observations of the Apex Court in the case of Haji Mastan (supra) existence of the valid order of detention under COFEPOSA Act is a condition precedent for the action under Sections 6 and 7 of the SAFEMA Act. The petitioner is entitled to challenge the validity of the order which has been passed under COFEPOSA Act while the order passed under SAFEMA is challenged. This contention of the learned Counsel for the petitioner is therefore accepted and the matter with regard to the existence of a valid order under COFEPOSA is being considered in subsequent paras.
(3.) IT may also be observed that in the case of Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. 1994 SCC (Cri) 1325 the Apex Court after taking into consideration the decision given in the case of Union of India v. Manoharlal Narang (1987) SCC 24 observed that - -(at Para 41 of ECC) So far as the reasoning of the said decision is concerned, it is to the effect that the validity of such an order of detention can be questioned by the detenue or his relative, as and when such an order is sought to be made the foundation for taking action against them under SAFEMA. On that basis, the Court proceeded to examine the validity of the order of detention of Ram Lal and found that the said order is bad for non -application of mind to certain highly relevant and material circumstances. We must, however, say that the validity of an order of detention to which Section 12A of COFEPOSA applied, could yet be examined even during the emergency on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359(1) - -say on the ground that the provisions of Section 12A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for applying SAFEMA to him - -this is for the reason that even if he is allowed to challenge the said order when he is served with the notice under Section 6 of SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said order was made and the law in force' during the period the said order of detention was in operation. Same would be the position in the case of a person who challenged the order but failed in his challenge. Even in the case of a normal order of detention under COFEPOSA, the position would be the same. A person who did not challenge (either by himself or through his next friend) the order of detention or challenged it but failed, cannot be allowed to challenge the order of detention when action is taken against him under SAFEMA.;