ON THE DEATH OF MUSADILAL AGARWALLA, HIS LEGAL REPRESENTATIVES Vs. UNION OF INDIA & OTHERS

JUDGEMENT

(1.) The facts which have given rise to this petition under Art. 226 of the Constitution of India are, in brief, as follows. On 25.6.75, the President in the exercise of powers conferred by clause (1) of Art. 352 of the Constitution declared that a grave emergency had existed whereby the security of India was threatened by internal disturbances. Thereafter, on 27.6.75, in the exercise of powers conferred by clause (1) of Art. 359, the President declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights would remain suspended for the period during which the Proclamations of Emergency made under clause 1) of Art. 352 of the Constitution was in force. It may also be noted here that, on 8.1.86, there was a notification that in the exercise of powers conferred by clause (1) of Art. 359 of the Constitution the President declares that the right of any person to move any Court for the enforcement of the rights conferred by Art. 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights would remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Art. 352 of the Constitution was in force. The petitioner (since deceased) was detained under the COFEPOSA Act, 1974, during the period of emergency under order dated 22.9.75 of the Secretary to the Government of Assam, Political Department, and the provisions of section 12A of the COFEPOSA Act was invoked. The detention order was revoked on 22.3.77 after the expiry of the Presidential Order on 21.3.77. Thereafter, on 29.11.79, a proceeding under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short SAFEM (FOP) Act) was initiated by the competent authority. The competent authority under his order dated 26.4.85 forfeited the properties mentioned in the order. On appeal the Appellate Tribunal for Forfeited Property partly allowed the appeal by an order made on 30.12.85 in FPA No. 24/KL/85. The order of the Appellate Tribunal which was/is against the petitioners is as follows:

(2.) The petitioner has challenged the detention order and the order of confiscation tinder SAFEM (FOP) Act. Before dealing with the rival contentions, it may be noted here that section 2 of SAFEM (FOP) Act provides :

(3.) The question which arises for consideration is whether the detention order can be challenged at this stage on the facts and in the circumstances of the case.