Preventive detention challenge in forfeiture proceedings allowed where emergency regime left no practical chance to contest earlier.

A detenu may be permitted to challenge a preventive detention order in later forfeiture proceedings where the detention operated under a special emergency regime and he had no real practical opportunity to contest it earlier. The Court distinguished cases involving a normal detention order, where failure to challenge an available order may preclude a later attack when the order is relied on for forfeiture. Because the emergency-linked declaration had been revoked and the appellant was released immediately, the earlier authority cited by the High Court did not govern the situation. The High Court's refusal to allow the challenge was set aside, and the matter was remitted for consideration of the detention challenge on merits before further forfeiture action.

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Issues: Whether the detenu, against whom proceedings under the forfeiture law were initiated on the basis of a preventive detention order, could later challenge the detention order even though he had not assailed it during the period of detention and the detention had been revoked.

Analysis: The detention order was made under the preventive detention law during the emergency and was accompanied by a declaration bringing the special emergency provisions into operation. The Court distinguished between a normal detention order and a detention order operating under the special emergency regime. A person who had a real and effective opportunity to challenge a normal detention order, but did not do so, may be precluded from questioning it later when it is used as the basis for forfeiture proceedings. Here, however, the appellant was released immediately upon revocation of the emergency-linked declaration, and the facts showed that he had no practical opportunity to mount a full challenge on the broader grounds available after the special regime ceased. The earlier authority relied upon by the High Court was held not to control this situation, because that case concerned a detenu who had an opportunity to challenge the order but chose not to do so.

Conclusion: The appellant was entitled to challenge the detention order in the forfeiture proceedings, and the High Court's refusal to permit such a challenge was set aside. The matter was sent back to the High Court for consideration of the challenge on merits before further action under the forfeiture law could continue.

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