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1984 (2) TMI 316
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....e criminal appeal and declaring that the order of detention dated 19.12.1974 passed by the Minister of Finance, Government of India under s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973, (COFEPOSA) is illegal, null and void ab initio and inoperative, and quashing that order as well as the declaration under s. 5(1) of the COFEPOSA made on 18.1.1975 and also consequently quashing the notice under s. 6(1) and the order made under s. 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, (SAFEMA) 1976 and restraining the appellant from taking any action whatsoever on the basis of the order of detention dated 19.12.1974 and the declaration dated 18.1.1975 were quashed b....
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....e filed appeals against that order before the Appellate Tribunal constituted under the provisions of that Act. Those appeals are said to be still pending. The persons who filed those appeals have filed Miscellaneous Petition No. 548 of 1977 on or about 25.4.1977 in the Bombay High Court, challenging the vires of certain provisions of COFEPOSA and SAFEMA. That petition is pending even now. The respondent filed the criminal application No. 780 of 1981 under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure in the Bombay High Court in April 1981, challenging the validity of the impugned order of detention dated 19.12.1974 and the declaration dated 18.1.1975, passed and made under s. 3(1) and s. 5(1) of COFEPOSA for s....
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....ntainable and that the effect of the order of detention dated 19.12.1974 could not said to be no longer in force after the respondent had been released from detention on 23.3.1977 inasmuch as action under s. 6(1) and s. 7 of SAFEMA has been taken only pursuant to that order of detention. Gadgil, J while disagreeing with Kotwal, J on the question of the application of the mind of the Detaining Authority to the materials placed before him before he passed the impugned order of detention clearly agreed with Kotwal, J that the respondent was not supplied with the copies of the documents relied upon in the grounds of detention supplied to him and consequently Gadgil, J also held that the respondent is entitled to the relief claimed by him bef....
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....ng action against him under ss. 6 and 7 of SAFEMA. We therefore hold that the respondent's petition under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure is maintainable, We may state that this question of maintainability of the respondent's petition was not disputed by the learned counsel for the appellant before us. S. 6(1) of SAFEMA providing for the issue of notice before proceedings can be taken for forfeiture of properties of the persons governed by the provisions of that Act reads thus : "If, having regard to the value of the properties held by any person to whom this Act applies, either by himself or through any other person on h....
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....y order, record a finding whether all or any of the properties in question are illegally acquired properties. (2) Where the competent authority is satisfied that some of the properties referred to in the show- cause notice are illegally acquired properties but is not able to identify specifically such properties, then, it shall be lawful for the competent authority to specify the properties which, to the best of its judgment, are illegally acquired properties and record a finding accordingly under sub-section(1) (3) Where the competent authority records a finding under this section to the effect that any property is illegally acquired property, it shall declare that such property shall, subject to the provisions of this Act, stand forfei....
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....ied upon for the purpose of the respondent's detention are such that without copies thereof being supplied to the respondent he could not have been in at position to make any effective representation against his detention. There was no dispute before the learned Judges of the High Court that the documents referred to in the grounds of detention and relied upon for the purpose of detention are material documents and that the respondent could not have made any effective representation without copies of those documents. The respondents before the High Court however sought by their counter-affidavit to justify the non-supply of the copies of the documents. The explanation for the non-supply of the documents cannot be a substitute for the copies....