TaxTMI 
TaxTMI 
2015 (2) TMI 124
X X X X Extracts X X X X
X X X X Extracts X X X X
....en 1974 and 1976, raids were conducted in Shri Sarin's business premises as well as that of the petitioner and proceedings were initiated under the Customs Act. He was exonerated however, in all the Customs Act proceedings. On 12.07.1975, an order was issued by the Government of NCT of Delhi authorizing the preventive detention of said Shri H.K. Sarin, under COFEPOSA. However, this order was not executed and Shri Sarin was never detained in implementation of it. The second respondent, i.e., the competent authority under the SAFEMA issued a notice under Section 6 (1) of SAFEMA upon Shri H.K. Sarin asking him to respond and disclose his source of income or the means by which he acquired the properties listed in the document. Shri Sarin filed his replies and representations on various dates between 1981 and 1982. Till 5.8.1998, nothing further was heard. Without any further proceeding or hearing - after the last representation of Shri Sarin dated 20.4.1982, an order forfeiting several properties listed out in the schedule was issued on 5.8.1998. It was in these circumstances that Shri Sarin approached this Court under Article 226 of the Constitution of India by filing W.P.(C) 1124....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner sought for appropriate orders to drop and close the SAFEMA proceedings. This request was, however, declined by an order dated 4/8.2.2008. The said order declining to close the proceedings reads as follows:- "In this regard, it is to inform you that the requests made by you are not tenable in view of the provisions of Section 2 (2) (b) of SAFEMA (FOP) Act, 1976 which does not recognize revocation of detention made under section 11 (1) of the COFEPOSA Act, 1974. Further, the Supreme Court of India in the case of Union of India v. Mohan Lal Lakumal Punjabi & Ors [2004 (166) E.L.T. 296 (SC) = 2004 (3) SCC 628] has observed as under: - "SAFEMA applies when the revocation is based on the report of the Advisory Board. As the factual position noted goes to show that the revocation was only in terms of Section 11 (1) (b) of COFEPOSA, such revocation when done by the Central Government as in this case is really unrelated to a report of the Advisory Board." In the case of A.P., Late Sh. H.K. Sarin detention order was issued within the Emergency period. After lifting of emergency and before proceeding with forfeiture proceedings on the basis of first show cause notice dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re-judicial activities which led to the detention order being issued against Shri Sarin on 12.07.1975. It was contended in addition that he was an individual covered by Section 2 (2) (b) of SAFEMA and that the forfeiture orders made were preceded by show cause notice and therefore, valid proceedings. It was also argued that the submission with respect to validity of the orders under SAFEMA is without any force because the revocation order of 21.03.1977 was under Section 11 of the COFEPOSA and not under Section 12A. 8. During the course of hearing, learned counsel for the respondents produced a copy of the revocation order, relevant part of which reads as follows:- "DELHI ADMINISTRATION: DELHI No.F.5/15/77-Home (P.II) (V) Dated the 21st March, 1977 ORDER In exercise of the powers conferred by sub-section (1) of Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Administrator of the Union Territory of Delhi, hereby revokes the detention orders in respect of the following persons:- 1. Shri Hari Kishan Sarin, S/o Late Lala Durga Parshad Sarin R/o 3378, Christian Colony, New Delhi. XXX XXX XXX By orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as not been revoked before the expiry of time for, or on the basis of, the first review under sub-section (3) of that Section, or on the basis of the report of the Advisory Board under Section 8, read with sub-section (6) of Section 12A, of that Act; or (iv) such order of detention has not been set aside by a court of competent jurisdiction.: Section 9 of COFEPOSA reads as follows: "9. Cases in which and circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Board. (1) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of July, 1999, may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of Article 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ave been issued (hereafter in this section referred to as the emergency) and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned: Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days. (3) The question whether the detention of any person in respect of whom a declaration has been made under sub-section (2) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate Government that the detention of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the President had issued an order under Article 359(1) suspending Articles 14, 21 and 22, it became competent for Parliament, by virtue of clause (]-A) of Article 359 to enact Section 12-A of COFEPOSA for the duration of and limited to the period for which the Presidential Order was in force. It was meant to achieve the purposes of emergency. Once Section 12-A is held to be a competent piece of legislation, orders of detention made thereunder (i.e. orders of detention to which the said provision applied) cannot be held to be not amounting to orders of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA, particularly in view of the express language of Section 2(2)(b) [including proviso (iii) thereto] protection enjoyed by both the enactments by virtue of their inclusion in the Ninth Schedule to the Constitution." 11. The respondents' argument is that having unsuccessfully challenged the detention order (under COFEPOSA), it is not now open to the petitioner to challenge the SAFEMA proceeding and order. The petitioner, on the other hand, urges that the detention order was never served on late Shri Sarin and that the occasion for challenging it neve....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... its course and thus fell within the description of one which had not been revoked before the expiry of its time. It was revoked - and got revoked by operation of law, upon the cessation of the Emergency, itself, due to Section 12A (1) - of COFEPOSA. 13. This court is also aware of the fact that Shri Sarin was never served with the detention order, nor even made aware of it ever, during the time it was in force. The respondents were unable to show any material to say that they tried to serve it upon him, and that he could have in any manner known of its existence, in order to challenge it. In these circumstances, it was impossible for him to impugn it, for the period July 1975 to March 1977. Once the Emergency was revoked, and the detention order suffered a similar fate, there was no manner for him again to challenge the detention order as it had no consequence. Another very important aspect is that when the Emergency was in force, individuals whose personal liberty was forfeited under preventive detention laws, such as COFEPOSA, were, by reason of the Proclamation of Emergency, prevented from asserting their Fundamental Rights. Initially nine High Courts held that notwithstandi....