TaxTMI 
TaxTMI 
2015 (12) TMI 1527
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....in persons.- (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him fromi) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: [Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of de....
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....l so to do or if the person concerned desired to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in e....
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.... 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 person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration. (4) In making any consideration, review or reconsideration under sub-section (2) or (3), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned. (5) It shall not be ne....
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....on dated 11.6.1976, by filing Special Civil Application No. 1276 of 1977. It is apparent, that the aforesaid challenge was made by the appellant, well after the order of his detention (dated 11.6.1976), had been revoked (by the order dated 21.3.1977). Further details in this behalf, shall be referred to at a later juncture. 9. The grievance of the appellant in assailing the order of his detention (passed under Sections 3 read with 12A of the COFEPOSA Act) assumed significance, on account of a show cause notice issued to the appellant on 28.4.1977, under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as 'SAFEMA Act'). The short show cause notice issued to the appellant, is extracted hereunder: "Shri Bipinchandra Gamanlal Choksy, Nanavat Main Road, Surat. Whereas, I S.N. Sastri, being the competent Authority Under Section-5 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976), have, on the basis of relevant information and relevant material available to me, reason to believe that the properties described in the schedule enclosed hereto which are held by....
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....on the basis of, the review under sub-section (3) of section 9 or on the report of the Advisory Board under section 8, read with sub-section (2) of section 9 of the said Act; or (iii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the 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." 11. In order to complete the sequence of facts, it is essential to notice, that one of the brothers of the appellant, namely, Niranjan Dahyabhai Chokshi approached the High Court, so as to assail a similar order of detention, as was also passed against him. The challenge was raised through Special Criminal Application Nos. 289, 704 and 723 of 1990, and 745, 747 and 748 of 1991. The challenge to the detention of Niranjan Dahyabhai Chokshi was raised on the ground of the law declared by this Court in Krishna Murari Aggarwala v. Union of India AIR 1975 SC 18....
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.... as under: "Special Civil Application No. 3716 of 1995: This Special Civil Application has been filed by Bipinchandra G. Choksi - detenu as appellant No. 1, Smt. Jayashree Bipinchandra Choksi, wife of appellant No. 1 and Bipinchandra Ramanlal Choksi, H.U.F. as appellant No. 3. The appellants have challenged the order of detention dated 11-6-1976 and declaration under Section 12-A of the COFEPOSA Act dated 11-6-1976 and the notice issued under Section 6(1) of SAFEMA Act - Annexure "D". This petition was initially registered as Special Criminal Application No. 1499 of 1994. It was subsequently, on conversion, registered as Special Civil Application No. 3716 of 1995. The petition appears to have been not affirmed. A non-affirmed affidavit filed is dated 24-8-1993. However, it is signed by the learned Advocate on 7-10-1994. The petition appears to have been filed on 10-10-1994. The necessary facts are that the appellant No. 1 was detained under the provisions of COFEPOSA Act by the order of detention dated 11-6-1976. Simultaneously, a declaration under Section 12-A was issued on the same day declaring that it was necessary to detain the detenu for dealing effectively with the Emerge....
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....explained in subsequent judgment in the case of Smt. Gangadevi v. Union of India & Ors.. It is held in Gangadevi's case (supra) that where there has been no pronouncement by any Court upon the validity of the order of detention, the detenu is entitled to challenge the validity of the detention order as the same is being made foundation for forfeiting the properties under SAFEMA Act. The learned Advocate has placed reliance on the observations of the Supreme Court in para 12 which reads as follows: "There has been no pronouncement by any Court upon the validity of the detention order dated 12-9-1975. The appellant is entitled to challenge the validity of the aforesaid order because it is now being made foundation for forfeiting her properties under SAFEMA Act." I cannot agree with the submissions made by Mr. Sanjanwala, learned Advocate for the appellant. Smt. Gangadevi's case (supra) does not advance the case of the appellant. The observations quoted above by the Apex Court cannot be read in isolation. In the said case, the order of detention was challenged by the detenu Sreekrishna Gopilal Solanki. The writ petition was admitted and notices were issued to the State. On ....
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....the decision rendered by a nine-Judge Bench of this Court, in Attorney General for India and others vs. Amratlal Prajivandas and others (1994) 5 SCC 54. 15. Dissatisfied with the order passed by the learned Single Judge, the appellant preferred LPA No. 478 of 1997. The said appeal came to be dismissed by a Division Bench of the High Court on 06.12.2012. The orders passed by the learned Single Judge in Special Civil Application No. 3716 of 1995, and by the Division Bench in LPA No. 478 of 1997, have been impugned by the appellant before this Court. 16. The primary question that arises for our consideration is, whether in view of the judgment rendered by this Court in Attorney General for India's case (supra), the right of the appellant to assail the order of his detention dated 11.6.1976 stood foreclosed. This is indeed, the contention before us by the learned counsel representing the respondent. Whereas, the submission of the learned counsel for the appellant is, that he had been deprived of the right to assail/impugn the order dated 11.6.1976, which was a valuable right, and the same could not have been taken away, so as to expose him to extremely harsh consequences. In orde....
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.... were released on or within a day or two of the date on which the emergency was lifted. In this sense, the order of detention has worked itself out. But that order of detention is now being made the foundation, the basis for taking action under SAFEMA Act against the detenus, their relatives and their associates. SAFEMA Act is made applicable to them by virtue of Section 2(2)(b) read with clauses (c), (d) and (e) of sub-section (2). The appellants say that since the order of detention under COFEPOSA Act is made the basis for action under SAFEMA Act against them, they are entitled to challenge the validity of the order of detention. They may not have been able to question the validity of detention during their detention by virtue of Section 12-A of COFEPOSA Act (non-supply of grounds and non-reference to Advisory Board) and also because their right to move the court for enforcement of the rights guaranteed to them by Articles 14, 21 and 22 was suspended during the period of emergency by an order made by the President of India under Article 359 (1) of the Constitution - even Article 19 did not avail them by virtue of Article 358 - but when the said orders of detention are sought to ....
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....aragraphs 39 to 41. The same are relevant, and are accordingly being reproduced hereunder: "39. Proviso (iii) expressly treats "an order (of detention)to which the provisions of Section 12-A of the said Act apply" and which "has not been revoked before the expiry of time for, or on the basis of, the first review under sub- section (3) of that section (Section 12-A) or on the basis of the report of the Advisory Board under Section 8,read with sub-section (6) of Section 12-A, of that Act", as an order of detention for the purpose of and within the meaning of clause (b) of Section 2(2) of SAFEMA Act. In view of the fact that SAFEMA Act as well as COFEPOSA Act are included in the Ninth Schedule by the 39th and 40th (Amendment) Acts to the Constitution, clause(b) of Section 2(2) of SAFEMA Act [including proviso (iii) appended to it] are beyond constitutional reproach. One has to take the said provisions as they stand and they stand solidly against the appellants' contentions. On this single ground, we hold, as we must, that an order of detention made under COFEPOSA Act, to which the provisions in Section 12-A applied, is an order of detention within the meaning of and for the purp....
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....ntion was continued up to 23-3-1977. In the above circumstances, this Court said that it was open to the respondent-detenu to question the validity of the order of detention whe n proceedings are take n against him under Sections 6 and 7 of SAFEMA Act. It is not possible to agree with the reasoning of the decision. There are two ways of looking at the issue. If it is a normal order of detention[not governe d by Section 12-A nor protected by an order under Article 359(1) suspending the enforcement of Article 22] and if the detenu does not challenge it when he was deprived of his liberty, or challenges it unsuccessfully, there is no reason why he should be allowed to challenge it when action under SAFEMA Act is taken against hi m for action under SAFEMA Act is not automatic upon the fact of detention but only the starting point. On the other hand, if it is an order of detention governe d by Section 12-A [or by a Presidential Order under Article 359(1) suspending Article 22], it perhaps could still be challenged even durin g the perio d of emergency on grounds not barred by the said provisions. Secondly, even if such an order is allowed to be challenged when action under SAFEMA Act is....
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....appellant to assail the non-compliance of the procedure contemplated under Section 8, and also, any infirmity or illegality, on the basis and reasons which constitute the ground(s) of detention. 19. It was the vehement contention of the learned counsel, that the order of detention under section 3 read with section 12A of the COFEPOSA Act, subsisted from 11.6.1976 when the order of detention under Section 3 was passed, till the order of detention was revoked on the lifting of the emergency on 21.3.1977. It was submitted, that Section 12A is invoked merely by a declaration, whereas, the substantive order of detention is passed under Section 3 of COFEPOSA Act. It was contended, that as soon as the emergency was lifted on 21.3.1977, the original position stood revived, inasmuch as, the order of detention would thereafter be an order under Section 3 of COFEPOSA Act without a Section 12A declaration super-added, and as such, was assailable in terms of the grounds available to a detenu under Section 8, and the other grounds referred to above. It was the assertion of the learned counsel, in the present case, that the order under section 3 of the COFEPOSA Act, could not be assailed by the ....
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.... finds mention in proviso (iii) of Section (2)2(b) of SAFEMA Act. It is the submission of the learned counsel, that proviso (iii) expressly postulates the possibility of a revocation of an order of detention, even after the declaration under Section 12A ceases to operate, under section 8 of the COFEPOSA Act. It is submitted, that this right which was available to the appellant after the declaration under Section 12A came to be revoked, was really not available to him, because the appellant came to be released on 21.3.1977. Therefore, the appellant could not have availed of the right to challenge his order of detention, for the simple reason, that on the revival of the order of detention within the framework of Section 3 of the COFEPOSA Act, the appellant came to be released forthwith, namely, on the same day. 22. We find merit in the contention of the learned counsel for the appellant. The proviso (iv) to Section 2(2)(b) cannot be an empty formality. It should be an effective right available to a detenu, so as to enable him to assail the order of his preventive detention. A detenu may be advised not to raise a challenge to his order of detention, while it subsists under the string....
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....er Section 3, without there being a declaration under Section 12A of the COFEPOSA Act, would therefore be entitled to seek revocation of an order of detention, if the procedure contemplated under Section 8 was not complied with, and/or even if the detenu was not released, despite the opinion expressed by the Advisory Board, that the order of detention was not passed on sufficient cause. Or even if it can be shown that the grounds of detention are vague, irrelevant, false or incorrect. None of these grounds are available to a detenu, where a declaration has been issued under section 12A of the COFEPOSA Act. The substantive challenge to an order of preventive detention when the order of detention is limited to the scope of Section 3 of the COFEPOSA Act, are far greater. This, because after the declaration under Section 12A of the COFEPOSA Act, the challenge is only on technical grounds of violation of procedure under Section 12A of the COFEPOSA Act, as expressed above. 23. In the facts and circumstances of the present case, it is apparent, that the order of detention under Section 3 of the COFEPOSA Act was passed on 11.6.1976. Immediately after the passing of the aforesaid order, on....