1998 (1) TMI 491 - AT - FEMA

Summary

Issues:
1. Applicability of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) to the appellant.
2. Interpretation of the third proviso to section 2(2) of the SAFEMA regarding revocation of detention orders.
3. Challenge to the legality of the detention order against the appellant's husband.
4. Impact of failure to challenge the detention order during the emergency.
5. Relevance of the Supreme Court judgment in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155.

Analysis:
The judgment by the Appellate Tribunal for Forfeited Property delves into the applicability of the SAFEMA to the appellant, the wife of a detained individual. The Competent Authority had directed the forfeiture of certain properties belonging to the appellant under the SAFEMA. The appellant contended that the provisions of the SAFEMA were not applicable to her as the properties were not illegally acquired from her husband's activities. The Tribunal considered the preliminary issue of the Act's applicability, emphasizing the need to establish jurisdiction before delving into the merits of the case. The appellant argued that the detention order against her husband was revoked before the requisite review period, invoking the third proviso to section 2(2) of the SAFEMA.

The Tribunal analyzed the interpretation of the third proviso, focusing on the requirement of a conscious and intentional revocation of the detention order. It was established that the release of detenus due to the lifting of the emergency did not constitute a revocation as per the legal standard of intentional or voluntary revocation. The Tribunal rejected the appellant's argument that the release implied revocation, emphasizing the necessity of a deliberate decision by the appropriate authority to revoke the detention order.

Regarding the challenge to the legality of the detention order, the Tribunal cited legal precedent that failure to challenge the detention during the emergency period precludes subsequent challenges under the SAFEMA. The appellant's failure to contest the detention order during the emergency was deemed a bar to challenging it in the forfeiture proceedings. The Tribunal referenced the Supreme Court judgment emphasizing the importance of challenging detention orders in a timely manner.

In conclusion, the Tribunal ruled that the SAFEMA was applicable to the appellant as the detention order against her husband was not consciously revoked, thereby dismissing the appellant's contention on the Act's applicability. The judgment highlighted the necessity of establishing jurisdiction before proceeding to consider the merits of the case, underscoring the legal principles governing challenges to detention orders and their implications in forfeiture proceedings.