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1984 (2) TMI 316 - SC - FEMAWhether order of detention is illegal, null and void ab initio and inoperative and be quashed? Held that - Non- application of mind of the Detaining Authority to the material placed before him before he passed the impugned order of detention dated 19.12.1974 and the failure of the appellant to supply copies of the documents clearly and unmistakably relied upon for arriving at the subjective satisfaction that the respondent s detention under COFEPOSA is necessary and referred to in the grounds of detention served upon him for holding that the order of detention passed under s. 3(1) and declaration made under s. 5(1) of COFEPOSA is void ab initio and that the action taken under s, 6(1) and s. 7 of SAFEMA pursuant to that order of detention is liable to be struck down while holding that the petition under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure is maintainable and that the effect of the order of detention dated 19.12.1974 could not said to be no longer in force after the respondent had been released from detention on 23.3.1977 inasmuch as action under s. 6(1) and s. 7 of SAFEMA has been taken only pursuant to that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
Issues:
1. Validity of the order of detention under COFEPOSA. 2. Supply of copies of documents to the respondent. 3. Application of mind by the Detaining Authority. 4. Maintainability of the petition under Art. 226 and s. 482 of the Code of Criminal Procedure. 5. Proceedings under ss. 6 and 7 of SAFEMA. Validity of the order of detention under COFEPOSA: The appeal challenged the judgment of the Bombay High Court declaring the order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 (COFEPOSA) as illegal and quashing the subsequent actions taken under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The High Court held that the respondent was not served with copies of documents relied upon in the grounds of detention, rendering the detention void ab initio. The Supreme Court affirmed this decision, emphasizing that failure to supply such documents vitiates the detention itself, citing precedents where similar failures led to detention being deemed unlawful. Supply of copies of documents to the respondent: The central issue revolved around the non-supply of crucial documents to the respondent, which were referenced in the grounds of detention under COFEPOSA. The High Court found that the respondent was not provided with copies of these essential documents, hindering his ability to make an effective representation against the detention. The Supreme Court concurred, stating that the failure to supply such documents invalidated the detention and consequently rendered the subsequent actions under SAFEMA baseless and unsustainable in law. Application of mind by the Detaining Authority: The judgment also addressed the requirement for the Detaining Authority to apply its mind to the materials before passing the order of detention. While there was a disagreement between the judges on this aspect, both agreed that the failure to supply copies of essential documents to the respondent was a critical flaw leading to the detention being deemed invalid. Maintainability of the petition under Art. 226 and s. 482 of the Code of Criminal Procedure: The respondent had filed a petition challenging the validity of the order of detention under COFEPOSA and subsequent actions under SAFEMA. The High Court deemed the petition maintainable, a decision upheld by the Supreme Court. The Court emphasized that the respondent's right to challenge the detention could not be estopped by the fact that he did not contest it before his release, especially when the detention order was used as a basis for actions under SAFEMA. Proceedings under ss. 6 and 7 of SAFEMA: The judgment clarified that a valid order of detention under COFEPOSA was a prerequisite for initiating proceedings under ss. 6 and 7 of SAFEMA. As the order of detention was declared void due to the failure to supply essential documents, the actions taken under SAFEMA were deemed invalid and unsustainable. The Supreme Court upheld the High Court's decision to quash these actions based on the flawed detention order. In conclusion, the Supreme Court dismissed the appeal, affirming the High Court's judgment that the order of detention under COFEPOSA was illegal due to the failure to supply copies of essential documents to the respondent, leading to the subsequent actions under SAFEMA being baseless and unsustainable in law.
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