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2019 (4) TMI 592 - SC - FEMADetention orders u/s 3 read with Section 12A of COFEPOSA - orders made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India - grounds of detention were not communicated to the detenu in a language known to him - notice under Section 6(1) of SAFEMA to show cause why properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA - HELD THAT - In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency was issued on 25.06.1975. The detenu was released after the lifting of the emergency. All through, the Writ Petition was alive and pending in High Court and it was disposed of as having become infructuous on the statement made by the counsel for the Writ Petitioner on 24.02.1978. The instant case is thus covered by para 41 of the decision of this Court in Amratla 1994 (5) TMI 235 - SUPREME COURT . However, since the matter was remitted by this Court on 24.02.2004, to be disposed of on merits, we now proceed to consider whether merits were rightly considered. The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detention had run right through the duration or continuance of the emergency . Though the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits. In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods. Having considered the factual aspects of the matter, the grounds raised by Mr. Bagai, learned Advocate are without any substance and merit. We, therefore, affirm the view taken by the High Court and dismiss said submission. The challenge to order of detention dated 19.12.1974 passed under the provisions of COFEPOSA in respect of Roshan Lal must fail. The Competent Authority and the Appellate Tribunal constituted under the provisions of SAFEMA had, after issuance of due notice and granting every opportunity to the noticees, arrived at findings that the properties mentioned in the schedules to the notices were illegally acquired and that they stood forfeited to the Central Government free from all encumbrances. All the prayers made in Civil Writ Petition being meritless said Writ Petition deserved to be rejected and was rightly dismissed by the High Court. No reason to take a different view in the matter and this Criminal Appeal is dismissed. Detention under Section 3(1) of COFEPOSA - HELD THAT - The detention order was sought to be assailed before the High Court inter alia on the grounds of non-supply of documents; delay in passing the order of detention and supply of illegible documents. Those grounds were found to be without any substance by the High Court and the challenge so raised was negated. Having gone through the record, we do not find any error in the view taken by the High Court. We, therefore, dismiss this Appeal.
Issues Involved:
1. Validity of the detention order under COFEPOSA. 2. Application of SAFEMA based on the detention order. 3. Consideration of the representation against the detention order. 4. Alleged non-application of mind in issuing the detention order. 5. Language of the grounds of detention. 6. Procedural compliance in SAFEMA proceedings. Issue-wise Detailed Analysis: 1. Validity of the Detention Order under COFEPOSA: The detention order dated 19.12.1974 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was challenged. The grounds included the assertion that the detention order was based on identical material as the earlier order under MISA, indicating non-application of mind. The Court found that the grounds of detention under COFEPOSA were distinct and pertained to specific instances of smuggling activities by the detenu. Consequently, the Court affirmed the validity of the detention order, rejecting the claim of non-application of mind. 2. Application of SAFEMA Based on the Detention Order: The Court examined whether the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) could be applied based on the detention order under COFEPOSA. The Court noted that the detention order was not revoked under the conditions stipulated in the proviso to Section 2(2)(b) of SAFEMA and was not set aside by any competent court. Therefore, the substantive provisions of SAFEMA were applicable. The Court upheld the application of SAFEMA, stating that the detention continued through the emergency period and no attempts were made to dispose of the petition on merits during that time. 3. Consideration of the Representation Against the Detention Order: The representation dated 17.01.1975 by the detenu was considered by the State and rejected on 11.02.1975. The rejection was communicated to the detenu. The Court found that the representation was duly considered and rejected within a reasonable time, thereby complying with the procedural requirements. 4. Alleged Non-application of Mind in Issuing the Detention Order: The appellant argued that the detention order suffered from non-application of mind as the grounds were identical to those under MISA. The Court found this argument without merit, stating that the grounds under COFEPOSA were based on specific smuggling activities and were distinct from those under MISA. The subjective satisfaction required for the detention order was duly arrived at based on these grounds. 5. Language of the Grounds of Detention: The appellant contended that the grounds of detention were not framed in a language known to the detenu. The Court found no evidence to support this claim, noting that at no stage was any grievance raised regarding the language of the grounds. The Court concluded that the grounds of detention were communicated in a language known to the detenu. 6. Procedural Compliance in SAFEMA Proceedings: The Court reviewed the SAFEMA proceedings and found that due notice was issued, and every opportunity was granted to the noticees. The Competent Authority and the Appellate Tribunal had arrived at findings that the properties in question were illegally acquired and stood forfeited to the Central Government. The Court upheld these findings, affirming that the SAFEMA proceedings complied with the procedural requirements and the orders were valid. Conclusion: The Supreme Court dismissed the appeal, affirming the validity of the detention order under COFEPOSA and the subsequent application of SAFEMA. The Court found no merit in the appellant's challenges regarding the representation, language of the grounds, and alleged non-application of mind. The SAFEMA proceedings were found to be procedurally compliant, and the forfeiture orders were upheld.
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