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2015 (12) TMI 1527 - SC - FEMADetention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - non opportunity to assail the order of his detention - Held that - 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 the same day, the Government of Gujarat issues a declaration under Section 12A, with reference to the detention of the appellant. Again, on the lifting of the emergency on 21.3.1977, the declaration under Section 12A ceased to be operative, with reference to the detention of the appellant. At the beginning of the order of detention, and at the time of revocation thereof, whilst the detention order subsisted only within the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof, there was really no occasion for the appellant to assail the same thereafter, on any of the grounds as may have been available to him. We are satisfied, that in the facts and circumstances of this case, specially the position highlighted by the learned counsel for the appellant, as has been noticed hereinabove, the appellant had no occasion whatsoever to challenge to the order of his detention, on the grounds available to him, while the detention order subsisted under the limited scope of Section 3 of the COFEPOSA Act read with Section 12A thereof after 21.3.1977, as the order under Section 3 could not have been the subject matter of challenge as the detenu was released on the same day. In the present controversy, the appellant had no opportunity whatsoever to assail the order of his detention, after his release. As soon as the declaration under Section 12A of the COFEPOSA Act was revoked, the appellant was ordered to be released. His release undoubtedly was a release from detention under Section 3 of the COFEPOSA Act. In the above view of the matter, we are of the view, that the determination rendered by the High Court in not allowing the appellant to raise a challenge to the order of his detention dated 11.6.1976, was wholly unjustified. The order passed by the High Court is therefore liable to be set aside. The same is accordingly hereby set aside. The appellant is relegated back to the High Court, so as to enable him to press his claim, on the grounds as may be available to him (to assail the order of his detention dated 11.6.1976). It is only after the determination of the High Court, that it will be open to the authorities to proceed with the action taken against the appellant under Section 6 of the SAFEMA Act, and that too, if the appellant fails in his attempt, to successfully assail the order of his detention.
Issues Involved:
1. Validity of the detention order under Section 3(1) of the COFEPOSA Act. 2. Procedure for revocation of the detention order under Section 8 of the COFEPOSA Act. 3. Special provisions for dealing with emergency under Section 12A of the COFEPOSA Act. 4. Initiation of proceedings under the SAFEMA Act based on the detention order. 5. Right to challenge the detention order post-emergency and its implications on SAFEMA proceedings. Detailed Analysis: 1. Validity of the Detention Order under Section 3(1) of the COFEPOSA Act: The State of Gujarat ordered the detention of the appellant on 11.6.1976 under Section 3(1) of the COFEPOSA Act. Section 3(1) allows the Central or State Government or an empowered officer to detain a person if it is necessary to prevent actions prejudicial to the conservation or augmentation of foreign exchange or to prevent smuggling activities. The appellant's detention was aimed at preventing such activities. 2. Procedure for Revocation of the Detention Order under Section 8 of the COFEPOSA Act: Section 8 mandates the constitution of Advisory Boards to review detention orders. The appropriate Government must refer the detention order to the Advisory Board within five weeks, and the Board must submit a report within eleven weeks. If the Board finds insufficient cause for detention, the Government must revoke the order and release the detainee. The appellant's detention was reviewed multiple times, and each time, the order was affirmed. 3. Special Provisions for Dealing with Emergency under Section 12A of the COFEPOSA Act: During the emergency declared on 25.06.1975, the State of Gujarat issued a declaration under Section 12A that the appellant's detention was necessary for dealing effectively with the emergency. Section 12A allows for a separate procedure during emergencies, including the review of detention orders within fifteen days and subsequently every four months. The appellant's detention was reviewed and affirmed multiple times under this provision until the emergency was lifted on 21.3.1977, leading to the revocation of the detention order. 4. Initiation of Proceedings under the SAFEMA Act Based on the Detention Order: The appellant was issued a show cause notice under Section 6 of the SAFEMA Act on 28.4.1977, based on his detention under the COFEPOSA Act. Section 2(2)(b) of the SAFEMA Act allows proceedings against individuals detained under the COFEPOSA Act, unless the detention order is revoked under specific conditions. The appellant contended that the SAFEMA proceedings were unjustified as his detention order was revoked. 5. Right to Challenge the Detention Order Post-Emergency and Its Implications on SAFEMA Proceedings: The appellant challenged the detention order after it was revoked, arguing that he was deprived of the opportunity to challenge it during the emergency due to the stringent conditions of Section 12A. The Supreme Court examined whether the appellant's right to challenge the detention order was foreclosed by the judgment in Attorney General for India vs. Amratlal Prajivandas. The Court concluded that the appellant had no real opportunity to challenge the detention order while it was in force under Section 12A and thus should be allowed to challenge it now. The Court emphasized that the right to challenge a detention order is a valuable right and must be effective. Conclusion: The Supreme Court allowed the appellant to challenge the detention order dated 11.6.1976, setting aside the High Court's decision. The case was remanded to the High Court for determination on the validity of the detention order. The authorities can proceed with SAFEMA proceedings only if the appellant's challenge to the detention order fails.
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