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TMI Blog1994 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule as assume them to be good and valid. No arguments have also been addressed with respect to the validity of 42nd Amendment Act to the Constitution either. An order of detention made under Section 3 of COFEPOSA, which was governed by Section 12-A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. An order of detention to which Section 12-A is applicable as well as an order of detention to which Section 12-A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub-clauses in the proviso to Section 2(2)(b). The definition of "illegally acquired properties" in clause (c) of Section 3 of SAFEMA is not invalid or ineffective. The application of SAFEMA to the relatives and associates [in clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the security of India is threatened by internal disturbance . A proclamation of emergency dated 3- 12-1971 issued under Article 352(1) on the ground that the security of India is threatened by external aggression was already in force. These declarations had the effect of 'suspending' to use a popular though not strictly accurate expression Article 19 as provided by Article 358 of the Constitution. On 27-6-1975 the President of India made an order under Article 359(1) of the Constitution declaring [T]hat the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on 3-12-1971 and on 25-6- 1975 are both in force. 3. With effect from 1-7-1975, COFEPOSA was amended in certain respects. Inter alia, it introduced Section 12-A containing special provisions for dealing with emergency. By virtue of Section 12-A, the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 32 for quashing the said notices. In these writ petitions, the constitutional validity of the COFEPOSA, SAFEMA and of the 39th, 40th and 42nd Amendments to the Constitution of India were questioned. (In a few cases, it appears, final orders were also passed but that circumstance does not make any difference to the principle involved herein). In most of the cases further proceedings were stayed. 6. The Attorney General of India applied for transfer of the writ petitions pending in various High Courts to this Court to be heard along with the petitions preferred directly in this Court in view of the important constitutional questions raised therein. The prayer for transfer is granted in all the transfer petitions. Leave granted in the SLP. 7. It may be mentioned that COFEPOSA was placed in the Ninth Schedule at SI. No. 104 by the Constitution (39th Amendment) Act, 1975 while the SAFEMA and the COFEPOSA (Amendment) Acts, 1976 (Central Acts 13 and 20 of 1976 respectively) were placed in the Ninth Schedule at Serial Nos. 127 and 129 by the Constitution (40th Amendment) Act, 1976. 8. The counsel appearing for the petitioners urged several contentions all of which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. Whereas violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State; And whereas having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith; Be it enacted by Parliament in the Twenty- fifth Year of the Republic of India as follows: 10. The expression smuggling is defined in clause (e) of Section 2. It says that the said expression shall have the same meaning as in clause (39) of Section 2 of the Customs Act, 1962 and that all its grammatical variations and cognate expressions shall be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to the remaining ground or grounds. More about this section later. 14. Section 8 provides for constitution of an Advisory Board as- required by clause (4) of Article 22 and for reference of each detenu's case to it. The opinion of the Advisory Board is binding upon the Government. Section 9 provides certain classes of cases, where the reference to Advisory Board can be made within an extended period. This section is relatable to clause (7) of Article 22. Section 12-A containing special provisions for dealing with emergency was introduced by COFEPOSA (Amendment) Act, 1976 (Act 19 of 1976). In view of its crucial relevance, the section may be set out in full. It reads: 12-A. Special provisions for dealing with emergency.- (1) Notwithstanding anything contained in this Act or any rules for natural justice, the provisions of this section shall have effect during the period of operation of the proclamation of emergency issued under clause (1) of Article 352 of the Constitution on the 3rd day of December, 1971, or the proclamation of emergency issued under that clause on the 25th day of June, 1975, or a period of twenty-four months from the 25th day of June, 1975, whiche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply, the grounds on which the order has been made during the period the declaration made in respect of such person under that sub-section is in force and, accordingly, such period shall not be taken into account for the purposes of sub-section (3) of Section 3. (6) In the case of every person detained under a detention order to which the provisions of sub-section (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into account for the purpose of computing- (i) the period specified in clauses (b) and (c) of Section 8; (ii) the period of 'one year' and 'five weeks' specified in subsection (1), the period of 'one year' specified in sub-section (2)(i) and the period of 'six months' specified in sub-section (3) of Section 9. This provision was made during the period of emergency and is confined to the duration of emergency or such shorter period as may be specified. It contemplates making a declaration that the detention of person is necessary for dealing effectively with the emergency and if such a declaration is made, his case shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b)] comprises of persons in respect of whom an order of detention has been made under COFEPOSA, but which order was not revoked or set 'de in any of the situations set out in the four sub-clauses of the proviso. It as would be appropriate to set out clause (b) in full. It reads: (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): Provided that- (i) such order of detention, being an order to which the provisions of Section 9 or Section 12-A of the said Act do not apply, has not been revoked on the report of the Advisory Board under Section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) such order of detention, being an order to which the provisions of Section 9 of the said Act apply, has not been revoked before the expiry of the time for, or 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, bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in subclauses (i) to (iii) or the income or earnings from such property; and includes- (A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration; (B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom; More of this definition later. 19. Section 4 declares that after commencement of the said Act, it shall of be lawful for any person to whom the Act applies to hold any illegally acquired property either by himself or through any other person on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14. 21. COFEPOSA is a law relating to preventive detention. It has, therefore, to conform to the provisions in clauses (4) to (7) of Article 22. Insofar as SAFEMA is concerned, it is, of course, not a law relating to preventive detention though it is designed to achieve tile very same objective 2 (1973) 4 SCC 225 : 1973 Supp 1 SCR 1 by different means. While one seeks to deter them by means of preventive detention, the other seeks to punish them by depriving them of their ill-gotten gains. SAFEMA is thus a measure designed to protect the economy of the country as also a measure to discourage law-breaking in particular, economic violations. The principles relevant in judging the validity and relevant in the matter of interpreting the provisions of such economic measures are fairly well settled. It is held that in case of such enactments the legislature must be permitted a greater play in the joints. As pointed out by Bhagwati, J. in R. K. Garg v. Union of India(1981) 4 SCC 675 : 1982 SCC (Tax) 30: (1982) 1 SCR 947: (SCR p. 970: SCC- p. 69 1, para 8) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion No. 1 23. It is argued for the petitioners that COFEPOSA is not relatable to Entry 9 of List I of the Seventh Schedule to the Constitution inasmuch as the preventive detention provided therefore is not for reasons connected with defence, foreign affairs or security of India. Even Entry 3 of List III, it is submitted, does not warrant the said enactment. So far as SAFEMA is concerned, it is argued, it is not relatable to any of the Entries 1 to 96 in List I or to any of the Entries in List III. We are not prepared to agree. COFEPOSA is clearly relatable to Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of the State as well as the maintenance of supplies and services essential to the community besides Entry 9 of List I. While Entry 3 of List III speaks of security of a State , Entry 9 of List I speaks of security of India . Evidently, they are two distinct and different expressions. Security of a State is a much wider expression. A State with a weak and vulnerable economy cannot guard its security well. It will be an easy prey to economic colonisers. We know of countries where the economic policies are not dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reason, the detenus were neither supplied with the grounds of detention, nor were they given an opportunity to make a representation against their detention nor does it appear that their cases were referred to the Advisory Board not at any rate within the period prescribed by Section 8, or for that matter, Section 9. They 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 against the detenus, their relatives and their associates. SAFEMA is made applicable to them by virtue of Section 2(2)(b) read with clauses (c), (d) and (e) of sub-section (2). The petitioners say that since the order of detention under COFEPOSA is made the basis for action under SAFEMA 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 (non-supply of grounds and non- reference to Advisory Board) and also because their right to move the court for enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would, but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. (By the Constitution 42nd Amendment Act, a proviso was added and by the 44th Amendment Act, some further amendments were made but it is not necessary to notice them for the purposes of these cases.) 26. Clause (1) of Article 359, as it stood prior to the 44th Amendment, provided that: Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presidential Order purports to do by virtue of the power conferred on the President by Article 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement. That is one important distinction between the provisions of Article 358 and Article 359(1). 28. It was urged by the learned Attorney General that suspension of the citizens' right to move any court for the enforcement of a particular fundamental right amounts in law to suspension of the said right itself for the said period. The Bench, however, declined to go into the said question and proceeded on the assumption that the said rights are in theory alive even during the period of the Presidential Order. The Special Bench pointed out further: It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order. The inevitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 359 by the Constitution 38th (Amendment) Act, 1975. The clause was introduced with retrospective effect from the date of the Constitution. Clause (1-A), as introduced by the said Amendment Act read as follows: 1-A. While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: 30.A proviso was added to this clause by the 42nd Amendment Act, 1976, to the following effect: Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union Territory in which or in any part of which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is co-extensive with the duration of the proclamation of emergency, clause (1-A) is confined to the It should be noticed that only the heading of Article 358 speaks of suspension of provisions of Article 19 ; in the body of the article, there is no reference to suspension of the article. period for which the Presidential Order remains in force. Yet another distinction is that while Article 358 enables the State to make any law or to take any executive action inconsistent with Article 19 during the period of emergency, clauses (1) and (1-A) of Article 359 read together provide for suspension (by means of a Presidential Order) of the enforcement of the fundamental rights specified in the order and simultaneously enable the State to make any law or to take any executive action inconsistent with such fundamental rights. It is evident that what is said in Makhan Singh with respect to Article 358 (competence of the State to make a law or to take executive action inconsistent with Article 19) does apply equally to Article 359 by virtue of the introduction of clause (1-A) with retrospective effect. In other words, during the period the Presidential Order under Article 359(1) is in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated by Article 352, the State should be left free to make such law or to take such executive action as is necessary to safeguard the security of the country unfettered by the provisions in Article 19. This subordination of Article 19, however, is only for the period the proclamation of emergency under Article 352 is in operation. 32. Now coming to clauses (1) and (1-A) of Article 359 the position is this:While clause (1) empowers the President to suspend the enforcement of the fundamental rights named in such notification (and any and all proceedings in that behalf in any court), it does not empower the President to suspend the fundamental rights. Evidently, the Founding Fathers did not think it necessary to clothe the President with such a power. The words in clause (1) are clear and unambiguous. They only speak of suspending the enforcement of the rights in Part III and not suspending the rights themselves. We see no warrant, no justification and no basis for holding that the suspension of enforcement of the rights means in effect the suspension of the rights themselves. If that were the intention of the Founding Fathers, they would have said so expressly. Indeed, they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may be appropriate at this juncture to refer to a few decisions of this Court relevant in this behalf. In Jaichand Lall Sethia v. State of W.B. 1966 Supp SCR 464: AIR 1967 SC 483 it is held by a Constitution Bench: But the appellant can challenge the validity of the order on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from questioning the validity of the said orders on account of the ban imposed by the Presidential Order under Article 359(1). They submit that the detention orders governed by Section 12-A of COFEPOSA are inherently arbitrary and unjust. An order of preventive detention is made without even telling the detenu of the grounds of his detention and without giving him an opportunity to make a representation. Even the protection of consideration of his case by an independent body (Advisory Board) is taken away. The detenu is rendered totally helpless. He is left with no remedy. He cannot prove his innocence. Such an order of detention is opposed to all concepts of fairness, civilised conduct and democratic norms. They submit that such orders cannot form the foundation or the basis for applying SAFEMA to them. Their argument is evocative of what Justice Cardozo once said: We must always take care to safeguard the law against the assaults of opportunism, the expediency of the passing hour, the erosion of the small encroachments, and the scorn and derision of those who have no patience with general principles. 37. The contending viewpoints aforesaid give rise to two strands of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der made for the limited purpose of dealing effectively with the emergency. It has no existence, relevance or effect except for the said limited purpose. Outside such purpose, it is non est. It does not exist. If so, such an order of detention cannot furnish the foundation, the connecting link, or the basis for applying SAFEMA. A normal order of preventive detention is itself an uncivilised action. An order of detention governed by Section 12-A of COFEPOSA denying as it does even the minimum safeguards provided by clauses (4) and (5) of Article 22 is an abhorrent action. It may be tolerated as a cruel necessity when the very life of the Nation is threatened but it cannot certainly be recognised or taken note of for any other purpose much less made the basis of applying an extremely drastic enactment like SAFEMA. Treating such order of detention as an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA amounts to enforcing or giving effect to the said order of detention beyond and outside the period of emergency and for purposes foreign to emergency. This is totally impermissible. Section 12-A does not sanction this though it sanctions a lot man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of detention for the purpose of and within the meaning of clause (b) of Section 2(2) of SAFEMA. In view of the fact that SAFEMA as well as COFEPOSA are included in the Ninth Schedule by the 39th and 40th (Amendment) Acts to the Constitution, clause (b) of Section 2(2) of SAFEMA [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 petitioners' contentions. On this single ground, we hold, as we must, that an order of detention made under COFEPOSA, to which the provisions in Section 12-A applied, is an order of detention within the meaning of and for the purposes of Section 2(2)(b) of SAFEMA and can, therefore, constitute the basis for applying SAFEMA to such person. 40. At this juncture, it would be appropriate to deal with two decisions of this Court brought to our notice. The first one is in Union of India v. Haji Mastan Mirza(1984) 2 SCC 427 : 1984 SCC (Cri) 271 : (1984) 3 SCR 1 rendered by a Bench of three Judges. The respondent therein was first detained under Maintenance of Internal Security Act (MISA) under an order dated 17-9-1974. On 19-12-1974 the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 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 is taken against him for action under SAFEMA is not automatic upon the fact of detention but only the starting point. On the other hand, if it is an order of detention governed by Section 12-A [or by a Presidential Order under Article 359(1) suspending Article 22], it perhaps could still be challenged even during the period 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 is taken, the challenge must be confined to grounds which were open or available during the period of emergency; otherwise there would be no meaning behind the concluding words in Article 358(1) and Article 359(1 A). Hence, we say that a person who did not choose to challenge such an order of detention during the emergency when he was detained, or challenged it unsuccessfully, cannot be allowed to challenge it when it is sought to be made the basis for applying SAFEMA to him. In either of the two situations mentioned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9361 of 1982 wherein leave was granted and the appeal was numbered as CA No. 2790 of 1985 which was said to be pending on the date of the said judgment. An order of detention under Section 3 of COFEPOSA was made against the respondent, Manohar Lal Narang, as well on 31-1-1975. He was then in England. He was brought to India and detained. He challenged the same by way of WP No. 2752 of 1975 in the Bombay High Court which was allowed and the detention quashed on 8-7-1980. An appeal preferred to this Court against the said order was also dismissed. Thereafter, a show-cause notice was issued to Manohar Lal Narang on the ground that he is the brother relative) of Ram Lal Narang, who was detained under Section 3(1) of COFEPOSA. It may be remembered that a writ petition questioning Ram Lal's detention under the order dated 1-7- 1975 [evidently, an order of detention to which Section 12-A of COFEPOSA applied] was dismissed by the Delhi High Court (WP No. 115 of 1975) and even Writ Petition No. 720 of 1975 (in which he was allowed to raise all the available grounds against his detention) was also dismissed. From the facts stated above, it is clear that the basis of action under SAFEMA a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of this Act, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws [vide sub-clause (i)]. Sub-clauses (ii), (iii) and (iv) of clause (c) further widen and elaborate its ambit. The definition thus takes in not only the property acquired after the Act but also the property acquired before the Act, whatever. be the length of time. Secondly, it takes in property which may have been acquired partly from out of illegal activity in which case, of course, the provision in Section 9 would be attracted. Illegal activity is not confined to violation of the laws mentioned in Section 2 but all laws which Parliament has power to make. To give an illustration, if a smuggler has acquired some properties by evading tax laws or by committing theft, robbery, dacoity, misappropriation or any other illegal activity prohibited by the Indian Penal Code or any other law in force (which Parliament has the power to make) all that would be liable to be forfeited. It is submitted by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling and foreign exchange violations and which properties or which portions thereof are attributable to violation of other laws (which Parliament has the power to make). It is probably for this reason that the burden of proving that the properties specified in the show-cause notice are not illegally acquired properties is placed upon the person concerned. May be this is a case where a dangerous disease requires a radical treatment. Bitter medicine is not bad medicine. In law it is not possible to say that the definition is arbitrary or is couched in unreasonably wide terms. Further, in view of clear and unambiguous language employed in clause (c) of Section 3, it is not possible or permissible to resort to the device of reading down. The said device is usually resorted to save a provision from being declared unconstitutional, competent and ultra vires. We are, therefore, of the opinion that neither the constitutional validity of the said definition can be questioned nor is there my warrant for reading down the clear and unambiguous words in the clause. So far as justification of such a provision is concerned, there is enough and more. After all, all these illegally acquired pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proceeds whisked away to, some Shangri La which hides bribes and other corrupt moneys in numbered bank accounts to which we are tempted to add one can understand the immorality of the Bankers who maintained numbered accounts but it is difficult to understand the amorality of the Governments and their laws which sanction such practices in effect encouraging them. The ratio of this decision applies equally where a person acquires properties by violating the law and at the expense of and to the detriment of the State and its revenues where an enactment provides for such a course, even if the fiduciary relationship referred to in Reid13 is not present. It may be seen that the concept employed in Reid was a common law concept, whereas here is a case of an express statutory provision providing for such forfeiture. May we say in conclusion that the interests of society are paramount to individual interests and the two must be brought into just and harmonious relation. A mere property career is not the final destiny of mankind, if progress is to be the law of the future as it has been of the past . (Lewis Henry Morgan: Ancient Society). Question No. 5 44. It is contended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the purview of the Act. The fact of their holding or possessing the properties of convict/detenu furnishes the link between the convict/detenu and his relatives and associates. Only the properties of the convict/detenu are sought to be forfeited, wherever they are. The idea is to reach his properties in whosoever's name they are kept or by whosoever they are held. The independent properties of relatives and friends, which are not traceable to the convict/detenu, are not sought to be forfeited nor are they within the purview of SAFEMA**. We may proceed to explain what we say. Clause (c) speaks of a relative of a person referred to in clause (a) or clause (b) (which speak of a convict or a detenu). Similarly, clause (d) speaks of associates of such convict or detenu. If we look to Explanation (3) which specifies who the associates referred to in clause (d) are,, the matter becomes clearer. 'Associates' means (i) any individual who had been or is residing in the residential premises (including outhouses) of such person [ such person' refers to the convict or detenu, as the case may be, referred to in clause (a) or clause (b)]; (ii) any individual who had been or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring therein shall have to be construed and understood in the light of the overall scheme and purpose of the enactment. The idea is to forfeit the illegally acquired properties of the convict/detenu irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such relatives or associates which they may have acquired illegally but only to reach the properties of the convict/detenu or properties traceable to him, wherever they are, ignoring all the transactions with respect to those properties. By way of illustration, take a case where a convict/detenu purchases a property in the name of his relative or associate it does not matter whether he intends such a person to be a mere name lender or whether he really intends that such person shall be the real owner and/or possessor thereof or gifts away or otherwise transfers his properties in favour of any of his relatives or associates, or purports to sell them to any of his relatives or associates in all such cases, all the said transactions will be ignored and the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be afforded the earliest opportunity of making representation against the order of detention (see State of Bombay v. Atma Ram Sridhar Vaidya 1951 SCR 167 : AIR 1951 SC 157 :52 Cri LJ 373 ). If the grounds included irrelevant or non-existent grounds, it is submitted, the first right is violated and if the grounds included vague grounds, the second right is violated. According to the teamed counsel, Article 22(5), as interpretated by this Court over the last more than four decades, means this: An order of preventive detention is based upon the subjective satisfaction of the authority and where such satisfaction has been arrived at on grounds some of which are relevant and definite grounds and some irrelevant, vague and nonexistent, it is not possible or permissible for the court to predicate which grounds have influenced the formation of his satisfaction which means that the order of detention must fall to the ground; if this is what Article 22(5) means and says, it is not open to Parliament to make a law saying that where the grounds upon which the requisite satisfaction has been formed are partly good and partly bad, yet the order must be held to be good with reference to and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person. In Debu Mahato v. State of W.B. (1974) 4 SCC 1351974 SCC (Cri) 274it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of W. B. (1974) 4 SCC 5141974 SCC (Cri) 550 It was a case of theft of railway signal material. Here too one act was held to be sufficient. Similarly, in Israil SK v. District Magistrate of West Dinajpur(1975) 3 SCC 292:1974 SCC (Cri) 900 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527 :1975 SCC (Cri) 117 single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala(1982)2SCC310:1982 SCC (Cri) 423, a case arising under COFEPOSA, a single act, viz., attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: Though ordinarily one act may not be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word accordingly apart from the fact that it is joined to the first part by the word and . In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5). Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court this was indeed the situation in K. Yadigiri Reddy v. Commissioner of Police ILR 1972 AP 1025 as we shall presently indicate. It is difficult to conceive any inconsistency or conflict between Article 22(5) and the first the main part of Section 5-A. Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. No decision sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinabove. The said decision, therefore, does not advance the case of the petitioners in any manner herein. Having said this, we must reiterate the admonition of Gajendragadkar, J. regarding the exercise of the power of detention under the various detention laws in force. Speaking for the Constitution Bench in G. Sadanandan v. State of Kerala AIR 1966 SC 1925 :(1966) 3 SCR 590 : 1966 Cri LJ 1533 97, the learned Judge observed: ... we feel rudely disturbed by the thought that continuous exercise of the very wide powers conferred by the Rules on the several authorities is likely to make the conscience of the said authorities insensitive, if not blunt, to the paramount requirement of the Constitution that even during Emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified by the Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded. 53. In matters touching liberty, greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o play with a constitutional amendment an amendment which, in particular, tends to strengthen the safeguard contained in clause (4) of Article 22, says the counsel. 55. We do not, however, think it necessary for the purposes of these cases to express any opinion on Dr Ghatate's submission, for the reason that acceptance of his contention assuming we do makes no difference to the result of these petitions. We have already held that the orders of detention made under Section 3 of COFEPOSA, which were governed by Section 12-A do yet represent orders of detention for the purpose of and within the meaning of Section 2(2)(b) read with Section 2(1) of SAFEMA. Even if we assume that the amendments to clauses (4) and (7) effected by the 44th (Amendment) Act have come into force on the day the Amendment Act received assent of the President, the result would be no different. In this view of the matter, it is also not necessary to express any opinion on the respondent's submission based upon A.K. Roy v. Union of India(1982) 1 SCC 271 : 1982 SCC (Cri) 152: (1982) 2 SCR 272 , Viz., whether the opinion in the said decision can be validly applied even after a lapse of fourteen years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f SAFEMA is not invalid or ineffective. (5) The application of SAFEMA to the relatives and associates [in clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the case may be, wherever they are, howsoever they are held and by whomsoever they are held. They are not conceived with a view to forfeit the independent properties of such relatives and associates as explained in this judgment. The position of 'holders' dealt with by clause (e) of Section 2(2) is different as explained in the body of the judgment. (6) Section 5-A of COFEPOSA is not invalid or void. It is not violative of clause (5) of Article 22. (7) Petitioners have failed to establish that any of the provisions of SAFEMA are violative of Articles 14, 19 or 21 apart from the protection they enjoy by virtue of the inclusion of the Act in the Ninth Schedule to the Constitution. 57. All the writ petitions, transferred cases and appeals are disposed of accordingly. The court and authorities before whom proceedings are pending under SAFEMA shall proceed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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