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TMI Blog1984 (2) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 - Criminal Appeal No. 305 of 1982 - - - Dated:- 23-2-1984 - FAZALALI, SYED MURTAZA, VARADARAJAN, A., AND MISRA RANGNATH, JJ. For the Appellant : K. G. Bhagat, Addl. Sol. General, N. C. Talukdar and Miss A. Subhashini For the Respondent : Ram Jethamalani, M. G. Karmal, Madhu Patel, Shri Narain Mathur, K. V. Desai and Miss Rani Jethamalani JUDGMENT: VARADARAJAN, J. This appeal by special leave is directed against the judgment of the Bombay High Court in Criminal Application No. 780 of 1981 filed by the respondent Haji Mastan Mirza, allowing the criminal appeal and declaring that the order of detention dated 19.12.1974 passed by the Minister of Finance, Government of India under s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973, (COFEPOSA) is illegal, null and void ab initio and inoperative, and quashing that order as well as the declaration under s. 5(1) of the COFEPOSA made on 18.1.1975 and also consequently quashing the notice under s. 6(1) and the order made under s. 7 of the Smugglers and Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration dated 18.1.1975, passed and made under s. 3(1) and s. 5(1) of COFEPOSA for showing that the action taken under s. 6(1) and s. 7 of SAFEMA is unsustainable. The learned counsel for the respondent conceded before us that the respondent is not challenging the vires of any of the provisions of COFEPOSA and SAFEMA in the present appeal. The said petition under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure challenging the validity of the order of detention and declaration passed under COFEPOSA and the notice and order issued under s. 6(1) and 7 of SAFEMA was heard by Gadgil and Kotwal, JJ constituting the Division Bench of the Bombay High Court. Kotwal, J considered all the grounds urged before him and accepted most of them including two grounds viz. 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 detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent did not challenge his detention under COFEPOSA before his release cannot operate as estoppel against his right of moving the court for having the order of detention quashed when that order was sought to be used as a basis for taking action against him under ss. 6 and 7 of SAFEMA. We therefore hold that the respondent's petition under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure is maintainable, We may state that this question of maintainability of the respondent's petition was not disputed by the learned counsel for the appellant before us. S. 6(1) of SAFEMA providing for the issue of notice before proceedings can be taken for forfeiture of properties of the persons governed by the provisions of that Act reads thus : "If, having regard to the value of the properties held by any person to whom this Act applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, and any other information or material available to it as a result of action taken under section 18 or otherwise, the competent authority has reason to believe (the reasons for such belief to be recorded in writing) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention has not been set aside by a court of competent jurisdiction. In the present case action has been taken against the respondent under ss. 6(1) and 7 read only with s. 2(2) of the Act. Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under ss. 6 and 7 of SAFEMA. If the impugned order of detention dated 19.12.1974 is set aside for any reason, the proceedings taken under ss. 6 and 7 of SAFEMA cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19.12.1974 under COFEPOSA is void and has to be quashed, It is seen from para 17 of the judgment of Kotwal, J that it was not disputed before the learned Judges of the High Court that no copy of any of the documents was ever supplied to the respondent. That fact was admitted in unmistakable terms not only in the counter-affidavit filed on behalf of the respondents before the High Court but also in the course of the arguments of their learned counsel. Kotwal, J has held that the documents referred to in the grounds and relied upon for the purpose of the respondent's detention are such that without copies thereof being supplied to the respondent he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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