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TMI Blog2015 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution of India. However, the Supreme Court held that such petitions were not maintainable; effectively barring even the writ remedy to those aggrieved against detention orders, in A.D.M. Jabalpur v Shiv Kant Shukla [1976 (4) TMI 211 - SUPREME COURT]. The submission of the respondents that the revocation order in the present case was not under Section 12-A, but under Section 11 is of not much consequence. The only power of revocation which could have been sought recourse to, by the Central Government, under COFEPOSA, during Emergency, in respect of orders under Section 12-A, was under Section 12-A (3) after review and recommendation to release the detenu. That class of detention orders too stood excluded by virtue of Section 2 (2) (b) third proviso; however, the first category, i.e. those detention orders that had not been revoked before cessation of Emergency, could have been revoked only under Section 11 of COFEPOSA. - revocation of the detention order, in the present case, clearly fell within third proviso to Section 2 (2) (b) and was thus excluded from exercise of jurisdiction under SAFEMA. The writ petition has to consequently succeed; the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon being served with the forfeiture order, an appeal was preferred by Shri Sarin which was rejected on 19.12.2001. By then, Shri H.K. Sarin had passed away on 16.10.2000. Consequently, his heirs including the present petitioners were unaware about the fate of the appeal preferred by him; likewise there is no representation on his behalf in the writ proceedings. The writ petition, therefore, was dismissed for non-prosecution on 16.09.2003. Upon receiving a further Show Cause Notice dated 29.03.2005 by the competent authority proposing to execute the orders made under SAFEMA, the petitioner enquired from the authorities and was informed about the outcome of the appeal. Thereupon, she approached this Court by filing W.P. (C) 23717/2005 -again challenging the validity of the detention order dated 12.07.1975 and the consequential action taken by the respondents under SAFEMA. 4. In the counter affidavit to W.P. (C) 23717/2005, the respondents inter alia stated for the first time that the detention order had been revoked on 21.03.1977. The respondents also deposed that the file pertaining to the detention order of H.K. Sarin was untraceable. The averments made in the said counter af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about applicability of proceedings under SAFEMA (FOP) Act, 1976 in the cases of persons who remained absconder and detention order issued was never served on them. In response, the Law Ministry has opined that revocation of the order of detention under section 12A of the COFEPOSA Act because of the lifting of the Emergency will not render the SAFEMA inapplicable to a person in respect of whom an order of detention had been made under section 12A of the COFEPOSA Act. From the above facts and legal position, the claim that proceedings under SAFEM (FOP) Act, 1976 ceases to apply does not hold good. For your consideration, copy of the advice taken from Ministry of Law is annexed. 6. The petitioner challenges the final orders of SAFEMA and the decision of the appellate authority contending that their initiation itself was a nullity. It is firstly contended that the detention order was never executed or given effect to during the lifetime of Late Shri Sarin and instead was revoked on 21.03.1977. Learned counsel highlighted that since the detention order itself was not executed, the consequential action under SAFEMA was unsustainable. It was next urged that the effect of the revoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. KALIA) DEPUTY SECRETARY (HOME) DELHI ADMINISTRATION: DELHI 9. For a better appreciation of the controversy, it would be necessary to extract the relevant statutory provisions. The relevant provision, Section 2 of SAFEMA, so far as relevant reads as follows: Section 2. Application- (1) The provisions of this Act shall apply only to the persons specified in sub-section (2). (2) The persons referred to in sub-section (1) are the following namely :- (a) every person - (i) who has been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of an offence in relation to goods of a value exceeding one lakh of rupees; or (ii) who has been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount or value involved in which exceeds one lakh of rupees; or (iii) who having been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), has been convicted subsequently under either of those Acts; or (iv) who having been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by the Government, is satisfied that such person (a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or (b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or (c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention of such person. Section 11(1) of COFEPOSA reads as follows: 11. Revocation of detention orders - (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified - (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government, or by a State Government by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the emergency, that Government may revoke the declaration. (4) In making any consideration, review or reconsideration under sub-section (2) or (3), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned. (5) It shall not be necessary to disclose to any person detained under a detention order to which the provisions of sub-section (2) apply, 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 there under, the period during which such declaration is in force shall not be taken into account for the purpose of computing- (i) the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, was made before the expiry of the original period of detention, attracting the third proviso to Section 2(2)(b) of SAFEMA, so as to exclude its operation altogether. 12. By virtue of Section 2(2) (b) of SAFEMA, jurisdiction extends to every person against whom a COFEPOSA detention order has been made . However, the third proviso (to Section 2 (2) (b)) specifically excepts its operation those against whom orders of detention are made under Section 12-A of COFEPOSA if: (a) orders of detention are not revoked before expiry of time (for such detention); or (b) orders of detention are revoked on the basis of first review; or (c) revocation of detention is on the basis of the report of the Advisory Board, under Section 8 read with Section 12A (6). Now, a detention order under Section 12A - as noticed in Amritlal Prajivandas (supra)- was made under extraordinary circumstances, when Fundamental Rights were suspended. The non-obstante clause in Section 12-A overrode other safeguards which every individual was assured before a valid detention order could be issued, i.e. recommendation and review by Advisory Boards as essential preconditions. Such orders made by virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged under Article 226 of the Constitution of India. However, the Supreme Court held that such petitions were not maintainable; effectively barring even the writ remedy to those aggrieved against detention orders, in A.D.M. Jabalpur v Shiv Kant Shukla AIR 1976 SC 1207. 14. The submission of the respondents that the revocation order in the present case was not under Section 12-A, but under Section 11 is of not much consequence. The only power of revocation which could have been sought recourse to, by the Central Government, under COFEPOSA, during Emergency, in respect of orders under Section 12-A, was under Section 12-A (3) after review and recommendation to release the detenu. That class of detention orders too stood excluded by virtue of Section 2 (2) (b) third proviso; however, the first category, i.e. those detention orders that had not been revoked before cessation of Emergency, could have been revoked only under Section 11 of COFEPOSA. 15. In the light of the foregoing discussion, it is held that the revocation of the detention order, in the present case, clearly fell within third proviso to Section 2 (2) (b) and was thus excluded from exercise of jurisdiction under SAF ..... X X X X Extracts X X X X X X X X Extracts X X X X
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