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TMI Blog2023 (11) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... would be applicable subject to four clauses mentioned under the proviso thereto. A perusal of the above quoted provision makes it clear that apart from the four contingencies given in clauses (i) to (iv) above, every person against whom an order of detention has been passed under COFEPOSA, the provisions of SAFEMA would apply. In the present case, it is an admitted position that an order of detention under COFEPOSA was made against the appellants. The order of detention had not been revoked on the report of the Advisory Board or before the receipt of the report of Advisory Board or before making a reference to the Advisory Board. Further, it was an order of detention passed under Section 3 of COFEPOSA. Section 9 and Section 12 A of COFEPOSA had no application to the detention order. As such, clause (i) would not be applicable. Clause (ii) would also not be applicable in as much as neither the detention order was made to which provisions of Section 9 of COFEPOSA would apply nor had it been revoked before the expiry of the time on the basis of review on the report of the Advisory Board. Further, clause (iii) would also not be applicable as Section 12A of COFEPOSA had no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition (Civil) No.1212 of 1995 was dismissed confirming the order of forfeiture of properties under section 7 of The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 SAFEMA . In Criminal Appeal No.730 of 2014, the challenge is to an order passed by the Division Bench of the Bombay High Court dated 03/17.12.2012 dismissing the Writ Petition No.3878 of 2011 wherein also the order of forfeiture of properties under SAFEMA was upheld. 2. Before the High Court, the main ground of challenge in both the cases was that as the detention order passed under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 COFEPOSA has been subsequently revoked/withdrawn as such SAFEMA proceedings would become non est and untenable. An additional ground taken in Civil Appeal No.5500 of 2011 was to the effect that even the criminal complaint filed under the Customs Act, 1962 The Act 1962 wherein the appellant had been discharged on the ground that there was no evidence, would further render the proceedings under SAFEMA as untenable. 3. At the outset, the arguments advanced by the learned senior counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 16.09.1983, the competent authority under SAFEMA forfeited the properties under section 7 thereof. Aggrieved by the same, the appellant preferred an appeal before the Appellate Tribunal on 07.10.1983. 9. Simultaneously, the appellant also preferred W.P.(Civil) No.12547 of 1983 before the Delhi High Court on 25.11.1983 wherein it challenged the vires of SAFEMA as also the proceedings initiated under the said Act. During the pendency of the writ petition, further proceedings before the Appellate Tribunal under SAFEMA were stayed by the Delhi High Court. 10. In the meantime, as there was challenge to the vires of SAFEMA before various High Courts, all such pending matters were transferred to this Court clubbed together with the title being Attorney General for India vs. Amratlal Prajivandas and others (1994)5 SCC 54 . This group of petitions came to be decided vide judgment dated 12.05.1994. This Court upheld the vires of SAFEMA and accordingly, where appeals were pending before the Appellate Tribunals, were directed to be disposed of and be decided on their own merits. 11. The Appellate Tribunal vide order dated 02.03.1995 upheld the forfeiture order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsel appearing for the appellant has strenuously urged with great vehemence that the impugned proceedings under the SAFEMA could not be maintained and the impugned orders need to be quashed as the proceedings under COFEPOSA for detention stands revoked and also in Civil Appeal No.5500 of 2011 that even the criminal complaint had been closed as the appellant was discharged and further the penalty under the Act 1962 and the Act 1968 have also been revoked. 16. Learned counsel for the appellant had placed strong reliance on section 2(2) (b) of the SAFEMA to support his submissions that once the detention order under COFEPOSA had been revoked, the proceedings under SAFEMA could not be maintained. The submission is that provisions of SAFEMA could be made applicable only against the person in respect of whom the order of detention has been made under COFEPOSA. Once the order of detention itself had been revoked for whatever reasons there would be no order of detention against such person under COFEPOSA and therefore, no applicability of SAFEMA. 17. On the other hand, Shri Vikramjit Banerji, learned Additional Solicitor General submitted that the arguments advanced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded for the application of the provisions of the Act only to the persons specified in sub-section (2) thereof. According to sub-section (2)(b) every person in respect of whom an order of detention has been made under COFEPOSA, the Act would be applicable subject to four clauses mentioned under the proviso thereto. For the purposes of this case, the relevant provisions are confined to Section 2(2)(b) and its proviso. As such the same is reproduced below: Section 2. Application.- Xx xx xx (2) The persons referred to in sub-section (1) are the following, namely:- Xx xx xx (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 12A 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; (ii) such order of detention, being an order to which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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