Bombay High Court
7 vs The Union Of India on 10 October, 2012
Bench: V.M. Kanade, P. D. Kode
1/23
(WP-1780.11 WITH
APPW-439-12)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1780 OF 2011
Smt. Heena Kausar, )
Aged about 55 years, )
Indian Origin and British )
National R/o Humaiyun )
Merchant, Kailash Apartment, )
Bellasis Road, Mumbai Central )
Mumbai - 400 008 )
Permanent Address: )
17, Woodlands Avenue, )
Horn Church, ig )
Essex - R - M - 11 -2 - QT, )
United Kingdom )
# 0044708443660 ) ...Petitioner.
v/s
1. The Union of India )
Through Government Pleader )
Aaykar Bhavan, Marine Lines )
Mumbai - 400 020 )
)
2. Shri C.D. Singh, )
the Secretary to the )
Government of Maharashtra )
(Preventive Detention), )
Home Department and )
Detaining Authority, )
Mantralaya, Mumbai - 400032 )
)
3. The Competent Authority, )
Narcotic Drugs and )
Psychotropic Substances Act, )
1985, Mittal Court, C-Wing, )
3rd floor, Nariman Point, )
Mumbai - 400 021 )
::: Downloaded on - 09/06/2013 19:16:02 :::
2/23
(WP-1780.11 WITH
APPW-439-12)
)
4. The State of Maharashtra, )
)
5. The Commissioner of Police )
Commissionerate of Police Bldg., )
Crawford Market, Mumbai. )... Respondents.
WITH
CRIMINAL APPLICATION NO.439 OF 2012
IN
CRIMINAL WRIT PETITION NO.1780 OF 2011
Mrs. Heena Kausar ) .... Petitioner.
v/s
Union of India & Ors ).... Respondents.
And
Surewin Marketing P. Ltd. ).... Intervener/Applicant
Mr. Shirish Gupte, Senior Counsel i/b Mrs. Amiz Ansari &
N.S.K. Ayubi for the Petitioner.
Mrs. M.H. Mhatre, AGP for Respondent Nos. 2, 4 and 5/State
Mrs. P.H. Kantharia with Mr. K.J. Kandpile for Respondent Nos.
1 and 3 - Union of India.
Mr. Swanand R. Ganoo with Mr. Pranav Sampat i/b Mr. Rajesh
Ravindran for Intervener/Applicant in Criminal Application
No.439 of 2012.
CORAM: V. M. KANADE &
P.D. KODE JJ.
DATE : OCTOBER 10, 2012
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. By this Petition which is filed under Article 226 of the
(WP-1780.11 WITH
APPW-439-12)
Constitution of India, Petitioner is seeking appropriate writ
order and direction for setting aside the order of detention
dated 02/09/1994 passed by Respondent No.2 under section
3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988.
2. Brief facts are as under:-
3. On 02/09/1993, a jeep which was parked at Worli,
said jeep.
Mumbai was seized and Mandrax Tablets were found in the
Petitioner's husband was made an accused in the
said case. On 02/09/1994, an order of detention was passed
by Respondent No.2. The said order of detention could not
be served on Petitioner's husband, though, according to
Respondent No.2, various steps were taken to serve him and,
till today, the order of detention and grounds of detention
have not been served on Petitioner's husband. Petitioner has
challenged the said order of detention. In the meantime, a
show-cause notice was issued to the Petitioner, asking her
why her properties mentioned at Serial Nos. 2 to 5 of the List
of Properties annexed to the show-cause notice should not
be forfeited under the provisions of section 68-I of the
Narcotic Drugs & Psychotropic Substances Act, 1985. Reply
was given by the Petitioner to the said show-cause notice
and after holding inquiry, Competent Authority was pleased
to forfeit the property of the Petitioner and her husband. The
(WP-1780.11 WITH
APPW-439-12)
said order was challenged by the Petitioner before the
Appellate Tribunal. However, the appeal was dismissed.
Petitioner, thereafter, filed Writ Petition in this Court
challenging the said order of forfeiture. However, the said
Writ Petition was also dismissed. The appeal was filed in the
Supreme Court, challenging the said order. However, the
appeal was dismissed by the Apex Court.
4. Brother-in-law of the Petitioner also filed Petition
challenging the said order of detention. However, the said
Writ Petition was also dismissed.
5. Principal Secretary to the Government of Maharashtra,
was pleased to file her affidavit-in-reply dated 26/07/2011.
Senior Police Inspector attached to Anti-Narcotic Cell, CBCID,
Mumbai also filed his reply dated 26/07/2011. Two affidavits
were filed on behalf of Union of India - Respondent No.1; one
is affidavit-in-reply dated 5/10/2012 filed by Nafees A. Khan,
Supdt (Admn.) in the Office of the Competent Authority,
SAFEMA/NDPSA, Mumbai and the second additional affidavit
has been filed by Stanley Joseph, Inspecting Officer,
SAFEMA/NDPS Mumbai.
6. Mrs Kantharia, the learned Counsel appearing on behalf
of Union of India has raised preliminary objection regarding
maintainability of this Petition. Firstly, it is submitted that
(WP-1780.11 WITH
APPW-439-12)
the Petitioner is challenging the order of detention passed
on 02/09/1994 which has not been served on the detenu and
which is not executed and, as such, the Writ Petition
challenging the order of detention which has not been
executed is not maintainable except on grounds mentioned
in the judgment of the Supreme Court in Additional Secretary
to the Government of India and others vs. Smt. Alka
Subhash Gadia and others1 Secondly, it is submitted that the
order of detention of the Petitioner's husband was also
challenged by her brother-in-law and the said Writ Petition
was dismissed by the Division Bench of this Court by
judgment and order dated 28/04/1999 in Writ Petition No.274
of 1999 and, therefore, it was not open for the Petitioner to
again challenge the said order of detention by filing a
separate Writ Petition. Thirdly, it is submitted that the
Petitioner had challenged the order of forfeiture of property
mentioned in the show-cause notice by filing an appeal
against the order of Competent Authority. However, the said
appeal was dismissed, the Writ Petition filed in the High
Court vide Writ Petition No. 1867 of 1999 was also dismissed
and the appeal filed against the said order in the Supreme
Court was also dismissed and, as such, it is not now open for
the Petitioner to challenge the order of forfeiture.
7. Mrs Kantharia, the learned Senior Counsel appearing on
behalf of Union of India then submitted that so far as the
1 Judgment Today 1991 (1) SC 549
(WP-1780.11 WITH
APPW-439-12)
property situated at Bhopal is concerned, the order of
forfeiture of the said property was also challenged. However,
the order passed by the Competent Authority in respect of
the said property situated at Bhopal was confirmed by the
Appellate Tribunal, High Court and the Supreme Court. It is,
therefore, submitted that the order of forfeiture having
attained finality, it is not now open for the Petitioner to
challenge the order of forfeiture of the said property.
8.
On the other hand, Mr. Shirish Gupte, the learned Senior
Counsel appearing on behalf of the Petitioner, submitted that
it is open for the Petitioner to challenge the said order at pre-
execution stage and reliance was placed on the judgment of
the Apex Court in Subhash Popatlal Dave vs. Union of India
& Anr1 He submitted that by the said judgment, the ratio of
the judgment in Smt Alka Gadia2 (supra) was referred to the
larger Bench. He also relied on the judgment of the Apex
Court in Deepak Bajaj vs. State of Maharashtra and another 3
He, therefore, submitted that in view of the said judgments,
Writ Petition challenging the order of detention at pre-
execution stage is maintainable.
9. Mr. Gupte, the learned Senior Counsel appearing on
behalf of the Petitioner then submitted that, Petitioner, being
the wife of detenu against whom order of detention was
1 Supreme Court Judgment in WP (Crl) No.137/2011 dated 10.7.2012
2 Judgment Today 1991 (1) SC 549
3 (2008) 16 SCC 14.
(WP-1780.11 WITH
APPW-439-12)
passed, is entitled to challenge the order of detention since
she is directly affected by issuance of show-cause notice
under the provisions of section 68-H by which notice her
property was sought to be acquired by the Competent
Authority. He relied on the following judgments:-
1. Union of India and Others vs. Manoharlal Narang 1
2 . Attorney General for India vs. Amratlal Prajivandas 2
10. The learned Senior Counsel for the Petitioner then
submitted that so far as writ of habeas corpus is concerned,
doctrine of constructive res judicata is not applicable and in
support of the said submission, he relied on the following
judgments:-
1. Gulam Sarwar vs. Union of India and others3
2. Lallubhai Jogibhai Patel vs. Union of India and Ors 4
3. Smt. Sughrabai Sadruddin Chunara vs. Union of
India & Ors.5
11. So far as merit of the case is concerned, learned Senior
1 (1987) 2 SCC 241
2 1995 CRI.L.J. 426
3 AIR 1967 SC 1335
4 AIR 1981 SC 728
5 2009 ALL MR (Cri) 3696
(WP-1780.11 WITH
APPW-439-12)
Counsel for the Petitioner submitted that there was gross and
unexplained delay in issuing the order of detention. He
submitted that incident in question took place on
02/09/1993, proposal was sent after 9 months from the said
date and sanction was granted after three and half months
thereafter. He submitted that in the affidavit-in-reply filed by
the Principal Secretary Mrs. Medha Gadgil, no explanation
has been given as to why the said delay had caused. He
submitted that on that ground alone the order of detention is
liable to be set aside. Secondly, he submitted that no
explanation has been given as to why the said order of
dentition could not be served. He submitted that on that
ground also the order of detention is liable to be set aside.
12. The first question which falls for consideration is:
whether the wife of the detenu is entitled to challenge the
order of detention. It is an admitted position that the order
of detention which was passed by Respondent No.2 dated
2/9/1994 has not been served on the husband of the
Petitioner. In the present case, show-cause notice was issued
to the Petitioner asking her to show-cause why her properties
mentioned in the show-cause notice should not be forfeited
under the provisions of section 68-I of the NDPS Act, 1985
Consequently, as a result of the said order of detention, in
view of provisions of NDPS Act, the properties belonging to
the relatives of the detenu are liable to be forfeited after the
(WP-1780.11 WITH
APPW-439-12)
competent authority is satisfied that the said property is
illegally acquired property of the detenu. The relevant
provisions of the NDPS Act reads as under:-
[CHAPTER V-A
FORFEITURE OF PROPERTY DERIVED FROM
OR USED IN, ILLICIT TRAFFIC
68-A. Application - (1) The provisions of
this Chapter 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)........
(b)........
(c ) every person in respect of whom
an order of detention has been made
under the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances Act, 1988 (46 of 1988), or
under the Jammu and Kashmir Prevention
of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988:
Provided that such order of detention
has not been revoked on the report of the
Advisory Board constituted under the said
(WP-1780.11 WITH
APPW-439-12)
Act or such order of detention has not
been set aside by a Court of competent
jurisdiction.
[(cc)................
(d) every person who is a relative of a
person referred to in clause (a) or clause
(b) or clause (c ) [or clause (cc)]
(e)........
(f)........."
"68-B. Definitions.- In this Chapter,
unless the context otherwise requires
(a)...... to (f)..........
(g) "illegally acquired property", in
relation to any person to whom this
Chapter applies, means,-
(i) any property acquired by such
person, whether before or after the
commencement of this Chapter, wholly or
partly out of or by means of any income,
earnings or assets derived or obtained
from or attributable to [the contravention
of any provisions of this Act]; or
(ii) any property acquired by such
person, whether before or after
commencement of this Chapter, for a
(WP-1780.11 WITH
APPW-439-12)
consideration, or by any means wholly or
partly traceable to any property referred
to in sub-clause (i) 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 holders 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 Chapter, for a
consideration, or by any means, wholly or
partly traceable to any property falling
under item (A), or the income or earnings
therefrom;
(h) "property" means property and
assets of every description, whether
(WP-1780.11 WITH
APPW-439-12)
corporeal or incorporeal, movebale or
immovable, tangible or intangible and
deeds and instruments evidencing title to,
or interest in, such property or assets,
derived from, or used in, the illicit traffic;
(i) "relative" means-
(1) spouse of the person;
(2) ..... to (7)........"
(j).......
(k)......"
"68-C. Prohibition of holding illegally
acquired property.-(1) As from the
commencement of this Chapter, it shall
not be lawful for any person to whom this
Chapter applies to hold any illegally
acquired property either by himself or
through any other person on his behalf.
(2) Where any person holds any illegally
acquired property in contravention of the
provisions of sub-section (1), such
property shall be liable to be forfeited to
the Central Government in accordance
with the provisions of this Chapter:
[Provided that no property shall be
(WP-1780.11 WITH
APPW-439-12)
forfeited under this Chapter if such
property was acquired, by a person to
whom this Act applies, before a period of
six years from the date he was arrested or
against whom a warrant or authorisation
of arrest has been issued for the
commission of an offence punishable
under this Act or from the date the order
of detention was issued, as the case may
be.]"
"68-H.
Notice of forfeiture of
property.-(1) If, having regard to the
value of the properties held by any person
to whom this Chapter 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 a report from any officer making
an investigation under section 68-E or
otherwise, the competent authority has
reason to believe (the reasons for such
belief to be recorded in writing) that all or
any of such properties are illegally
acquired properties, it may serve a notice
upon such person (hereinafter referred to
(WP-1780.11 WITH
APPW-439-12)
as the person affected (calling upon him
within a period of thirty days specified in
the notice to indicate the sources of his
income, earnings or assets, out of which
or by means of which he has acquired
such property, the evidence on which he
relies and other relevant information and
particulars, and to show cause why all or
any of such properties, as the case may
be, should not be declared to be illegally
acquired properties and forfeited to the
Central Government under this Chapter.
(2) Where a notice under sub-section (1)
to any person specifies any property, as
being held on behalf of such person by
any other person, a copy of the notice
shall also be served upon such other
person.
[Provided that no notice for forfeiture
shall be served upon any person referred
to in clause (cc) of sub-section (2) of
section 68-A or relative of a person
referred to in that clause or associate of a
person referred to in that clause or holder
of any property which was at any time
previously held by a person referred to in
(WP-1780.11 WITH
APPW-439-12)
that clause]"
Perusal of the aforesaid provision, therefore, clearly
establishes that once an order of detention is passed by the
Detaining Authority and if the said order of detention is not
revoked by Advisory Committee or quashed by the Court, the
Competent Authority under the NDPS Act is entitled to issue
show-cause notice under section 68(i) of the NDPS Act. The
Petitioner being wife of the detenu, therefore, is directly
affected by the order of detention and, therefore, would be
entitled to challenge the order of detention even at the pre-
execution stage. Petitioner has an independent right to
challenge the order of detention passed against her husband
as the said order is the basis for issuance of notice under
section 68(i) of the NDPS Act and visits her with civil
consequences. Division Bench of this Court in Smt.
Sughrabai Sadruddin Chunara vs. Union of India & Ors.1 has
observed in para 7 of its judgment as under:-
"7. In view of the discussion as above, we
hold that a person who is aggrieved by the
application of the SAFEMA to him/her
consequent to passing an order of detention
under the COFEPOSA, such a person has an
independent right to challenge the order of
detention, although such person may not
1 2009 ALL MR (Cri) 3696
(WP-1780.11 WITH
APPW-439-12)
seek a writ of habeas corpus. After holding as
above, it will have to be seen whether the
order of detention is bad."
In the said case also, the Petitioner who was a relative of the
detenu had challenged the order of detention since a notice
of forfeiture under section 6(1) of the SAFEMA was issued to
her. It is an admitted position that the said provision of
section 6(1) of SAFEMA and section 68-I of NDPS Act are pari
materia.
Division Bench of this Court in
Sony vs K.K. Dwivedi and others 1 also came to the same
Mohideen Tayab
conclusion after relying on two judgments; first in Jayantilal
Bhagwandas vs. State of Maharashtra 2 and the second in
Criminal Writ Petition No.622 of 1982 delivered on
21/11/1983. Division Bench in Mohidden Tayab Sony (supra)
has observed in para 5 of its judgment as under:-
"5. ........ We need not go into this aspect of
the matter, for the question of locus-standi can
be settled on a different basis. In regard to
the petitioner, it cannot be said that he does
not have a personal grievance entitling him to
question the order of detention. It is the
existence of that order which has deprived him
of the right to get a refund of the fine paid to
1 Judgment in Criminal Writ Petition No.1380 of 1986 dated 20/8/1987
2 1981 CR.L.J. 767
(WP-1780.11 WITH
APPW-439-12)
get over the order of forfeiture passed under
the SAFEMA..............The position emerging is
that the subsistence of the impugned
detention order is coming in the way of the
Petitioner exercising a civil right vested in him
viz, to get a refund of the fine amount paid by
him and and his sister. He therefore has a
right pertaining to him to impugned the
legality of the order of detention made against
Taher Sony."
In view of the settled legal position, therefore, we are of the
view that the Petitioner being relative of the detenu whose
property is being acquired would be entitled to challenge the
order of detention.
13. In our view, taking into consideration the facts and
circumstances of the case, It is not now open for the
Petitioner to challenge the order of detention. Petitioner, in
her Petition has nowhere stated as to when she became
aware of the order of detention. Petition has been filed in
2011. The order of detention was passed on 02/09/1994.
The brother-in-law of the Petitioner had filed an independent
Petition challenging the very same order of detention being
Writ Petition No. 274 of 1999. The said Writ Petition,
however, was dismissed by Division Bench of this Court in
(WP-1780.11 WITH
APPW-439-12)
1999 and the Court, on the basis of the judgment of the Apex
Court in Smt Alka Gadia1 (supra) came to the conclusion that
the Petition challenging the order of detention at pre-
execution stage is not maintainable. Petitioner herein was
aware about the order of detention though it was not served
on her husband. Secondly, the show-cause notice was issued
in 1995 and 1997 and, as such, even at that time, Petitioner
could have challenged the order of detention. However,
instead of adopting the said procedure, Petitioner has chosen
to challenge the show-cause notice before the Competent
Authority and the Appellate Tribunal. Petitioner could have
challenged the order of detention in the Writ Petition which
was filed by her in this Court, challenging the order passed
by the Competent Authority forfeiting her property
mentioned in the show-cause notice. However, Petitioner
chose not to take the said ground in the Writ Petition which
was filed in this Court.
14. The second question which falls for our consideration
is : whether the present petition is barred by the principle of
constructive res judicata? In our view, there is much
substance in the preliminary objection taken by the learned
Counsel appearing on behalf of Union of India regarding
maintainability of the Writ Petition. It is an admitted position
that the Petitioner had challenged the show-cause notice
which was issued to her. After the competent authority
1 Judgment Today 1991 (1) SC 549
(WP-1780.11 WITH
APPW-439-12)
passed the order of forfeiture, she challenged the said order
before the Appellate Tribunal and, thereafter, filed Writ
Petition in this Court, challenging the said orders. It was
open for her to have also challenged the order of detention
which was passed against her husband in the first Petition.
However, she did not challenge the order of detention. The
said Writ Petition was dismissed by this Court and the order
was confirmed by the Apex Court in SLP which was filed by
the Petitioner. The order of forfeiture, therefore, had
attained finality. Even the property mentioned in the show-
cause notice was sought to be auctioned and the part of the
property has been sold in auction. The auction, however, is
yet to be finalized. In our view, it will not be open now for
the Petitioner to challenge the order of detention since it will
be barred by the principle constructive res judicata.
15. There cannot be any dispute about the proposition that
so far as writ of habeas corpus is concerned, successive
Petitions can be filed and such Petitions would not be barred
by the principle of res judicata. In the present case,
however, Petitioner has not filed a writ of habeas corpus but
has filed merely a Petition challenging the order of detention
which order was also challenged by brother-in-law of the
Petitioner and the Writ Petition filed by him was dismissed by
Division Bench of this Court by a reasoned judgment and
order.
(WP-1780.11 WITH
APPW-439-12)
16. This Petition challenging the order of detention has
been filed after all the attempts of the Petitioner to save her
property from forfeiture failed and the highest Court in the
Country viz Supreme Court of India confirmed the order of
forfeiture. Therefore, it will not be now open for the
Petitioner to approach this Court by making a back door
entry to save her property from forfeiture when all her
attempts have failed. Petitioner could have raised this point
in the Writ Petition which was filed by her and it was open for
the Petitioner to have taken this stand in the said Writ
Petition. However, Petitioner chose not to raise this ground
and, therefore, in view of the principle of constructive
res judicata, it will not be now open for the Petitioner to
challenge the order of detention by filing this Writ Petition
which admittedly has been filed on account of show-cause
notice of forfeiture which was issued to her. Apex Court in
Heena Kausar vs Competent Authority1 in paras 13 to 16 has
observed as under:-
"13. Admittedly, the order of the appellate
authority was the subject matter of the writ
petition. The contentions raised herein were
not raised before the said authority or before
the High Court. The order of the High Court
dated 15-12-1999 attained finality."
1 (2008) 14 SCC 724
(WP-1780.11 WITH
APPW-439-12)
"14. The flats in question stood forfeited to
the State (sic Central) Government. The said
proceedings cannot be permitted to be
reopened."
"15. Only because in relation to the bank
accounts, the matter was remanded, during
pendency whereof, the proviso appended to
Section 68C was inserted, the same by itself,
in our opinion, would not give rise to another
cause of action so as to enable the appellant
to raise the contentions which he could and
ought to have raised in the earlier
proceedings."
"16. The principle of "constructive res
judicata", it is true, applies also to a writ
proceeding. Furthermore, admittedly such a
contention has not been raised even in the
second writ application. The documents which
were necessary to be taken into consideration
for determining the said question are also not
before us. We, therefore, are of the opinion
that it is not possible for us to go into the said
question."
(WP-1780.11 WITH
APPW-439-12)
Ratio of the said judgment in Heena Kausar (supra) would
also squarely apply to the facts of the present case and, in
our view, Petitioner cannot be permitted now to file this
Petition.
17. Writ Petition is accordingly dismissed.
18. So far as the application for intervention is concerned,
since the Writ
Petition
intervention does not survive.
is dismissed, application
The Intervener, pursuant to
for
the advertisement of auction had purchased the property
situated at Bhopal. He has paid 25% of the amount and the
balance 75% was not paid on account of interim stay granted
by this Court. Since this Petition has now been dismissed,
the Intervention Application does not survive and it is
accordingly disposed of. However, it is made clear that the
intervener may be given an opportunity to make balance
payment of 75%. It is an admitted position that the order of
status quo was passed and, as such, thereafter, the question
of intervener paying the balance amount did not arise. After
the period of four weeks of stay which is granted by this
Court expires, the intervener shall deposit the balance
amount and if the payment is so made, it may be accepted
by the competent authority.
(WP-1780.11 WITH
APPW-439-12)
19. After the judgment was pronounced by this court, the
learned Counsel for the Petitioner seeks interim stay for a
period of four weeks. The order of stay granted by this Court
shall continue for a period of four weeks after the certified
copy is made available.
(P.D. KODE, J.) (V.M. KANADE, J.)
B.D. Pandit
