Bombay High Court
Smt.Gulbanu Hassanali Rupani vs The Union Of India on 28 September, 2012
Bench: A.M. Khanwilkar, R.Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1609 OF 2012
1.Smt.Gulbanu Hassanali Rupani,
Aged about 85 years, Occupation
Retired Housewife, R/o.3rd Floor,
Zarina Lodge, TPS-IV, 4th Road,
Bandra (W), Mumbai - 400 050,
Maharashtra.
2.Smt.Hasina S.Hemani,
Aged about 55 years, Occupation :
Housewife, residing at 3rd floor,
Zarina Launge, TPS-IV, 4th Road,
Bandra (W), Mumbai-400 050,
Maharashtra. ...Petitioners
Versus
1.The Union of India, through the
Assistant Director, Narcotic Control Bureau,
Exchange Building, 3rd Floor,
Ballard Estate, Mumbai - 400 038,
Maharashtra.
2.The Competent Authority,
SAFEMA/N.D.P.S.,
3rd Foor, `C' Wing, Mittal Court,
Nariman Point, Mumbai,
Maharashtra.
3.The State of Maharashtra .... Respondents
......
Mr.K.M.Sangani for the Petitioners.
Mr.Kiran Kandpile for Respondent No.1.
Mr.A.S.Gadkari, A.P.P. for the Respondent No.3.
......
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CORAM: A.M. KHANWILKAR &
R.Y. GANOO, JJ.
JUDGMENT RESERVED ON: SEPTEMBER 14, 2012
JUDGMENT PRONOUNCED ON : SEPTEMBER 28, 2012
JUDGMENT (Per A.M. Khanwilkar, J.):
1. This petition, under Article 226 of the Constitution of India,
filed by the petitioners, essentially takes exception to the notice issued
by the Intelligence Officer dated 12.9.1994, freezing and seizure of
residential flat bearing No.602 on the 6th floor, Pearl Harbour, Plot
No.91, Tulsiwadi, Mazgaon, Mumbai-400010 allegedly owned by and
belonging to petitioner No.1 as a consequence of detention order dated
4.2.1994 against her son Feroze Rupani. The petition also challenges
the order passed by the Competent Authority, NDPS, Mumbai dated
19.6.1996 under section 68I and dated 26.9.1997 in
No.CA/BOM/NDPS/1/94 under section 68K of the Narcotic Drugs and
Psychotropic Substances Act, 1988.
2. The Petition also challenges the order dated 19.6.1996 passed
by the Appellate Tribunal for Forfeited Property, New Delhi in FPA
No.NDPS-20/BOM/1996. Further, the petitioners pray for setting aside
the orders passed by this Court in two Criminal Writ Petitions filed by
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the petitioners dated 23.7.1999 in Writ Petition (Criminal) No.1281 of
1997 and dated 26.8.1999 in Writ Petition (Criminal) No.1365 of 1999.
3. In substance, it is prayed that the seizure order followed by
forfeiture of the said residential flat of the petitioner No.1 be set aside
and the possession thereof be handed back to the petitioners.
4. This petition is resisted by the respondents. Preliminary
objection about the maintainability of this petition is raised on the
ground of locus of the petitioners and also on the ground of delay and
laches in challenging the impugned orders dated 19.6.1996 and
19.8.1997 by this petition filed in April, 2012. Further, also because the
impugned actions of the Appropriate Authority qua the said residential
flat initiated have attained finality with the dismissal of successive Writ
Petitions filed by the petitioners including on account of those decisions
having been upheld by the Apex Court consequent to the dismissal of the
Special Leave Petition filed by the petitioners against the decision of this
Court in the Writ Petition No.1281 of 1997 as also Writ Petition No.1365
of 1999 (which was treated as review petition). According to the
respondents, it is not open to the petitioners to raise issues which could
have been raised by the petitioners in the previous three rounds of
proceedings before this Court and including before the Apex Court in
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Special Leave Petition (Criminal) 3629-30 of 2000. According to the
respondents, those grounds and moreso challenge to the impugned orders
are barred by doctrine of constructive res judicata. Moreover, the
decisions of the coordinate Bench of this Court in the three previous
rounds of proceedings filed by the same petitioners, would be binding on
this Court and it would not be open for us to examine the correctness or
otherwise of the view already taken therein.
5.
To examine this preliminary objections, it may be appropriate
to advert to the broad facts and the background in which the present
petition has been filed by the petitioners. As aforesaid, the preventive
detention order was passed against the son of the petitioner No.1 - i.e.
Feroze Rupani. As a consequence of the said preventive detention
action, notice was issued by the Intelligence Officer on 12.9.1994. No
doubt, the notice was addressed to Feroze Rupani and other three
persons who were tried as co-accused along with him. Copy of the said
notice, however, was also marked to the petitioners herein, presumably,
being family members and occupants of the property in respect of which
freezing and seizure order was passed by the Authority in exercise of
power u/s 68F of the NDPS Act. Further, the son of petitioner No.1 was
eventually acquitted in the trial against him for offence punishable under
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NDPS Act. Be that as it may, order of forfeiture of the said property was
passed by the Competent Authority in exercise of powers u/s 68-I of the
Act on 19.6.1996. Thus, the said property came to be forfeited in terms
of the order passed by the Competent Authority under SAFEMA (FOP)
Act, 1996 and NDPS Act, 1985. Copy of the said order was not only
marked to Feroze Rupani but also to both the petitioners before this
Court. Both the petitioners along with Feroze and one other were shown
as persons affected due to the said proceedings and had contested the
same. As a consequence of the said order, show-cause notice u/s 68H
was issued to the said Feroze on 19.6.1996. Pertinently, the petitioners
filed Appeal u/s 68-O of the Act against the decision of the Competent
Authority dated 19.6.1996. That Appeal came to be dismissed by the
Appellate Tribunal on 19.8.1997. Subsequent thereto, the Competent
Authority passed further order u/s 68K calling upon the petitioners to
pay Rs.17,68,895/- within 30 days and redeem the forfeited property, i.e.,
Flat No.602, 6th floor, Pearl Harbour, Plot No.91, Tulsiwadi, Mazgaon,
Mumbai-400010. This communication was addressed to petitioner No.1.
The petitioners, therefore, filed writ petition in this Court being Criminal
Writ Petition No.1281 of 1997. Besides the petitioners herein, Iqbal
Hussain Hassan Ali was also named as petitioner in the said petition.
The relief claimed in the said Writ Petition reads thus:
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"11. .... The petitioners therefore prays:-
(a) that the rule be issued;
(b) The impugned order issued by the respondent freezing/seizing
be quashed and set aside.
(c) That the writ of mandamus or any other appropriate
writ/direction or orders be issued to the respondent to release the
properties as mentioned in Exhibit-II, III & IV to the petitioners.
(c-i) Pending the hearing and final disposal of this writ,
petition the impugned order of the competent authority passed on
26th September, 1997 be stayed.
(c-ii) The amount of Rs.76,215/- lying in the account of
Competent authority be transferred to any nationalized bank in
the name of Mrs.Hasina S. Hemani and the bank be directed not
to allow encashment till the disposal of this writ petition.
(d) Any such other and further reliefs as this Hon'ble Court may
deem fit and proper be granted."
6. From the reliefs as prayed in that Writ Petition, it is obvious
that the petitioners had challenged action of the respondents not only of
freezing / seizure of the said property but also of forfeiture thereof and
for a Writ of Mandamus against them to release the properties referred to
in exhibits (II), (III) and (IV). It is, thus, indisputable that all aspects and
contentions available to the petitioners to challenge the impugned
actions/order passed (which are impugned in the present petition), on the
grounds which are now raised in the present petition could have been
pursued in that petition. We may now straightaway advert to the
judgment of this Court dated 23.7.1999, whereby the said Writ Petition
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came to be dismissed by the Division Bench of this Court. The same
reads thus:
"None for the petitioners.
2. While admitting in ground No.(vi), on page 7 in the petition
that the order of detention was passed under the NDPS Act and he
was acquitted for an offence under the said Act, he claims that the
notice of seizure and forfeiture of properties on account of
detention should bow (sic now) be quashed and set aside.
3. As can be seen from section 68-A of the said act. Clause 2(c)
would clearly cover the case when there is detention under the
prevention of illicit traffic in narcotics drugs and psychotropic
substances act, 1988 which has been carried out all throughout,
obviously, the order of forfeiture can be passed. It is not that the
authorities under the said act have not given any opportunity to the
petitioner. The appellate authorities as well as detaining authority
have considered the case and whatever suitable remedy would be
given by modifying the initial order that has been granted. A
detailed affidavit in reply on behalf of the respondent clearly bears
out the same. It is filed by the inspection officer of the Competent
Authority, Mr.A.A.Dias, in our opinion, therefore, there is no
substances in the matter.
3. Petition is rejected, Rule is discharged accordingly."
7. The fact that the said Writ Petition was proceeded in
absence of the Advocate for the Petitioners, does not mean that the
questions, raised by the Petitioners in the said Writ Petition, to challenge
the impugned actions/orders, passed by the Respondents, were not
considered by the Court on merits. On a bare perusal of the judgment, it
is noticed that the Court answered the point in issue on merits and found
that the Petitioners were given sufficient opportunity by the concerned
Authorities, before taking the impugned action. Further, the Court held
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that there was no infirmity in the impugned actions/orders. The matter
does not rest at that. The Petitioners filed another Criminal Writ Petition
in this Court, being WP (Cri) 1365/1999. The reliefs claimed in this Writ
Petition were no different than the earlier Writ Petition, which was
already dismissed. Even in this Writ Petition, both the Petitioners, along
with Iqbal Hussain Hasanali were named as Petitioners. The relief
claimed in this Petition reads thus:
"(a) that the rule be issued:-
(b) The present petition be treated as review petition in
writ petition no. 1281/1997 in view of Supreme Court's
Judgment AIR 1971 SC 2162.
(c) That the impugned order issued by the respondent
freezing/seizing of properties of the petitioners be quashed and
set aside.
(d) That appropriate writ/direction being writ in the
nature of mandamus or certiorari or any other writ in the nature
of mandamus or certiorari be passed and the impugned orders
issued by the respondents in respect of operations/actions
under section 68 F and Section 68 of NDPS Act for
freezing/seizing of properties of the petitioners under section
68-I of NDPS Act be quashed and set aside.
(e) That the provisions of Section 68-H of NDPS Act be
declared ultra virus in consideration of Section 68-C which are
violating fundamental rights of petitioners under articles 21, 22
of the constitution of India.
(f) Pending the hearing and final disposal of this writ
petition the impugned order of the competent authority passed
on 26th September, 1997 be stayed.
(g) That the writ of mandamus or any other appropriate
writ/direction/orders be issued to the respondents to released
the properties as mentioned in Exhibits-II and IV to the
Petition.
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(h) That the amount of Rs. 76,215/- lying the account of
competent authority be transferred to any nationalized bank in
the name of Rs. Hasina S. Hemani and the bank be directed not
to allow encashment till the disposal of this petition.
(I) For such other and further reliefs/order as the Hon'ble
Court may deem fit and proper be passed in favour of
petitioners."
8. As aforesaid, once again, the Petitioners challenged the
actions under Section 68F and the freezing/seizure of the said property
under Section 68I and under Section 68H. In fact, the Petitioners also
challenged the validity of Section 68H and 68C of the Act. This Writ
Petition was treated as Review Petition, as prayed in prayer clause (b).
The same was heard by the same Division Bench, which had occasion to
dispose of the first Writ Petition filed by the Petitioners. On this
occasion, the Petitioners were represented by the Advocate, who is now
appearing even in the present Writ Petition. The Court rejected the said
Petition for the following reasons:
"1. So far as the review petition is concerned, we do not
find any merit in it. The Ld. Advocate has tried to argue the
same but all that he was doing was arguing the same on the
merits of the matter and therefore could not point out any error
apparent on record invoking exercise of review power in
relation to the order dated 23rd July, 1999. the application is
therefore rejected.
2. In the alternative, it was submitted that the petitioner
is a old lady of 85 years and her family members will be pt to
great difficulties if the time to vacate the suit premises is not
granted. Strictly speaking, as per our order dated 23rd July,
1999, the petitioner and her family members were aware that
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they have to vacate the suit premises by 15th October, 1999.
However, keeping in mind the fact that the petitioner who is a
old lady at an advance age will have to vacate the suit premises
along with her family members, the following order is passed.
3. On a condition that within two days i.e. by 16 th
October, 1999, an undertaking duly approved by learned
counsel for the respondents being submitted in court, the suit
premises shall be allowed to remain with the petitioner and she
along with her family members shall not vacate the same till
15th January, 2000.
4. Similar under taking shall be given by all adult
members of the petitioners family. The petitioner shall take
special care to mention in her undertaking the details as to the
members of her family including qua the relationship with her
in order to avoid all future difficulties. The petitioner shall also
declare that she is the sole and exclusive owner of the property
and there are no other claimants and the same shall be accepted
by all adult members of her family in their respective under
takings. In failure to submit their respective undertakings, it is
open for the respondent department to proceed under the
original order of forfeiture.
5. Accordingly, the application stands disposed off."
9. It is admitted position that the Petitioners did not stop at that
but, took the matter before the Apex Court by way of SLP (Cri) 3629-
30/2000, challenging the judgment of Division Bench of this Court,
dated 23rd July, 1999 and 14th October, 1099, passed in the two former
Petitions, respectively. In other words, all the issues regarding the
impugned actions/orders of the Respondents were subject matter of
challenge before the Apex Court in the said Special Leave Petition. The
said Petition, however, came to be dismissed vide order dated 10 th
October, 2000. The order of the Apex Court reads thus:
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"There has been an inordinate delay of 278 days and
195 days in approaching this Court for which no sufficient
explanation has been offered. The applications for
condonation of delay are, therefore, rejected. The Special
Leave Petitions accordingly stand dismissed."
10. From the chronology of events adverted to above, it is
amply clear that all the actions and orders of the Authorities were subject
matter of challenge in the previous proceedings before this Court; and
that challenge has been rejected on merits. A priori, finality must be
attached to the impugned actions/orders of Respondents. Nevertheless,
the Petitioners, once again, filed another Criminal Writ Petition in this
Court being WP (Cri) No. 2694/2004, challenging the selfsame
actions/orders of Respondents dated 19th June, 1996 under Section 68(I),
dated 26th September, 1997 under Section 68(K) and against the order
passed by the Appellate Tribunal. The reliefs claimed in the said Writ
Petition read thus:
"14. The petitioners, therefore, pray:-
(a) That the rule be issued;
(b) That the impugned order issued by the Competent
Authority passed on 26th September, 1997 be quashed;
(c) That pending the hearing and final disposal of this
Writ Petition, the impugned order of the Competent Authority
passed on 29.09.1997.
(d) Ad-interim stay in terms of prayer clauses (a) to (c);
(e) That the Writ of Mandamus or any other appropriate
Writ/direction or orders be issued to the Respondents to release
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the properties as mentioned in Annexure 'II', 'III' and 'IVI to the
petitioners;
(f) Any such other and further reliefs as this Hon'ble
Court may deem fit and proper be granted;"
11. This Writ Petition was heard by another Bench of this Court
and by a speaking order, allowed to be withdrawn. The said order dated
7th June, 2011 reads thus:
"1 Though leave to amend was granted in this petition,
the substantial prayer clause has not been amended during the
last about more than five years. The relief prayed for in the
substantial prayers is set out in prayer clauses (b) and (e)
which reads as under.
(b) That the impugned order issued by the
Competent Authority passed on 19-6-1995 and 26th
September, 1997 and ATFP, New Delhi passed on
19-8-1997 be quashed and set aside,
(d) That the Writ of Mandamus or any other
appropriate Writ/direction or orders be issued to the
Respondents to release the properties as mentioned
in Annexure II, III and IVI to the Petitioners.
2 By the petitioners own contentions, the impugned
orders dated 19th June, 1995 (passed by the competent
authority) and 19th August, 1997 (passed by the appellate
Tribunal) for freezing property under the NDPS Act were
challenged at the first instance in Criminal Writ Petition NO.
1281/1997 and on 23rd July, 1999, the petition came to be
rejected by Division Bench of this Court by a Speaking Order
and after dealing with the merits of the case. The petitioner,
therefore, filed Review Petition No. 1365/1999 in Criminal
Writ Petition No. 1281/1997 and the review petition was
dismissed on 14th October, 1999 on merits and after hearing
both the parties.
3 In this fresh petition filed after five years from 14 th
October, 1999, the petitioner sought to challenge the very same
orders which had reached finality as far as this Court is
concerned. We have also noted that on 19th January, 2005, this
petition was dismissed for default. It was subsequently
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restored and on 28th February, 2005, the learned Advocate for
the petitioner sought leave to amend. In our considered
opinion, this petition in the second round is mis-conceived and
ought to have been dismissed at the very first instance as not
maintainable.
4 The learned advocate for the petitioner, on
instructions, seeks leave to withdraw the petition. Leave
granted and the petition is dismissed as withdrawn with liberty
as is available in law.
5 In view of the dismissal of the petition, Criminal
Application No. 153/2007 is also disposed of."
(emphasis supplied)
12. In the first place, the Petitioners could not have challenged
the selfsame actions/orders of the Respondents by way of successive
Writ Petitions and more so when the same had attained finality, after
dismissal of the Special Leave Petition, by the Apex Court. Moreover,
the abovesaid Writ Petition having been eventually withdrawn by the
Petitioners, as is noted from paragraph 4 of the order, the question of
filing appeal against that order did not arise. Nevertheless, the
Petitioner No. 1 was advised to file Special Leave Petition, before the
Apex Court, being SLP (Cri) No. 8397/2011. From the order dated 18 th
November, 2011, passed by the Apex Court, it is noticed that the
Petitioner withdrew even the said Special Leave Petition, with liberty to
move the High Court for appropriate relief. The Special Leave Petition
came to be dismissed as withdrawn. The order dated 18th November,
2011, passed by the Apex Court reads thus:
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"UPON hearing counsel the Court made the following
ORDER
Learned counsel for the petitioner seeks permission
to withdraw the special leave petition with liberty to move the
High Court for appropriate relief. Permission is granted. The
special leave petition is dismissed as withdrawn accordingly."
13. The Petitioners herein have once again approached this
Court by way of the present Writ Petition. The reliefs claimed in the
present Writ Petition read thus:
"8. It is, therefore, prayed :-
(a) That this Hon'ble Court be pleased to issue Rule;
(b) That this Hon'ble Court be pleased to issue
appropriate writ or directions or Orders in the nature of Writ of
Mandamus or Writ of Certiorari against the Respondents and
all orders in the Petition passed by Respondents be revoked
and set aside;
(c) That this Hon'ble Court be pleased to set-aside and
quashed orders Notice of Freezing/Seizing dated 12.09.1994,
issued by Intelligence Officer at ANN. P-1;
(i) dated 19.6.1996 in F. No.
CA/BOM/NDPS/1/94-95 by the Competent Authority
N.D.P.S. Bombay at Ann. P-2.
(ii) That the order dated 19.6.1996 by the
Appellate Tribunal for Forfeited Property, New Delhi in
FPA No. ND-20/Bom/96, be set aside and quashed;
(iii) That order dated 26.09.1997 in F. No.
CA/Bomb/NDPS/1/94-95 passed by the Competent
Authority N.D.P.S. Be set aside and quashed;
(iv) That the Order dated 23.7.1999 in Criminal
Writ Petition No. 1281 of 1997; be set-aside;
(v) That the Order dated 26.8.1999 in Criminal
Writ Petition No. 1365 of 1999, be set aside;
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(d) That the impugned order issued by the Competent
Authority passed on 26th September, 1997 be set aside and
quashed;
(e) That pending the hearing and final disposal of this
Writ Petition the impugned orders in prayer clauses be stayed;
(f) Ad-interim stay in terms of prayer clauses (a) to
(d)
(g) That the Writ of Mandamus or any other appropriate
Writ/direction or orders be issued to the Respondents to release
the properties namely Flat No. 602, Pearl Harbour, 6 th floor,
Plot No. 91, Tulsiwadi, Mazgaon, Mumbai - 400010; And
hand over said property to the Petitioners.
(h)
Any such other and further reliefs as this Hon'ble
Court may deem fit and proper;"
14. It may not be necessary for us to examine the preliminary
objections about the locus of the present Petitioners or the issue of delay
and laches in filing the present Writ Petition to challenge the impugned
actions/orders of Respondents by way of Writ Petition filed in April,
2012. Inasmuch as, we find force in the preliminary objection of the
Respondents, firstly, that the Petitioners are precluded from challenging
the selfsame impugned actions/orders much less on the grounds which
were otherwise available to them in the earlier round of proceedings
(Writ Petitions), on the principle of constructive res-judicata. In any
case, the doctrine of finality of the judgment would come in the way of
the Petitioners, keeping in mind the maxim interest reipublicae ut sit
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finis litium, which means that it is for the public good that there be an
end to litigation after a long hierarchy of appeals. The Apex Court, in
the case of Indian Council for Enviro-Legal Action vs. Union of India
reported in (2011) 8 SCC 161 restated the legal principle that the
judgment of the Supreme Court has great sanctity and unless there are
extremely compelling, overriding and exceptional circumstances, the
judgment of the Supreme Court should not be distorted or disturbed,
particularly in a case where review and curative Petitions have already
been dismissed. In the present case, the Petitioners did not file any
curative petition in the Apex Court. Indeed, the Petitioners filed review
petition in the Apex Court after the dismissal of SLP against the
decisions rendered by this Court in WP (Cri) 1281/1997 and 1365/1999.
With the dismissal of the said Special Leave Petition and the Review
Petition, the Petitioner was precluded from challenging the impugned
actions/orders of the Appropriate Authority (Respondents). Moreso
because, whilst dismissing the Special Leave Petition on 10 th October,
2000, the Apex Court did not give liberty to the Petitioners to do so nor
such liberty was sought by the Petitioners from the Apex Court. As
aforesaid, the Petitioners did not resort to curative Petition. Instead, the
Petitioners, once again approached this court for the same cause of
action by way of third Writ Petition, which, however, was advisedly
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withdrawn by them. Nevertheless, the Petitioners for reasons best
known to them proceeded to file Special Leave Petition before the Apex
Court being SLP (Cri) No.8397/2011 against the order of this Court
allowing them to withdraw their third Writ petition. Notably, even the
said SLP was withdrawn by the Petitioners on 18th November, 2011.
While doing so, the fact that the Petitioners sought liberty to approach
the High Court for appropriate relief would not enure any new rights in
favour of the Petitioners much less enable them to challenge the selfsame
impugned actions/orders of Respondents, which have already attained
finality on account of dismissal of previous Writ Petitions filed by them,
including upholding of the order of dismissal of Writ Petitions, by the
Apex Court in Appeal.
15. Further, even if the Petitioners have sought liberty of the
Apex Court, it would not mean that this Court can disregard the doctrine
of finality of judgment of this Court in earlier Writ Petitions and more so
of the Apex Court in SLP (Cri) 3629-30/2000, dated 10th October, 2000.
The Apex Court, in the above said reported decision has expounded that
the exception to the general Rule of finality of judgment is whether
apprehension of bias against the Judge who decided the earlier
proceedings and the judgment adversely affected the Petitioner is made
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out or whether the circumstances incorporated in the review or curative
Petition are such that it might inevitably shake public confidence in the
integrity of administration of justice, if the earlier decisions of the Court
are allowed to stand. In the present case, general Rule of finality of
judgments must apply as it is not a case of bias of the Judges, who had
decided the earlier round of Writ Petitions and more so, when their
decisions were taken in appeal but confirmed by the Apex Court.
16.
Somewhat similar position can be discerned from the
dictum of the Apex Court in the case of Karnataka Rare Earth v.
Deptt. Of Mines & Geology reported in (2004) 2 SCC 783. The Court
observed that with the dismissal of the proceedings and appeal by the
Apex Court, coupled with the fact that neither the appellant prayed for
liberty nor the Supreme Court granted any liberty, the petitioner, could
not, obviously, have invoked writ jurisdiction of the High Court inspite
of the Judgment of the Supreme Court having attained finality.
17. Besides the doctrine of finality of Judgment of the Apex
Court, it would not be open for us to entertain challenge to the self-same
impugned actions/order of respondents by way of successive writ
petition. If the challenge to the impugned actions/orders of respondents
was to be entertained, it would inevitably result in reopening the finding
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of fact and opinion recorded by the Coordinate Bench of this Court,
which is binding on the parties and also on us. This is besides the legal
bar of constructive res-judicata against the petitioners to agitate the
grounds which they could have in the earlier round of writ petition. At
any rate, the question of setting-aside the Judgment of the Co-ordinate
Bench of this Court rendered in the earlier round of writ petition as
prayed in this writ petition, cannot be countenanced.
18.
To get over this difficulty, the argument of the learned
Counsel for the petitioners is that the impugned actions/order of the
respondents are replete with fraud. In that, the freezing notice issued by
the Authority was not as per the guidelines issued by the Central
Government. That notice was issued without authority. Further, no
show-cause notice was issued to the petitioner. The requirement of
Section 68E and 68H have not been complied with, at all. Therefore,
action under Section 68I could not be proceeded with. The forfeiture of
the said property was contrary to the settled legal position and the
exposition of the Apex Court on the subject matter. The impugned
action violates the fundamental right of the petitioner under Articles 14
and 20 of the Constitution. Further, although the petitioners all along
have been agitating these grounds, neither the Appropriate Authority nor
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the Appellate Authority and for that matter, the High Court, considered
the objections regarding proceeding against the property owned and
belonging to petitioner No.1, as the detenu had no nexus with that
property. For all these reasons, the impugned actions/orders of
respondents were hit by the vice of fraud and that was a good reason to
disregard the same in toto - as non-est in the eye of law, for upholding
the rights of the petitioner No.1, in particular, in the said property.
19.
We are of the considered opinion that each of these points
could have been argued and raised by the petitioner in the first round of
writ petition and in appeal before the Apex Court. Having failed to do
so, it is not open to the petitioners to agitate the same merely because the
inevitable result is of deprivation of possession and ownership of the said
property. We fail to understand as to how the grounds now pressed into
service can be said to be fraud played by the Authorities for taking the
impugned action or passing impugned orders. Assuming that the points
now urged have not been considered by the Authorities or by this Court
in the earlier round of writ petitions and can be said to be fatal, vitiating
the entire proceedings, there was no reason why the petitioners were
advised to withdraw the previous writ petition (Cri.) No.2694/2004. For,
these grounds could have been pursued by the petitioners at least in that
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writ petition, if it was permissible in law. As aforesaid, the petitioners
not only withdrew that writ petition but went on to withdraw the SLP
which was filed before the Apex Court against the order passed therein.
Suffice it to observe that it is not open to the petitioners to agitate the
grounds which are now urged in this petition, as the same could have
been urged by them in the previous round of proceedings before this
Court as also before the Apex Court in the SLP filed by them.
20.
Realising this difficulty, in the alternative, the petitioners
contend that the petitioners would not pursue the grounds urged in this
writ petition if the Court were to direct the Authorities to consider giving
further time to the petitioners to pay the fine amount in lieu of forfeiture
in exercise of powers under Section 68K of the Act. Although this
contention seems to be attractive at the first blush, will have to be
negated for the reasons already recorded hitherto. Inasmuch as, the order
passed under Section 68K of the Act dated 26th September, 1997 was
subject matter of challenge in the earlier round of writ petitions and was
passed much before the proceedings culminated with the dismissal of
SLP by the Apex Court. No liberty was sought by the petitioners nor the
Apex Court has granted liberty to the petitioners to pursue the said plea
after the Supreme Court Judgment dated 10th October, 2000 attained
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finality. In the circumstances, even this argument cannot be
countenanced.
21. The Counsel for the petitioners, however, placed reliance on
the decision of the Apex Court in the case of Aslam Mohd. Merchant
vs. Competent Authority reported in 2008 Cri.L.J. 3621, in particular,
paragraphs 20, 31 and 33 thereof to contend that the impugned
actions/orders of respondents are in the teeth of the legal position
expounded in this decision. For the reasons already noted, it is not open
to the petitioners to raise those grounds in the present writ petition, much
less, this Court cannot examine those grounds. The Counsel for the
petitioners had relied on the decision of the Apex Court in the case of
Calcutta Discount Co.Ltd. vs. Income-tax Officer, Companies
District I, Calcutta & Anr. reported in AIR 1961 SC 372, in
particular, paragraph 6 thereof to contend that it was the duty of the
Authorities to disclose full and true material facts to the Court. In the
reply affidavits filed in the earlier round of writ petitions on behalf of the
Authorities, they failed to highlight the omissions which were fatal to the
continuation of action of forfeiture of the said property, which was
owned and possessed by petitioner No.1.
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22. Reliance is also placed on the decision of the Apex Court in
the case of United India Insurance Co.Ltd. v. Rajendra Singh & Ors.
reported in (2000) 3 SCC 581 that when it is a case of fraud on Court,
the technicalities of constructive res-judicata would not come in the
way of disregarding the previous decision of this Court between the
parties on the same subject matter. Reliance is also placed on the
decision in the case of S.P.Chengalvaraya Naidu (Dead) By Lrs. vs.
Jagannath (Dead) by Lrs. & Ors. reported in (1994) 1 SCC 1 - that
Judgment obtained by non-disclosure of relevant and material documents
with a view to obtain advantage, amounts to fraud. Reliance is also
placed on the decision of the Apex Court in the case of Meghmala &
Ors. vs. G.Narasimha Reddy & Ors. reported in (2010) 8 SCC 383
which takes the view that an act of fraud on Court is always viewed
seriously and if fraud is proved, the decision of the Court in the earlier
round of proceedings by the petitioners should be no inhibition for this
Court to disregard the same and answer the controversy on merits.
23. In view of the opinion recorded hitherto, none of these
authorities would be of any avail to the petitioners. In our opinion, the
petitioners cannot be permitted to pursue the grounds which are urged in
this petition nor it is open for this Court to disregard the judgment and
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opinion of Coordinate Bench of this Court in the previous round of writ
petitions and more so, because of finality attached to the Judgment of the
Supreme Court in SLP (Cri.) 3629-30/2000 decided on 10 th October,
2000.
24. For the aforesaid reasons, this petition deserves to be
dismissed. Hence, dismissed.
25.
Although the respondents have pressed for granting
exemplary costs as the present petition is frivolous and vexatious
proceedings taken out by the petitioners, we refrain from passing any
order in that behalf.
(R.Y.GANOO,J.) (A.M.KHANWILKAR,J.)
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