Delhi High Court
Thanesar Singh Sodhi vs Union Of India on 26 March, 2010
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
WP (C) No. 1212 of 1995
Reserved On: February 17, 2010
% Date of Decision: March 26, 2010
THANESAR SINGH SODHI
SON OF SHRI JAGAT SINGH SODHI
R/O 2-32/A PUNJABI BAGH,
NEW DELHI . . . Appellant
through : Mr. R.M. Bagai, Advocate
VERSUS
UNION OF INDIA
THROUGH THE SECRETARY TO THE
GOVERNMENT OF INDIA,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE
NEW DELHI & OTHERS. . . .Respondents
through: Mr. A.S. Chandhiok, ASG
with Mr. Baldev Malik,
Advocate for UOI.
Mr. Vikas Pahwa, ASC for
the State
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. The detention order under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities (hereinafter
referred to as „COFEPOSA‟) was passed detaining the petitioner herein
on 2nd January, 1978. This detention order had been the subject of
litigation, as would be noted at the relevant stage. Subsequently, a notice
under Section 6 (1) of Smugglers And Foreign Exchange Manipulators
(Forfeiture Of Property) Act, 1976 (hereinafter referred to as „SAFEMA‟)
was issued to the petitioner on 10.02.1981 calling upon him to indicate the
source of his earnings and assets out of which or by means of which he
had acquired certain properties therein. After receiving the reply, the
orders dated 16.09.1983 were passed by the respondents forfeiting the
properties of the petitioner. Appeal against this order preferred by the
petitioner was dismissed by the Appellate Tribunal on 02.03.1995.
Challenging the aforesaid orders of the Competent Authority and
Appellate Tribunal under SAFEMA, present writ petition is preferred by
the petitioner. At the same time, the petitioner is also challenging the
detention order passed under COFEPOSA.
2. Now, facts in detail:
3. Following the detention order dated 2nd January, 1978 (pursuant to
which the petitioner was taken into custody on 3rd January, 1978 from his
residence) the grounds of detention were served upon the petitioner
wherein various acts of smuggling, primarily in gold, were attributed to
the petitioner as well as his father Sh. Jagat Singh Sodhi. The petitioner
submitted his representation against the said detention order which was
rejected on 15th February, 1978. Thereafter, he filed the Crl. W.P. no.
06/1978 in this Court challenging the detention order. This writ petition
was heard and dismissed vide a detailed speaking order/judgment dated
25th September, 1978.
4. Though in the writ petition the petitioner has alleged that
challenging the judgment of this Court dismissing his writ petition, he
had filed Writ Petition no. 4446/1978 in the Supreme Court under Article
32 of the Constitution, this is factually incorrect assertion. Infact, the
aforesaid writ petition in the Supreme Court was filed by the wife of the
petitioner invoking original jurisdiction of the Supreme Court under
Article 32 of the Constitution even when Writ Petition 06/1978 was still
pending in this Court. In the aforesaid writ petition filed in the Supreme
Court, Rule was issued on 4th October, 1978. It was dismissed as
withdrawn on October 27th, 1978.
5. Two years and four months thereafter, the petitioner was served
with notice under Section 6 of SAFEMA calling upon him to indicate,
within thirty days of the service of the said notice, the source of his
income, earnings, and assets out of which or by means of which he has
acquired the following assets:-
1. House No.2/32-A Punjabi Bagh
New Delhi
2. M/s Apsara Hotel, Arya Samaj Road,
New Delhi; and
3. Deposit with New Bank of India, Karol Bagh
6. The petitioner submitted his reply to the said show-cause notice on
24th March, 1981, inter alia, stating that he was being assessed to income-
tax and all the sources regarding income, earnings or assets were duly
mentioned in the Income Tax Returns and these assets were lawfully
acquired properties. Thereafter, notice under Section 7 (1) of SAFEMA
was issued, posting the case for hearing on 22nd April, 1983. Hearing
took place on that day and on various dates thereafter when certain
affidavits and documents were filed by the petitioner. After considering
the reply, material placed by the petitioner as well as oral submissions of
his counsel, the Competent Authority passed the orders dated 16th
September, 1983 thereby forfeiting the aforesaid properties of the
petitioner.
7. The petitioner challenged this order by preferring appeal before the
Appellate Tribunal for Forfeitted Properties (Appellate Tribunal short).
Almost simultaneously, the petitioner also filed Civil Writ Petition no.
12547/1983 challenging the vires of SAFEMA as well as validity of the
notices issued to him under the said Act. We may mention here that
spate of writ petitions came to be filed in various High Courts
challenging the Constitutional validity of SAFEMA. All these writ
petitions were ultimately transferred to the Supreme Court in the
Transfer Petition no. 17/1978 titled Attorney General of India Vs.
Amritlal Parvejamdas & Others. The petition filed by the petitioner was
also clubbed with these petitions and entire batch of petitions was
decided by the Supreme Court, rejecting the challenge to the validity of
the aforesaid Act. Judgment of the Supreme Court is reported as
Attorney General of India Vs. Amritlal Prajivandas and others, AIR 1994
SC 2179 = JT 1994 (3) SC 583.
8. During the pendency of the Civil Writ Petition no. 12457/83 filed
by the petitioner, proceedings before the Appellate Tribunal were stayed
by the Supreme Court vide orders dated 25th November, 1983. In its
judgment, the Supreme Court passed the following directions in respect
of all such appeals pending before the Appellate Tribunal:-
"49.The other case brought to our notice is in Union of
India v. , 1987(30)ELT37(SC), a decision rendered by a
Bench comprising Khalid and Oza, JJ. The facts of this
case are rather involved. Respondent, Manohar Lal
Narang and one Ram Lal Narang were brothers. An
order of detention under Section 3(1) of COFEPOSA
was made against Ram Lal Narang on December 19,
1974, He challenged the same before the Delhi High
Court in Writ Petition No. 10 of 1975 which was
allowed on April 30, 1975 and the order of detention
quashed. The Union of India preferred an appeal
against the said Order of the High Court to this Court
alongwith an application for stay. On May 1, 1975,
this Court declined stay but imposed certain
conditions on the movement of Ram Lai Narang
(Later, the said appeal was dismissed for non-
prosecution). After the proclamation of emergency on
the ground of internal disturbance on June 25, 1975, a
fresh order of detention was made on July 1, 1975
against Ram Lai on the very same facts and grounds
on which he was detained earlier. The said order of
detention was challenged in Delhi High Court in Writ
Petition No. 115 of 1975 filed by a relative of Ram Lai
but was dismissed on November 25, 1975. An appeal
was preferred against the said order to this Court
being Appeal No. 399 of 1977. At this stage, notice
under Sections 6 and 7 of SAFEMA was issued against
Ram Lai which he questioned in Delhi High Court in
Writ Petition No. 720 of 1975. While the said writ
petition was pending in Delhi High Court, Appeal
No. 399 of 1975 pending in this Court came up for
hearing and was disposed of saying that it would be
open to Ram Lai to raise all such contentions as are
available to him in Writ Petition No. 720 of 1975,
notwithstanding the fact that those grounds were
raised in Writ Petition No. 115 of 1975 (from which
the said appeal No. 399 of 1975 arose). Writ Petition
No. 720 of 1975 was heard and dismissed by the Delhi
High Court against which Ram Lai filed S.L.P. No.
9361 of 1982 wherein leave was granted and the
appeal was numbered as C.A. 2790 of 1985 which was
said to be pending on the date of the said judgment.
An order of detention under Section 3 of COFEPOSA
was made against the respondent, Manohar Lal
Narang, as well on January 31, 1975. He was then in
England. He was brought to India and detained. He
challenged the same by way of W.P.2752 of 1975 in
the Bombay High Court which was allowed and the
detention quashed on July 8, 1980. An appeal
preferred to this Court against the said order was also
dismissed. Thereafter, a show cause notice was issued
to Manohar Lal Narang on the ground that he is the
brother (relative) of Ram Lai Narang, who was
detained under Section 3(1) of COFEPOSA. It may be
remembered that a writ petition questioning Ram
Lal's detention under the order dated July 1, 1975
(evidently, an order of detention to which Section 12A
of COFEPOSA applied) was dismissed by the Delhi
High Court (W.P. No. 115 of 1975) and even Writ
Petition No. 720 of 1975 (in which he was allowed to
raise all the available grounds against his detention)
was also dismissed. From the facts stated above, it is
clear that the basis of action under SAFEMA against
Manohar Lal Narang was his brother Ram Lal's
detention during the period of emergency, which
detention was governed by Section 12A of
COFEPOSA. According to our opinion indicated
hereinbefore, such an order can constitute a basis for
taking action under SAFEMA. So far as the reasoning
of the said decision is concerned, it is to the effect that
the validity of such an order of detention can be
questioned by the detenue or his relative, as and
when such an order is sought to be made the
foundation for taking action against them under
SAFEMA. On that basis, the court proceeded to
examine the validity of the order of detention of Ram
Lal and found that the said order is bad for non-
application of mind to certain highly relevant and
material circumstances. We must, however, say that
the validity of an order of detention to which Section
12A of COFEPOSA applied, could yet be examined
even during the emergency on the touchstone of the
law as it obtained during the operation of the
Presidential Order under Article 359(1)-say on the
ground that the provisions of Section 12A were not
complied with, or on other grounds, as may not have
barred during the said period. But a person who
could have so challenged the order of detention and
yet chose not to do, cannot be allowed to do so when
such an order of detention is made the basis for
applying SAFEMA to him-this is for the reason that
even if he is allowed to challenge the said order when
he is served with the notice under Section 6 of
SAFEMA, the challenge has to be examined with
reference to the position of law as was obtaining at the
time the said order was made and the law in force
during the period the said order of detention was in
operation. Same would be the position in the case of a
person who challenged the order but failed in his
challenge. Even in the case of a normal order of
detention under COFEPOSA, the position would be
the same. A person who did not challenge (either by
himself or through his next friend) the order of
detention or challenged it but failed, cannot be
allowed to challenge the order of detention when
action is taken against him under SAFEMA.
xx xx xx
63. To summaries:-
(1) the Parliament was perfectly competent to enact
both the COFEPOSA and the SAFEMA.
(2) for the reasons given in the body of this judgment,
we do not express any opinion on the validity of the
38th and 40th Amendment Acts to the Constitution of
India placing COFEPOSA and SAFEMA in the IXth
Schedule. We assume them to be good and valid. No
arguments have also been addressed with respect to
the validity of 42nd Amendment Act to the
Constitution either.
(3a) An order of detention made under Section 3 of
COFEPOSA, which was governed by Section 12A
thereof is yet an order of detention for the purpose of
and within the meaning of Section 2(2)(b) of
SAFEMA. Since the President had issued an order
under Article 359(1) suspending Articles 14, 21 and
22, it became competent for the Parliament, by virtue
of Clause (1A) of Article 359 to enact Section 12A of
COFEPOSA for the duration of and limited to the
period for which the Presidential Order was in force.
It was meant to achieve the purposes of emergency.
Once Section 12A is held to be a competent piece of
legislation, orders of detention made thereunder (i.e.,
orders of detention to which the said provision
applied) cannot be held to be not amounting to orders
of detention for the purpose of and within the
meaning of Section 2(2)(b) of SAFEMA, particularly in
view of the express language of Section 2(2)(b)
(including proviso (iii) thereto)-and the protection
enjoyed by both the enactments by virtue of their
inclusion in the IXth Schedule to the Constitution.
(b) An order of detention to which Section 12A is
applicable as well as an order of detention to which
Section 12A was not applicable can serve as the
foundation, as the basis, for applying SAFEMA to
such detenue and to his relatives and associates
provided such order of detention does not attract
any of the sub-clauses in the proviso to Section
2(2)(b). If such detenue did not choose to question
the said detention (either by himself or through his
next friend) before the Court during the period
when such order of detention was in force,-or is
unsuccessful in his attack thereon he, or his relatives
and associates cannot attack or question its validity
when it is made the basis for applying SAFEMA to
him or to his relatives or associates.
(4) The definition of "illegally acquired properties" in
Clause (c) of Section 3 of SAFEMA is not invalid or
ineffective.
(5) The application of SAFEMA to the relatives and
associates [in Clauses (c) and (d) of Section 2(2)] is
equally valid and effective inasmuch as the purpose
and object of bringing such persons within the net of
SAFEMA is to reach the properties of the detenue or
convict, as the case may be, wherever they are,
howsoever they are held and by whomsoever they are
held. They are not conceived with a view to forfeit the
independent properties of such relatives and
associates as explained in this judgment. The position
of 'holders' dealt with by Clause (e) of Section 2(2) is
different as explained in the body of the judgment.
(6) Section 5A of COFEPOSA is not invalid or void. It
is not violative of Clause (5) of Article 22.
(7) Petitioners have failed to establish that any of the
provisions of SAFEMA are violative of Articles 14, 19
or 21-apart from the protection they enjoy by virtue of
the inclusion of the Act in the IXth Schedule to the
Constitution".
9. After the aforesaid judgment and vacation of stay by the Supreme
Court, the appeal was taken up for hearing by the Appellate Tribunal and
dismissed vide orders dated 2nd March, 1995. Challenging this order as
well as the detention order dated 2nd January, 1978 the petitioner has filed
this writ petition.
10. It is not in dispute that proceedings under SAFEMA were initiated
on the basis of detention order passed. That is the position of law and
would be discussed in detail at the relevant stage hereafter. In cases
where detention order is declared invalid, proceedings under SAFEMA
would be impermissible. It is for this reason that the petitioner has
challenged the detention order as well. However, as noted above, writ
petition filed by the petitioner in this Court, challenging the detention
order, was dismissed on 25th September, 1978. At the same time, Writ
Petition No. 4446/78 filed in the Supreme Court was dismissed as
withdrawn on 27th October, 1978 because of the reason that the
respondent had agreed to withdraw the detention order. There was
another interesting development which took place in the mean time.
Though, no appeal was filed against the judgment dated 25th September,
1978 rendered by this Court upholding the detention order, in another
matter i.e. Narender Purshotam Umrao Vs. B.B. Gujral & Ors., AIR 1979,
SC 420 the Supreme Court commented on the aforesaid judgment dated
25th September, 1978 of this Court. Taking note of these development
following order was passed on 25th January, 2010 by this Court taking
note of the issues which needed determination. Relevant portion of order
dated 25th January, 2010 is extracted below:-
"The petitioner was served with notice under
Section 6 (1) of SAFEMA on 10.2.1981, pursuant to
which orders were passed by the competent
authority forfeiting certain properties of the
petitioner. This order passed on 16.9.1983 has been
upheld by the Appellate Authority on 28.2.1995.
Challenging these orders, the present writ petition
is filed.
Learned counsel for the petitioner has, inter alia,
submitted that since the judgment passed by this
Court on 25.9.1978 upholding the detention order
has been declared as not a good law, on the basis
of such an order of preventive detention, no
proceedings could be taken against the petitioner
under SAFEMA.
The questions, in these circumstances, would be
as under:-
i) Whether the order of detention between
the parties interse became final?
ii) If so, what is the effect of the aforesaid
judgment by the Supreme Court
overruling the law laid down by this
court in its judgment dated 25.9.1978
rendered in WP (Crl.) No. 6/1978"
Permissibility of this Court to venture into the merits of the
detention order, earlier upheld by this Court vide its judgment dated 25th
September, 1978 would depend upon the outcome of the aforesaid
questions. Conscience of this fact, counsel for the parties have made
elaborate submissions on these aspects and, therefore, we are supposed
to first determine these issues.
RE: Finality of the Detention Order
11. Submissions of Mr. Bagai, learned Counsel appearing for the
petitioner was that the order dated 25th September, 1978 passed by this
Court, dismissing the Criminal Writ Petition No. 06/1978 whereunder
the detention order was challenged, never became final. According to
him, the reason is that this issue was seized of and taken up by the
Supreme Court as well in Criminal Writ Petition No. 4446/1978 and the
said writ petition was withdrawn on 27th October, 1978 only because the
Government agreed to withdraw the detention order. Thereafter, on 9th
September, 1978, the detention order was revoked. Learned Counsel
also pointed out that as per the statement given by the Counsel for Union
of India in Supreme Court on 27th October, 1978, the Government
revoked the suspension order on 9th September, 1978 therefore,
proceedings under SAFEMA could not be initiated on this ground as
well. Matter was heard on 25th October, 1978 and following order was
passed:-
"These petitions were called out at 11.15 a.m. At
the out-set Mr. Lekhi raised a preliminary
objections regarding the maintainability of these
petitions and addressed the Court till 11.25 a.m.
Then Mr. Ramjethmalani opened his arguments,
prefaced by his reply to the preliminary objections
raised by Mr. Lekhi. He concluded the arguments
at 2.10 p.m. Mr. Lekhi made his submissions till
3.55 Hearing concluded and court reserved
judgment with the directions to list these matters on
27-10-1978 for being mentioned."
When the matter was taken up on 27th October, 1978, regarding the
statement of counsel for the State that complaint for prosecution of the
detenu shall be filed and the detention order would be revoked
forthwith, writ petitions were dismissed as withdrawn by passing
following order:-
"Mr. Lekhi has made statement at the bar on behalf
of the Union of India that the Collector, Central
Excise and Customs, Delhi undertakes to file a
complaint for prosecution of the detenues within a
fortnight and upon filing of such complaint the
detention orders will be revoked forthwith. In view
of this undertaking both the writ petitions are
dismissed as withdrawn."
12. It was also argued that since judgment dated 25th September, 1978
passed by this Court was overruled by the Supreme Court in Narender
Purshotam Umrao (supra), the same had the retrospective effect and this
would wipe-of the very legality of detention order. In support of this
submission, learned counsel relied upon the following judgments:-
(i) AIR 1985 SC 697
(ii) AIR 1986 SC 1440
(iii) AIR 2003 AP 413
It was thus submitted that since the detention order had not
become final, it was the right of the petitioner to challenge the same, even
now at this stage, as per the law laid down in the following judgments:-
(i) JT 1994 (3) SC 583 (para 49)
(ii) JT (1997) DLT 518
13. Mr. Chandhiok, learned Additional Solicitor General appearing for
Union of India and Mr. Vikas Pahwa, learned Counsel appearing for
Govt. of NCT of Delhi, countered the aforesaid submissions. Apart from
pointing that no challenge was laid to the judgment dated 25th September,
1978 by filing any SLP and thus, the said decision had attained finality, it
was also argued that the writ petition filed by the petitioner in the
Supreme Court was ultimately dismissed as withdrawn. This would
mean, argued the learned counsel, that the decision of this Court was not
interfered with. It was further submitted that judgment dated 25th
September, 1978 was not overruled by the Supreme Court in Narender
Purshotam Umrao (supra). Alternatively, it was submitted that even if it
is presumed that judgment was overruled, it had happened in different
proceedings and not in any appeal preferred against the said judgment.
Therefore, it amounted to overruling the principle laid down in the said
judgment and not the decision. In so far as decision is concerned, i.e
upholding the preventive detention, that had attained the finality
between the parties interse. Number of judgments were relied upon to
back the aforesaid submissions.
14. It was also the argument of the learned counsel for the respondents
that revocation of detention order on 9th September, 1978 under Section
11 of the COFEPOSA, had no bearing on the validity of the detention
order and, therefore, proceedings under SAFEMA could still be initiated
as provided under Section 2 of SAFEMA. It was additionally pointed out
that Writ Petition No. 12547/1983, filed by the petitioner in the Supreme
Court, wherein vires of SAFEMA were challenged, the petitioner had
raised identical grounds which are now taken up in the present writ
petition. Even detention order was challenged again. However, the
Supreme Court did not grant any relief thereupon and thus the principles
of constructive res judicata shall be attracted, precluding the petitioner
from challenging the detention order.
15. We have given your thoughtful consideration to the aforesaid
submissions and have also minutely gone through the various judgments
cited by counsel on either side.
16. Following facts are undisputed:-
(i) In Criminal Writ Petition no. 6/1978 order dated 2nd
January, 1978 was challenged. This writ petition was
heard on merits by a Division Bench of this Court on
25th September, 1978. No appeal was filed against
this order.
(ii) Even during the pendency of Criminal Writ Petition
no. 6/1978, wife of the petitioner had filed Criminal
Writ Petition no. 4446/1978 which was dismissed as
withdrawn on 27th October, 1978 and was thus not
decided on merits.
(iii) Detention order was revoked on 9th September,
1978 under Section 11 of the COFEPOSA.
Based on this factual premise, we would now consider various
facets of the issue.
(a) Effect of the order dated October 27th, 1978 passed by the
Supreme Court
17. Much emphasis was laid by learned counsel for the petitioner on
the circumstances in which order dated 27th October, 1978 came to be
passed. His submission was that the matter was argued at length on 25th
October, 1978 which was clear from the proceeding-sheet of that day,
disclosing that it was heard for more than three hours. He submitted that
even when the arguments were concluded on that day and the judgment
was reserved, matter was listed for „direction‟ on 27th October, 1978 as
the Court was convinced that the detention order was illegal and had to
be set aside. Time was given to the respondents to consider as to whether
they would like to withdraw the detention order themselves. It was in the
light of this development that Union of India agreed to revoke the
detention order and statement was made to this effect on 27th October,
1978. Under these circumstances, the writ petition was dismissed as
withdrawn. From this, he wants us to infer that detention order was
patently illegal and the validity thereof could not be determined simply
because it was revoked by the respondents themselves knowing
hollowness of their case.
18. This argument of learned counsel for the petitioner is too
presumptuous. Facts disclosed above would show that Writ Petition no.
06/1978 filed by the petitioner in this Court had already been dismissed
when writ petition No.4446/1978 came up for hearing in the Supreme
Court on 25th October, 1978. Order-sheet of 25th October, 1978 discloses
that the respondents had taken preliminary objections regarding the
maintainability of the said petition which was filed at the time when writ
petition already filed in the High Court was pending adjudication.
Whether second petition would be maintainable was the question.
Whether such petition could be pressed after the dismissal of writ
petition filed in the High Court and without challenging the order of this
Court was also the question. Order dated 25th October, 1978 clearly
demonstrates that counsel for Union of India has raised preliminary
objections regarding the maintainability of the petitions. He had argued
on the maintainability in the first instance to which counsel for the
petitioner had replied and, thereafter, counsel for Union of India had
submitted his rejoinder. This order, thus, shows that arguments were
heard only on the maintainability of the petition. No doubt, even when
the Court reserved the judgment, it listed the matter for being mentioned
on 27th October, 1978. What transpired in the court at the time of hearing
which prompted the Court to pass that order, cannot be fathomed. We
can not indulge into conjectures and are supposed to go by the record.
Therefore, it would be too presumptuous for learned counsel for the
petitioner to argue that the Supreme Court had decided to quash the
detention order and, therefore, some time was taken by counsel for the
respondent to pounder over the matter.
19. No doubt, on 27th October, 1978 statement was made that the
Union of India was willing to revoke the detention order forthwith.
However, revocation of suspension order will have different connotation
and different consequences then those which are attached to the quashing
of such an order. SAFEMA had come into force w.e.f. 25th January, 1976.
Even if Union of India decided to revoke the detention order, Counsel for
the petitioner could still insist upon the decision on merits if the
petitioner wanted a declaration to the effect that such an order was bad in
law. In that eventuality, the Supreme Court would have decided about
the maintainability of the writ petition and in the event, decision was that
said writ petition was maintainable, it would have gone to the merits of
the detention order. That has not happened. We are faced with a
situation where writ petition filed by the petitioner is simply dismissed as
withdrawn. In view thereof, it cannot be said that detention order was
illegal or void ab initio. No doubt, this detention order has been revoked.
In these circumstances only the effect of revocation order can be seen.
(b) Effect of the judgment of Supreme Court in Narender Purshotam
Umrao (supra).
20. The next aspect to be dealt with is: what is the effect of the
judgment of Supreme Court in Narender Purshotam Umrao (supra) on
the detention order, in view of the observation of the Supreme Court in
the said case on the decision dated 25th September, 1978 rendered in
Crl.WP no. 06/1978?.
21. We have to first consider as to whether judgment dated 25 th
September, 1978 stands overruled. In Narender Purshotam Umrao case
(supra), the Supreme Court held that the constitutional safeguards
embodied in Article 22 (5) of the Constitution must be read into the
provisions of Section 8 (b) of the COFEPOSA to prevent any arbitrary
executive action which would mean that it would be the obligation of the
authorities to forward the representation made by the detenu alongwith
the reference to the Advisory Board, even when there was no express
provision in this behalf in Section 8 (b) of COFEPOSA. In this backdrop,
following comments were made on the decision dated 25th September,
1978 in Criminal Writ Petition no. 6/1978:-
"The High Court in this case, and the Delhi High
Court in Thaneshwar Singh v. The Union of India
and Ors. Cr.W. No 6 of 1978 decided on September
25, 1978 (Delhi High Court) appear to be labouring
under misconception that merely because there is no
express provision in Section 8(b) of the Conservation
of Foreign Exchange and Prevention of Smuggling
Activities Act placing an obligation to forward the
representation made by the detenu along with the
reference to the Advisory Board, unlike those
contained in Section 9 of the Preventive Detention
Act, 1950 and Section 10 of the Maintenance of
Internal Security Act, 1971 there is no obligation cast
on the Government to consider the representation
made by the detenu before forwarding it to the
Advisory Board."
22. The Supreme Court thereafter dealt with the provision of Article 22
(5) of the Constitution in detail and also extracted passage from its earlier
judgment Khudiram Das Vs. The State of West Bengal, AIR 1975 SC 550
holding that this constitutional imperatives in article were twofold, viz.,
(1) communicating to the detenu the grounds on which the order of
detention order was passed, as soon as practicable after the detention;
and (2) affording earliest possible opportunities to the detenu of making
a representation against the order of detention. Immediately thereafter,
following comments appear in respect of orders dated 25th September,
1978 in Crimination Writ Petition no. 6/1978:-
"This has always been the view consistently taken by
this Court in a series of decisions. It is not necessary to
burden this judgment with citations of these
decisions. The view to the contrary taken by the
Bombay and the Delhi High Courts that these
procedural safe-guards are not available to a person
detained under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act is clearly
wrong.
The remarks of the Supreme Court are that this Court was not
correct in holding that procedural safeguards are not available to a
person detained under COFEPOSA and merely because there was no
express provision under Section 8 (b) of COFEPOSA. Thus, obligation
was cast on the authority to consider the representation made by the
detenu before forwarding it to the Advisory Board, notwithstanding the
fact that Section 8 (b) of COFEPOSA was silent on this aspect. It is this
aspect of the matter on which Delhi High Court in the aforesaid case
purportedly took different view and that view is not approved. So far so
good. However, we make two comments at this stage:-
(1) The Supreme Court has not overruled the judgment of
the Delhi High Court dated 25th September 1978 specifically.
(2) More importantly, it was rightly pointed out by the
learned ASG that in the judgment dated 25th September, 1978
such an issue was never raised and, therefore, did not even come
up for consideration. We have gone through the entire judgment
and find that learned ASG is right in his submissions. The
question which came up for consideration qua Article 22 (5) was
as to "How Section 5A of the COFEPOSA is related to Article 21
& 22 (5) and (6)?"
Section 5A was inserted by an amendment to COFEPOSA and the
said amendment put the Act in the Ninth Schedule of the Constitution
thereby making it beyond challenge. Contention raised was that it was
contrary to the provisions of Part-III (Fundamental Rights) of the
Constitution. This Court considered this argument in the constitutional
background with reference to various judgments of the Supreme Court
and opined that subjective satisfaction required under Section 3 (1) of the
Act does not act as a barrier to an object seeking of the some ground
under Article 22(5) even though certain matters may have been withheld
in the communication made to the detenu in view of Article 22 (6).
Argument that detention cannot be judicially reviewed was, rather
specifically rejected holding that the compliance with the requirement of
Article 22 (5) of the Constitution is to be determined objectively by the
Courts.
23. This Court, thereafter specifically dealt with various grounds on
which detention order was challenged but rejected those grounds on
merits thereby upholding the detention order. Therefore, it cannot be
said that the decision dated 25th September, 1978 rendered by this Court
has been overruled in Narender Purshotam Umrao (supra).
24. We may refer to the judgment of Supreme Court in Union of India
Vs. Jute Mills Association, 2005 (10) SCC 69 in this behalf wherein the
Supreme Court categorically opined that observations of the Court on a
point which was not the subject matter of the case, would not be either
binding or taken as a precedent for any future reference. This was said in
the following context:-
"13. Shri A. Sharan, learned Additional Solicitor
General of India does not press the appeals on any
point other than the setting aside of the above quoted
observations of the High Court. It is contended by
him that the observations made by the Division
Bench quoted above are obiter in nature as the same
did not arise either from the pleadings of the parties
or the contentions raised before the Division Bench.
The challenge in the writ petition was regarding the
extent of power or jurisdiction of the Advisory
Committee to make its recommendation to the
Central Government. There was no challenge to the
power of the Central Government regarding the
progressive dilution of the protection of the jute
packaging material for the purpose of ultimate repeal
of the Act.
Xx xx xx
15. After considering the respective submissions put
forth by the learned senior counsels on behalf of the
parties we are of the opinion that the contention
raised by the learned Additional Solicitor General
deserves to be accepted. On perusal of the writ
petition, the prayers made therein, the contentions
raised by the respective counsels for the parties
before the Division Bench and the points formulated
by the Division Bench for its consideration we are of
the opinion that the question regarding power of the
Central Government to pass any order regarding the
progressive dilution or protection of the jute
packaging material for its ultimate repeal was not
under challenge. This point did not arise from the
pleadings of the parties. The observations made are
without there being any foundation of facts laid in
the pleadings and the points formulated by the
Division Bench for its consideration. We are not even
sure as to whether the learned counsels appearing for
the parties before the High Court had addressed
arguments on this point. We do not agree with the
submissions made by Shri Nariman that the Central
Government was acting in its capacity as a creature
under the Act. The Standing Advisory Committee is
constituted under the Act and not the Central
Government. The observations made by the High
Court being contrary to the pleadings and obiter in
nature are set aside. The same would not be either
binding or taken as a precedent for any future
reference."
25. Similarly, in Divisional Controller, KSRTC Vs. Mahadeva Shetty
and another, (2003) 7 SCC 197 the Supreme Court categorically held that
scope and authority of a precedent should not be expanded unnecessary
beyond the needs of a given situation. Following observation in this
behalf need to be reproduced:-
"23. So far as Nagesha's case (supra) relied upon by
the claimant is concerned, it is only to be noted that
the decision does not indicate the basis for fixing of
the quantum as a lump sum was fixed by the Court.
The decision ordinarily is a decision on the case before
the Court, while the principle underlying the decision
would be binding as a precedent in a case which
comes up for decision subsequently. Therefore, while
applying the decision to a later case, the Court dealing
with it should carefully try to ascertain the principle
laid down by the previous decision. A decision often
takes its colour from the question involved in the case
in which it is rendered. The scope and authority of a
precedent should never be expended unnecessarily
beyond the needs of a given situation. The only thing
binding as an authority upon a subsequent Judge is
the principle upon which the case was decided.
Statements which are not part of the ratio decidendi
are distinguished as obiter dicta and are not
authoritative. The task of finding the principle is
fraught with difficulty as without an investigation
into the facts, it cannot be assumed whether a similar
direction must or ought to be made as measure of
social justice. Precedents sub silentio and without
argument are of no moment. Mere casual expression
carry no weight at all. Nor every passing expression
of a Judge, however eminent, can be treated as an ex
cathedra statement having the weight of authority."
(c) Effect of overruling of a judgment in another case.
26. Even if we proceed on the presumption that the decision of this
Court dated 25th September, 1978 was overruled in another case, it is
difficult to accept the submission of learned Counsel for the petitioner
that detention order in his case, though, upheld by the High Court, stand
vitiated. It is stated at the cost of repetition that so far as judgment dated
25th September, 1978 of this Court is concerned, challenge to the detention
order had been repelled upholding detention of the petitioner. No appeal
was filed against this order. Though, during the pendency of the writ
petition in the High Court, wife of the petitioner had filed civil Writ
Petition 4446/78 in the Supreme Court, maintainability of the said writ
petition was questioned by the respondents. This petition was ultimately
dismissed as withdrawn. Thus, Supreme Court did not decide the
validity of detention order. In this backdrop between the parties interse,
judgment dated 25th September, 1978 of this Court upholding the
detention had attained finality. Even if this judgment was overruled in
another case by the Supreme Court at a later date, it would only mean
and amount to overruling the principle and not the decision inter se
between the parties. If the contention of the learned counsel for the
petitioner is accepted, then on overruling of a particular judgment which
may have been rendered long ago, the parties to the said judgment would
be entitled to reopen their cases. That is, however, not the legal position.
The courts have gone to the extent that subsequent overruling does not
even entitle parties to the case to seek review of the judgment which had
attained finality. In so far as decision between the parties interse is
concerned, that had attained finality and would operate as res judicata.
(d) Outcome
27. To sum up, we are confronted with a situation where writ filed in
the High Court challenging the detention order was dismissed and the
Supreme Court did not pronounce on the detention order. When the
respondent made the statement before the Supreme Court that Union of
India had agreed to revoke the detention order, the petitioner could still
press the petition as the High Court had already upheld the detention
order. Had there been no such decision of the High Court, the petitioner
could still file fresh petition afterwards when respondents decided to take
actions under the SAFEMA (See Union of India & Ors. Vs. Mohal Lal
Likumal Punjabi & Ors. (2004) 3 SCC 628). However, at the time when
writ petition in the Supreme Court was dismissed as withdrawn, the
petitioner was aware that his writ petition filed in the High Court against
the same detention order had already been dismissed on merits.
However, he did not impress upon the Supreme Court to decide the
matter on merits.
28. Since this Court has already taken a view sustaining the detention
order, it is not permissible for the Bench of Co-ordinate Jurisdiction to sit
in the judgment or find fault with the view taken by a Bench of Co-
ordinate Jurisdiction and the judicial discipline required adherence to the
doctrine of finality of decisions. In Vikramajit Singh Vs. State of
Madhya Pradesh, 1992 (3) SCC (Suppl.) 62, the Supreme Court laid down
this very principle in the following terms:-
"No Bench can comment on the functioning of a
co-ordinate Bench of the same Court, much less
sit in judgment as an appellate Court over its
decision. That which could not be done directly
could also not be done indirectly. Otherwise, a
party aggrieved by an order passed by one
Bench of the High Court would be tempted to
attempt to get the matter reopened before
another Bench, and there would not be any end
to such attempts. Besides, it was not consistent
with the judicial discipline which must be
maintained by Courts both in the interest of
administration of justice by assuring the binding
nature of an order which becomes final, and the
faith of the people in the judiciary."
To similar facts are the following observations of the Supreme
Court in Harjeet Singh @ (SC) 2002 (1), SCC 64:-
" It is trite that the matters that have been finally
settled cannot be reopened in a subsequent
proceeding for there can be no finality to judicial
adjudications if legal proceedings could be instituted
consecutively one after the other on the same subject
matter and cause of action. The legal position in this
regard is so well settled that we need not refer to
decisions to support the same. Reference to State of
UP & Anr. V. Labh Chand, 1993 (2) SCC 495, should
in our view suffice where the Court observed the
principles of finality of decisions and the doctrine of
res judicata apart. Judicial discipline requires the
Court to respect the decision delivered by a Court of
coordinate jurisdiction.
29. We may also, for our benefit, quote the following observations of
this Court in Baij Nath Aggarwal Dharmarth Trust Society Regd. & Anr.
Vs. Lt. Governor of Delhi & Anr., 148 (2008) DLT 122:-
"The relief prayed for on behalf of the petitioner in
the present case is the same as he could have, in the
event of his success, obtained in the earlier writ
petition before the High Court. The petitioner in
reply contended that since the special leave petition
before this court was dismissed in limine without
giving any reason, the order cannot be relied upon
for a plea of res judicata. The answer is that it is not
the order of this Court dismissing the special leave
petition which is being relied upon; the plea of res
judicata has been pressed on the basis of the High
Court‟s judgment which become final after the
dismissal of the special leave petition. In similar
situation a Constitution Bench of this Court in
Daryao V. State of U.P. (1962) 1 SCR 574: AIR 1961
SC 1457 held that where the High Court dismisses a
writ petition under Article 226 of the Constitution
after hearing the matter on the merits, a subsequent
petition in the Supreme Court under Article 32 on the
same facts and for the same reliefs filed by the same
parties will be barred by the general principle of res
judicata. The binding character of judgments of
courts of competent jurisdiction is in essence a part of
the rule of law on which the administration of justice,
so much emphasized by the Constitution, is founded
and a judgment of the High Court under Article 226
passed after a hearing on the merits must bind the
parties till set aside in appeal as provided by the
Constitution and cannot be permitted to be
circumvented by a petition under Article 32. An
attempted change in the form of the petition or the
grounds cannot be allowed to defeat the plea as was
observed as SCR p. 595 of the reported judgment,
thus: (SCR p. 595):
"We are satisfied that a change in the
form of attack against the impugned
statute would make no difference to the
true legal position that the writ petition
in the High Court and the present writ
petition are directed against the same
statute and the grounds raised by the
petitioner in that behalf are substantially
the same."
The decision in Forward Construction Co. V.
Prabhat Mandal (Regd.), Andheri (1986) 1 SCC 100:
1985 Supp. 3 SCR 766, further clarified the position
by holding that an adjudication is conclusive and
final not only as to the actual matter determined but
as to every other matter which the parties might and
ought to have litigated and have had decided as
incidental to or essentially connected with subject
matter of the litigation and every matter coming into
the legitimate purview of the original action both in
respect of the matters of claim and defence. Thus, the
principle of constructive res judicata underlying
Explanation IV of Section 11 of the Code of Civil
Procedure was applied to writ case. We, accordingly
hold that the writ case is fit to be dismissed on the
ground of res judicata."
30. Somewhat similar position arose in Narender Kumar Vs. Union of
India & Ors, WP (C) 829/2007 (decided on 20th February, 2009 wherein it
was, inter alia held as under:-
"Even if we presume on the basis that the view taken
by the Division Bench of this Court, dismissing the
first writ petition of the petitioner and thereafter
review petition of the petitioner was wrong, that
would not be a ground to challenge the same
acquisition by filing fresh writ petition. It is trite law
that even an erroneous decision operates as res
judicata between parties to it. The correctness of
decision has no bearing upon question whether it
operates as res judicata. This principle was laid down
by the Apex Court way back in the year 1953 in the
case of Mohanlal Goenka Vs. Benoy Kishan
Mukherjee AIR 1953 SC 62. The Court made
following observations in that case:
"There is ample authority for the proposition
that even an erroneous decision on a question
of law operates as „res judicata‟ between the
parties to it. The correctness or otherwise of
a judicial decision has no bearing upon the
question whether or not it operates as „res
judicata‟. A decision in the previous
execution case between the parties that the
matter was not within the competence of the
executing court even though erroneous is
binding on the parties; see - „Abhoy Kanta V.
Gopinath Deb', AIR (30) 1943 Cal. 460."
Likewise in Satyadhyan Ghoshal Vs. Deoranjan Debi,
AIR 14960 SC 941, the Apex Court held that the
original Court as well as any higher court must in any
further litigation proceed on the basis that the
previous decision was correct. Further, in Swamy
Atmananda Vs. Sri Ramakrishna Tapovanam, 2005
(10) SCC 51, it was held that res judicata applies to a
Court of concurrent jurisdiction, creates a bar between
parties, in another matter in another Court, where
plea sought to be raised. More importantly, another
principle touching upon the doctrine of res judicata,
which is recorded to be stated is that Res judicata
debars a Court from exercising its jurisdiction to
determine the lis if it has attained finality between the
parties. If such an issue is decided against him, he
would be stopped from raising the same in the latter
proceeding. In this behalf, following observations
from the judgment of Supreme Court in the case of
State of Karnataka & Ans. Vs. All India
Manufacturers & Ors. (2006) 4 SCC 683 are a worth
quote:-
"32. Res judicata is a doctrine based on the
larger public interest and is founded on two
grounds: one being the maxim nemo debet bis
vexari pro una et eadem causa (no one ought to
be twice vexed for one and the same cause, P.
Ramanath Aiyer : Advanced Law Lexicon, (Vol.
3, 3rd Edn., 2005) at p. 170) and second, public
policy that there ought to be an end to the
same litigation, Mulla: Code of Civil Procedure,
(Vol. 1, 15th Edn., 1995) at p.94. It is well
settled that Section 11 of the Civil Procedure
Code, 1908 (hereinafter "CPC") is not the
foundation of the principle of res judicata, but
merely statutory recognition thereof and
hence, the section is not to be considered
exhaustive of the general principle of law, See
Kalipada De v. Dwijapada Das, (1929-1930) 57
IA 24: AIR 1930 PC 22 at p. 23. The main
purpose of the doctrine is that once a matter
has been determined in a former proceeding,
it should not be open to parties to reagitate the
matter again and again. Section 11 CPC
recognizes this principle and forbids a court
from trying any suit or issue, which is res
judicata, recognizing both "cause of action
estoppels" and "issue estoppels". There are
two issues that we need to consider, one,
whether the doctrine of res judicata, as a matter
of principle, can be applied to public interest
litigations and second, whether the issues and
findings in Somashekar Reddy, (Ibid., at KLD p.
517, para 29, per Ashok Bhan, J.) constitute res
judicata for the present litigation.
xxx........48. The principle and philosophy
behind Explanation IV, namely, to prevent
"the abuse of the process of the court" (as
stated in Greenhalgh, (1947) 2 AII ER 255 (CA)
through reagitation of settled issues, provides
yet another ground to reject the appellants‟
contentions. For instance, the High Court
specifically records ( vide para 29) of the
impugned judgment that:
"It is common case of the parties that
the validity of the FWA had earlier been
challenged in Somashekar Reddy Case on
all conceivable grounds including the
one that land in excess of what is
required for the Project had been
acquired by the State Government."
31. We may point out at this stage that on the earlier occasion, the
petitioner had challenged the detention order in Writ Petition no. 6/78 on
various grounds including the delay in passing the detention order and
that subjective satisfaction of the authorities were not passed of objective
consideration etc. These grounds and other grounds were specifically
dealt with and rejected. It is, therefore, not be permissible for the
petitioner to challenge the detention order again by means of present writ
petition. Petition would be barred on the principles of res judicata as well
as constructive res judicata.
Re: Consequence of revocation of detention order
32. Insofar as revocation of detention order is concerned, this order
was passed under Section 11 of the COFEPOSA.
33. Section 2 (b) of COFEPOSA defines a "detention order" to mean an
order made under Section 3 of COFEPOSA. Section 3 of the Act entrusts
the power upon the Central Government or the State Government or
any officer of the Central Government, not below the rank of a Joint
Secretary of that Government, specially empowered for the purposes of
that Section by that Government, or any Officer of the State Government,
not below the rank of Secretary to that Government, specially
empowered for the purposes of that Section to make an order directing a
person to be detained in case the detaining authority is satisfied that
detention order is required to be passed with a view of preventing him
from acting in any manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to prevent him from
indulging in certain activities specified in that Section. Such an order is
to be approved by the Advisory Board constituted under Section 8 of the
Act within the specified time, if the detention is for more than three
months‟ duration on a reference made to it by the appropriate
Government. If the Advisory Board after hearing the person detained
gives the report that in its opinion there is sufficient cause for detention
of a person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such period
as it thinks fit. On the other hand, if it is of the opinion that there is no
sufficient cause for the detention of the person concerned, the appropriate
Government is supposed to revoke the detention order and cause the
person to be released forthwith.
34. Section 9 of the Act stipulates the cases in which and circumstances
under which the persons may be detained for periods longer than three
months without obtaining the orders of Advisory Board.
35. Section 10 of the Act stipulates that the maximum period of
detention shall be two years. Section 11, however, gives power to certain
authorities to revoke or modify the detention order at any time, without
prejudice to provisions of Section 21 of the General Clauses Act, 1897. It
reads as under:-
"11. Revocation of detention orders.-(1) Without
prejudice to provisions of section 21 of the General
Clauses Act, 1897 (10 of 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 the Central Government.
(2) The revocation of a detention order shall not
bar the making of another detention order under
Section 3 against the same person."
36. The scheme of the Act, thus, postulates that the detention order can
be passed by the detaining authority on its satisfaction about certain pre-
conditions mentioned in Section 3 of the Act. If the detention order is to
continue for a period of more than three months, it has to be confirmed
by the Advisory Board. Advisory Board after looking into the record
may form an opinion that satisfaction of the detaining authority was not
appropriate and, therefore there was no sufficient cause for detention of a
person. Or, it can report that there was sufficient cause for detention of a
person. If the opinion of the Advisory Board is that there is sufficient
cause for detention, effect of that order would be that detention order
passed by the detaining authority was proper. Ofcourse, such an order
still amenable to judicial review. However, in case the order is revoked
or modified under Section 11 of the Act, that would not mean that
detention order was bad from very beginning. The detention order can
be revoked or modified for various reasons including the satisfaction of
the concerned authority that continued detention order of the detenue is
not proper and the period of detention needs to be curtailed or for
certain reasons, the detenue should be released forthwith without being
detained for the entire period originally stipulated.
37. In Union of India and Anr. Vs. Harish Kumar, 2008 SCC 195 this
aspect of the matter was abundantly clarified by the Supreme Court in
the following manner:
"8.It is so well settled and needs no re-statement
that the right to make a representation against the
order of detention is the most cherished and
valuable right conferred upon a detenue under
Article 22(5) of the Constitution of India and if
there has been any infraction of such right the
detenu is entitled to be released. Construing the
provisions of Article 22(5) this Court in more than
one decision explained that the right of a person
detained to make a representation against the
order of detention is a comprehensive one. It
comprehends that the person detained has the
right to make a representation not only to the
officer who made the order of detention but as
well as to the State Government and the Central
Government who are competent to revoke the
order of detention. Under Section 3 of the
COFEPOSA Act an order of detention can be
made by: (i) the Central Government; or (ii) an
officer specially empowered by the Central
Government; or (iii) the State Government; or (iv)
an officer specially empowered by the State
Government. Section 11 of the COFEPOSA Act in
clear terms provides for revocation of detention
order by authorities other than the authority
which has made the order. Under Clause (b) of
Sub-section (1) an order made by an officer
specially empowered by the Central Government
or an order made by the State Government can be
revoked by the Central Government. This means
that the Central Government has the power to
revoke the order made by an officer specially
empowered by the Central Government. We do
not find any difficulty whatsoever to hold that
every person detained under the provisions of the
COFEPOSA Act has a right to make a
representation to the Central Government which
is required to be considered and disposed of as
expeditiously as possible. [See: Kamlesh Kumar
Ishwardas Patel v. Union of India) This Court in
Kamlesh Kumar Ishwardas Patel's case (supra) while
considering the effect of non-consideration of a
representation of the person detained by the
officer making the order of detention observed
thus: (SCC p. 71, para 46)
"On that basis it has to be held that since there
was a denial of the constitutional safeguard
provided to the detenu under Article 22(5) of the
Constitution on account of the failure on the part
of the officer who had made the order of
detention to independently consider the
representation submitted by the detenu against
his detention and to take a decision on the said
representation the further detention of the detenu
Ishwardas Bechardas Patel is rendered illegal".
9. In the same analogy it must be held that the
failure on the part of the Central Government to
independently consider the representation
submitted by the detenu against his detention
renders further detention of the detenu illegal.
The initial order of detention passed under
Section 3(1) of the COFEPOSA Act does not get
vitiated. The very order of detention passed under
Section 3(1) of the COFEPOSA Act cannot be
declared void ab initio. It is unnecessary to
multiply authorities in support of our conclusion.
In Meena Javendra Thakur v. Union of India this
Court relying on the judgment rendered by the
Constitution Bench in Kalesh Kumar Ishwardas
Patel held: (SCC p. 185, para 10):
"[T]he authority issuing a declaration
under Section 9 of the COFEPOSA Act
must intimate the detenu that he has the
right of opportunity to represent to the
declaring authority and non-intimation of
the same infringes upon the constitutional
right of the detenu to make a
representation under Article 22(5) and,
therefore, the notification issued under
Section 9(1) becomes invalid and the
continued detention pursuant to such
declaration and the opinion of the
Advisory Board within the extended
period as well as the confirmation by the
State Government are vitiated."
38. We may also refer to another judgment of the Apex Court in Meena
Jayendra Thakur Vs. Union of India & Ors. (1999) 8 SCC 177 wherein
following observations were made in the context of Section 9 of the said
Act read with Article 22 of the Constitution:-
"8.There cannot be any dispute that the right
to make a representation of a detenu is the
most valuable right conferred upon him
under Article 22 of the Constitution and if
there has been any infraction of such right
then certainly the detenu is entitled to be
released. The question, therefore, arises as to
whether when a declaration is made under
Section 9(i) of the Act which in turn extends
the period of detention without being
confirmed whether the officer issuing the
declaration under Section 9(i) is also
required to inform the detenu that he has a
right to make a representation to him. Under
the constitutional scheme engrafted in
Article 22, no law providing for preventing
detention can authorise the detention of a
person for a longer period than three months
unless the Advisory Board reports before
expiration of the said period of three months
that there is, in its opinion, sufficient cause
for such detention. When an authority issues
a declaration under Section 9(i) of the Act,
the said authority has the necessary powers
to revoke the declaration on a representation
being made by the detenu against such
declaration. Consequently, if the detenu is
not intimated of his right to make a
representation to the authority issuing the
declaration under Section 9(i) then certainly
his valuable constitutional right gets
infringed and the two decisions of the Full
Bench relied upon by Mr. Kotwal fully
support this contention. Mr. N.N. Goswami,
learned senior counsel appearing for the
Union of India fairly concedes this position."
39. In the present case, detention order was duly approved by the
Advisory Board. The writ petition filed by the petitioner challenging the
detention order was dismissed by this Court. In this backdrop, when the
said order is revoked under Section 11 of the Act, it cannot be said that
detention order was perse illegal or void ab initio. The contention of
learned Counsel for the petitioner, therefore, that proceedings under
SAFEMA would be barred, is clearly untenable. If any authorities for
this proposition are required, reference to following two judgments
would suffice:-
(i) Union of India Vs. Mohanlal Likumal Punjabi, 2004 (3)
SCC 628
"2.Union of India questions legality of the judgments
rendered by the Division Bench of the Bombay High
Court holding that order dated 31.8.1995 passed by
the Competent Authority under Section 7 of the
Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (in short 'the
SAFEMA') against respondent Nos. 1 and 2 was not
sustainable in law. For coming to such conclusion,
reference was made to orders dated 19th December,
1994 passed under Section 11(1)(b) of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (in short 'the COFEPOSA')
revoking the order of detention and order dated
11.1.1995 passed in earlier writ petitions filed by
respondent Nos. 1 and 2. Reference was made to first
proviso to Clause (b) of Sub-section (2) of Section 2 of
SAFEMA for holding that proceedings initiated under
the said statute became non est.
3. According to learned counsel for the appellant-
Union the view taken by the High Court is clearly
untenable. On the facts of the case, first proviso to
Clause (b) of Sub-section (2) had no application to
the facts of the case. The revocation of the order of
detention was in exercise of power conferred
under Section 11(1)(b) of the COFEPOSA and not
under Section 8 as stipulated in the said provision.
It is further submitted that the proceedings were
initiated by issuance of notice under Section 6(1)
of the SAFEMA for forfeiture of property on
12.10.1994. The orders of detention under Section
3(1) of COFEPOSA were passed on 24.5.1994. The
orders of detention were challenged by the
respondents 1 and 2 in Writ petition Nos. 1071
and 1072 of 1994. After the show-cause notice was
issued in exercise of power under Section 11(1) (b)
of the COFEPOSA, the Central Government
revoked the orders of detention on 19.12.1994 as
indicated above. In view of the revocation of the
orders of detention, the writ petitions were
disposed of on 11.01.1995. By order dated 31.8.95,
properties mentioned in the show-cause notice
were directed to be forfeited under Section 7 of
SAFEMA. The order directing forfeiture was
challenged on merits before the Tribunal
constituted under the SAFEMA. Thereafter writ
petitions were filed on 23.11.1995 challenging the
orders of detention and also challenging the order
of forfeiture. The latter additional challenge was
by way of amendment. By the impugned
judgment dated 13.6.1996 the High Court passed
the impugned order in each case."
(ii) Kesar Devi Vs. Union of India, 2003 (7) SCC 427
"6.In support of the contention that it is open to a
person to assail the validity of a determine order
passed under COFEPOSA Act while challenging
the proceedings initiated under SAFEMA
regarding forfeiture of property, the appellant
before the High Court had placed reliance on
Union of India v. Haji Mastan Mirza ,(1984) 2
SCC 427 . However, this decision has been
expressly overruled by a Bench of nine Judges in
Attorney General for India v. Amratlal
Prajivandas: (1994) 5 SCC 54, wherein it has been
held as under:
"Thus the conclusion is that an order of
detention to which Section 12A is
applicable as well as an order of
detention to which Section 12-A was
not applicable can serve as the
foundation, as the basis, for applying
SAFEMA to such detenu and to his
relatives and associates provided such
order of detention does not attract any
of the sub-clauses in the proviso to
Section 2(2)(b). If such detenu did not
choose to question the said detention
(either by himself or through his next
friend) before the Court during the
period when such order of detention
was inforce, - or is unsuccessful in his
attack thereon - he, or his relatives and
associates cannot attack or question its
validity when it is made the basis for
applying SAFEMA to him or to his
relatives or associates."
In view of this authoritative pronouncement by
this Court, the main grounds of challenge raised
before the High Court have no legs to stand."
40. We may also quote following principle of law laid down by the
Supreme Court in Amratlal Prajivandas & Ors (supra):-
"(b) An order of detention to which Section
12A is applicable as well as an order of
detention to which Section 12A was not
applicable can serve as the foundation, as the
basis, for applying SAFEMA to such detenue
and to his relatives and associates provided
such order of detention does not attract any
of the sub-clauses in the proviso to Section
2(2)(b). If such detenue did not choose to
question the said detention (either by himself
or through his next friend) before the Court
during the period when such order of
detention was in force,-or is unsuccessful in
his attack thereon he, or his relatives and
associates cannot attack or question its
validity when it is made the basis for
applying SAFEMA to him or to his relatives
or associates."
41. Hence, we conclude that revocation of detention order would not
preclude the respondent from initiating proceedings under Section
SAFEMA.
42. In the present case, the Competent Authority under SAFEMA
passed the order forfeiting certain properties of the petitioner. This order
is upheld by the Appellate Tribunal. Validity of the order of the
Appellate Tribunal is not challenged on merits but on the grounds which
we have considered above but are constrained to reject. In these
circumstances, we are of the opinion that this writ petition is devoid of
any merit and accordingly, we dismiss the same.
No costs.
(A.K.SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
March 26 , 2010
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