Delhi High Court
Veera Sarin And Ors. vs Uoi & Ors. on 1 December, 2014
Author: S.Ravindra Bhat
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.11.2014
Pronounced on: 01.12.2014.
+ W.P.(CRL) 1606/2008
VEERA SARIN & ORS. ..... Petitioners
Through: Sh. Ravi Gupta, Sr. Advocate with
Sh. Gaurav Kejriwal, Sh. Ajay Gulati and
Sh. Sujit Kesari, Advocates.
versus
UOI & ORS. ..... Respondents
Through: Sh. Baldev Malik with Sh. Arjun
Malik, Advocates, for UOI.
Sh. Saleem Ahmed, Standing Counsel (Crl),
for State with Ms. Charu Dalal and Sh. Ajay
Pratap, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
JUSTICE S.RAVINDRA BHAT
%
1. The petitioner in these proceedings seeks directions calling for
the records relevant to the detention order dated 12.7.1975 made under
the provisions of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereafter referred to as
W.P.(CRL) 1606/2008 Page 1
'COFEPOSA') as well as for quashing proceedings initiated and
orders made under the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (hereafter referred to as
'SAFEMA'). The petitioner's husband Late H.K. Sarin was carrying
on business under the name 'Sarin Gem House'.
2. Between 1974 and 1976, raids were conducted in Shri Sarin's
business premises as well as that of the petitioner and proceedings
were initiated under the Customs Act. He was exonerated however, in
all the Customs Act proceedings. On 12.07.1975, an order was issued
by the Government of NCT of Delhi authorizing the preventive
detention of said Shri H.K. Sarin, under COFEPOSA. However, this
order was not executed and Shri Sarin was never detained in
implementation of it. The second respondent, i.e., the competent
authority under the SAFEMA issued a notice under Section 6 (1) of
SAFEMA upon Shri H.K. Sarin asking him to respond and disclose
his source of income or the means by which he acquired the properties
listed in the document. Shri Sarin filed his replies and representations
on various dates between 1981 and 1982. Till 5.8.1998, nothing
further was heard. Without any further proceeding or hearing - after
the last representation of Shri Sarin dated 20.4.1982, an order
forfeiting several properties listed out in the schedule was issued on
5.8.1998. It was in these circumstances that Shri Sarin approached
this Court under Article 226 of the Constitution of India by filing
W.P.(C) 1124/1999.
3. During the pendency of the proceedings, upon being served
with the forfeiture order, an appeal was preferred by Shri Sarin which
W.P.(CRL) 1606/2008 Page 2
was rejected on 19.12.2001. By then, Shri H.K. Sarin had passed
away on 16.10.2000. Consequently, his heirs including the present
petitioners were unaware about the fate of the appeal preferred by
him; likewise there is no representation on his behalf in the writ
proceedings. The writ petition, therefore, was dismissed for non-
prosecution on 16.09.2003. Upon receiving a further Show Cause
Notice dated 29.03.2005 by the competent authority proposing to
execute the orders made under SAFEMA, the petitioner enquired from
the authorities and was informed about the outcome of the appeal.
Thereupon, she approached this Court by filing W.P. (C) 23717/2005 -
again challenging the validity of the detention order dated 12.07.1975
and the consequential action taken by the respondents under
SAFEMA.
4. In the counter affidavit to W.P. (C) 23717/2005, the
respondents inter alia stated for the first time that the detention order
had been revoked on 21.03.1977. The respondents also deposed that
the file pertaining to the detention order of H.K. Sarin was
untraceable. The averments made in the said counter affidavit dated
18.12.2006 inter alia read as follows: -
"There are unsigned entries on the relevant page of the said
Register showing date of declaration as 12.07.1975 and
reconsideration of the detention order every four months up
to 23.02.1977. Entries made therein also show that the said
Shri H.K.Sarin was not arrested and action under Section 7
of the COFEPOSA Act was initiated. There is one more
entry wherein it has been mentioned that the detention order
was revoked on 21.03.1977. The copy of the relevant page
of the File Head Register containing aforesaid entries is
annexed as ANNEXURE B. It is further submitted that
W.P.(CRL) 1606/2008 Page 3
efforts were also made to trace the detention order and
grounds of detention with the Commissioner of Police, Delhi
Directorate of Revenue Intelligence, Competent Authority
(SAFEMA), Ministry of Finance and Customs Department,
however, record could not be traced."
5. In view of this development, the petitioner was permitted to
withdraw W.P. (C) 23717/2005 on 14.05.2007 and granted liberty to
take steps in respect of the proceedings emanating from the show
cause notice. Consequently on 30.11.2007, the petitioner sought for
appropriate orders to drop and close the SAFEMA proceedings. This
request was, however, declined by an order dated 4/8.2.2008. The
said order declining to close the proceedings reads as follows: -
"In this regard, it is to inform you that the requests made
by you are not tenable in view of the provisions of Section
2 (2) (b) of SAFEMA (FOP) Act, 1976 which does not
recognize revocation of detention made under section 11
(1) of the COFEPOSA Act, 1974.
Further, the Supreme Court of India in the case of Union of
India Vs. Mohan Lal Lakumal Punjabi & Ors [2004 (166)
E.L.T. 296 (SC) = 2004 (3) SCC 628] has observed as
under: -
"SAFEMA applies when the revocation is based on
the report of the Advisory Board. As the factual
position noted goes to show that the revocation was
only in terms of Section 11 (1) (b) of COFEPOSA,
such revocation when done by the Central
Government as in this case is really unrelated to a
report of the Advisory Board."
In the case of A.P., Late Sh. H.K. Sarin detention order
was issued within the Emergency period. After lifting of
emergency and before proceeding with forfeiture
proceedings on the basis of first show cause notice dated
20.04.1980 opinion was also sought from Law Ministry
about applicability of proceedings under SAFEMA (FOP)
W.P.(CRL) 1606/2008 Page 4
Act, 1976 in the cases of persons who remained absconder
and detention order issued was never served on them. In
response, the Law Ministry has opined that revocation of
the order of detention under section 12A of the
COFEPOSA Act because of the lifting of the Emergency
will not render the SAFEMA inapplicable to a person in
respect of whom an order of detention had been made
under section 12A of the COFEPOSA Act.
From the above facts and legal position, the claim that
proceedings under SAFEM (FOP) Act, 1976 ceases to
apply does not hold good. For your consideration, copy of
the advice taken from Ministry of Law is annexed."
6. The petitioner challenges the final orders of SAFEMA and the
decision of the appellate authority contending that their initiation itself
was a nullity. It is firstly contended that the detention order was never
executed or given effect to during the lifetime of Late Shri Sarin and
instead was revoked on 21.03.1977. Learned counsel highlighted that
since the detention order itself was not executed, the consequential
action under SAFEMA was unsustainable. It was next urged that the
effect of the revocation - by reason of Section 12A of the COFEPOSA
is that proceedings under SAFEMA could not have been initiated at
all. Learned counsel stated that this meant that the proceedings were a
nullity. In support of this contention it was stated that Section 12A
detention orders constituted a class in themselves because the ordinary
statutory safeguards mandated under provisions of Section 3 of
COFEPOSA, i.e., finiteness in point of time for their validity and
more importantly the detaining authority's decision being subject to
review by an Advisory Board was unavailable for the duration of
Emergency. Learned counsel highlighted that the detention order in
the case of Late Shri Sarin was made when the emergency was in
W.P.(CRL) 1606/2008 Page 5
force, i.e., from 25.06.1975 to 21.03.1977. Since the detention order
was made on 12.07.1975 and was revoked on 21.03.1977, it clearly
fell into the description of detention orders for which no SAFEMA
proceedings could have been validly initiated by virtue of the third
proviso to Section 2 (2) (b) of the latter enactment, i.e., SAFEMA.
7. In the counter affidavit, the respondents have sought to outline
the various pre-judicial activities which led to the detention order
being issued against Shri Sarin on 12.07.1975. It was contended in
addition that he was an individual covered by Section 2 (2) (b) of
SAFEMA and that the forfeiture orders made were preceded by show
cause notice and therefore, valid proceedings. It was also argued that
the submission with respect to validity of the orders under SAFEMA
is without any force because the revocation order of 21.03.1977 was
under Section 11 of the COFEPOSA and not under Section 12A.
8. During the course of hearing, learned counsel for the
respondents produced a copy of the revocation order, relevant part of
which reads as follows: -
"DELHI ADMINISTRATION: DELHI
No.F.5/15/77-Home (P.II) (V) Dated the 21st March, 1977
ORDER
In exercise of the powers conferred by sub-section (1) of
Section 11 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, the
Administrator of the Union Territory of Delhi, hereby
revokes the detention orders in respect of the following
persons: -
W.P.(CRL) 1606/2008 Page 6
1. Shri Hari Kishan Sarin,
S/o Late Lala Durga Parshad Sarin
R/o 3378, Christian Colony,
New Delhi.
XXX XXX XXX
By order and in the name of the Administrator
Sd/-
(T.R. KALIA)
DEPUTY SECRETARY (HOME)
DELHI ADMINISTRATION: DELHI"
9. For a better appreciation of the controversy, it would be
necessary to extract the relevant statutory provisions. The relevant
provision, Section 2 of SAFEMA, so far as relevant reads as follows:
"Section 2. Application-
(1) The provisions of this Act shall apply only to the
persons specified in sub-section (2).
(2) The persons referred to in sub-section (1) are the
following namely :-
(a) every person -
(i) who has been convicted under the Sea Customs Act,
1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of
an offence in relation to goods of a value exceeding one
lakh of rupees; or
(ii) who has been convicted under the Foreign Exchange
Regulation Act, 1947 (7 of 1947), or the Foreign Exchange
Regulation Act, 1973 (46 of 1973), of an offence, the
amount or value involved in which exceeds one lakh of
rupees; or
W.P.(CRL) 1606/2008 Page 7
(iii) who having been convicted under the Sea Customs Act,
1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962),
has been convicted subsequently under either of those Acts;
or
(iv) who having been convicted under the Foreign
Exchange Regulation Act, 1947 (7 of 1947), or the Foreign
Exchange Regulation Act, 1973 (46 of 1973), has been
convicted subsequently under either of those Acts;
(b) every person in respect of whom an order of detention
has been made under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act,
1974 (52 of 1974):
Provided that -
(i) such order of detention, being an order to which the
provisions of Section 9 or section 12A of the said Act do
not apply, has not been revoked on the report of the
Advisory Board under Section 8 of the said Act or before
the receipt of the report of the Advisory Board or before
making a reference to the Advisory Board; or
(ii) such order of detention, being an order to which the
provisions of Section 9 or section 12A of the said Act do
not apply, has not been revoked before the expiry of time
for, or on the basis of the review under sub- section (3) of
Section 9, or on the report of the Advisory Board under
Section 8, read with sub-section (2) of Section 9, of the said
Act; or
(iii) such order of detention, being an order to which the
provisions of Section 9 or section 12A of the said Act do
not apply, has not been revoked before the expiry of time
for, or on the basis of, the first review under sub-section
(3) of that Section, or on the basis of the report of the
Advisory Board under Section 8, read with sub-section (6)
of Section 12A, of that Act; or
(iv) such order of detention has not been set aside by a
court of competent jurisdiction.:
W.P.(CRL) 1606/2008 Page 8
Section 9 of COFEPOSA reads as follows:
"9. Cases in which and circumstances under which
persons may be detained for periods longer than three
months without obtaining the opinion of Advisory Board.
(1) Notwithstanding anything contained in this Act, any
person (including a foreigner) in respect of whom an order
of detention is made under this Act at any time before the
31st day of July, 1999, may be detained without obtaining,
in accordance with the provisions of sub-clause (a) of
clause (4) of Article 22 of the Constitution, the opinion of
an Advisory Board for a period longer than three months
but not exceeding six months from the date of his detention,
where the order of detention has been made against such
person with a view to preventing him from smuggling
goods or abetting the smuggling of goods or engaging in
transporting or concealing or keeping smuggled goods and
the Central Government or any officer of the Central
Government, not below the rank of an Additional Secretary
to that Government, specially empowered for the purposes
of this section by the Government, is satisfied that such
person
(a) smuggles or is likely to smuggle goods into, out of or
through any area highly vulnerable to smuggling; or
(b) abets or is likely to abet the smuggling of goods into,
out of or through any area highly vulnerable to smuggling;
or
(c) engages or is likely to engage in transporting or
concealing or keeping smuggled goods
in any area highly vulnerable to smuggling, and makes a
declaration to that effect within five weeks of the detention
of such person."
Section 11(1) of COFEPOSA reads as follows:
"11. Revocation of detention orders -
W.P.(CRL) 1606/2008 Page 9
(1) Without prejudice to the provisions of Section 21 of the
General Clauses Act, 1897, a detention order may, at any
time, be revoked or modified -
(a) notwithstanding that the order has been made by an
officer of a State Government, by that State Government or
by the Central Government;
(b) notwithstanding that the order has been made by an
officer of the Central Government, or by a State
Government by the Central Government."
Section 12-A of COFEPOSA, which is relevant for this case, reads as
follows:
"12A. Special provisions for dealing with emergency.
(1) Notwithstanding anything contained in this Act or any
rules of natural Justice, the provisions of this section shall
have effect during the period of operation of the
Proclamation of Emergency issued under clause (1) of
Article 352 of the Constitution on the 3rd day of December
1971, or the Proclamation of Emergency issued under that
clause on the 25th day of June, 1975, or a period of twenty-
four months from the 25th day of June, 1975, whichever
period is the shortest.
(2) When making an order of detention under this Act
against any person after the commencement of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Amendment) Act, 1975, the Central
Government or the State Government or, as the case may
be, the office making the order of detention shall consider
whether the detention of such person under this Act is
necessary for dealing effectively with the emergency in
respect of which the Proclamations referred to in sub-
section (1) have been issued (hereafter in this section
referred to as the emergency) and if, on such
consideration, the Central Government or the State
Government or, as the case may be, the officer is satisfied
that it is necessary to detain such person for effectively
W.P.(CRL) 1606/2008 Page 10
dealing with the emergency, that Government or officer
may make a declaration to that effect and communicate a
copy of the declaration to the person concerned:
Provided that where such declaration is made by an
officer, it shall be reviewed by the appropriate Government
within fifteen days from the date of making of the
declaration and such declaration shall cease to have effect
unless it is confirmed by that Government, after such
review, within the said period of fifteen days.
(3) The question whether the detention of any person in
respect of whom a declaration has been made under sub-
section (2) continues to be necessary for effectively dealing
with the emergency shall be reconsidered by the
appropriate Government within four months from the date
of such declaration and thereafter at intervals not
exceeding four months, and if, on such reconsideration, it
appears to the appropriate Government that the detention
of the person is no longer necessary for effectively dealing
with the emergency, that Government may revoke the
declaration.
(4) In making any consideration, review or reconsideration
under sub-section (2) or (3), the appropriate Government
or officer may, if such Government or officer considers it
to be against the public interest to do otherwise, act on the
basis of the information and materials in its or his
possession without disclosing the facts or giving an
opportunity of making a representation to the person
concerned.
(5) It shall not be necessary to disclose to any person
detained under a detention order to which the provisions of
sub-section (2) apply, the grounds on which the order has
been made during the period the declaration made in
respect of such person under that sub-section is in force,
and, accordingly, such period shall not be taken into
account for the purposes of sub-section (3) of section 3.
W.P.(CRL) 1606/2008 Page 11
(6) In the case of every person detained under a detention
order to which the provisions of sub-section (2) apply,
being a person in respect of whom a declaration has been
made there under, the period during which such
declaration is in force shall not be taken into account for
the purpose of computing-
(i) the period specified in clauses (b) and (c) of section 8;
(ii) the periods of "one Year" and "five weeks" specified in
subsection (1), the period of "one-year" specified in sub-
section (2)(i), and the period of "six months" specified in
sub section (3), of section 9."
10. Interpreting provisions of SAFEMA, a larger, nine judge
Bench decision of the Supreme Court, in Attorney General for India
and Ors. v. Amratlal Prajivandas and Ors. (1994) 5 SCC 54 held as
follows:
"56. To summarise:
(1) 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 39th and
40th Amendment Acts to the Constitution of India placing
COFEPOSA and SAFEMA in the Ninth 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.
(3) (a) An order of detention made under Section 3 of
COFEPOSA, which was governed by Section 12-A 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
Parliament, by virtue of clause (]-A) of Article 359 to enact
Section 12-A of COFEPOSA for the duration of and limited
to the period for which the Presidential Order was in force.
W.P.(CRL) 1606/2008 Page 12
It was meant to achieve the purposes of emergency. Once
Section 12-A 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] protection
enjoyed by both the enactments by virtue of their inclusion
in the Ninth Schedule to the Constitution."
11. The respondents' argument is that having unsuccessfully
challenged the detention order (under COFEPOSA), it is not now open
to the petitioner to challenge the SAFEMA proceeding and order. The
petitioner, on the other hand, urges that the detention order was never
served on late Shri Sarin and that the occasion for challenging it never
arose; it is also argued that the revocation in this case, was made
before the expiry of the original period of detention, attracting the
third proviso to Section 2(2)(b) of SAFEMA, so as to exclude its
operation altogether.
12. By virtue of Section 2(2) (b) of SAFEMA, jurisdiction extends
to every person against whom a COFEPOSA detention order "has
been made". However, the third proviso (to Section 2 (2) (b))
specifically excepts its operation those against whom orders of
detention are made under Section 12-A of COFEPOSA if:
(a) orders of detention are not revoked before expiry of time (for such
detention); or
(b) orders of detention are revoked on the basis of first review; or
W.P.(CRL) 1606/2008 Page 13
(c) revocation of detention is on the basis of the report of the Advisory
Board, under Section 8 read with Section 12A (6).
Now, a detention order under Section 12A - as noticed in Amritlal
Prajivandas (supra) - was made under extraordinary circumstances,
when Fundamental Rights were suspended. The non-obstante clause
in Section 12-A overrode other safeguards which every individual was
assured before a valid detention order could be issued, i.e.
recommendation and review by Advisory Boards as essential
preconditions. Such orders made by virtue of Section 12A,
importantly, were to be in force for the duration of Emergency, i.e. till
the Proclamation lasted, or for two years (twenty four months) from
the date of the order, whichever was shorter. In the present case, the
detention order was apparently made on 12.07.1975 i.e. after the
Proclamation of Emergency was issued on 25.06.1975. Therefore, late
H.K. Sarin's detention order fell into the category of those which were
made under Section 12-A (1). It was to be in force, in terms of that
provision, for the duration of the Emergency, or twenty four months,
whichever was shorter. The Emergency was lifted and the
Proclamation rescinded on 21.03.1977; the same day, pursuant to the
mandate of Section 12-A, Shri Sarin's detention order was revoked.
These facts show that the first contingency envisioned in the third
proviso to Section 2(2) (b) of SAFEMA, "such order of detention,
being an order to which the provisions of Section 12A of the said Act
apply, has not been revoked before the expiry of the time for..." was
fulfilled. In other words, the detention order of Shri Sarin was an
Emergency detention order, and ran its course and thus fell within the
description of one which had not been revoked before the expiry of its
W.P.(CRL) 1606/2008 Page 14
time. It was revoked - and got revoked by operation of law, upon the
cessation of the Emergency, itself, due to Section 12A (1) - of
COFEPOSA.
13. This court is also aware of the fact that Shri Sarin was never
served with the detention order, nor even made aware of it ever,
during the time it was in force. The respondents were unable to show
any material to say that they tried to serve it upon him, and that he
could have in any manner known of its existence, in order to challenge
it. In these circumstances, it was impossible for him to impugn it, for
the period July 1975 to March 1977. Once the Emergency was
revoked, and the detention order suffered a similar fate, there was no
manner for him again to challenge the detention order as it had no
consequence. Another very important aspect is that when the
Emergency was in force, individuals whose personal liberty was
forfeited under preventive detention laws, such as COFEPOSA, were,
by reason of the Proclamation of Emergency, prevented from asserting
their Fundamental Rights. Initially nine High Courts held that
notwithstanding this position, orders of detention could be challenged
under Article 226 of the Constitution of India. However, the Supreme
Court held that such petitions were not maintainable; effectively
barring even the writ remedy to those aggrieved against detention
orders, in A.D.M. Jabalpur v Shiv Kant Shukla AIR 1976 SC 1207.
14. The submission of the respondents that the revocation order in
the present case was not under Section 12-A, but under Section 11 is
of not much consequence. The only power of revocation which could
have been sought recourse to, by the Central Government, under
W.P.(CRL) 1606/2008 Page 15
COFEPOSA, during Emergency, in respect of orders under Section
12-A, was under Section 12-A (3) after review and recommendation to
release the detenu. That class of detention orders too stood excluded
by virtue of Section 2 (2) (b) third proviso; however, the first category,
i.e. those detention orders that had not been revoked before cessation
of Emergency, could have been revoked only under Section 11 of
COFEPOSA.
15. In the light of the foregoing discussion, it is held that the
revocation of the detention order, in the present case, clearly fell
within third proviso to Section 2 (2) (b) and was thus excluded from
exercise of jurisdiction under SAFEMA. The writ petition has to
consequently succeed; the orders of the competent and appellate
authority are hereby quashed. The writ petition is allowed in the above
terms without any order as to costs.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
DECEMBER 1, 2014
W.P.(CRL) 1606/2008 Page 16
