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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO.1479 OF 2008
Smt. Sughrabai Sadruddin
Chunara, Age 67 years,
an Indian inhabitant,
residing at 104, Megji
Building, A-Block, 2nd
Floor, Room No.25,
Shivdas Chapsi Marg,
Mazgaon, Mumbai-400 010.
ig .... Petitioner
- Versus -
1. The Union of India
through the Secretary
to the Government of
India, Ministry of
Finance, Department of
Revenue, North Block,
Central Secretariat,
New Delhi.
2. Shri D.S. Negi,
the Competent Authority
under the SAFEMA. having
his office at Mittal
Court, C-Wing, 3rd
Floor, Nariman Point,
Mumbai-400 021.
3. The State of Maharashtra
through the Secretary
to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai-32.
4. Ms Neela Satyanarayana,
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the Principal Secretary
(Appeals and Security)
to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai-32. .... Respondents
Ms A.M.Z. Ansari for the Petitioner.
Ms A.S. Pai, Addl. Public Prosecutor,
for the State.
CORAM: BILAL NAZKI &
A.R. JOSHI, JJ.
RESERVED ON : SEPTEMBER 18, 2009
PRONOUNCED ON: NOVEMBER 09, 2009
JUDGMENT (Per Bilal Nazki, J.):
1. The petitioner is the mother of one
Sadik Sadruddin Chunara. Against the said
Sadik, an order of detention has been issued on
31-10-2005 in terms of Section 3(1) of the
Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (hereinafter
referred to as “the COFEPOSA”) by the Competent
Authority. This order has neither been revoked
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nor quashed. On 25-1-2008, a Notice in terms
of Section 6(1) of the Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property)
Act, 1976 (hereinafter referred to as “the
SAFEMA”) was issued against the petitioner and
her son Sadik by the Competent Authority
wherein it was mentioned that on 31-10-2005 an
order was
passed for detaining Sadik. The
petitioner was informed that she was a person
covered under Section 2(2)(b) of the SAFEMA
and, therefore, there were reasons to believe
that the property set out in the schedule to
the Notice was an illegally acquired property
within the meaning of clause (c) of sub-section
(1) of Section 3 of the SAFEMA. The petitioner
was called upon to show cause as to why the
said property should not be declared to be
illegally acquired and forfeited to the Central
Government.
2. The petitioner claims an independent
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right to challenge the order of detention
passed against Sadik as the said order is the
basis for issuance of the Notice under Section
6(1) of the SAFEMA and visits her with civil
consequences.
3. The order of detention has been
challenged
by the petitioner on various
grounds. The petitioner's son was arrested
along with one Dattatraya Chandrakant Bodke on
4-3-2005 for their alleged involvement in
smuggling activities. The petitioner’s son was
released on bail on 6-4-2005. The seizure of
the alleged offending goods was effected on
26-2-2005. Statements alleged to have been
made by the petitioner’s son were recorded on
3-3-2005, 7-3-2005, 16-3-2005 and 29-4-2005.
The petitioner’s grievance is that even though
the crucial part of the investigation in the
case qua the son of the petitioner was
completed in April, 2005, the order of
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detention was passed only on 31-10-2005, that
is to say there was an undue delay of six
months in passing the order of detention and
within this period if there were any links of
the petitioner’s son with any smuggling
activity, those had been cut off. The
petitioner does not have either the copy of the
order of detention or the grounds of detention
passed against her son but she assumes that the
grounds of detention and the order of detention
would be same as is passed in the case of the
said Bodke as her son and Bodke were arrested
on similar allegations. The petitioner submits
that the order of detention passed by the
detaining authority with respect to Bodke does
not record satisfaction of the detaining
authority that the detenu was involved in
smuggling and as such the order of detention
was bad. She presumes that such defect was
there in the order so passed against the
petitioner’s son as well. Counter affidavits
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have been filed in which it is stated that the
writ petition has been filed at a pre-execution
stage and the detenu has not surrendered and is
absconding. Therefore, the writ petition is
not maintainable. It is also stated that all
the material which was placed before the
detaining authority was considered by the
detaining
authority before the order of
detention came to be passed. It is denied that
there was any undue delay in passing the order
of detention. In the light of these pleadings,
two questions arise for consideration by this
Court. Firstly, whether the present petition
is maintainable or not and secondly, if the
petition is maintainable, whether the order of
detention passed against the son of the
petitioner can be quashed?
4. The Notice under Section 6(1) of the
SAFEMA was issued on 25-1-2008. While in para
1 thereof it is stated that an order had been
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passed on 31-10-2005 under Section 3(1) of the
Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 against Sadik
Sadruddin Chunara, in para 2 it is stated that
since the petitioner was the mother of Sadik,
therefore, she was covered under the provisions
of Section 2(2)(c) of the SAFEMA. The basis
for issuance of the Notice under Section 6(1)
is the order of detention passed against Sadik
on 31-10-2005. The learned counsel appearing
for the petitioner, therefore, submits that if
she is able to demonstrate that the order of
detention was illegal and bad, the
consequential notice, which is impugned in the
present petition, will have to be quashed.
Otherwise, the petitioner will suffer as her
son has not chosen to challenge the order of
detention. The learned APP, on the other hand,
submits that it is not possible to challenge an
order of detention prior to detention except on
the limited grounds, as has been held by the
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Supreme Court in the matter of Additional
Secretary to the Government of India and others
v. Smt. Alka Subhash Gadia and another,
reported in (1992) Supp 1 SCC 496. She further
submits that merely because the petitioner may
suffer some civil consequences, she cannot
challenge the order of detention at a pre-
detention stage.
ig Various authorities have been
cited. Before considering those authorities,
it will be important to refer to certain
provisions of the SAFEMA.
5. Section 2 lays down the category of
the persons to whom the SAFEMA would apply. We
are concerned with Clauses (b) and (c) of
Section 2(2). While Clause (b) lays down that
every person in respect of whom an order of
detention has been made under the COFEPOSA
would be subject to the SAFEMA and the Act
would apply to him/her, Clause (c) says that
every person who is a relative of a person
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referred to in Clause (b) would also be subject
to the SAFEMA and the Act would apply to
him/her. Therefore, it follows that since an
order of detention was passed against the son
of the petitioner, the Notice under Section
6(1) of the SAFEMA could be issued to her. Had
there been no order of detention passed against
the son of the petitioner, the Notice under
Section 6(1) could not have been issued unless
it had satisfied some other provisions of
Section 2. Further, under sub-section (2)(b)
(iv) of Section 2, the Act would not apply if
such an order of detention has been set aside
by a Court of competent jurisdiction.
Therefore, the learned counsel for the
petitioner submits that if she is able to
convince the Court that the order of detention
was illegal and bad, the SAFEMA would not at
all apply to the petitioner. The application
of the SAFEMA, in the present case, is
dependent on the legality or otherwise of the
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order of detention. The learned counsel has
relied on various judgments of this High Court
to submit that a person who is affected by an
order of detention has an independent right to
challenge such order of detention without even
asking for a habeas corpus. She refers to a
Division Bench Judgment of this Court delivered
in Criminal
igWrit Petition No.1380 of 1986
{Mohideen Tayab Sony v. K.K. Dwivedi & Ors.} on
20-8-1987. The Division Bench relied on two
judgments, the first being in the case of
Jayantilal Bhagwandas Shah v. State of
Maharashtra {1981 Cri.L.J. 767} and the other
in Criminal Writ Petition No.622 of 1982, dated
21-11-1983. According to the Division Bench,
the effect of these two authorities is that
the legality of an order of detention can be
questioned where the claimants do not want
Court to issue writs of habeas corpus. The
learned counsel has also drawn our attention to
various orders passed by the Supreme Court
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where the orders of detention were challenged
but the State made a submission that they would
not proceed under the SAFEMA. These orders
would not be a precedent for this Court to be
followed. In Criminal Writ Petition No.1379 of
1991, an order was passed by this Court on the
assurance of the State that they will not
proceed against the petitioner under the SAFEMA
but an observation was made that the petitioner
was not challenging the order of detention in
her representative capacity as the wife of
detenu-designate. The learned APP, on the
other hand, has placed reliance on a judgment
of the Supreme Court delivered by a Bench of
Nine Judges in Attorney General for India and
others v. Amratlal Prajivandas and others,
reported in AIR 1994 SC 2179. This was a case
which fell under Section 12-A of the COFEPOSA,
a provision applicable during emergency.
Orders of detention and forfeiture of
properties had been passed during the emergency
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and they were challenged after the lifting of
emergency as the orders could not have been
challenged during the emergency because of a
judgment of the Supreme in Additional District
Magistrate, Jabalpur v. Shivakant Shukla,
reported in (1976) 2 SCC 521. The Supreme
Court framed as many as six questions and
answered these questions in the light of the
fact that the impugned orders had been passed
during the emergency. Para 35 of the said
judgment mentions the respective cases of the
parties before the Supreme Court. The said
para reads thus:
“35. On the other hand, the learned
counsel for the petitioners contend
that the order of detention made
under S.3 read with S.12A of
COFEPOSA is void for being
inconsistent with the provisions inArt.22 which were not suspended.
The mere suspension of enforcement
of the said Article does not amount
to suspension of the right. The
orders of detention were, therefore,
void and they remained in operation
only because the detenus were barred
from questioning the validity of the
said orders on account of the ban
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that the detention orders governed
by S.12A of COFEPOSA are inherently
arbitrary and unjust. An order ofpreventive detention is made without
even telling the detenu of the
grounds of his detention and without
giving him an opportunity to make arepresentation. Even the protection
of consideration of his case by an
independent body (Advisory Board) is
taken away. The detenu is rendered
totally helpless. He is left withno remedy. He cannot prove his
innocence.
ig Such an order of
detention is opposed to all concepts
of fairness, civilised conduct and
democratic norms. They submit thatsuch orders cannot form the
foundation or the basis for applying
SAFEMA to them. Their argument is
evocative of what Justice Cardozoonce said: “We must always take
care to safeguard the law againstthe assaults of opportunism, the
expediency of the passing hour, the
erosion of the small encroachments,
and the scorn and derision of thosewho have no patience with general
principles.”
It further said:
“36. The contending view points
aforesaid give rise to two strands
of thought. One line of thought
runs thus: By virtue of Cl.(A) of
Art.359, inserted by the
Constitution 38th (Amendment) Act
with retrospective effect, S.12A
must be deemed to have been
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period of the Presidential Order.
If so, the detention thereunder
cannot be said to be invalid. While
the order of detention cannot
certainly subsist beyond the
cessation of the Presidential Order
because S.12A cannot itself subsist
beyond each cessation, neither S.12A
nor the order of detention governed
by it can be characterised as
illegal or invalid during the period
the Presidential Order was in force.
Once this is so, such order of
detention does undoubtedly represent
an order of detention within the
meaning and contemplation of S.2(2)
(b) of SAFEMA. That it was not open
to challenge during the period of
the Presidential Order, or that it
was not subject to the
constitutional safeguards provided
by Art.22 does not affect its
validity or legality. It was a
valid order of detention when made.
It is not being enforced or acted
upon beyond the period of
Presidential Order. Since it is an
existing fact, it is merely being
taken notice of – and that is enough
to attract SAFEMA to such detenu,
his relatives and associates. S.
2(1) of SAFEMA says, “the provisions
of this Act shall apply only to the
persons specified in sub-sec.(2)”
and sub-sec.(2) speaks inter alia of
a person “in respect of whom an
order of detention has been made
under the COFEPOSA, 1974”. Indeed,
provisos (i), (ii) and (iii) to Cl.
(b) of sub-sec.(2) of S.2 of SAFEMA
expressly refer to the order of
detention made under S.12A and
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expressly affirm that such an order
of detention is an order of
detention for the purposes of the
said clause. The fact remains that
provisions of SAFEMA were enacted in
the first instance as an Ordinance
issued on 5th November, 1975, i.e.,
during the period of emergency and
later enacted into an Act and given
effect from the date of the
Ordinance. An order of detention
governed by S.12A of COFEPOSA must,
therefore, be held to be an order of
detention for the purpose of and
within the meaning of Section 2(2)
(b) of SAFEMA. The other line of
reasoning goes along the following
lines: an order of detention
governed by S.12A is a special type
of order made for the limited
purpose of dealing effectively with
the emergency. It has no existence,
relevance or effect except for the
said limited purpose. Outside such
purpose, it is non est. It does not
exist. If so, such an order of
detention cannot furnish the
foundation, the connecting link, or
the basis for applying SAFEMA. A
normal order of preventive detention
is itself an uncivilized action. An
order of detention governed by S.12A
of COFEPOSA – denying as it does
even the minimum safeguards provided
by Cls.(4) and (5) of Art.22 – is an
abhorrent action. It may be
tolerated as a cruel necessity when
the very life of the Nation is
threatened but it cannot certainly
be recognised or taken note of for
any other purpose – much less made
the basis of applying an extremely
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drastic enactment like SAFEMA.
Treating such order of detention as
an order of detention for the
purpose of and within the meaning of
S.2(2)(b) of SAFEMA amounts to
enforcing or giving effect to the
said order of detention beyond and
outside the period of emergency and
for purposes foreign to emergency.
This is totally impermissible. S.
12A does not sanction this – though
it sanctions a lot many things.”
This judgment,
ig however, takes note of an
earlier judgment of the Supreme Court in the
matter of Union of India v. Haji Mastan Mirza,
reported in AIR 1984 SC 681. In this judgment,
the Supreme Court observed thus:
"Therefore, a valid order of
detention under COFEPOSA is a
condition precedent to proceedings
being taken under Ss.6 and 7 of
SAFEMA. If the impugned order of
detention dated 19-12-1974 is set
aside for any reason, the
proceedings taken under Ss.6 and 7
of SAFEMA cannot stand. Therefore,
we have to consider whether the
impugned order of detention dated
19-12-1974 under COFEPOSA is void
and has to be quashed.”
The Court did not find itself in agreement with
these observations in the facts and
circumstances of the case because the order of
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detention although had been passed before the
emergency, but it was challenged after the
emergency and after Section 12-A of the
COFEPOSA had come into force. The Court said,
“Hence, we say that a person who did
not choose to challenge such an
order of detention during the
emergency when he was detained, or
challenged it unsuccessfully cannot
be allowed to challenge it is sought
to be made the basis for applying
SAFEMA to him.”
Then it also said,
“Failure to challenge the detention
directly when he was detained,
precludes him from challenging it
after the cessation of detention,
where it is made the basis for
initiating action under SAFEMA.”
Therefore, we are of the view that this
judgment would not apply to the facts of the
present case.
6. In any case, the petitioner herein
might not have been aggrieved by the order of
detention as such but she is aggrieved by the
Notice issued to her under Section 6(1) of the
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SAFEMA. Therefore, after the Notice was
issued, she has immediately challenged the
order of detention.
7. In view of the discussion as above, we
hold that a person who is aggrieved by the
application of the SAFEMA to him/her consequent
to passing
ig an order of detention under the
COFEPOSA, such a person has an independent
right to challenge the order of detention,
although such person may not seek a writ of
habeas corpus. After holding as above, it will
have to be seen whether the order of detention
is bad.
8. Only one ground was agitated by the
learned counsel for the petitioner, as has been
mentioned above, that there was undue delay in
passing the order of detention. The petitioner
could not have pointed out other defect, if
any, because she did not have the grounds of
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detention.
9. We called for the record of the case
and have also gone through the same. The
record shows that the Deputy Director, DRI,
MZU, Nhava Sheva Unit, Raigad wrote a letter on
23-6-2005 in which he proposed preventive
detention
of the son of the petitioner.
According to this letter, the date of seizure
was 4-3-2005 and the date of arrest was also
4-3-2005. This letter also shows the date of
the last statement recorded under Section 108
of the Customs Act as 29-4-2005. A retraction
of the statement by the detenu was made on
10-3-2005. The record also shows that after
the letter was scrutinized in the office of the
detaining authority, it was found that the
documents relied upon and furnished along with
the letter at page Nos.61, 168, 235, 246, 252,
354, 360, 363, 378, 393, 401, 417, 480 and 606
were not legible. When a note was put to the
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detaining authority, it went through the normal
channel of the Under Secretary and the Deputy
Secretary and the Deputy Secretary on 16-7-2005
made a note that, “The legible documents should
be called as at ‘A’ from S.A.”. Two things are
clear from this note: firstly, that for
scrutiny of the application moved by the Deputy
Director, it
ig took about two months in the
office of the Principal Secretary (A&S) & D.A.
and secondly, the copies of the relied upon
documents were not legible. Thereafter, it
appears that the file was put up again on
6-8-2005 by the Under Secretary with the note
that the copies of the documents which were
called for were furnished except the legible
copy of page No.606. It was also pointed out
that the proposed detenu had made a
representation on 26-7-2005 which was being
considered. The file was put up before the
Principal Secretary (A&S) & D.A. on 22-9-2005
and it has the following note:
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“Discussed with the P.S.(A&S) & D.A.
D.A. instructed to prepare a
detailed note showing evidences &corroborative evidences of the
involvement of the P.D.”
The file was again put up by the Deputy
Secretary before the detaining authority on
4-10-2005. Although the entire material was
before him, but he found that the proposed
detenu had
made another representation on
3-10-2005. Therefore, he called for a detailed
note showing evidences and corroborative
evidences of the involvement of the proposed
detenu. Ultimately, on 19-10-2005 when another
note was placed before the detaining authority,
she recorded that,
“There appears to be enough evidence
to detain the PDs. Shri Chunara &
Shri Bodke. Detention Orders be
issued.”
Now this is interesting.
10. Section 3 of the COFEPOSA lays down
that the detaining authority should be
satisfied that, with a view to preventing a
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person from acting in any manner prejudicial to
the conservation or augmentation of foreign
exchange or with a view to preventing such
person from indulging in certain acts, it was
necessary so to do, make an order directing
that such person be detained. Perusal of
Section 3 clearly discloses that the detaining
authority before making an order directing that
a person be detained, should be satisfied that
such person was acting in the manner
prejudicial to the conservation or augmentation
of foreign exchange or was involved in
smuggling of goods, or abetting the smuggling
of goods, or engaging in transporting or
concealing or keeping smuggled goods, or
dealing in smuggled goods otherwise than by
engaging in transporting or concealing or
keeping smuggled goods, or harbouring persons
engaged in smuggling goods or in abetting the
smuggling of goods and such satisfaction should
be recorded on the file. This satisfaction can
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be arrived at only after the grounds of
detention have been formulated by the detaining
authority. In the case in hand, when the
detaining authority on 19-10-2005 directed the
issuance of detention orders, there were no
grounds formulated. It is also unfortunate to
note that the detaining authority did not even
apply her
mind to formulate or frame the
grounds of detention because the note put up to
the Under Secretary on 25-10-2005, obviously by
a person lower in rank to the Under Secretary,
reads as under:
“As directed by the Detaining
Authority draft grounds of detention
in respect of Shri Sadik Chunara areformulated and submitted for
approval of the Detaining
Authority.”
From the above it is clear that the grounds of
detention were formulated by a person below the
rank of Under Secretary. The application of
mind is by the person of such a rank and not by
the detaining authority. The Under Secretary,
the Deputy Secretary and the detaining
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authority merely singed this note and on
31-10-2005 another note was submitted to the
detaining authority which reads thus:
“Relied upon documents are arranged.
Fair copies of detention order,
grounds of detention are submitted
for signature of the Detaining
Authority.”
11. From the above discussion, it appears
that there was undue and unexplained delay in
issuing the order of detention and also there
was non-application of mind by the detaining
authority. Therefore, the order of detention
bearing No.PSA-1205/12(2) SPL-3(A), dated
31-10-2005, and the proceedings initiated
pursuant to the Notice dated 25-1-2008, issued
under Section 6(1) of the SAFEMA, are quashed
and set aside. The rule is made absolute in
above terms with no order as to costs.
Sd/-
(BILAL NAZKI, J.)
Sd/-
(A.R. JOSHI, J.)
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