JUDGMENT
Syed Haider Shaukat Abidi, J.
1. Petitioner, M/s. Kapildeo Singh and Company has filed this petition under Articles 226 and 227 of the Constitution of India for quashing (?) notice dated 3-3-1980 issued by the competent authority, Calcutta (Respondent No. 4) under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1-7.5 (hereinafter to be referred as SAFEMA) contained in Annexure-1, (2) the order, dated 14-1-1986 passed by the competent authority, Calcutta (Respondent No. 4) under Section 7(i) and (3) of SAFEMA contained in Annexure 6 and (3) the order 20-4-87 passed by the Appellate Tribunal for forfeited property, New Delhi (Respondent No. 3) under Section 7(1) of SAFEMA contained in Annexure 7 to this writ petition.
2. It has been stated in the petition that a partnership firm, namely, Kapildeo Singh and Company was started on 15th January, 1973 with 12 partners. The actual deed of partnership was executed on 28-2-1973 and it was registered under the Income Tax Act. Out of 12 partners, Kapildeo Singh had 9 per cent share each in the profit and loss, while 8 others had 8 per cent share each. The firm has got its office at Khorampur, P.S. Matihani, District Begusarai. One of the partners Bhushan Chaudhary had been ousted by the firm along with his all interest etc. Bhushan Chaudhary had been seized from the partnership of the said firm on the basis of the notice under Section 6(1) of the SAFEMA issued to him by the competent authority, Calcutta, respondent 4. In 1977. Rajnity Chaudhary one of the partners died and subsequently a fresh partnership deed was executed on 1-11-1980 and only ten partners continued in the said firm. On 3-3-1980, the officer on special duty, competent authority Calcutta issued a notice under Section 6(1) of the SAFEMA in the name of M/s. Kapildeo Singh and Company asking the firm to explain the source of income, earnings or assets out of which or by means of which the same have acquired the property/properties, the evidence on which the other relevant information and particulars and to show cause why the aforesaid property/properties should not be held to be illegally acquired property/properties and forfeited by the Central Government under the said Act. On 16-4-1980, Kapildeo Singh on behalf of the firm sent a reply in the form of show cause to the competent. authority (respondent No. 4) saying that the firm did not come within the purview of the said Act as it is registered firm under Section 185(1) of the Income Tax Act, and the assessment has already been completed upto assessment year 1978-79 and the matter has been explained and accepted by the Income Tax Officer, Begusarai. On 19-1-1978 the firm deposited Rs. 98,000/-in the State Bank of India. Begusarai being income from the other sources. The Income Tax Officer, Begusarai has taken the amount as income from other sources against which an appeal had been filed before the Appellate authority. Further, it was said that the Company has got account in the State Bank of India Begusarai Branch and also at Katihar. Here, the Company has also its account in the Allahabad Bank. The competent authority did not accept the show-cause and issued notice under Section 6(1) of the SAFEMA on 3-3-1980 and then passed the order dated 14-1-1986, Annexure 6 said to be in contravention of the provisions of Section 2(1)(b) and 7(1)(3) of the Act and also ordered that all the assets of the firm shall stand forfeited to the Central Government. Against that order dated 14-1-1986, the firm filed an appeal before the Appellate Tribunal which affirmed the said order of 29 4-1987 Annexure 7. These orders were challenged on the grounds that the proceedings initiated under Section 6(1) of the SAFEMA were illegal, null and ab inito void and also unconstitutional, contrary to the provisions of Sections 2(1)(b) of the SAFEMA. Further, the detention order passed against Bhushan Chaudhary under Section 3(1) read with Section 12-A(2) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short to be referred as COFEPOSA), had been revoked and an information in respect thereof had been sent to the respondent No. 4 vide Annexure 5. The order contained in Annexure 6 as said, does not contain the finding of the maintainability of the proceedings initiated under Section 6(1) of the SAFEMA. The order of the Appellate Tribunal has been alleged to be illegal and, liable to be quashed,
3. In spite of notice being served upon respondents, only respondent No. 5, the Bank, has alone filed counter-affidavit to the effect that the petitioners have filed civil suit being Suit No. 28 of 1986 in the Court of the Subordinate Judge, Begusari practically for the same relief. It is said that the said suit was contested by the Bank by filing written statement and so, this petition was not maintainable. It was also said that a sum of Rs. 98,000/- was deposited by the petitioners through 98 currency notes of Rs. 1000/- which were subsequently credited in the current account of the firm. The said. Rs. 98,000/-were attached by the Commissioner of Income Tax, Patna on 4-5-1978 vide I.T.O. Begusarai letter No. 173, dated 4-5-1978 and subsequently a sum of Rs. 5,198/-was paid to the Income Tax Officer, Begusarai on 16-9-1978 in terms of I.T.O. Begusarai Letter No. 885, dated 13-9-1978 and the balance amount of Rs. 93,202/- were remitted to the Deputy Director, Competent Authority, Calcutta under COFEPOSA and so there is no amount in the account of the petitioners.
4. A reply to the said counter-affidavit has been filed saying that the title suit has been filed in the Civil Court for the recovery of the said amount in question and the Civil Court could not look to the validity of the orders contained in Annexures 1, 6 and 7 and further whatever has been remitted to the competent authority under the COFEPOSA, is illegal.
5. A preliminary objection had been raised by the learned Counsel for the State that the court of Patna has got no jurisdiction, as the notice was also issused from Calcutta by the Competent Authority and the order contained in Annexure 6 has been passed at Calcutta and so is the appellate order of Delhi. In support of his contention, learned Counsel referred to State of Rajasthan and Ors. v. Swaika Properties and Anr. AIR 1985 SC J 289 where it has been held at page 1292 (para 8): “The mere service of notice under Section 52(2) of the Act on the respondent at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at Jaipur Bench, The answer to the question whether the service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to cause of action. If the respodents felt aggrieved by the acquisition of their lands situate (sic) at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court Jaipur Bench where the cause of action wholly or in part arose,” But in the instant case, the factual aspect is that the amounts of money had been deposited, as alleged by the petitioners and also said in counter-affidavit by respondent, in the banks within the jurisdiction of the Patna High Court. So the learned Counsel for the State did not press this point any further.
6. The only contention of the learned Counsel for the petitioners was that since the earlier detention of the petitioner under the COFEPOSA has been revoked, the provisions SAFEMA did not apply. In support of his contention, he referred to the decision in Union of India v. Haji Mastan Mirza . As to this contention, undisputedly the detention order against Bhushan Chaudhary has been passed on 20-11-1976 whereunder he was detained on 21-11-1976, but the detention order was revoked on 23-3-1977. Annexure-5 to the petition is a letter from the Under Secretary, Government of Bihar, Home Department, Special Section to Amitava Gupta, Assistant Director, Competent Authority, Calcutta saying that in reference to his letter dated 13-4-1977 about the above subject i.e. detention under Section 12-Aofthe COFEPOSA a list of the detenus under Section 3(1) read with Section 12-A(2) of the COFEPOSA was being attached as the order of detention has been revoked. The name of the petitioner in the said list is in serial No. 70 at page 3 of the list. The impugned notice under Section 6(1) of the SAFEMA contained in Annexure-1, was issued on 3-3-1980 to the petitioner saying that Bhushan Chaudhary, the partner of the firm styled as Kapildeo Singh and Co. and order of detention was made on 20-11-1976 under the COFEPOSA in respect of Bhushan Chaudhary and the said order has not been revoked on the report of the Advisory Board nor the same has been set aside by the Court of competent jurisdiction and the partnership under the name and style of Kapildeo Singh and Co. of which Bhushan Chaudhary was a partner, is covered under Section 2(2)(d) of the SAFEM A. The said notice gives out the details of the activities on the basis of which notice had been issued. The competent authority passed the impugned order Annexure-6 dated 14-1-1986 and so the same has been upheld by the Appellate order (Annexure 7) dated 29-4-19 6. The Appellate order has dealt with, not only the contention about the validity of the order under the SAFEM A but also the questions of fact, which have not been challenged here before us. Under Article 352(1) of the Constitution, state of Emergency was declared on 25-6-1975 which was puplished in the public Gazette of India (Extraordinary) on 26-6-1975 and then the presidential order under Section 359(1) of the Constitution came whereby the right of any person to move any Court for the enforcement of the said right conferred by Articles 14, 21 and 22 of the Constitution of India and all the proceedings pending in any Court for the enforcement of the above rights were directed to be suspended for the period during which the proclamation of emergency was to remain in force. The Ordinance No. 6 of 1975 was promulgated on 1st July, 1975 by President of India in exercise of the powers conferred by Clause (1) of Article 123 of the Constitution of India, whereby Sections 5(A), 12(6) and 12-A were inserted in COFEPOSA. The relevant portions of Section 12(A) are as follows:
12-A. 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.
12-A (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 net 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.
Section 11 of the COFEPOSA has said that without prejudice to the provisions of Section 21 of the General Clauses Act, 1997, a detention order may. at any time, be revoked or modified. Section 11-A(2) provides that the revokation of a detention order shall not bar the making of another detention order under Section 3 against the same person. Section 2 of the SAFEMA gives out as to whom it is applicable Section 2 of the SAFEMA says that the provisions of this Act shall apply only to the persons specified in Sub-section (2)(b) which is as follows:
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.
Provided that–
(i) such order of detention, being an order to which the provisions of Section 9 or Section 12-A 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 provision of Section 9 of the said Act apply, has not been revoked before the expiry of the 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 12-A of the said Act apply, has not been revoked before the expiry of the 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 12-A, of that Act, or
(iv) Such order of detention has not been set aside by a court of competent jurisdiction.
When the provisions of SAFEMA become applicable to the persons specified under Section 2 of the Act then notice for forfeiture can be issued under Section 6 of the Act to the person concerned. The Supreme Court in the case of Union of India and Anr. v. Haji Mastan Mirza, has observed at page 683 (para 10) as follows:
A reading of Sections 6(1) of SAFEMA would show that action under Sections 6 and 7 can be taken against only persons. to whom that Act applies. Section 2(1) of that Act specifies the persons to whom the Act applies.- Sub-section (2) of Section 2 says that the Act applies to every person in respect of whom an order for detention has been made under COFEPOSA provided that such order of detention has not been set aside by a court of competent jurisdiction. In the present case action has been taken against respondent under Sections 6(1) and 7 read only with Section 2(2) of the Act. Therefore, a valid order of detention under COFEPOSA is a condition precedent being taken under Sections 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 Sections 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.
7. Since in Haji Mastan Mirza’s case, copies of documents which were indisputably material documents and were referred to in the grounds of detention and relied upon for the purpose of detention, were admittedly not supplied to the respondent, the detention of the respondent was held to be bad in law and the order of detention could not be sustained and was liable to be quashed and consequently action taken under Sections 6 and 7 of the SAFEMA was held to be baseless and unsustainable in law. In the case of Ram Lai Narang v. Union of India 1982 Cri. LJ 1494, the petitioner’s detention under the COFEPOSA has been challenged. There is also another case of this very detenu being Union of India and Anr. v. Manoharlal Narang . It appears from looking to the Supreme Court judgment that Manoharlal Narang, the respondent in the Supreme Court and Ramlal Narang, the petitioner in Delhi High Court, an order of detention was passed on 19th December, 1974 under Section 3(1) of the COFEPOSA Act against Ramlal Narang. This order was challenged before the Delhi High Court in the writ petition No. 10 of 1975 which was quashed on 30-4-1975 and an appeal was filed against the said order before the Supreme Court by the Union of India. Though an application for stay was moved, the Supreme Court declined to grant stay and passed an order on 1-5-1975 imposing certain conditions of movement of Ramlal Narang. On 25-6-197 Emergency was declared and on 1-7-1975, a fresh order of detention was passed against Ramlal Narang on the same facts and grounds. The appeal was filed by the Union of India against the order of Delhi High Court which was dismissed by the Supreme Court in 1977, for want of prosecution and Ramlal was detained under the second order. A relative of Ramlal filed writ petition No. 115 of U75 in the Delhi High Court challenging his detention but the same was dismissed on 25-11-1975. An appeal was filed against the said order in the Suprem.3 Court being Appeal No. 399/75. In the meantime, notice under Sections 6 and 7 of the SAFEMA was issued against Ramlal, against which Ramlal filed Writ petition No. 720 of 1975, in Delhi High Court. Subsequently the Supreme Court took up the appeal and disposed of the same with observation that it will be open to the petitioner to raise all the contentions available to him in Writ Petition No. 720/75, notwithstanding what is contained in the judgment in Writ No. 115 of 1975. A Division Bench of the Delhi High Court heard the writ petition No. 729/5 and dismissed the same (as reported in 1982 Cr LI 1494–Ramlal Narang v. Union of India). In this case, the Division Bench held that the writ petition challenging the validity of detention order and declaration of the COFEPOSA was maintainable in spite of withdrawal of emergency. The Court dismissed the petition challenging the validity of the detention order dated 1-7-1975. Nothing has been said about the notice issued under the SAFEMA in the matter before the Supreme Court also. However, the Supreme Court observed at page 1478 as follows:
The proceeding against respondent Manohar Lai Narang taken under the SAFEMA were abandoned after the order of the Supreme Court dated 14th November, 1980 and it was nearly after three years later, on 29-4-1983 that the proceedings, from which the appeal arises, were initiated under Section 6 of the SAFEMA on the basis of the detention order dated 1-7-1975 issued against Ramlal when the order of detention passed by the Supreme Court was there.
Ultimately, the Supreme Court had held at page 1478, (in para 18):
In view of the above conclusions we do not think it necessary to consider the question whether the authorities acted rightly in not considering the representation made by the respondent. It cannot be disputed that the provisions of the SAFEMA cannot be invoked in cases where there is no valid order of detention. We agree with the High Court that the order of detention is bad on the ground discussed above. Consequently we hold that the High Court was justified in quashing the notice issued under Section 6 and the proceedings initiated under Section 7 of the SAFEMA we, accordingly, dismiss the appeal.
8. The word “Revocation” used in the Preventive Detention laws has been defined by the Supreme Court in a catena of decisions. In the case of Pradeep Kumar v. State of West Bengal ,) their Lordships have said at page 2153 (paras 17 to 19) as follows:
17. The expression “revocation” has been held by this Court in Haribandhu Dass v. Distt. Magistrate, Cuttack, , to include not only revocation of an order which is otherwise valid and operative but also orders which are invalid and operative but also order which are invalid. Revocation means cancellation of the previous orders.
18. In four recent decisions of this Court in Ujjal Mondal v. State of West Bengal Mas od Alam v. Union of India , Mrinal Rov v. State of West Bengal and Chotka Hembram v. State of West Bengal this Court considered the meaning of the ‘revocation’ or ‘expiry’. In Ujjal Mondal case (supra) the order of detention was not confirmed before the expiry of three months. This Court, therefore, held that non-confirmation would amount to revocation of the earlier order. In Masood Alam case (supra) the orders of release were held to amount to revocation or expiry of the earlier orders of detention. In Mrinal Hoy case (supra), the orders of release were constructed by this Court to amount to revocation of the previous orders. In Chotaka Hembram case (supra) the orders of release consequent on the decision of this Court in Shambhoo Nath Sarkar case (supra) were held to be revocation of the previous orders of detention.
19. The word ‘revocation’ means annulling, rescinding, withdrawing. In the facts and circumstances of the case, order of release cancelling order of detention amount to revocation of the orders of detention.
9. About the exercise of power of Revocation, the Supreme Court has observed in connection with Section 14 of Maintenance of Internal Security Act in the case of Haradhan v. State of West Bengal as follows:
Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as charged or new factors call for the exercise of that power. This shows that the authorities can consider new factors or changed circumstances,
In the case of State of U.P. v. Javed Zaman Khan AIR 1984 SC 1095 examining the nature of power of revocation held at page 1097 and 1098 (para 11 and 13) as follows:
11. ‘Soon’ thereafter the Court in Satpal v. State of Punjab examined the nature of power of revocation conferred on the Central Government under Section 11 of COFEPOSA and held that it was supervisory in nature and it was observed (at page 2232 of AIR). “That is, as it should be, as under our federal structure the centre must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Article 21.
13. The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under Section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Sub-clause (5) of Section 3 or from the detenu in the from of a petition for representation. It is the Central Government to decide whether or not it should revoke the order of detention in a particular case.
10. Thus, it is clear that the detention order was revoked by the Government. It was not set aside by the State or Central Government Setting aside power can be exercised only by the Courts of law after considering the petition against detention. It is for this reason the Section 2(b) of the SAFEMA mentions about setting aside of the detention order by a court of competent jurisdiction. The apex court also has held so in Haji Mastan Mirza’s case (supra) about setting aside by a competent court. In the instant case, the order of detention of Bhushan Chaudhary had not been set aside by a competent court. It was only revoked. As such, Section 2(B) applies to Bhushan Chaudhary and so, notice under Section 6(1) could be issued and proceedings under Section 6 could be started. Since, the factual aspect of the case has not been challenged, we find that the order passed by the trial court and the Appellate Court on the basis of the notice, is legal and valid and this application is liable to be dismissed, and is so hereby dismissed.
S.K. Singh, J.
11. I agree.