{"id":170852,"date":"1998-04-29T00:00:00","date_gmt":"1998-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/competent-authority-ahmedabad-vs-amritlal-chandmal-jain-ors-on-29-april-1998"},"modified":"2015-06-03T23:55:23","modified_gmt":"2015-06-03T18:25:23","slug":"competent-authority-ahmedabad-vs-amritlal-chandmal-jain-ors-on-29-april-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/competent-authority-ahmedabad-vs-amritlal-chandmal-jain-ors-on-29-april-1998","title":{"rendered":"Competent Authority, Ahmedabad vs Amritlal Chandmal Jain & Ors on 29 April, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Competent Authority, Ahmedabad vs Amritlal Chandmal Jain & Ors on 29 April, 1998<\/div>\n
Author: D Wadhwa<\/div>\n
Bench: K.T. Thomas, D.P. Wadhwa<\/div>\n
           PETITIONER:\nCOMPETENT AUTHORITY, AHMEDABAD\n\n\tVs.\n\nRESPONDENT:\nAMRITLAL CHANDMAL JAIN & ORS.\n\nDATE OF JUDGMENT:\t29\/04\/1998\n\nBENCH:\nK.T. THOMAS, D.P. WADHWA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t    WITH
\n\t       CIVIL APPEAL NO. 1487 OF 1994
\n\t\t\t    AND
\n\t      CRIMINAL APPEAL NO. 574 OF 1994
\n\t\t      J U D G M E N T
\nD.P. Wadhwa, J.\n<\/p>\n
     These are\tthree appeals.\tTwo appeals (Criminal Appeal
\nNos. 2\/94  and 574\/94)\tare directed  against  the  judgment
\ndated April 29, 1993 of a Division Bench of the Gujarat High
\nCourt and  have been  filed respectively  by  the  Competent
\nAuthority  and\tthe  State  of\tGujarat.  By  this  impugned
\njudgment the  High Court allowed two writ petitions filed by
\nthe respondents declaring that the order of detention passed
\nagainst\t the   first  respondent   Amritlal  Chandmal\tJain
\n(“Amritlal”) under  the provisions  of the  Conservation  of
\nForeign Exchange and Prevention of Smuggling Activities Act,
\n1974 (for  short `COFEPOSA’)  was illegal and it quashed the
\nproceeding  initiated\tunder  the   Smugglers\tand  Foreign
\nExchange Manipulators  (Forfeiture of  property)  Act,\t1976
\n(for short  `SAFEMA’) against  the  respondents.  The  third
\nappeal\t(Civil\t Appeal\t 1487\/94)  has\tbeen  filed  by\t the
\nCompetent Authority  and is  directed against  the  judgment
\ndated June 23, 1993 of another Division Bench of the Gujarat
\nHigh Court  by which  the  High\t Court\tdismissed  the\twrit
\npetition filed\tby the\tCompetent  Authority  in  which\t the
\nCompetent  Authority   had  sought   directions\t restraining
\nCommissioner of\t Income-tax, Gujarat-1 from releasing seized
\nsilver to  M\/s. Agra  Bullion Company  and Amritlal. In this
\nappeal\tCommissioner   of  Income-tax,\t Gujarat-I  is\talso
\nrespondent. The\t Competent Authority  has  been\t constituted
\nunder the  SAFEMA and  it means\t an officer  of the  Central
\nGovernment to perform the functions under SAFEMA.\n<\/p>\n
     By order dated July 21, 1982, passed under Section 3 of
\nthe COFEPOSA  by the State of Gujarat Amritlal was detained.
\nHe challenged  his detention  by filing\t a  writ  of  habeas
\ncorpus under  Article 32  of the  Constitution in this Court
\n(WP 1151\/82).  State of\t Gujarat, however, revoked the order
\nof detention by order dated October 18, 1982 but by separate
\norder on  the same  grounds  and  passed  on  the  same\t day
\nAmritlal was  again detained.  This led\t to filing of second
\nwrit  of  habeas  corpus  by  Amritlal\tin  this  Court\t (WP
\n1342\/82). First writ petition was disposed of on October 20,
\n1982 by the following order:-\n<\/p>\n
     “Shri   Ram   Jethmalani,\t learned
\n     counsel for  the petitioners states
\n     that   the\t   impugned   order   of
\n     detention in  each of  these  cases
\n     has  since\t been  revoked\tand  the
\n     petitioners     were     thereafter
\n     released.\t The   learned\t counsel
\n     further states  that sometime after
\n     their  release,   on  the\t day  of
\n     release   itself,\t each\tof   the
\n     petitioners, has been served with a
\n     fresh order  of detention and taken
\n     into custody.  He proposed\t to file
\n     fresh petitions under Article 32 of
\n     the Constitution.\tSuch  petitions,
\n     if and  when filed,  may be  listed
\n     for preliminary hearing. Liberty to
\n     mention.\n<\/p><\/blockquote>\n
     The   petitions   are,   therefore,
\n     dismissed as infructuous.”<\/p><\/blockquote>\n
     During the\t pendency of  the second  writ petition\t the
\ndetenu Amritlal\t was ordered  to be  released on  parole  by
\norder date  November 8, 1982. In the meanwhile the period of
\ndetention of Amritlal was reduced by the detaining authority
\nup to  August 16,  1983 when he was released from detention.
\nSecond writ petition was disposed of on July 10, 1985 by the
\nfollowing order:-\n<\/p>\n
     “In  so  far  as  these  cases  are
\n     concerned, the  period during which
\n     the  petitioners\twere  on  parole
\n     shall be  taken into  account while
\n     calculating  the  total  period  of
\n     detention. The  order of  detention
\n     was passed\t more than  two and half
\n     years ago.\n<\/p><\/blockquote>\n
     The  writ\t petitions  will   stand
\n     disposed  of   in\tterms\tof  this
\n     order.”<\/p><\/blockquote>\n
     On October\t 10, 1985  Competent Authority issued notice
\nunder Section 6 of the SAFEMA to the respondents in Crl. As.
\n2\/94 and  574\/94. That\twas  challenged\t by  filing  a\twrit
\npetition  in   the  Gujarat   High  Court   (SCA   5684\/85).
\nSubsequently,  however,\t the  grounds  on  which  notice  of
\nforfeiture under Section 6 of SAFEMA was issued were revised
\nand other  notice under\t Section 6  was issued.\t That led to
\nfiling of  another writ\t petition in  the Gujarat High Court
\n(S. Crl.  A. 499\/91).  When notice under Section 8 of SAFEMA
\nwas issued  on July  28, 1991 yet another writ petition (SCA
\n5900\/91) was  filed. Since  the very  foundation  of  action
\nunder SAFEMA  was the  order  of  detention  passed  against
\nAmritlal under COFEPOSA, that very orders were challenged in
\nthese writ  petitions. By  the impugned judgment dated April
\n29, 1993  SCA  5684\/85\twas  allowed  to  be  withdrawn\t and
\nS.Crl.A. 499\/91\t and SCA  5900\/91 were\tallowed. It was held
\nthat the  order of detention of Amritlal was illegal and the
\nproceedings initiated  under SAFEMA  on the  basis  of\tsaid
\nillegal order were quashed.\n<\/p>\n
     To\t understand  the  third\t appeal\t (CIVIL\t APPEAL\t NO.
\n1487\/94) we  may refer\tto some\t of the\t facts.\t Search\t and
\nseizure\t operations   were  conducted  at  the\tpremises  of
\nAmritlal by  the authorities  under the Income-tax Act, 1961
\non December  24, 1981, which led to seizure of 1465.201 kgs.
\nof silver.  Out of  that M\/s  Agra Bullion  Company  claimed
\nownership of 301.203 kgs. of silver. Amritlal approached the
\nSettlement Commissioner under the Income-tax Act on December
\n7, 1984\t and the proceedings were admitted by the Settlement
\nCommission. The\t Settlement Commissioner,  it would  appear,
\npassed orders in favour of Amritlal and Agra Bullion Company
\nfor releasing  the seized  silver to  them. By\tletter dated
\nOctober 21,  1991  the\tCompetent  Authority  requested\t the
\nCommissioner of\t Income-tax, Gujarat-I\tnot to\trelease\t the
\nsilver to  Amritlal  and  Agra\tBullion\t Company  until\t the
\nproceedings under  SAFEMA, which  had been  initiated in the
\nmeanwhile,  were   concluded.  Commissioner  of\t Income-tax,
\nGujarat-I by his letter dated November 4, 1991 expressed his
\ninability  to\taccede\tto  the\t request  of  the  Competent
\nAuthority and  said it\twas not\t possible to  hold back\t the
\nsilver ordered\tto be  released to Amritlal and Agra Bullion
\nCompany by  the Settlement  Commission.\t This  prompted\t the
\nCompetent Authority  to file  writ petition  (SCA 309\/92) in
\nthe Gujarat High Court challenging the order of Commissioner
\nof Income-tax,\tGujarat-I which had been communicated to the
\nCompetent Authority  by letter\tdated November 4, 1991. This
\nSCA 309\/92 subsequently came to be unconditionally withdrawn
\non April  8, 1991.  Having thus\t withdrawn  SCA\t 309\/92\t the
\nCompetent Authority,  it is  stated that under legal advice,
\nfiled  another\t writ  petition\t (SCA  7623\/92)\t practically
\nclaiming the same reliefs which it had prayed earlier in SCA
\n309\/92) practically  claiming the  same reliefs which it had
\nprayed earlier in SCA 309\/92. The High Court was called upon
\nthe decide  the validity and legality of the order passed by
\nthe Settlement\tCommission under  the Income-tax Act as well
\nas that\t contained in  the letter  dated November 4, 1991 of
\nthe Commissioner  of Income-tax,  Gujarat-I.\tBy  impugned
\njudgment dated\tJune 23,  1993, SCA 7623\/92 was dismissed by
\nthe High  Court holding\t the same infructuous as proceedings
\nunder SAFEMA  had been\tquashed against Amritlal and others.
\nHigh Court  also did not go into the question whether second
\nwrit petition  by the  Competent Authority  was maintainable
\nafter the first having been withdrawn when relief claimed in
\nboth the writ petitions was practically the same. High Court
\ntook notice  the decision  dated April\t29, 1993  of another
\nDivision Bench\twhere it was held that detention of Amritlal
\nwas illegal  and since the very foundation for initiation of
\nproceedings under  SAFEMA was  knocked out  the\t proceedings
\nunder SAFEMA  had come\tto an  end  and\t there\twas  nothing
\nfurther that  was required  in SCA  7623\/92 to be considered
\nwhich had thus become infructuous. Aggrieved by the judgment
\ndated June 23, 1993 (in SCA 7623\/92) Competent Authority has
\nfiled appeal in this Court (CIVIL APPEAL NO. 1487\/84).\n<\/p>\n
     We may  also note\tthat the  High Court in its judgment
\ndated April 29, 1993 had held that the order of detention of
\nAmritlal was  bad on two counts, viz., (1) that second order
\nof detention on the same grounds could not be passed and (2)
\nthe order  of revocation  of the  first detention  order was
\nitself null  and void. High Court, however, did not consider
\nother challenges to the validity of detention order.\n<\/p>\n
     Mr.  Goswamy,   learned  counsel\tappearing  for\t the
\nCompetent Authority,  submitted that  the Division  Bench in
\nSCA 7623\/92  did not  go into  the merits of the controversy
\nand had\t solely relied\ton a decision of this Court in union
\nof India  vs. Haji Mastan Mirza (AIR 1984 SC 681), which was
\nheld not  to be\t good law  in the 9 Judges Bench decision of
\nthis Court  in\tAttorney  General  of  India  and  ors.\t Vs.
\nAmratlal Prajivandas and ors. (1994 (5) SCC 54). Mr. Goswamy
\ndid not\t refer to  the decision\t of the\t Gujarat High  Court
\ndated April  29, 1993  which was  the subject  matter of two
\nother appeals  when all\t the three  appeals were being heard
\ntogether. He confined his attack to the judgment of the High
\nCourt dated  June 23,  1993. However,  whatever he said also
\ntouched upon  the validity  of the  order of  the High Court
\ndated April  29, 1993.\tMr. Goswamy  said that\tthe order of
\ndetention passed  in 1982 was being challenged in 1991 which
\nhe said\t could not  be done  in view of the law laid by this
\nCourt in  Amratlal Prajivandas case. His submission was that
\nproceeding under  SAFEMA could\tnot  be\t challenged  on\t the
\nalleged ground\tof detention being illegal unless the detenu
\nchose to  question his detention before the Court during the
\nperiod when  such order\t of detention  was in force or he is
\nunsuccessful  in   his\tattack\t thereon.  To\tsupport\t his
\nsubmission he  relied upon  detailed  observations  of\tthis
\nCourt in  paras 40,41  and 42  of the  judgment in  Amratlal
\nPrajivandas case  and particularly  to para  56\t where\tthis
\nCourt summarized  its  decision\t on  various  issues  raised
\nbefore it  in that case. We are concerned with sub-para 3(b)
\nof para 56 which is as under:-\n<\/p>\n
     “(b) An order of detention to which
\n     Section 12-A  is applicable as well
\n     as an  order of  detention to which
\n     Section 12-A was not applicable can
\n     serve as  the  foundation,\t as  the
\n     basis, for\t applying SAFEMA to such
\n     detenu and\t to  his  relatives  and
\n     associates provided  such order  of
\n     detention does  not attract  any of
\n     the sub-clauses  in the  proviso to
\n     Section 2(2)(b). If such detenu did
\n     not choose\t to  question  the  said
\n     detention\t(either\t by  himself  or
\n     through his next friend) before the
\n     Court during  the period  when such
\n     order of  detention was in force, –<\/p><\/blockquote>\n
     or is  unsuccessful in  his  attack
\n     thereon, – he, or his relatives and
\n     associates\t  cannot    attack    or
\n     question its  validity when  it  is
\n     made the  basis for applying SAFEMA
\n     to\t him  or  to  his  relatives  or
\n     associates.”<\/p><\/blockquote>\n
     None of the appellants questioned validity of the order
\nof the\tHigh Court  in the  judgment dated  April  29,\t1993
\nholding that  second order  of detention on the same grounds
\ncould not  have been  passed and  on that  account order  of
\ndetention was  illegal. Their  only contention\twas that the
\norder  of   detention  had   not  been\t challenged  at\t the
\nappropriate time and that the impugned judgment could not be
\nsustained in  view of  decision of  this Court\tin  Amritlal
\nPrajivandas’s case.  That does\tnot appear to us to be quite
\ncorrect. We  may at  this stage\t refer to challenges made to
\nthe orders  of detention  by Amritlal  when  the  orders  of
\ndetention were in force. First order of detention was itself
\nrevoked by  the detaining authority. This, therefore, ceased
\nto exist.  This is  apart from\tthe fact that High Court had
\nheld that revocation was not validity made. Nevertheless the
\ndetenu had  been released.  Second order  of  detention\t was
\nchallenged on  various grounds\tbut this Court again did not
\ngo into\t the validity of the order of detention. If Amritlal
\nhad not\t challenged his order of detention during the period
\nthe orders of detention were in force Mr. Goswamy would have
\nbeen right but, unfortunately, for him that is not so. There
\nwere challenges to both the orders of detention. True, it is
\nnot enough that there is a mere challenge and that challenge
\nhas to\tbe upheld  or negatived\t by the Court. When there is
\nchallenge to  the legality  of detention  in writ  of habeas
\ncorpus the  challenge is  in  effect  to  the  legality\t and
\nvalidity of  the grounds  on which the order of detention is
\nmade. It  is not that to challenge the legality and validity
\nof the\tgrounds on  which order\t of detention  is passed the
\ndetenu has  to file  a separate writ petition seeking a writ
\nof certiorari.\tOnce the  detenu is released during pendency
\nof his\twrit petition  has become  infructuous and  that the
\ngrounds on  which the order of detention become invalid. But
\nthen if the Court refuses corpus when detenu is released the
\ndetenu on that account cannot be made to suffer holding that
\nhe did\tnot successfully  challenge his\t order of detention.
\nThat is\t exactly  what\thas  happened  in  this\t case.\tWrit
\npetition 1342\/92  came to  be disposed\tof an July 10, 1985.
\nThis  writ  petition  along  with  others  was\tbeing  heard
\ntogether. This\tCourt  did  not\t go  into  the\tquestion  of
\nvalidity of  the order\tof detention  but  disposed  of\t the
\nmatter on  account of  the fact that detenu had already been
\nreleased from  his detention. We, therefore, cannot say that
\nchallenge  to\tthe  order  of\tdetention  by  Amritlal\t was
\nunsuccessful and  that he or his relatives or his associates
\nwere in\t any way  debarred from\t challenging  the  order  of
\ndetention subsequently when notices under SAFEMA were issued
\nto them.\n<\/p>\n
     Accordingly, we do not find any merit in these appeals.
\nThese are dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Competent Authority, Ahmedabad vs Amritlal Chandmal Jain & Ors on 29 April, 1998 Author: D Wadhwa Bench: K.T. Thomas, D.P. Wadhwa PETITIONER: COMPETENT AUTHORITY, AHMEDABAD Vs. RESPONDENT: AMRITLAL CHANDMAL JAIN & ORS. DATE OF JUDGMENT: 29\/04\/1998 BENCH: K.T. THOMAS, D.P. WADHWA ACT: HEADNOTE: JUDGMENT: WITH CIVIL APPEAL NO. 1487 OF 1994 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170852","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCompetent Authority, Ahmedabad vs Amritlal Chandmal Jain & Ors on 29 April, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/competent-authority-ahmedabad-vs-amritlal-chandmal-jain-ors-on-29-april-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Competent Authority, Ahmedabad vs Amritlal Chandmal Jain & Ors on 29 April, 1998 - 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