AI Structured Summary
Not yet generated for this judgment
Judgment
P. Sathasivam, J.—The prayer in the Writ Petition is to issue a writ of Declaration declaring the Respondent''s order of detention of the Petitioner made in G.O.SR/I/193-10/86 dated 19.5.86 Public (SC) Department. Government of Tamil Nadu is illegal and unconstitutional.
The case of the Petitioner is briefly stated hereunder: on 20.9.85 when he came from Singapore and arrived at Madras Airport by Singapore Airlines, he was arrested by the sponsoring Authorities for an alleged offence u/s 135(1) of the Customs Act in respect of the alleged recovery of 8 Gold Biscuits 10 tolas each weighing 80 tolas valued at Rs. 2.07.631/- On 21.9.85 he was produced before the Additional Chief Metropolitan Magistrate (E.O.II), Egmore. Madras and after remand, he was confined in Central Prison. Madras. On 30.9.85 he was enlarged on bail with condition to appear before the sponsoring authority from 1.10.85 until further orders and the same was relaxed on 25.10.85. On 19.5.86 the Respondent herein has issued a detention order against him u/s 3(1)(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, when he came to know there was a detention order against him. he appeared before the Additional Metropolitan Magistrate, Egmore, Madras on 16.7.86, After a week, the detention order and grounds of detention order were served on him through Superintendent. Central Prison, Madras. He had undergone the entire period u/s 3(1)(1) of the said Act. On 23.7.87 when the detention Period expired, he filed a bail application before the Additional Chief Metropolitan Magistrate and he was enlarged. In the meantime, the sponsoring authority had filed a complaint against him in C.C.687/86 and he appeared before the said Magistrate and finished his case. It is further stated that in view of the principles laid down by the Apex Court in a decision reported in Union of India (UOI) and Others Vs. Haji Mastan Mirza, he has approached this Court by way of the present writ petition. It is further stated that while he was undergoing detention, the competent authority had issued a show- cause notice u/s 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short "SAFEMA") calling upon him to give reply to the said show-cause notice in respect of his property at 31-A, Madurai Naicken Street, Alandur, Madras-16. He appeared and filed his reply before the said authority. The competent authority has passed an order u/s 19(1) of the SAFEMA on 15.2.90 calling upon him to deliver possession of the said property. After the orders passed by the competent authority, he filed W.P. No. 3124/90 challenging the constitutional validity of the Act and the said writ petition is pending before this Court. Apart from filing the writ petition, the Petitioner has also filed an appeal before the Appellate Tribunal for forfeited property New Delhi against the order passed by the competent authority on 15.2.90. He filed W.P. No. 2499 of 90 before this Court challenging the detention order imposed on him. When the aforesaid writ petition came up before the Division Bench of this Court, he was permitted to withdraw the same with a liberty to file a fresh writ petition in accordance with law. In such circumstance, he has filed the present writ petition to release the property attached u/s 19(1) of the SAFEMA.
The Respondent filed a counter affidavit wherein it is stated that the order of detention was passed by the Respondent dated 19.5.86 u/s 3(1)(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Petitioner filed W.P. No. 2499/90 before this Court. When the said writ petition came up for hearing, he prayed for withdrawing the same and this Court passed orders dismissing the said writ petition granting liberty to file a fresh petition for proper relief in accordance with law. No fresh facts or legal contentions have been raised in the present writ petition other than the once raised in the earlier writ petition. Accordingly the present writ petition is not maintainable in law. Pursuant to the above said order of detention, the Petitioner was detained in Central Prison for a period of one year and he was released on 22.7.86 and nearly 2 1/2 years thereafter, he filed W.P.2499/90 which was dismissed by this Court on 4.12.90. The present writ petition seeking to challenge the order of detention has been filed nearly 4 1/2 years after the said order of detention was passed against the Petitioner. In view of the laches and inordinate delay on the part of the Petitioner in invoking the writ jurisdiction of this Court seeking to challenge the order of detention the present writ petition is liable to be dismissed in limine. The Petitioner has filed in all his attempts to recover his property u/s 19(1) of the SAFEMA and the proceedings initiated by him in this regard have been unsuccessfully prosecuted by him They explained the steps taken by them by furnhishing various dates and events and the order of concerned authorities. It is further stated that the principles laid down by the Supreme Court in the case relied on will not be applicable to the facts of the present case inasmuch as the detenu was not taken into custody pursuant to an order of detention. On the contrary, the order of detention itself was served when the detenu was already in the Central Jail. In this view of the matter, there is no violation of Article 21 of the Constitution of India and accordingly prayed for dismissal of the same.
In the light of the above pleadings, I have heard Mr. N. Devarajan, learned Counsel for the Petitioner and the learned Public Prosecutor for Respondent.
Learned Counsel for the Petitioner by pointing out the various defects, namely enormous delay in passing the order of detention, panchanama was not annexed with the order and the bail application was not placed before the detaining authority, has contended that the detention order is liable to be quashed, consequently the proceedings initiated under SAFEMA, 1976 is also liable to be quashed. There is no dispute that if there is enormous delay and the same is not explained properly, the detention order is liable to be quashed vide - Union of India (UOI) and Others Vs. Haji Mastan Mirza, ; and Anand Prakash v. State of U.P. and Ors. 1990 S.C.C. (Cri) 96. However, the above factual points are not helpful to the Petitioner for the following reasons. It is clear from the records that against the order of detention passed by the Respondent in GO. No. SR/I/193-10/86, dated 19.5.86 u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Petitioner filed W.P. No. 2499/90 before this Court. The Respondent has also filed counter affidavit disputing various averments made by the Petitioner. When the said writ petition came up for hearing, the Petitioner prayed for withdrawal of the said writ petition with a liberty to file a fresh petition for proper relief in accordance with law. Accordingly, the said writ petition was dismissed on 4.12.90. The learned Public Prosecutor has brought to my notice that the very same averments have been reproduced in the present writ petition that too after 4 1/2 years of detention. It is clear from the records that the Petitioner was detained in the Central Prison for a period of one year and he was released on 22.7.86 and nearly 2 1/2 years thereafter, he filed the earlier writ petition, namely, W.P.2499/90 which was dismissed by this Court on 4.12.90 as withdrawn. The present writ petition seeking to challenge the order of detention has been filed nearly 4 12 years after the said order of detention was passed against the Petitioner. As rightly contended by the learned Public Prosecutor, neither in the affidavit, nor before this Court any plausible explanation was given for the inordinate delay on the part of the Petitioner in invoking the writ jurisdiction of this Court to challenge the order of detention.
It is true that by pointing out the decision of the Apex Court reported in Competent Authority v. Amritial Chandmal Jain 1998 S.C.C. (Cri) 1367, learned Counsel for the Petitioner has submitted that it is open to the Petitioner to challenge the detention order even now. In other words, according to him, even in the proceedings under SAFEMA, it is open to the Petitioner to challenge the order of detention. He very much relied on the following conclusion of Their Lordship:
None of the Appellants questioned the validity of the order of the High Court in its judgment dated 29.4.1993 holding that second order of detention on the same grounds could not have been passed and on that account, order of detention was illegal. Their only contention was that the order of detention had not been challenged at the appropriate time and that the impugned judgment could not be sustained in view of the decision of this Court in Attorney General for India and Others Vs. Amratlal Prajivandas and Others, That does not appear to us to be quite correct. We may at this stage refer to challenges made to the orders of detention by Amritial when the orders of detention were in force. First order of detention was itself revoked by the detaining authority. This, therefore, ceased to exist. This is apart from the fact that the High Court had held that revocation was not validly made. Nevertheless the detenu had been released. Second order of detention was challenged on various grounds but this Court again did not go into the validity of the order of detention. If Amritial had not challenged his order of detention during the period the orders of detention were in force Mr. Goswamy would have been right but, unfortunately, for him that is not so There were challenges to both the orders of detention. True, it is not enough that there is a mere challenge and that challenge has to be upheld or negatived by the Court. When there is challenge to the legality of detention in a writ of habeas corpus the challenge is in effect to the legality and validity of the grounds on which the order of detention is made. It is not that to challenge the legality and validity of the grounds on which order of detention is passed, the detenu has to file a separate writ petition seeking a writ of certiorari. Once the detenu is released during pendency of his writ of habeas corpus by the detaining authority, it cannot always be said that the writ petition had become infructuous and that the grounds on which the order of detention become invalid. But then if the Court refuses or itself does not go into the merit or controversy in a writ of habeas corpus when the detenu is released the detenu on the account cannot be made to suffer holding that he did not successfully challenge his order of detention. That is exactly what has happened in this case. Writ Petition No. 1342 of 1992 came to be disposed of on 10.7.1985. This writ petition along with others was being heard together. This Court did not go into the question of validity of the order of detention but disposed of the matter on account of the fact that the detenu had already been released from his detention. We, therefore, cannot say that challenge to the order of detention by Amritlal was unsuccessful and that he or his relatives or his associates were in any way debarred from challenging the order of detention subsequently when notices under SAFEMA were issued to them.
It is true that in the light of the law laid down by the Supreme Court in the above referred case, it is open to the Petitioner to challenge the detention order even in the proceedings initiated under SAFEMA. However, the earlier writ petition, namely, W.P.2499/90 was dismissed not as infructuous, but on the request of the Petitioner dismissed as withdrawn. Even at the time of filing of the writ petition, the Petitioner herein was released after expiry of the detention period. As observed earlier, after waiting for 2 1/2 years from the date of release, he filed the earlier writ petition, namely, W.P.2499/90 and the present writ petition came to be filed after 4 1/2 years from the date of his release. In this regard, learned Public Prosecutor has very much relied on a Constitutional Bench judgment of the Supreme Court reported in Attorney General of India v. Amratlal Prajivandas (1994) SCC (Cri) 1325. After taking me through the entire judgment, learned public Prosecutor relied on paragraph 40, 41 and 42, since the conclusion of Their Lordship is an answer to our case, I am herewith reproducing the same:
At this juncture, it would be appropriate to deal with two decisions of this Court brought to our notice. The first one is in Union of India (UOI) and Others Vs. Haji Mastan Mirza, rendered by a Bench of three Judges. The Respondent therein was first detained under Maintenance of Internal Security Act (MISA) under an order dated 17.9.1974. On 19.12.1974 the said order was revoked but simultaneously an order of detention was made u/s 3(1) of COFEPOSA. The grounds of detention were served on him on 23.12.1974. On 25.6.1974 emergency was proclaimed under Article 352(1) on the ground of internal disturbance, which continued to be in force up to 21.3.1977. The Respondent was released on 23.3.1977. Notice u/s 6(1) of SAFEMA was issued to him, his relatives and associates whereupon he filed a writ petition in the Bombay High Court challenging the validity of the order of detention dated 19.12.1974 on the ground inter alia that he was not supplied with the documents clearly and unmistakenly relied upon for arriving at the requisite satisfaction and which documents were also referred to in the grounds of detention served upon him. The Bombay High Court allowed the writ petition against which the Union of India appealed to this Court. Varadarajan, J. speaking for the Bench referred to the provisions of Section 2, 6 and 7 of SAFEMA and observed thus: (SCC p.432, para 10).
Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings 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.
From the facts stated above, it is clear that the order of detention was made long prior to the proclamation of emergency on 25.6.1974. He was served with the grounds of detention but not the documents relied upon therein. It does not appear from the judgment whether a declaration u/s 12-A of COFEPOSA was made with respect to the said Respondent, though it can be so presumed from the fact that his detention was continued upto 23.3.1977. In the above circumstances, this Court said that it was open to the Respondent-detenu to question the validity of the order of detention when proceedings are taken against him under Sections 6 and 7 of SAFEMA. It is not possible to agree with the reasoning of the decision. There are two ways of looking at the issue. If it is a normal order of detention (not governed by Section 12-A nor protected by an order under Article 359(1) suspending the enforcement of Article 22) and if the detenu does not challenge it when he was deprived of his liberty, or challenges it unsuccessfully, there is no reason why he should be allowed to challenge it when action under SAFEMA is taken against him for action under SAFEMA is not automatic upon the fact of detention but only the starting point. On the other hand, if it is an order of detention governed by Section 12-A (or by a Presidential Order under Article 359(1) suspending Article 22), it perhaps could still be challenged even during the period of emergency on grounds not barred by the said provisions. Secondly, even if such an order is allowed to be challenged when action under SAFEMA is taken, the challenge must be continued to grounds which were open or available during the period of emergency, otherwise there would be no meaning behind the concluding words in Article 358(1) and Article 359(1-A). 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 when it is sought to be made the basis for applying SAFEMA to him. In either of the two situations mentioned above, i.e., whether the challenge is made during the period of detention or later when proceedings under SAFEMA are taken against him. the grounds of challenge and scope of indicial scrutiny would be the same 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.
...On the 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 lb certain highly relevant and material circumstances. We must, however, say that the validity of an order of detention to which Section 12-A of COFEPOSA applied, could yet be examined even during the emergency on the touchstone of the law as it was obtained during the operation of the Presidential Order under Article 359(1) - say on the ground that the provisions of Section 12-A 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 as order of detention is made the basis for applying SAFEMA to him this is for reason that even if he is allowed to challenge the said order when he is served with the notice u/s 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).
In the light of the law laid down by Their Lordships in the above referred decision and in view of the fact that the Petitioner did not challenge the detention order at the appropriate time without any reasonable cause, the present endeavour on the part of the Petitioner to contest, the order of detention in the proceedings initiated under SAFEMA cannot be sustained. Even on merits the Respondent has explained for the delay and with regard to other contentions in paragraphs 9 to 13 and I am satisfied with the reasons furnished therein.
Further, the contentions based on Articles 21 and 22 of the Constitution of India are available only when he was in detention/Prison. I have already observed that for the reasons best known to him, the detention order was not challenged at the appropriate time. In view of the factual position highlighted above, the decision referred to, namely 1998 S.C.C. (Crl) 1367 (cited supra) is not helpful to the Petitioner''s case.
In the light of what is stated above, more particularly, with reference to the law laid down by Their Lordships in the Constitutional Bench in 1994 S.C.C. (Crl) 1325 (cited supra), I do not find any merit in the writ petition, accordingly the same is dismissed. No costs.