Pre-Emergency detention order under COFEPOSA upheld by Supreme Court

The Supreme Court has given finality to a 1974 detention order of Government of Punjab under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)..The legality of the detention order, which had been revoked in 1977, was upheld yesterday by a Bench of Justices UU Lalit and Hemant Gupta in a plea by the son of the detenu challenging the said detention order..The detention order came to be challenged since that formed the basis for another order of 1978 under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) by which illegally acquired property of the detenu and his wife was forfeited..Facts.The detention order was passed in December 1974 against one Roshan Lal under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the Deputy Secretary of Home Department of the Government of Punjab..The order was passed with the view to prevent Lal from dealing in smuggled goods and was preceded by another order of detention passed in November 1974 by Amritsar’s Superintendence of Police under the Maintenance of Internal Security Act, 1971 (MISA)..The grounds for Lal’s detention in the order under COFEPOSA stated that Lal was in touch with a notorious gold smuggler from Lahore and had purchased certain quantity of smuggled gold from him..Following the detention orders, Lal preferred a representation against it in January 1975 through the SP of Patiala. However, the same was rejected. This led to his son, Om Prakash, filing a Writ of Habeas Corpus before the Punjab & Haryana High Court in April 1975 seeking quashing of the detention order..Shortly thereafter, the Emergency was declared in India in June 1975 which was lifted nearly two years later in March 1977. During this period, certain provisions relating to detainees and period of detention during the emergency were inserted in COFEPOSA while another legislation, the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) was brought into force which contained a provision relating to the extension of detention..As soon as the emergency was lifted, the detention orders pertaining to 49 individuals, including Lal, were revoked. Therefore, when the writ petition pertaining to Lal’s detention order came up before the Punjab & Haryana High Court in 1978, it was found to be infructuous and was therefore dismissed..After Lal’s release, however, the Competent Authority under the SAFEMA sent notices to Lal and his wife Sheelawati to show the source of their income by which they had acquired certain properties. After examining the replies to these show cause notices, the Competent Authority found no merit in the replies and the property stood forfeited to the Central Government..The Litigation.This order was challenged before the Appellate Tribunal which dismissed the same. Roshan Lal then approached the Supreme Court in 1979 challenging the orders passed by the Competent Authority and Appellate Tribunal..The Supreme Court took up that appeal along with other similar matters. A nine-Judge Bench decided the matter by way of its judgment in Attorney General for India and Others vs. Amratlal Prajivandas and Others..In the said judgment which was delivered in 1994, the Supreme Court upheld the Constitutional validity of COFEPOSA and SAFEMA..The Court also ruled that an order of detention to which Section 12-A of COFEPOSA is applicable, as well as an order of detention to which Section 12-A was not applicable, can serve as the foundation and basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub-clauses in the proviso to Section 2(2)(b)..If such detenu did not choose to question the said detention (either by himself or through his next friend) before the Court during the period when such order of detention was in force, or is unsuccessful in his attack, he, or his relatives and associates cannot attack or question its validity when it is made the basis for applying SAFEMA to him or to his relatives or associates..After this judgment was pronounced, son of Roshan Lal (appellant in the present case), filed a Writ petition before the High Court, challenging the detention order against Lal passed in December 1974 under COFEPOSA as well as the order of forfeiture of property passed by the Competent authority under SAFEMA in May 1978..The High Court found the challenge barred by res judicata. This was on the ground that the 1978 order of the High Court which had dismissed the challenge to 1974 detention order on the basis that it had become infructuous, was not appealed against..The decision of the High Court dismissing the writ petition was appealed against in the Supreme Court. The Supreme Court allowed the appeal in 2004 and remanded the case to the High Court for it to be heard afresh on merits. The Supreme Court noted that the correctness or merit of the grounds of detention and the validity of the detention order was not adjudicated upon by the High Court..On rehearing the matter on merits, the High Court dismissed the same in 2008 leading to the present appeal..Judgment.The appellant was represented by Advocate RM Bagai and the Respondent was represented by Additional Solicitor General Aman Lekhi..The appellant argued that the detention orders under MISA and COFEPOSA were identical, the grounds for detention were not framed in the language known to the detainee, and Lal’s representation to the Government of Punjab in 1975 was not considered at all..Lekhi, on the other hand, submitted that the High Court was correct in its conclusion and argued that no infirmities as were being alleged, existed at all. He stated that the representation by Lal was rejected after due consideration and no grievance was raised in that regard or in relation to the language at that time..The Court, noting that the case was remitted to the High Court to be considered on merits, proceeded to examine whether the merits were indeed correctly considered by the High Court..The Court observed that as per Section 2 of SAFEMA, the provisions of SAFEMA will apply to every person in respect of whom a detention order under COFEPOSA was made. This, however, is subject to four exceptions, none of which were applicable in the instant case..“The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply.”.The Court agreed with the observation made by the High Court that the detention ran through the duration of the emergency and no attempt was made at that time to have the petition, challenging the detention, disposed of on merits. The Court observed,.“Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits.”.The Court also delved into the issues raised by the petitioner relating to the representation made by him and its rejection and found the same to be devoid of merit..It, thus, affirmed the decision of the High Court. Finding no reason to take a different view from that of the High Court, the Supreme Court dismissed the challenge to both the order of detention as well as the order of forfeiture of illegally acquired property..Read the Judgment: