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1998(4) Supreme 389
Supreme Court of India
(From Gujarat High Court)
M.M. Punchhi, CJI, K.T. Thomas and D.P. Wadhwa, JJ.
Competent Authority, Ahmedabad etc. -Appellants
versus
Amritlal Chandmal Jain & Ors. etc. -Respondents
Criminal Appeal No. 2 of 1994
With
Civil Appeal No. 1487 of 1994
And
Criminal Appeal No. 574 of 1994
Decided on 29-4-1998
Counsel for the Parties :
For the Appearing Parties : K.N. Goswami, K.G. Shah, Kapil Sibal, Sunjawala, T.L.V. Iyer, Sr. Advocates, D.S. Mehra, M.P. Mullick, Ms. Hemantika Wahi, Ms. Neithono Rhetso, R.N. Keshwani, H.A. Ahmadi, Chandrakant Nayak, V.C. Francis, P.I. Jose, (Ms. Laxmi Arvind) Advocate (A.C.), B.Y. Balaram Das, Advocates.
Held : None of the appellants questioned validity of the order of the High Court in its judgment dated April 29, 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 decision of this Court in Amritlal Prajivandas’s case. 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 Amritlal 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 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 Amritlal 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 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 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 of controversy in writ of habeas corpus when detenu is released the detenu on that 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 1342/92 came to be disposed of on July 10, 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 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. (Para 7)
Accordingly, we do not find any merit in these appeals. These are dismissed. (Para 8)
Judgment
D.P. Wadhwa, J.-These are three appeals. Two appeals (Criminal Appeal Nos. 2/94 and 574/94) are directed against the judgment dated 29, 1993 of a Division Bench of the Gujarat High Court and have been filed respectively by the Competent Authority and the State of Gujarat. By this impugned judgment the High Court allowed two writ petitions filed by the respondents declaring that the order of detention passed against the first respondent Amritlal Chandmal Jain (“Amritlal”) under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short `COFEPOSA’) was illegal and it quashed the proceeding initiated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of property) Act, 1976 (for short `SAFEMA’) against the respondents. The third appeal (Civil Appeal 1487/94) has been filed by the Competent Authority and is directed against the judgment dated June 23, 1993 of another Division Bench of the Gujarat High Court by which the High Court dismissed the writ petition filed by the Competent Authority in which the Competent Authority had sought directions restraining Commissioner of Income-tax, Gujarat-I from releasing seized silver to M/s. Agra Bullion Company and Amritlal. In this appeal Commissioner of Income-tax, Gujarat-I is also respondent. The Competent Authority has been constituted under the SAFEMA and it means an officer of the Central Government to perform the functions under SAFEMA.
2. By order dated July 21, 1982, passed under Section 3 of the COFEPOSA by the State of Gujarat Amritlal was detained. He challenged his detention by filing a writ of habeas corpus under Article 32 of the Constitution in this Court (WP 1151/82). State of Gujarat, however, revoked the order of detention by order dated October 18, 1982 but by separate order on the same grounds and passed on the same day Amritlal was again detained. This led to filing of second writ of habeas corpus by Amritlal in this Court (WP 1342/82). First writ petition was disposed of on October 20, 1982 by the following order :-
“Shri Ram Jethmalani, learned counsel for the petitioners states that the impugned order of detention in each of these cases has since been revoked and the petitioners were thereafter released. The learned counsel further states that sometime after their release, on the day of release itself, each of the petitioners, has been served with a fresh order of detention and taken into custody. He proposes to file fresh petitions under Article 302 of the Constitution. Such petitions, if and when filed, may be listed for preliminary hearing. Liberty to mention.
The petitions are, therefore, dismissed as infructuous.”
3. During the pendency of the second writ petition the detenu Amritlal was ordered to be released on parole by order dated November 8, 1982. In the meanwhile the period of detention of Amritlal was reduced by the detaining authority up to August 16, 1983 when he was released from detention. Second writ petition was disposed of on July 10, 1985 by the following order :-
“In so far as these cases are concerned, the period during which the petitioners were on parole shall be taken into account while calculating the total period of detention. The order of detention was passed more than two and half years ago.
The writ petitions will stand disposed of in terms of this order.”
4. On October 10, 1985 Competent Authority issued notice under Section 6 of the SAFEMA to the respondents in Crl.As. 2/94 and 574/94. That was challenged by filing a writ petition in the Gujarat High Court (SCA 5684/85). Subsequently, however, the grounds on which notice of forfeiture under Section 6 of SAFEMA was issued were revised and other notice under Section 6 was issued. That led to filing of another writ petition in the Gujarat High Court (S.Crl.A. 499/91). When notice under Section 8 of SAFEMA was issued on July 28, 1991 yet another writ petition (SCA 5900/91) was filed. Since the very foundation of
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