IMPORTANT POINT
Where detention order under COFEPOSA was revoked by Central Govt. in exercise of its power u/s 11(1)(b) of COFEPOSA, then proviso to clause (b) of sub-section 2 of Section 2 of SAFEMA had no application.

Headnote:(i) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976-Sections 7 and 2(2)(b) first proviso-Order directing forfeiture of properties-High Court set aside the order taking a view that detention order against respondent was revoked u/s 11(1)(b) of COFEPOSA and proceedings initiated under SAFEMA became non-est in view of Section 2(2)(b) first proviso of the Act-Appeal-Revocation of detention order was in terms of Section 11(1)(b) of COFEPOSA by Central Govt., none of the three situations in the 1st sub-clause of proviso to Section 2(2) of the Act was applicable-High Court was wrong to hold that proviso to clause (b) of sub-section (2) of Section 2 SAFEMA was applicable. (Paras 11 to 15)
       (ii) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976-Section 7-Order directing forfeiture of properties-Writ petitions were filed challenging detention order passed under COFEPOSA-Central Govt. in exercise of power u/s 11(1)(b) of COFEPOSA revoked detention order and writ petition was dismissed by High Court as infructuous-Subsequently order forfeiting properties passed-Writ challenging detention order-Maintainability of 2nd writ-Subsequent writ was maintainable.
       Held : The view taken in Amritlal Chandmal Jain s case (supra) and Karimaben K. Bagad s case (supra) does not call for any further or fresh look or consideration - the same being not only just and reasonable but quite in conformity with the basic tenets of Rule of Law but commends for our respectful acceptance, as well. In both these cases, it was held that the subsequent writ petition is maintainable and it should rightly be so having regard to the consequential action taken at any rate under SAFEMA. Otherwise it would amount to the Government concerned being allowed/enabled to by their action disable and denude the person aggrieved from questioning the very applicability of SAFEMA to him or his properties de hors his other rights to challenge the same otherwise on merits as well. In any event, this aspect as to the legality and validity of the order of detention does not appear to have been considered and decided on merits by the High Court. We, therefore, remit the matter back to the High Court for fresh adjudication on merits as to the legality and validity of the orders of detention, for the purpose of applying the provisions of SAFEMA against the respondents or the properties concerned. (Paras 16 and 17)
       (iii) PROCEDURE AND PRACTICE -Concession by an advocate-Wrong concession cannot bind parties when statutory provisions clearly provided otherwise. (Para 8)

JUDGMENT

Arijit Pasayat, J.-Since the points involved in the criminal appeals are identical, they are taken up together for disposal.

2. Union of India questions legality of the judgments rendered by the Division Bench of the Bombay High Court holding that order dated 31.8.1995 passed by the Competent Authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short the SAFEMA ) against respondent Nos. 1 and 2 was not sustainable in law. For coming to such conclusion, reference was made to orders dated 19th December, 1994 passed under Section 11(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short the COFEPOSA ) revoking the order of detention and order dated 11.1.1995 passed in earlier writ petitions filed by respondent Nos. 1 and 2. Reference was made to first proviso to Clause (b) of sub-section (2) of Section 2 of SAFEMA for holding that proceedings initiated under the said statute became non est.

3. According to learned counsel for the appellant-Union the view taken by the High Court is clearly untenable. On the facts of the case, first proviso to clause (b) of sub-section (2) had no application to the facts of the case. The revocation of the order of detention was in exercise of power conferred under Section 11(1)(b) of the COFEPOSA and not under Section 8 as stipulated in the said provision. It is further submitted that the proceedings were initiated by issuance of notice under Section 6(1) of the SAFEMA for forfeiture of property on 12.10.1994. The orders of detention under Section 3(1) of COFEPOSA were passed on 24.5.1994. The orders of detention were challenged by the respondents 1 and 2 in Writ petition Nos. 1071 and 1072 of 1994. After the show-cause notice was issued in exercise of power under Section 11(1)(b) of the COFEPOSA, the Central Government revoked the orders of detention on 19.12.1994 as indicated above. In view of the revocation of the orders of detention, the writ petitions were disposed of on 11.01.1995. By order dated 31.8.95, properties mentioned in the show-cause notice were directed to be forfeited under Section 7 of SAFEMA. The order directing forfeiture was challenged on merits before the Tribunal constituted under the SAFEMA. Thereafter writ petitions were filed on 23.11.1995 challenging the orders of detention and also challenging the order of forfeiture. The latter additional challenge was by way of amendment. By the impugned judgment dated 13.6.1996 the High Court passed the impugned order in each case.

4. Learned senior counsel, for the Union of India further submitted that the Tribunal did not consider that first proviso has no application to the facts of the case. The order of detention was not revoked under Section 8 of SAFEMA but on the contrary under Section 11(1)(b) thereof. There was no revocation before receipt of the report of the Advisory Board or before making reference to the Advisory Board. Since the proceedings were initiated when the order of detention was in force, and were brought to the logical end by passing the order under Section 7 of SAFEMA, no illegality existed.

5. It is further submitted that it was not open to the respondents to question legality of the order of detention in the subsequent writ petition after the first writ petition was disposed of as having been rendered infructuous. Reliance was placed on Constitution Bench judgment of this Court in Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. (1994 (5) SCC 54), more particularly in paras 40, 41, 42 and 56 of the judgment.

6. In response, Mr. Huzefa Ahmadi, learned counsel for respondent Nos. 1 and 2, submitted that it is not open to the appellants to question correctness of the judgment after there was concession before the High Court about applicability of the proviso, and the absence of any scope for passing of any order under Section 7 of SAFEMA.

7. It was further submitted that even other

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2004 Supreme(SC) 210

IMPORTANT POINTWhere detention order under COFEPOSA was revoked by Central Govt. in exercise of its power u/s 11(1)(b) of COFEPOSA, then proviso to clause (b) of sub-section 2 of Section 2 of SAFEMA had no application.

Cases Referred (6)

IMPORTANT POINT
Where detention order under COFEPOSA was revoked by Central Govt. in exercise of its power u/s 11(1)(b) of COFEPOSA, then proviso to clause (b) of sub-section 2 of Section 2 of SAFEMA had no application.