JUDGMENT

VARADARAJAN, J.:—This appeal by special leave is directed against the Judgment of the Bombay High Court in Criminal Application No. 780 of 1981 filed by the respondent Haji Mastan Mirza, allowing the criminal appeal and declaring that the order of detention dated 19-12-1974 passed by the Minister of Finance. Government of India under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973. (COFEPOSA) is illegal, null and void ab initio and inoperative and quashing that order as well as the declaration under S. 5 (1) of the COFEPOSA made on 18-1-1975 and also consequently quashing the notice issued under S. 6 (1) and the order made under S. 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act. (SAFEMA) 1976 and restraining the appellant from taking any action whatsoever on the basis of the order of detention dated 19-12-1974 The main ground on which the order of detention dated 19-12-1974 and the declaration dated 18-1-1975 were quashed by the learned Judges of the High Court is that the respondent was not served with copies of documents referred to and relied upon in the grounds of detention served on the respondent on 19-12-1974.

2. An order dated 17-9-1974 was passed for detention of the respondent under S. 3 (1) (c) of the Maintenance of Internal Security Act (MISA) and the grounds of detention were served on him on 23-9-1974 after he surrendered on 18-9-1974. There was a formal release of the respondent from detention under the MISA on 19-12-1974 and he was immediately detained under S. 3 (1) of the COFEPOSA by the aforesaid order dated 19-12-1974 passed by the Minister of Finance of the Government of India on the basis of the materials placed before him by his Joint Secretary. The grounds of detention were served on the respondent on 23-12-1974. A declaration under S. 5 (1) of COFEPOSA was served on the respondent on 19-1-1975. Emergency was proclaimed throughout the country by the President on 25-6-1975 and it continued to be in force until 21-3-1977. The respondent was released on 23-3-1977.

3. A show cause notice under Section 6 (1) of SAFEMA was issued to the respondent and his relatives and alleged associates founded on the respondents detention under the aforesaid order dated 19-12-1974 made under S. 3 (1) of COFEPOSA. Pursuant to that notice an order under S. 7 of SAFEMA was passed forfeiting the properties of the respondent and his relatives. The respondent and all the other aggrieved persons except one filed appeals against that order before the Appellate Tribunal constituted under the Provisions of that Act. Those appeals are said to be still pending. The persons who filed those appeals have filed Miscellaneous Petition No. 548 of 1977 on or about 25-4-1977 in the Bombay High Court challenging the vires of certain Provisions of COFEPOSA and SAFEMA. That Petition is pending even now.

4. The respondent filed the criminal application No. 780 of 1981 under Article 226 of the Constitution and S. 482 of the Criminal P. C. in the Bombay High Court in April 1981. challenging the validity of the impugned order of detention dated 19-12-1974 and the declaration dated 18-1-1975. passed and made under S. 3 (1) and S. 5 (1) of COFEPOSA for showing that the action taken under S. 6 (1) and S. 7 of SAFEMA is unsustainable.

5. The learned counsel for the respondent conceded before us that the respondent is not challenging the vires of any of the provisions of COFEPOSA and SAFEMA in the Present appeal. The said petition under Art. 226 of the Constitution and S. 482 of the Criminal P. C. challenging the validity of the order of detention and declaration passed under COFEPOSA and the notice and order issued under Ss. 6 (1) and 7 of SAFEMA was heard by Gadgil and Kotwal. JJ. constituting the Division Bench of the Bombay High Court. Kotwal, J. considered all the grounds urged before him and accepted most of them including two grounds viz. non-application of mi