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SUPREME COURT OF INDIA
V. Khalid and G.L. Oza, JJ.
The Union of India and others - Appellants
versus
Manoharlal Narang - Respondent
Criminal Appeal No. 662 of 1986
Decided on 2-3-1987
Held-That on 1st July, 1975, when the order of detention against Ramlal was passed, the authorities had before them the order of this Court, extracted above, dated 1st May, 1975. By this order Ramlal was permitted to be at large on condition that he will report to the Police Station as mentioned therein. It cannot be disputed that this order of the Supreme Court is a relevant material for the detaining authority to consider when the detention order was passed. From the records it is not seen that the Union of India had specifically put forward a case at any time that this order was not a relevant material or that this order was considerd by the detaining authority. (Para 9)
An order of this Court is not an inconsequential matter. It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know, at the time the detention order was passed, that this Court had refused stay of the Delhi High Court and that Ramlal was allowed freedom of movement subject to certain conditions. It is to be regretted that the portion extracted above from the Counter Affidavit (shown in bracket) betrays an attitude, to put it mildly, that lacks grace. Be it understood that the bracketted portion was made to meet a case that there existed an order of this Court which was a relevant and vital material. We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Courts order but we desist from doing so. If the sponsoring authority and the detaining authority are to adopt such cavalier attitude towards orders of courts and of this Court in particular, their orders will meet with the same fate as the one under review. If the detaining authority had considered the order of this Court, one cannot state with definiteness, which way his subjective satisfaction would have reacted. This order could have persuaded the detaining authority to desist from passing the order of detention since this Court had allowed freedom of movement. Detention is only a preventive Act. This Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed. It may also be that the detaining authority after considering the order of this Court carefully could still feel, that an order of detention is necessary with reference to other materials, which outweigh the effect of this Courts order. In all these cases, non-application of mind on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would, always be in favour of the detenue. Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to what effect a relevant material could have, on the authority that decides the detention. In our view the absence of consideration of this important document amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid. (Paras 10 and 11)
(ii) Order of Supreme Court - is a relevant material for the detaining authority to consider when the detention order is being passed. (Para 11)
(iii) Law of Detention-Only a preventive Act. (Para 11)
(iv) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976-Provisions of, cannot be invoked in cases where there is no valid order of detention. (Para 14)
(v) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976Sections 6 and 7 – COFEPOSA - Section 3(1) - Detenu detained under - Notice issued against respondent, brother of detenu u/s 6 or SAFEMA with the aid of Section 2 of Act-Whether the respondent could challenge the order of detention against his brother, to get the notice issued against him quashed on all the grounds available to him though they were raised by his brother or not?-(Yes) (Para 7)
JUDGMENT
Khalid, J. - The Union of India has brought this appeal by special leave against the Judgment of a full Bench of the Bombay High Court quashing the notice under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, hereinafter referred to as SAFEMA. It is necessary to set out the brief facts to appreciate the questions involved in this appeal.
2. Manoharlal Narang, the respondent in this appeal and Ramlal Narang are brothers. An order of detention was passed on 19th December, 1974, under Section 3(1) of the COFEPOSA Act, against Ramlal Narang. This order was challenged before the Delhi High Court, in Writ Petition No. 10/75 and the High Court quashed the order of detention by its order dated 30th April, 1975. An appeal was filed against that order before this Court by the Union of India. Though an application for stay was moved, this Court declined to grant stay but passed an order on the 1st May, 1975 imposing certain conditions on the movement of Ramlal Narang. On 25th June, 1975, Emergency was declared. On 1st July, 1975, a fresh order of detention was passed against Ramlal on the same facts and grounds. In the meantime the appeal filed by the Union of India against the order of the Delhi High Court relating to the earlier order of detention, was dismissed by this Court in 1977, for want of prosecution. Ramlal was detained under the second order. A relative of his, filed Writ Petition No. 1I5 of 1975, in the Delhi High Court, challenging this detention. That petition was dismissed on 25th November, 1975.
3. An appeal was filed by Certificate, against that order before this Court as Appeal No. 399 of 1977. In the meanwhile, notices under Sections 6 and 7 of the SAFEMA were issued against Ramlal. These notices were challenged by him by filing writ Petition No. 20 of 1975, in the Delhi High Court. Subsequently, this Court took up appeal No. 399/75 and disposed it of saying that it would be open to the petitioner to raise all contentions available to him in writ petition No. 720 of 1975 notwithstanding what is contained in the Judgment in Writ Petition No. 115/75. The Delhi High Court heard Writ Petition No. 720 of 1975 and dismissed it. Against that dismissal order Ramlal filed special leave petition No. 9361/82 before this Court. In this special leave petition, notice was issued limited only to the question of the competency of the authorities to issue the second detention order on the same facts and grounds. That petition was thereafter admitted and the civil appeal arising therefrom is Civil Appeal No. 2790 of 1985, which has been referred to a Constitution Bench and is pending disposal at present.
4. That learned Counsel for the appellants made a fervent plea before us that since the question of competency of the authorities to issue the second detention order is pending consideration before a Constitution Bench of this Court, this appeal also should be directed to be posted along with that appeal. The respondents counsel met this plea stating that for the purpose of this appeal, this question is covered by a three Judge Bench decision of this Court in Ibrahim Bachu Bafan v. State of Gujarat and orhers1 and that it was not necessary to direct this appeal to be tagged with Civil Appeal No. 2790/85. After hearing the counsel for some time, we indicated to the learned counsel for the respondent, that we were inclined to direct this appeal to be posted along with the appeal pending before the Constitution Bench but were still willing to hear the matter if he could sustain the Judgment under appeal, on grounds other than the one referred to the Constitution Bench. He was willing to do so and he argued the case on the other grounds raised by him. We will now proceed to consider those other grounds and see whether the Judgment could be sustained or whether it has to be reversed.
5. The facts and the relevant dates have been stated above. A few more facts are necessary. An orde
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