Holding

Parliament was competent to enact COFEPOSA and SAFEMA; detention orders under COFEPOSA (including those made under Section 12‑A during the emergency) are valid and can be the basis for SAFEMA action, and the definitions and provisions of SAFEMA, including its application to relatives and associates and Section 5‑A of COFEPOSA, do not violate the Constitution.

Summary

The Supreme Court examined the constitutional validity of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA), both placed in the Ninth Schedule. It held that Parliament was competent to enact both statutes and that orders of detention made under COFEPOSA, even those governed by Section 12‑A during the emergency, constitute valid orders of detention for the purposes of SAFEMA. Consequently, such detention orders can serve as the foundation for SAFEMA proceedings against the detainees, their relatives and associates. The Court also upheld the wide definition of “illegally acquired property” in SAFEMA and the inclusion of relatives and associates within its net, finding no violation of Articles 14, 19 or 21. Section 5‑A of COFEPOSA was declared consistent with Article 22(5). All pending writ petitions, transferred cases and appeals were disposed of in favour of the Union.

Issues considered

Whether Parliament was competent to enact COFEPOSA and SAFEMA.
Whether a detention order under COFEPOSA made during the emergency can form the basis for action under SAFEMA and be challenged thereafter.
Whether the validity of such detention orders should be tested with reference to the law at the time of the order or at the time of the SAFEMA notice.
Whether the definition of “illegally acquired property” in SAFEMA violates Articles 14, 19 and 21, and whether Schedule IX immunity cures any such violation.
Whether extending SAFEMA to relatives and associates infringes Articles 14, 19 and 21.
Whether Section 5‑A of COFEPOSA contravenes clause (5) of Article 22.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 12-A, s. 3, s. 5-A
Constitution of Indias. Article 22(4)-(7), s. Article 31(B), s. Article 352, s. Article 358, s. Article 359(1), s. Article 359(1A), s. Article 38th Amendment, s. Article 39th Amendment, s. Article 40th Amendment, s. Article 42nd Amendment, s. Article 44th Amendment
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA)s. 2(2)(a), s. 2(2)(b), s. 3(1)(c), s. 6

Subjects

preventive detentionemergency powersconstitutional validityArticle 22Article 31BSchedule IXillegally acquired propertyforfeiturerelatives and associatesSection 5-ACOFEPOSASAFEMA

Judgment

ATIORNEY GENERAL FOR INDIA ETC. ETC. A
v.
AMRRATLAL PRAJIVANDAS AND ORS. ETC. ETC.

MAY 12, 19?4
B
[AM. AHMADI, P.B. SAWANT, K. RAMASWAMY,
K. JAYACHANDRA REDDY, S.C. AGRAWAL, S. MOHAN,
B.P. JEEVAN REDDY, G.N. RAY AND N. VENKATACHALA, JJ.]

Constitution of lndi(t-Articles 22 (4) to (7), Schedules VII and IX, C
Entry 3 List 111-ConseTVation of Foreign Exchange and Prevention of Smug-
gling Activities Act, 1974-Smugglers and Foreign Exchange Manipulators
(Foifeiture of Property) Act, 1976-Constitutional validity of-whether Par-
liament competent to enact COFEPOSA and SAFEMA-Held, yes-Both
enactments being placed in IX Schedule, they enjoy immunity confe"ed by
Article Jl(B). D
Co!tseTVation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974-Section 3 read with section 12 A-Order of detention under
section 3 read with section 12 A made during period of emergency-Whether
can form foundation for taking action under section 6 of Smugglers and E
Foreign Exchange Manipulators (Foifeiture of Property) Act, 1976-Held,
Yes-Whether the validity of such order of detention be challenged when
proceedings are taken against detenue .under SAFEMA, even though said
order has ceased to be operative and was not challenged during its opera-
..., tion-Held, No.-Validity of order to be tested with reference to position of
law obtaining at the time said order was made and during period of operation. F

Smugders and Foreign Exchange Manipulators (Foifeiture of Property)
A ct, 1976-Section 3(1) ( c}-lllegally acquired properties-Definition
of-Validity-Whether definition of "illegally acquired property" is violative of
fundamental rights of detenue-Held, No.
G
Smugglers and Foreign Exchange Manipulators (Foifeiture of Property)
Act, 1976-Section 2(2)(a)&(b}-Foifeiture of 'illegally acquired properties'
of a person falling under clause (a) or clause (b) of Section 2(2}-JYhether
application of Act to relatives and associates of detenues is violative of
Articles 14, 19 and 21 of Constitution of India-Held, No. H
1
2 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A Conservafi·on of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 197~Section 5-A-Validity of-Whether Section 5-A is violative
of clause (5) of Article 22 of Constitution of Jndiir--lleld, No.

Constitution of India-Article 22(5/-Validity of Section 5-A of
B COFEPOSA-Whether section 5-A is violative of Article 22(5)--Held, No.

During the period of emergency in the year 1976, several orders of
detention. were made under section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974. Jn view of the
provisions of section 12-A, the detenues were neither supplied with the
C grounds of detenuetion nor were their cases referred to the Advisory
Board. Because ,of the order under Article 359(1) and the operation of
Article 358 of the Constitution of India, they bad no remedy and could not
approach the High Court or the Supreme Court for relief. The detenues
were released wh.en the emergency was revoked. Notices were issued under
D section 6 of the Smugglers and Foreign Exchange Manipulators (Forfei-
ture of Property) Act, 1976, to those detenues, their relatives and as-
sociates calling upon them to show cause why the properties mentioned in
the notices be not declared as illegally acquired properties and forfeited.
The orders of detention made against the detenues under COFEPOSA
during the emergency were the foundation for the action being taken
E against them under SAFEMA. The detenues filed writ petitions in the High
Courts for quashing the said notices while challenging the constitutional
validify of the COFEPOSA, SAFEMA and the 39th, 40th and 42nd Amend-
ments to the Constitution of India placing COFEPOSA and SAFEMA in
the IX Schedule. The writ petitions filed in various High Courts were
F transferred to the Supreme Court in view of the important constitutional
questions raised therein.

Though a challenge to the constitutional validity of 39th, 40th and
42nd Amendments to the Constitution was levelled in the writ petitions on
the ground that the said Amendments infringe the basic structure of the
G Constitution, no effort was made to establish in what manner the said
Amendment Acts violated Authority. The petitioners argued that
COFEPOSA was not relatable to Entry 9 ofList·l of the Seventh Schedule
to ~he Constitution in as much as the preventive detention provided
therefor was not for reasons connected with defence, foreign affairs or
H security of India. Even Entry 3 of list III, it was submitted, did not warrant
AITORNEY GENL. FOR INDIA v. A. PRAIIVANDAS 3

the said enactment. So far as SAFEMA was concerned, it was argued, it A
was not relatable to any of the Entries in List I or in List III.

The petitioners submitted that since the order of detention under
COFEPOSA was made the basis for action under SAFEMA against the
;!etenues, their relatives and their associates, they were entitled to chal-
4' Ienge the validity of the order of detention. They argued that by virtue of B
the order made under Article 359(1), the fundamental rights guaranteed
to them by Articles, 14, 21 and 22 were not suspended, but only the right
to move for their enforcement was suspended. The detention nrder made
against them were invalid and illegal for violation of clauses (4) and (5)
of Article 22 and, therefore, could not serve as the basis of action under C
SAFEMA. The petitioners submitted that the detention orders governed
by Section 12-A of COFEPOSA were inherently arbitrary and unjust.

The petitioners then attacked the definition of illegally acquired
.., properties "in clause (c) of Section 3(1) of SAFEMA on grounds of un-
reasonableness, arbitrariness or as violative of Articles 14, 19 and 21. D
Mternatively, it was submitted that if the said definition was unassailable
on account of its inclusion in the IX Schedule, the definition should be
read down so as to confine it only to the properties acquired by violating
the prohibitions contained in the Acts mentioned in section 2(9) of
SAFEMA. It was contended that extending the provisions of SAFEMA to E
the relatives, associates and other'holders' was a case of excessive regula~
!ion. It was pointed out that the definitions of 'relative' in Explanation (2)
and of 'Associates' in Explanation (3) were so wide as to bring in a person
.... even distantly related or associated with the convict/detenne, within the net
ofSAFEMA.
F
The petitioners also challenged the validity of Section 5-A of
COFEPOSA on the ground of it being violative of the safeguards provided
by clause (5) of Article 22.

Relaying upon the provisions of clause (lA) of Article 359, it was
submitted by the Additional Solicitor General that the validity of the G
detention orders had to be judged with reference to the law then obtaining
on the date of issuance of notice under section 6 of SAFEMA. He submitted
that clause (lA) of Article 359 saved all such orders. It was stated that
susp~nsion of remedy amounted to suspension of the right itself and there
was no distinction, according to him, between Article 358 and an order H
4 SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.

A under Article 359 (1). It was argued that the detention orders passed
during the emergency to which section 12-A of COFEPOSA applied could
not be said to be void ab initio or non-est. The orders were good and valid
when they were made, though they ceased to be operative "ith the cessation
of the Presidential order. The questions raised for determination were :

B (1) Whether the parliament was not competent to enact COFEPOSA
andSAFEMA?

(2) Whether an order of detention under Section 3 read with section
12-A of COFEPOSA made during the period of emergency proclaimed
C under Article 352(1) of the Constitution of India, - with the consequent
'suspension' of Article 19 and during which ·period the right to move the
Court to enforce the rights conferred by Articles 14, 21 and 22 was
suspended - can from the foundation for taking action under Section 6 of
SAFE MA against the detenue, his relatives and associates? And if it does,
can the validity of such order of detention be challenged by the detenue
D and/or his relatives and associates, when proceedings are taken against
him/them under SAFEMA, even though the said order of detention has
ceased to be operative and was not either challenged - or not successfully
challenged - during its operation?

E (3) Uthe answer to the Question No. 1 is in affirmative, should the
validity of the order of detention be tested with reference to the position
of law obtaining at the time of making the said order and during its period
of operation or with reference to the position of law obtaining on the date
of issuance of the show cause notice under Section 6 of SAFEMA?

F (4) Whether the definition of "illegally acquired property" in clause
(c) of Section 3(1) of SAFEMA is violative of the fundamental rights of the
petitioners guara ..teed by Articles 14, 19 and 21 and whether the inclusion
of SAFEMA in the IX Schedule to the Constitution cures such violation,
if any? '
G
(5) Whether the application of SAFEMA to the relatives and as-
sociates of detenues is violative of Articles 14, 19 and 21? Whether the
inclusion of the said Act in the IX Schedule cures such violation, if any.

(6) Whether Section 5-A of COFEPOSA is violative of clause (5) of
H Article 22?
ATIORNEY GENL. FOR INDIA v. A PRAJIVAND AS 5

Disposing of the matter, this Court A

HELD : 1.1. Parliament was perfectly competent to enact both the
Conservation of Foreign Exchange and Prevention of Smuggling Activities "'
Act, 1974 and the Smugglers and Foreign Exchange Manipulators (Forfei-

... ture of Property) Act, 1976. The COFEPOSA is relatable to Entry 3 of List
lll inasmuch as it provides for preventive detention for reasons connected B
with the security of the State as well as the maintenance of supplies and
services essential to the community. [22-H, 23-A, 53-C]

Union of India v. H.E.S. Dhillon, [1972] 2 SCR 33, relied on.

1.2. COFEPOSA was placed in the IX Schedule by the Constitution
c
39th (Amendment) Act, 1975 while the SAFEMA and the COFEPOSA
(Amendment) Acts, 1976 were placed in the IX Schedule by the Constitu-
tion 40th (Amendment) Act, 1976. Both the enactments being placed in the
IX Schedule, they enjoy theimmunity conferred by Article 31 (B). The
petitioners have not been able to sustain their submission that the 39th D
(Amendment) Act and 40th (Amendment) Act, placing the said enactments
in the IX Schedule were unconstitutional, They are assumed to he good
and valid. [11-D, 21-C]
• 1.3. An order of detention made under Section 3 of COFEPOSA, E
which was governed by Section 12-A thereof, is yet an order of detention
for the purpose of and within the meaning of Section 2(2) (b) of SAFEMA.
Since the President had issued an order under Article 359 (1) suspending
Articles 14, 21 and 22, it became competent for Parliament, by virtue of
clause (lA) of Article 359 to enact Section 12-A of COFEPOSA for the
duration of and limited to the period for which the Presidential Order was F
in force. It was meant to achieve the purposes of emergency. Once Section
12-A is held to be a competent piece of legislation, orders of detention made
thereunder (i.e. orders of detention to which the said provision applied)
cannot be held to be not amounting to orders of detention for the purpose
of and within the meaning of section 2(2)(b) of SAFEMA, particularly in G
view of the express language of Section 2(2)(b) (incl\J.ding proviso (iii)
}
thereto) - and the protection enjoyed by both the enactments by virtue of
their inclusion in the IX Schedule to the Constitution. [53-E-G]

1.4. An order of detention to which Section 12-A is applicable as well
as an order of detention to which Section 12-A was not applicable can serve H
6 SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.

A as the foundation, as the basis, for applying SAFEMA to such detenue 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
detenue 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 thereon - he, or
B his relatives and associates cannot attack or question its validity when it is
made the basis of applying SAFE MA to him or to his relatives or associates.
(53-H, 54-A-B]
This is for the reason that even if he is allowed to challenge the said
order when he is served with the notice under section 6 of SAFEMA, the
c challenge has to be examined with reference to the position of law as was
obtaining at the time the said order was made and the law in force during
the period the said order of detention was in operation. (40-D]

Union of India, v. Haji Mastan Mirza, (1984] 3 SCR 1, overruled.
D
Union of India v. Manohar Lal Narang, [1987] 2 sec· 241, distin-
..
guished.

1.5. The definition of 'illegally acquired properties in clause (c) of·
Section 3 of SAFEMA is not invalid or ineffective. The definition is quite
E wide. It takes in not only the property acquired after the Act but also the
property acquired before the Act, whatever be the length of time. It takes
in property which may have been acquired partly from· but of. illegal
activity. (40-F-G]

Both enactments being placed in the IX Schedule they enjoy the
F immunity conferred by the Article 31 (B) and therefore, the validity of the
said definition on grounds of unreasonaJiless, arbitrariness or any of the
grounds relatable to part-HI, cannot be challenged. Further, in view of
clear and unambiguous language employed in clause (c) of Section 3, it is
not permissible to resort to the device of reading down. Therefore, neither
G the constitutional validity of the said definition can be questioned nor is
there any warrant for reading down the clear and unambiguous words in
the clause when the justification for such a provision is enough and more.
(41-D-H & 42-A-O]
Attorney General for Ho11g Kong v. Reid, (1993] 3 WLR 1143, relied
H on.
ATI'ORNEY GENL. FOR INDIA''· A PRAJ!V AND AS 7

1.6. SAFEMA is directed towards forfeiture of "illegally acquired A
properties" of a person falling under clause (a) or clause (b) of Section
2(2). The relatives and associates are brought in only for the purpose of
ensuring that the illegally acquired properties of the convict or detenue,
acquired or kept in their names, do not escape the net of the Act. It is a
well known fact that persons indulging in illegal activities screen the
B
properties acquired from such illegal activity in the names of their rela-
tives and associates. Sometimes they transfer such properties to them, may
be, with an intent to transfer the ownership and title. In fact, it is im-
material how such relative or associate holds the properties of con-
,'vict/detenue whether as a benami or as a mere name-lender or as a bona
fide transferee for value or in any other manner. He cannot claim those c
properties and must surrender them to the State under the Act. Since he
is relative or associate, as defined by the Act, he cannot put forward any
defence once it is proved that, that property was acquired by the detenue
- whether in his own name or in the name of his relatives and associates.
It is to counter-act the several devices that are or may he adopted by D
persons mentioned in clauses (a) and (b) of Seciion 2(2) that their rela-
tives and associates mentioned in clauses (c) and (d) of the said sub-sec-
tion are also brought within the purview of the Act. The fact of their
holding or possessing the properties of convicl/detenue furnishes the link
between the convicl/detenue and his relatives and associates. Only the
properties of the convicl/detenue are sought to be forfeited, wherever they E
are. The idea is to reach his properties in whomsoever's name they are
kept or by whomsoever they are held. The independent properties of
.., relatives and friends, which are not traceable to the convicl/detenne, are
not sought to be forfeited nor are they within the purview of SAFEMA.
(44-B-GJ F
There ought to be the connecting link between those properties and
the convicl/detenue, the burden of disproving which, is upon the rela-
tive/associate. The bringing in of the relatives and associates or of the
persons mentioned in clause (e) of Section 2(2) is thus neither dis-
criminatory nor incompetent apart from the protection of Article 31-B. G
(46-G-H & 47-A)

1.7. Section 5-A of COFEPOSA is not invalid or void. It is not
violative of clause (5) of Article 22. (54-E)

1.8. An order of detention can be based upon one single ground. It H
8 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A is not necessary that there should be multiplicity of grounds for making
or sustaining an order of detention. Where the order of detention is made
on more than one ground, the section creates a legal fiction, viz., it must
be deemed that there are as many orders of detention as there are grounds
which means that each of such orders is an independent order. It is
.B difficult to conceive any inconsistency or conflict between Article 22(5) and
Section 5-A. The Parliament is competent to create a legal fiction and it •
did so in this case. Article 22 (5) does not in terms or otherwise prohibit
making of more than one order simultaneously against the same person,
on different grounds. [48-G, 49-D-E)

C Debu Mahato v. State of West Bengal, [1974) 4 SCC 135; Anil Day v.
State of West Bengal, [1974) 4 SCC 514; Israil Sk v. District Magistrate of
West Dinagpur & Ors., [1975) 3 SCC 292; Dharua Kanu v. State of West
Bengal, [1975) 3 SCC 527; Saraswathi Seshagiri v. State of Kera/a & Ors.,
[1982) 2 sec, relied on.

D K. Yadigiri Reddy v. Commissioner of Police, ILR (1972) AP 1025, •
distinguished.

CIVIL APPELLATE JURISDICTION : Transfer Petition No. 17 of
1978 Etc. Etc.
E (Under Article 139A of the Constitution of India.)

Altaf Ahmad, Addi. Solicitor General, Venugopal Reddy, Dr. N.M.
Ghatate, A.K. Srivastava, Ms. A. Subhashini, Ms. Sushma Suri, P.H.
Parekh, Ms. Prerna Kohli, A.S. Bhasme, D.P. Mukherjee, R.S. Suri, K.C.
F Dua, S.K. Agnihotri, Harjinder Singh, R.A. Shroff, Sarva Mitter for Mis
Mitter & Co., S. Ganesh, K.J. John, G.S. Phale, Pramod Swarup, Ms. J.
Sarla, M.N, Shroff, Nand Kumar, E.C. Agarwala, Pradeep Kumar; G.S.
Chatterjee, Shrinath Singh, Vineet Kumar, Anip Sachthey, S.V.
Tambwekar, P. Parmeswaran, PK. Pillai, ATM Sarnpath, M. Veerappa,
K.R. Nambiar, Ambrish Kumar, T.S. Arora, CVS Rao, S. Fazal, U. Sagar,
G Ms. Sarda Devi, Yashank, Mukul Mudgal, D. Goburdhan, S.M. Jadhav,
Sakesh Kumar , R.N. Joshi, Ms. Janki Ramachandran, U.A. Rana, Anand '
Prasad, Rajiv Tyagi for Mis Gagret & Co., P.R. Seethararnan, M.T.
George, S.K. Gambhir and R.S. Sodhi for the appearing parties.

H The Judgment of the Court was delivered by
"l'\TfORNEY GENL. FOR INDIA v. A PRAJIVANDAS [JEEVf>NREDDY,J.] 9

B.P. JEEVAN REDDY, J. Till the wind of liberalisation started A
blowing across the Indian economic landscape over the last year or two,
the Indian economy was a sheltered one. At the time of independer..ce,
India did not have an industrial base wor.th the name. A firm industrial
base had to be laid. Heavy industry was the crying need. All this required
foreign exchange. The sterling balanees built up during worldwar-11 were
B
fast dissipating. Foreign exchange had to be conserved, which meant
prohibition import of several unessential items and close regulation of
• other imports. It was also found necessary to · raise .protective walls to
nurture and encourage the nascendndustries. These controls had, how-
ever, an unfortunate fall-out. They gave rise to a class of smugglers and
foreign exchange manipulators who were out to frustrate the regulations c
and restrictions - profit being their sole motive, and success in life the sole
earthly judge of right and wrong. As early as 1947, the Central Legislature
found it necessary to enact the Foreign Exchange R.egulation Act, 1947 and
Imports and Exports (Control) Act, 1947. Then came the import (Control)
Order, 1955 to place the policy regarding import on a surer footing. In the D
year 1962, a new Customs Act replaced the antiquated Sea Customs Act,
1878. The menace of smuggling and foreign exchange violations, however,
• continued to rise unabated. The Parliament then came forward with the
conservation of Foreign Exchange and Prevention of Smuggling Act, 1974
(COFEPOSA). It provided for preventive detention of these anti-social
elements. E

On June 25, 1975, the President of India proclaimed an emergency
under Article 352(1) of the Constitution of India on the ground that "the
security of India is threatened by internal disturbance." A proclamation of
emergency dated December 3, 1971 issued under Article 352(1) on the F
ground that "the security of India is threatened by external aggression" was
already in force. These declarations had the 'effect of 'suspending' - to use
a popular though not strictly accurate expression - Article 19 as provided
by Article 358 of the Constitution. On 27th June, 1975 the President of
India made an order under Article 359( 1) of the Constitution declaring G
"that the right of any person (including a foreigner) to move any court for
the enforcement of the rights conferred by Article 14, Article 21 and
Article 22 of the Constitution and ·all proceedings pending in any C9urt for
J the enforcement of the above-mentioned rights shall remain suspending for
the period during which the proclamation of emergency ma<le under clause
( 1) of Article 352 of the Constitution on 3rd December, 1971 and on the H
10 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
,
A 25th June, 1975 are 'both in force".

With effect from 1st July, 1975, COFEPOSA was amended in certain
respects. Inter alia, it introduced Section 12-A containing special provisions
for dealing with emergency. By virtue of Section 12-A, the requirements of
supply of gronnds (section 3(3)] and consultation with Advisory Board
B (Section 8) were practically done away with.

In the year 1976, no doubt, during the continuance of emergency, the •
Parliament enacted the Smugglers and Foreign Exchange Manipulators
(Forfeiture of property) Act, 1976 (SAFEMA). If replaced an Ordinance
C to the same effect and was brought into force from the date of the
Ordinance, viz., 5th November, 1975. This Act applies to persons convicted
under the Sea Customs Act, 1878/Customs Act, 1962/FERA, 1947/FERA,
1973 and to those detained under the COFEPOSA, whose detention order
was neither set aside nor revoked in the circumstances mentioned therein.
D Besides the persons so convicted/detained, the Act applies to their relatives
and associates as well. The main purpose of the Act is to forfeit the illegally
acquired properties of such smugglers and foreign exchange manipulators
in whomsoever's name they may have been l..ept.
..
During the period the Emergency proclaimed on 25th Jnne, 1975 was
E m force, several orders of detention were made under Section 3 of .•
COFEPOSA. In view of the provisions of Section 12-A, the said detenues
were neither supplied with the gronnds of detention nor were their cases
referred to the Advisory Board. The detenues, however, had no remedy.
Because of the order under Article 359( 1) and the operation of Article 358
F - as interpretated by this Court in A.D.M. Jabalpur v. Shivkant Shukla,
[1976] 2 S.C.C. 521 - they could not approach the High Court or this Court
for relief. The emergency was revoked on March 21, 1977 and the detenues
released. Subsequently notices were issued nnder Section 6 of the
SAFEMA to the said detenues, their relatives and associates calling upon
them to show cause why the properties mentioned in the notices be not
G declared as illegally acquired properties and forfeited. SAFEMA was being
invoked against them because of the orders of detention made against the
detenues under COFEPOSA during the period of emergency. The said
orders of detentions were the connecting link, the foundation for the action
being taken against the dctenues, their friends and relatives under
'
H SAFEMA. (The orders of detention, it is not in dispute, were not revoked
.AITORNEYGENL. FOR INDIA v. A.PRAJNANDAS (JEEVANREDDY,J.] 11

' or set aside as contemplated by clause (b) of sub-section (2) of Section 2 A
of SAFEMA). It is then that the said persons approached the High Courts
under Article 226 and this Court under Article 32 for quashing the said
notices. In these writ petitions, the Constitutional validity of the
COFEPOSA, SAFEMA and of the 39th, 40th and 42nd Amendments to
the Constitution of India were questioned. (In a few cases, it appears, final B
orders were also passed- but that circumstance does not make any dif-
ference to the principle involved herein). In most of the cases further
• proceedings were stayed .

The Attorney General of India applied for transfer of the writ
petitions pending in various High Courts to this Court to be heard C
alongwith the petitions preferred directly in this Court in view of the .
important constitutional questions raised therein. The prayer for transfer
is granted in all the transfer petitions. Leave granted in the S.L.P.

It may be mentioned that COFEPOSA was placed in the IXth
Schedule at Sl. No. 104 by the Constitution 39th (Amendment) Act, 1975 D
while the SAFEMA and the COFEPOSA (Amendment) Acts, 1976
(Central Acts 13 and 20 of 1976 respectively) were placed in the IXth
Schedule at Serial Nor.. 127 and 129 by the Constitution 40th (Amendment)
Act, 1976.
E
The coun<el appearing for tbe petitioners urged several contentions
all of which have been contested by 3rd Altaf Ahmed, Learned Additional
Solicitor General. The issues arising from the rival contentions urged at the
bar may be formulated in the shape of questions. They are to the following
effect :
F
(1) Whether the Parliament was not competent to enact COFEPOSA
and SAFEMA?

(2) Whether an order of detention under Section 3 read with Section
12-A of COFEPOSA made during the period of emergency proclaimed
under Article 352(1) of the Constitution of India - with the consequent G
'suspension' of Article 19 and during which period the right to move the
Court to enforce the rights conferred by Articles 14, 21 and 22 was
suspended - can form the foundation for taking action under Section 6 of
SAFEMA against the detenue, his relatives and associates? And if it does,
can the validity of such order of detention be challenged by the detenue H
12 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
I
A and/or hrs relatives and associates, when proceedings are taken against
him/them under SAFEMA even though the said order of detention has
ceased to be operative and was not either challenged - or not successfully
challenged - during its operation?

(3) If the answer to the Question No. 1 is in affirmative, should the
B validity of the order of detention be tested "With reference to the position
of law obtaining at the time of making the said order and during its period
of operation or 'jlith reference to the position of law obtaining on the date
of issuance of the show cause notice under Section 6 of SAFEMA?
..
c (c) of (Section
4) Whether the definition of "illegally acquired property" in clause
3(1) of SAFEMA is violative of the fundamental rights of
the petitioners guaranteed by Articles 14, 19 and 21 and whether the
inclusion of SAFEMA in the !Xth Schedule to the Constitution cures such
violation, if any?

D (5) Whether the application of SAFEMA to the relatives and as-
sociates of detenues is violative of Articles 14, 19 and 21? Whether the
inclusion of the said Act in the !Xth Schedule cures such violation, if any?

(6) Whether Section 5-A of COFEPOSA is violative of clause (5) of
Article 22?
E
For a proper appreciation of the aforesaid questions, it is necessary
to briefly refer to the relevant provisions of both the enactments.

COFEPOSA :- The Preamble to the Act explains the reasons for
which and the objectives to achieve which the Act was made. It reads :
F
"An Act to provide for preventive detention in certain cases for
the purposes of conservation and argumentation of foreign ex-
change and prevention of smuggling activities and for matters
connected therewith.
G
· Whereas violations of foreign exchange regulations and smug-
gling activities are having an increasingly deleterious effect on the
national economy and thereby a serious adverse effect on the
security of the State ;
'
H And whereas having regard to the persons by whom and the
ATIORNEY GENL. FOR INDIA v. A. PRAJIVANDAS (JEEVAN REDDY, J.J 13

manner in which such activities or violations are organised and A
carried on, and having regard to the fact that in certain areas which
are highly vulnerable to smuggling, smuggling activities of a con-
' siderable magnitude are clandestinely organised and carried on, it
j
is necessary for the effective prevention of such activities and
violations to provide for detention of persons concerned in any B
manner therewith;
= Be it enacted by Parliament in the Twenty-fifth year of the
Republic of India as follows :- "

The expression "smuggling" is defined in Clause (e) of Section 2. It C
says that the said expression shall have the same meaning as in clause (39)
of Section 2 of the Customs Act, 1%2 and that all its grammatical variations
and cognate expressions shall be construed accordingly.

Clause (39) of Section 2 of the Customs Act defines "smuggling" in
D
... the following words: "smuggling in relation to any goods, means any act or
omission which will render such goods liable to confiscation under Section
111 or Section 113."

Section 3 provides that where the Central Government, the State
Government or any officer empowered in that behalf is satisfied with E
respect to any person including a foreigner, that (1) with a view to prevent-
ing him from acting in any ;,,anner prejudicial to the conservation or
augmentation of foreign exchange or (2) with a view to preventing him from
(i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii)
'• engaging in transporting or concealing or keeping smuggled gooc;ls, or (iv)
dealing in smuggled goods otherwise than by engaging in transporting or F
concealing or keeping smuggled goods, or (v) harbouring persons engaged
in smuggling goods or iD. abetting the smnggling of goods, it is necessary
to detain him, he can do so. Sub-section (3) provides for service of grounds
of detention within five days of the detention. (In "exceptional circumstan-
ces and for reasons to be recorded in writing", the grounds of detention G
are allowed to be served within fifteen days).

Section 5-A which was inserted by the Amendment A~t 35 of 1975
reads thus:

"5-A. Grounds of. detention severable - Where a person has been H
r
14 SUPREME COURT REPORTS [1994] SUPP. I S.C.R.

A detained in pursuance of an order of detention under sub-section
(1) of Section 3 which has been made on two or more grounds,
such order of detention shall be deemed to have been made
separately on each of such grounds and accordingly -

(a) such order shall not be deemed to be invalid or inopera-
B tive merely because one or some of the grounds is or are -

(i) vague,

(ii) non-existent,

c (iii) not relevant,

(iv) not connected or not proximately connected with such
person, or

(v) invalid for any other reason whatsoever,
D
and it is not therefore possible to hold that the Government or ·~·
officer making such order would have been satisfied as provided
in sub-section ( 1) of Section 3 with reference to the remaining
ground or grounds and made the order of detention;

E (b) the Government or officer making the order of detention shall
be deemed to have made the order of detention under the said
sub-section (1) after being satisfied as provided in that sub-section
with reference to the remaining ground or grounds."

More about this section later.
F
Section 8 provides for constitution of an Advisory Board as required
by clause (4) of Article 22 and for reference of each detenue's case to it.
The opinion of the Advisory Board is binding upon the Government.
Section 9 provides certain classes of cases, where the reference to Advisory
G Board can be made within an extended period. This section is relatable to
clause (7) of Article 22. Section 12-A containing special provisions for
dealing with emergency was introduced by COFEPOSA (Amendment)
Act, 1976 (Act 19 of 1976). In view of its crucial relevance, the section !"'ai ·
be set out in full. It reads :

H "12-A. Specfal _provisions for dealing with emergency.- (1) Not-
AITORNEY GENL. FOR INDIA ''·A. PRAJIVANDAS [JEEVAN REDDY. J.[ 15

withstanding anything contained in this Act or any rules of natural A
justice, the provisions of this section shall have effect during the
period of operation of the proclamation of Emergency issued
under clause (i) of Article 352 of the Constitution on the 3rd day
of December, 1971, or the Proclamation of Emergency issued
,. under that clause on the 25th day of J unc, 1975, or a period of
twenty-four months from the 25th day of June, 1975, whichever
B
period is the shortest.

(2) When making an order of detention under this Act against any
person after the commencement of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities (Amendment) c
Act, 1975, the Central Government or the State Government or,
as the case may be, the officer making the order of detention shall
consider whether the detention. of such person under this Act is

. necessary for dealing effectively with the emergency in respect of
which the proclamations referred to in sub-section (1) have been
issued (hereafter in this section referred to as the emergency) and
if, on such consideration, the Central Government or the State
D

Government or, as the case may be, the officer is satisfied that it
is necessary to detain such person for effectively dealing with the
emergency, that Government or officer may m&ke a declaration to
that effect and communicate a copy of the declaration to the E
person concerned :

., Provided that where such declaration is made by an officer, it
shall be reviewed by the appropriate Government within fifteen days
from the .date of making of the declaration and such declaration F
shall cease to have effect unless it is confirmed by that Govern-
ment, after such review, within the said period of fifteen days.

(3) The question whether the detention of any person in respect
of whom a declaration has been made under sub-section (2)
continues to be necessary for effectively dealing with the emergen- G
; cy shall be reconsidered by the appropriate Government v;jthin four
months from the date of such declaration and thereafter atinter-
vals not exceeding four months, and if, on such reconsideration, it
appears to the appropriate Government that the detention of the
person is no longer necessary for effectively dealing with the H
,.
16 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A emergency, that Government may revoke the declaration.

(4) In making any consideration, review or reconsideration under
sub-section (2) or (3), the appropriate Government or officer may,
if such Government or officer considers it to be against the public
interest to do otherwise, act on the basis of the information and
B materials in its or his possession without disclosing the facts or
I
giving an opportunity of making a representation to the person
'
...... '
concerned.

(5) It shall not be necessary to disclose to any person detained under
C a detention order to which the provisions of sub-section (2) apply,
the groundS on which the order has been made during the period the
declaration made in respect of such person under that sub- section
is in force and, accordingly, such period shall not be taken into
account for the purposes of sub-section (3) of Section 3.

D (6) In the case of every person detained under a detention order
to which the provisions of sub-section (2) apply, being a person in
...
respect of whom a declaration has been made thereunder, the
period during which such declaration is in force shall not be taken
into account for the purpose of computing -
E (i) the period specified in clauses (b} and (c) of Section 8;

(ii) the period of "one year" and "five weeks" specified in
sub-section (1), the period of "one year" specified in sub-sec-
tion (2)(i) and the period of "six months" specified in sub-sec-
F tion (3) of Section 9."
'
This provision was made during the period of emergency 'and is
confined to the duration of emergency or such shorter period as may be
specified. It contemplates making a declaration that the detention of
person is necessary for dealing effectively with the emergency and if such
G a declaration is made, his case shall be governed by this Section. The only
safeguards . if they can be called that - are the provisions for review and
reconsideration by the appropriate Government mentioned in the Section
itself. The constitutional safeguards in clauses (4) and (5) of Article 22 and
the provisions in the Act incorporating the said safeguards are dispensed
H with in the sense that they need not be complied with; the several time-
ATTORNEY GENL. FOR INDIA v. A. PRAJ!VANDAS (JEEVANREDDY,l.] 17
-'!'.

limits prescribed in Sections 8 and 9. stand extended by the period of A
emergency.

SAFEMA :- The preamble to the Act sets out the reasons and
objects behind the enactment. It reads :

"An Act to provide for the forfeiture of illegally acquired proper- B
ties of smugglers and foreign exchange manipulators and for mat-
ters connected therewith or incidental thereto;

Whereas for the effective prevention of smuggling activities
and foreign exchange manipulations which are having a deleterious C
effect on the national economy it is necessary to deprive persons
engaged in such activities and manipulations of their ill-gotten
gains;

And whereas such persons have been augmenting such gains
by violations of wealth-tax, income-tax or other laws or by other D
means and have thereby been increasing their resources for operat-
ing in a clandestine manner;

And whereas such persons have in many cases been holding
the properties acquired by them through such gains in the names
of their relatives, associates and confidants; E

Be it enacted by Parliament in the Twenty-sixth Year of the
Republic of India as follows :"

. Section 2 specifies the persons to whom the Act applies. Sub- section
(1) declares that the provisiOJIS of the Act shall apply "only to the persons F
specified in sub-section (2)". Sub-section {2) mentions five categories of
persons to whom the provisions of the Act apply. The first category men-
tioned under clause (a) comprises persons convicted under Sea Customs
Act, 1878 or the Customs Act, 1962 of an offence in relation to goods of
a value exceeding one lakh of rupees. The requirement of value exceeding G
Rupees one lakh does not apply in case of second or subsequent convic-
tion. Persons convicted under FERA, 1947/1973 of an offence, the amount
and value involved in which exceeds one lakh rupees are also included
i under clause (a). The requirement of value (above one lakh), however,
does not apply in the case of second or subsequent conviction. The second
category [clause (b)] comprises of persons in respect of whom an order of H
18 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
r
A detention has been made under COFEPOSA, but which order was not
revoked or set aside in any of the situations set out in the four sub-clauses
of the proviso. It would be appropriate to set out clause (b) in full. It reads:

"(b) every person in respect of whom an order of detention has
been made under the Conservation of Foreign Exchange and
B Prevention of Smuggling Activities Act, 1974 (52 of 1974):

Provided that -

(i) such order of detention, being an order to which the
provisions of Section 9 or Section 12-A of the said Act do not
c apply, has not been revoked on the report of the Advisory Board
under Section 8 of the said Act or before the receipt of the report
of the Advisory Board or before making a reference to the Ad-
visory Board; or

(ii) such order of detention, being an ardor to which the·
D
'provisions of Section 9 of the said Act apply, has not been revoked
before the expiry of the time for, or the basis of, the review under
sub-section (3) of Section 9, or on the report of the Advisory Board
under Section 8, read with sub-section (2) of Section 9, of the said
Act, or
E
(iii) such order of detention, being an order to which the
provisions of Section 12-A of the said Act apply, has not been
revoked before the expiry of the time for , or on the basis of, the
first review under sub-section (3) of that section, or on the basis
of the report of the Advisory Board under Section 8, read with
F sub-section (6) of Section 12-A, of that Act, or
' <

(iv) such order of detention has not been set aside by a court
of competent jurisdiction; " ·•

The third category to whom the act applies [mentioned in clause (c)J
.G are the relatives of persons referred to in clauses (a) and (b). Fourth
category [clause (d)] consists of the associates of the persons referred to in
clauses (a) and (b). The fifth category mentioned under clause (e) com-
prises of holders of any property, which was at any time previously held by
a person referred to in clauses (a) or (b) unless such holder proves that
. H he is a transferee in good faith for valuable consideration. Explanation (1)
ATTORNEY GENL. FOR INDIA'· A. PRAJIVANDAS {JEEVANREDDY.l.I 19

specifies the manner in which the value mentioned in clause (a) has to be A
computed. Explanation (2) specifies the relatives covered by clause (c),
while Explanation (3) specifies the associates included under clause (d).

Section 3 defines certain expressions occurring in the Act, including
the expression "illegally acquired property". It reads as follows:
B
. "(c) "illegally acquired property", in relation to any persons to
whom this Act applies means-
I ..

(i) any property acquired by such persons, whether before or
after the commencement of this Act, wholly or partly out of
or by means of any income, earnings or assets derived or C
obtained from or attributable to any activity prohibited by or
under any law for the time being in force relating to any
matter in respect of which Parliament has power to make
laws; or
D
(ii) any property acquired by such person, whether before or_
after the commencement of this Act, wholly or partly out of
'. or by means of any income, earnings or assets in respect of
which any such law has been contravened; or

(iii) any property acquired by such person, whether before or E
after the commencement of this Act, wholly or partly out of
or by means of any income, earnings or assets the source of
which cannot be proved and which cannot be shown to be
attributable. to any act or thing done in respect of any matter
in relation to which Parliament has no power to make laws;
t . or F

(iv) any property acquired by such person, whether before or
after the commencement of this Act, for a consideration, or
by any means, wholly or partly traceable to any property
referred to in sub-clauses (i) to (iii) or the income or earnings G
from such properly;

and includes -

(A) any property held by such person which would have been
in relation to any previous holder thereof, illegally acquired H
20 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A property under this clause if such previous holder had not .
ceased to hold it, unless such person or any other person who
held the property at any time after such previous holder or,
where there are two or more such previous holders, the last

B
of such previous holders is or was a transferee in good faith
for adequate consideration; r
(B) any property acquired by such person, whether before or
I
......
after the commencement of this Act, for a consideration, or
by any means, wholly or partly traceable to any property
falling under item (A), or the income or earnings therefrom;"
c More of this definition later.

Section 4 declares that after commencement of the said Act, it shall
not be lawful for any person to whom the act applies to hold any illegally
acquired property either by himself or through any other person on his
D behalf. Any property so held is liable to be forfeited to Central Government
in accordance with the provisions of the Act. Section 6 p~ovides for
issuance of show-cause notice of forfeiture, while Section 7 provides for . ;
passing of final orders in that behalf. Section 8 says that in proceedings
under the act, the burden of proving that any. property specified in the
notice served under Section 6 is not illegally acquired property shall be on
E the person affected. Section 11 declares transfers of properties specified
in the notice issued under Section 6, effected after the issuance of the
notice, null and void. Section 12 provides for constitution of the Appellate
Tribunal for hearing the appeals against the orders made under Section 7.
Section 24 gives an overriding effect to the Act over any other law for the
time being in force.
F .'
Before entering upon discussion of the issues arising herein, it is
necessary to make a few clarificatory observations. Though a challenge to
the constitutional validity of 39th, 40th and. 42nd Amendments to the
Constitution was levelled in the writ petitions on the ground that the said
G Amendments - effectecl after the decision in Keshavananda Bharati v. State
of Kera/a, [1973] Suppl. S.C.R. 1 - infringe the basic structure of the
Constitution, no serious attempt was made during the course of arguments
to substantiate it. It was generally argued that Article 14 is one of the basic
features of the Constitution and hence any constitutional amendment vioia-
tive of Article 14 is equally viol.alive of the basic structure. This simplistic
- H argument overlooks the reason d'etre of Article 31-B - at any rate, its
ATIORNEY GENL. FOR INDIA v. A PRAJIVAND AS [JEEVAf!REDDY, J.J 21

continuance and relevance after Bharati - and of the 39th and 40th Amend- A
ments placing the said enactments in the IXth Schedule. Acceptance of the
petitioners' argument would mean that in case of post-Bharati constitution-
al amendments placing Acts in the IXth Sche4ule, the protection of Article
31-B would not be available against Article 14. Indeed, it was suggested
that Articles 21 and 19 also represent the basic features of the Constitution.
If so; it would mean a further enervation of Article 31-B. Be ihat as it may, B
in the absence of any effort to substantiate the said challenge, we do not
! .
wish to express any opinion on the constitutional validity of the said
Amendments. We take them as they are, i.e., we assume them to be good
and valid. We must also say that no effort has also been made by the
counsel to establish in what manner the said Amendment Acts violate C
Article 14.

COFEPOSA is a law relating to preventive detention. It has, there-
fore, to conform to the provisions in clauses ( 4) to (7) of Article 22. Insofar
as SAFEMA is concerned, it is, of course, not a law relating to preventive
detention though it is designed to achieve the very same objective by D
different means. While one seeks to deter them by means of preventive
I - detention, the other seeks to punish them by depriving them of their
ill-gotten gains. SAFEMA is thus a measure ·designed to protect the
economy of the country as also a measure to discourage law-breaking - in
particular, economic violations. The principles relevant in judging the
validity and relevant in the matter of interpreting the provisions of such E
economic measures are fairly well settled. It is held that in case of such
enactments the legislature must be permitted a greater play in the joints.
As pointed out by Bhagwati, J. in R.K Garg v. Union of india, [1982) 1
S.C.R. 947 at 970 :
F
"The court must always remember that "legislation is directed to
· practical problems, that the economic mechanism is highly sensi-
tive and complex, that many problems are singular and contingent,
that laws are not abstract propositions and do not relate to abstract
units and are not to be measured by abstract symm'etry" that exact
wisdom and nice adaptation of remedy are not always possible and G
that " judgment is largely a prophecy based on meagre and
uninterpreted experience". Every legislation particular!y in
ri economic matters is essentially empiric and it is based on ex-
perimentation or what one may call trial and error method and
therefore it cannot provide for all possible situations or anticipate H
22 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A all possible abuses. There may be crudities and inequities in com-
plicated experimental economic legislation but on that account alone
it cannot be struck down as invalid. The court cannot, as pointed
ollt by the United States Supreme Court in Secretary of Agriculture
v. Central Reig Refining Company (94 lawyers Edn. 381), be con-
verted into tribunals for relief from such crudities and inequities.
8 There may even be possibilities of abuse, but that too cannot of itself
be a ground for invalidating the legislation, because it is not possible
for any legislation to anticipate as if by some divine prescience,
distortions and abuses of its legislation which may be made by those
subject to its provisions and to provide against such distortions and
c abuses. Indeed, howsoever great may be the care bestowed on its
framing, it is difficult to conceive of a legislation which is not
capable of being abused by perverted human ingenuity. The Court
must therefore adjudge the constitutionality of such legislation by the
generality of its provisions and not by its crudities or inequities or by
the possibilities of abuse of any of its provisions. If any crudities,
D
inequities or possibilities of abuse come to light, the legislature can
always step in and enact suitable amendatory legislation. That is
the essence of pragmatic approach which must guide and inspire
the legislature in dealing with complex economic issues."

E (Emphasis added)

To the same effect are the observations (at page 663) in Federation
·of Hotel and Restaurant Association v. Union of India, [1989] 3 S.C.C. 634,
a decision of the Constitution Bench.

F It is not necessary to multiply the authorities.

Question No. I :

It is argued for the petitioners that COFEPOSA is not relatable to
G Entry-9 of List-I of the Seventh Schedule to the Constitution inasmuch as
the preventive detention provided therefor is not for reasons connected
with defence, foreign affairs or security of India. Even Entry-3 of List-Ill,
it is submitted, does not warrant the said enactment. So far as SAFEMA
is concerned, it is argued, it is not relatable to any of the Entries (1) to
(96) in List-I or to any of the Entries in List-Ill. We are not prepared to
•
H agree. COFEPOSA is clearly relatable to Entry 3 of List-III inasmuch as
ATIORNEYGENL.FORINDIA v. A.PRAJIVANDAS [JEEVANREDDY,J.) 23
--,
it provides for preventive detention for reasons connected with the security A
of the State as well as the maintenance of supplies and services essential
to the community. While Entry 3 of List-III speaks of "Security of a State",
Entry 9 of List-I speaks of "security of India". Evidently, they are two
distinct and different expressions. "Security of a State" is a much wider
expression. A State with a weak and vulnerable economy cannot guard its
security well. It will be an easy prey to economic colonisers. We know of B
countries where the economic policies are not dictated by the interest of
that State but by the interest of multi-nationals and/or other powerful
countries. A country with a weak economy is very often obliged to borrow
from International Financial Institutions who in turn seek to dictate the
economic priorities of the borrowing State - it is immaterial whether they C
do so in the interest of powerful countries who contribute substantially to
their fund or in the interest of their loan. In the modern world, the security
of a State is ensured not so much by physical might but by economic
strength - at any rate, by economic strength as much as by armed might. It
is, therefore, idle to contend that COFEPOSA is unrelated to the security
of the State. Indeed in the very Preamble to the Act, the Parliament states D
that the violations of foreign exchange regulations and smuggling activities
are having an increasing deleterious effect on the national economy thereby
I -
casting serious adverse effect on the security of the State. Be that as it may,
it is not necessary to pursue this line of reasoning since we are in total
. agreement with the approach evolved in Union of India v. H.E.S. Dhil- E
lon,[1972] 2 S.C.R. 33 - a decision by a Constitution Bench of Seven Judges.
The test evolved in the said decision is this in short: where the legislative
competence of the Parliament to enact a particular statute is.questioned,
one must look at the several entries in list-II to find out (applying the
well-known principles in this behalf) whether the said statute is relatable
to any of those Entries. If the statute does relate to any of the Entries in F
list-II, no further inquiry is necessary. It must be held that Parliament is
competent to enact that Statute whether by virtue of the Entries in list: I
and list-III or by virtue of Article 248 read with Entry 97 of list-I. In this
case, it is not even suggested that either of the two enactments in question
are relatable to any of the Entries in list-II. If so, we need not go further G
and enquire -to which Entry or Entries do these Acts relate. It should be
held that the Parliament did have the competence to enact them.

Question Nos. 2 and 3 : These questions arise this way. The orders
of detention concerned herein were made on or after the date of the
proclamation of emergency to which Section 12-A was applicable. None of H
24 SUPREME COURT REPORTS [1994] SUi:'I-'. ~
r
A them are, what may be called, 'normal' orders of detention. For that reason,
the detenues were neither supplied with the grounds of detention, nor were
they given an opportunity to make a representation against their detention
nor does it appear that their cases were referred to the Advisory Board -
not at any rate within the period prescribed by Section 8, or for that matter,
Section 9. They were released on or within a day or two of the date on
B which the emergency was lifted. In this sense, the order of detention has
worked itself out. But that order of detention is now being made the
foundation, the basis for taking action under SAFEMA against the
detenues, their relatives and their associates. SAFEMA is made.applicable
to them by virtue of Section 2(2)(b) read with clauses (c), (d) and (e) of
C sub-section (2). The petitioners say that since the order of detention under
COFEPOSA is made the basis for action under SAFEMA against them,
they are entitled to challenge the validity of the order of detention. They
may not have. been able to question the validity of detention during their
detention by virtue of Section 12-A of COFEPOSA (non-supply of grounds
and non-reference to advisory board) and also because their right to move
D the court for enforcement of the rights guaranteed to them by Articles 14,
21 and 22 was suspended during the period of emergency by an order made
by the President of India under Article 359(1) of the Constitution - even
Article .19 did not avail them by virtue of Article 358 - but when the said
orders of detention are sought to be made the basis of action under
E SAFEMA, after the lifting of emergency, they are now entitled to question
them. They point out that by virtue of the order made under Article 359(1),
the fun~amental rights guaranteed to them by Articles 14, 21 and 22 were
not suspended, but only the right to move for their enforcement was
suspended. If so, they say, the detention orders made against them are
invalid and illegal for violation of clauses (4) and (5) of Article 22. They
F may have been barred from enforcing their rights under Articles 22, 21 and
19 because of the said order of the President, but that did not render the
orders of detention valid. Such invalid, indeed void orders, they say, cannot
serve as the basis or as the foundation of action under SAFEMA. They
also stress the drastic nature of the provisions of SAFEMA. On the other
G hand, the learned Additional Solicitor General relies upon the provisions
of clause (lA) of Article 359 and submits that the validity of the said
detention orders has to be judged with reference to the law then obtaining
and not with reference to the law obtaining on the date of issuance of
notice under Section 6 of SAFEMA. At any rate, he submits, clause (lA)
of Article 359 saves all such orders. Suspension of remedy, he says is
H tantamount to suspension of the right itself since one cannot conceive of a
ATIORNEY GENL. FOR INDIA v. A PRAJIVAND AS [JEEVAN REDDY, J.] 25

right without a remedy. There is no distinction, he says, between Article A
358 and an order under Article 359(1) in this regard. He places strong
reliance upon the observations at page 312 of the decision in Makhan Singh
v. State of Punjab, (1964] 4 S.C.R. 797.
B
Article 352 of the Constitution empowers the President, if he is
satisfied that a grave emergency exists whereby the security of India or of
any part thereof is threatened, whether by war or external aggression or
internal, disturbance•, to declare by a proclamation that an emergency C
exists. One of the consequences of such declaratio_n is provided in Article
358. Article 358, as it stood prior to 44th Amendment, read thus :

"358. While a Proclamation of Emergency is in operation, nothing D
in Articl~ 19 shall restrict the power of the State as defined in Part
III to make any law or to take any executive action which the State
would, but for the provisions contained in that Part be competent
to make or to take, but any law so made shall, to the extent of the
I . incompetency, cease to have effect as soon as the Proclamation E
ceases to operate, except as respects things done or omitted to be
done before the law so cr.ases to have effect."
"·
(By the Constitution 42nd Amendment Act, a proviso was added and F
by the 44th Amendment Act, some further amendments were made but it
is not necessary to notice them for the purposes of these cases.)

Clause (1) of Article 359, as if stood prior to the 44th Amendment, G
provided that "Where a Proclamation of Emergency is in operation, the
President may by order declare that the right to move any court for the
enforcement of such of the rights conferred by Part-III as m.ay be men-
tioned in the order and all -proceedings pending in any court for the H
enforcement of the rights so mentioned shall remain suspended for the
period during which the Proclamation is in force or for such shorter period
as may be specified in the order."

The purport and effect of Articles 358 and 359(1) and the distinction
between them fell for consideration of this court in Makhan Singh. A
' Special-Bench of Seven Judges stated the effect of Article ,358 in the
following words:
By the 44th Amcndn1ent Act, the words "armed rebellion" were substituted for the
words "internal disturbance".
26 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A "It would be noticed that as soon as a Proclamation of Emergency
has been issued under Art. 352 and so long as it lasts, Art. 19 is
suspended and the power of the legislatures as well as the executive
is to that extent made wider. The suspension of Art. 19 during the
pendency of the Proclamation of emergency removes the fetters
created on the legislative and executive powers by Art.19 and if
B the legislatures make laws or the executive commits acts which are
inconsistent with the rights guaranteed by Art.19, their validity is
not open to challenge either during the continuance of the emer-
gency or even thereafter. As soon as the Proclamation ceases to
operate, the legislative enactments passed and the executive ac-
tions taken during the course of the said emergency shall be
c inoperative to the extent to which they conflict with the rights
guaranteed under Art.19 because as soon as the emergency is
lifted, Art. 19 which was suspended during the emergency is
automatically revived and begins to operate. Article 358, however,
makes it clear that things done or omitted to be done during the
D emergency cannot be challenged even after the emergency is over.
In other words, the suspension of Art.19 is complete· during the
period in question and legislative and executive action which
contravenes Art.19 cannot be questioned even after the emergency
11
is over.

E Next the Bench took up the meaning and purport of Article 359(1)
·a11d held:

"Article 359, on the other hand, does not purport expressly to
suspend any of the fundamental rights. It authorises the President
to issue an order declaring that the right to move any court for
F enforcement of such of the rights in Part III as may be mentioned
in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended
for the period during which the Proclamation is in force or for
such shorter period as may be specified in the order. What the
Presidential Order purports to do by virtue of the power conferred
G on the President by Art.359(1) is to bar the remedy of the citizens
to move any court for the enforcement of the specified rights. The
rights are not expressly suspended, but the ·citizen is deprived of
'
his right to move any court for their enforcement. That is one
important distinction between the provisions of Art.358 and Art.
H 359(1)".
AlTOfu~EY GENL. FORl1'D!A "·A PRAJIVANDAS [JEEVAN REDDY. J.J 27

It was urged by the learned Attorney General that suspension of the A
citizens' right to move any court for the enforcement of a particular
fundamental right amounts in law to suspension of the said right itself for
the said period. The Bench, however, declined to go into the said question
and proceeded on the assumption "that the said rights are in theory alive"
even during the period of the Presidential Order.- The Special Bench
B
pointed out further :

"It would be noticed that the Presidential Order cannot widen the
authority of the legislatures or the executive; it merely suspends
the rights to move any court to obtain a relief on the ground that
the rights conferred by Part III have been contravened if the said C
rights are specified in the Order. The inevitable consequence of
this position is that as soon as the Order ceases to be operative,
the infringement of the rights made either by the legislative enact-
ment or by executive action can perhaps be challenged by a citizen
in a court of law and the same may have to be tried on the merits
on the basis that the rights alleged to have been infringed were in D
operation even during the pendency of the Presidential Order. If
at the expiration of the Presidential Order, Parliament passes any
legislation to protect executive action taken during the pendency
.... of the Presidential Order and afford indemnity to the executive in
that behalf, the validity and the effect of such legislative action may E
have to be carefully scrutinised.

Since the objection of Art. 359(1) is to suspend the rights of the
citizens to move any court, the consequence of the Presidential
' Order may be that any proceeding which may be pending at the
date of the Order remains suspended during the time that the F
Order is in operation and may be revived when the said order
ceases to be operative; and fresh proceedings cannot be taken by
a citizen after the order has been issued, because the Order takes
away the right to move any court and during the operation of the
Order, the said right cannot be exercised by instituting a fresh G
proceeding contrary to the Order. If a fresh proceeding falling
within the mischief of Art.359(1) and the Presidential Order issued
under it is instituted after the Order has been issued, it will have
to be dismissed as being incompetent. In other words, Art. 359(1)
and the Presidential Order issued under it may constitute a sort
of moratorium or a blanket ban against the institution or con- H
28 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A tinuance of any legal action subject to two important conditions.
The first condition relates to the character of the legal action and
requires that the said action must seek to obtain a relief on the
ground that the claimant's fundamental rights specified in the
Presidential Order have been contravened, and the second condi-
tion relates to the period during which this ban is to operate. The
B ban operates either for the period of the proclamation or for such
shorter period as may be specified in the Order."

The law enunciated by the Special Bench is clear and explicit. It
requires no elaboration at our hands.

c After the said decision, however, clause (lA) was introduced in
Article 359 by the Constitution 38th (Amendment) Act, 1975. The clause
was introduced with restrospective effect from the date of the Constitution.
Clause (lA), as introduced by the said Amendment Act read as follows :

"lA. While an order made under clause (1) mentioning any of the
D rights conferred by Part III is in operation, nothing in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part to make any laws or to take any executive
action which the State would but for the provisions contained in
that Part be competent to make or to take, but any law so made
shall, to the extent of the incompetency, cease to have effect as
E
soon as the order aforesaid ceases to operate, except as respects
things done or omitted to be done before the law so cease to have
effect:"

A proviso was added to this clause by the 42nd Amendment Act,
F 1976, to the following effect :

"Prcvided that where a proclamation of Emergency is in operation
.only in any part of the territory of India, any such law may be
made, or any such executive action may be taken, under this article
in relation to or in any State or Union territory in which or in any
G part of which the Proclamation of Emergency is not in operation,
if and in so far as the security of India or any part of the territory
thereof is threatened by activities in or in relation to the part of
the territory of India in which the Proclamation of Emergency is
in operation.''
•
H (By the 44th Amendment Act, 1978, the words "except Articles 20
ATIURNEYGENL.FORINDIA v.APRAJNANDAS[JEEVANREDDY,J.] 29

and 21" were added after the words "the rights conferred by Part III" iµ A
clause (lA) besides adding clause (lB) but these amendments, not being
retrospective in operation, are not relevant in the case of detentions
governed by Section 12-A of COFEPOSA during the period of emergen-
cy.)

It is obvious that clause (lA) was put in with a vie~ to bring the B
effect of the Presidential Order under Article 359(1) on par with Article
358(1) insofar as the competence of the State to make a law inconsistent
with the specified fundamental riglits is concerned. Article 359(1A) is
broadly in the same terms as Article 358. Article 358 says that while a
proclamation of emergency under Article 352 is in operation "nothing in C
Article 19 shall restrict the power of the State as defined in Part-III to
make any law or to take any executive action which the State would but for
the provisions contained in that Part be competent to make or to take, but
any law so made shall to the extent of incompetency cease to have effect
as soon as the proclamation ceases to operate except as respects things
done or omitted to be done before the law ceases to have effect". Clause D
(lA) of Article 359 says similarly that while the Presidential Order made
under Article 359(1) is in operation "nothing in that Part (Part-Ill) confer-
ring those rights shall restrict the power of the State as defined in the said
Part to make any law or to take any executive action which the State would
but for the provisions contained in that Part be competent to make or to
take but any law so made to the extent of incompetency shall cease to have E
effect as soon as the order aforesaid ceases to operate except as respects
things done or omitted to be done before the law so ceases to have effect".
Of course, while Article 358 is confined only to Article 19, clause (lA)
extends to those rights whose enforcement may have been suspended by
an Order under Article 359(1). The other distinction is that while the
F
"suspension'* of Article 19 under Article 358 is co-extensive with the
duration of the proclamation of emergency, clause (lA) is confined to the
period for which the Presidential Order remains in force. Yet another
distinction is that while Article 358 enables the State to make any law or
to take any executive action inconsistent with Article 19 during the period
of emergency, .clauses (1) and (lA) of Article 359 read together provide G
for suspension (by means of a Presidential Order) of the enforcement of
the fundamental rights specified in the Order and simultaneously enable

• It should be noticed that only the heading of Article 358 spea~ of "suspension of
provisions of Article 19;" in the body of the Article, there is no reference to suspension
of the Article. · H
30 SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A the State to make any law or to take any executive action inconsistent with
such fundamental rights. It is evident that what is said in Makhan Singh
with respect to Article 358 (competence of the State to make a law or to
take executive action inconsistent with Article 19) does apply equally to
Article 359 by virtue of the introduction of clause {lA) with retrospective
effect. In other words, during the period the Presidential Order under
B Article 359{1) is in force, the State is competent to make any law or take
any executive action which it could not have taken but for the suspension
of enforcement of the fundamental rights specified in the Presidential
Order. In our opinion, the position under Article 358 is this : Article 358
enables the State - it empowers the State - to make any law or to take any
executive action inconsistent with Article 19. This exceptional power is,
c however, confined to the period of emergency and is intended to facilitate
the effective implementation of the objectives of emergency. The justifica-
tion of this extraordinary provision is that individual liberties may have to
be kept in abeyance temporarily if found necessary to meet the threat to
the security of India or any part thereof within the meaning of Article
D 352{1). As soon as. emergency ceases, the law so made shall to the extent
of inconsistency with Article 19 ceases to have effect, except with respect ·
to things done or omitted to be done before the law so ceases to have
effect. What it means is that the validity of the law made or the things done
or omitted to be done by vinue of the said Article during the period of
emergency cannot be questioned either during or after the emergency on the
E ground of inconsistency with Article 19. Neither the law nor the executive
action (to the extent of its inconsistency with Article 19) can continue even
for a day beyond the cessation of emergency. Their v.alidity and/or the
competence of the State to make or take them during the period of emer-
gency is , however, placed beyond question. By way of illustration a law
may have been made or an executive action may have been taken unduly
F
restricting the freedom of speech and the freedom of press during the
emergency. Such restriction insofar as it is not warranted by Article 19(2)
ceases to operate or to have effect with the cessation of emergency. But
the citizen whose right has been unreasonably curtailed cannot sue the
State for damages or other relief nor can he takes any other proceeding
G against the State for imposing such unreasonable restriction during the
period of emergency. This is because of the protection provided to the
State by Article 358. It should be ·remembered that Article 358 sanctions
such 'a course because the Founding Fathers thought - and not without
justification - that when the security of India or any part thereof is
.
threatened as contemplated by Article 352, the State should be left free to
H
ATIORNEYGENL FOR INDIA v. A.PRAJIVANDAS [JEEVANREDDY,J.] 31

make such law or to take such executive action as is necessary to safeguard A
security of the country unfettered by the provisions in Article 19. This
subordination of Article 19, however, is only for the period the proclama-
tion of emergency under Article 352 is in operation.

Now coming to clauses (1) and (lA) of Article 359 the position is B
this: while clause (1) empowers the President to suspend the enforcement
of the fundamental rights named in such notification (and any and all
proceedings in that behalf in any court), it does not empower the President
to suspend the fundamental rights. Evidently, the founding fathers did not
think it necessary to clothe the President with such a power. The words in
clause (1) are clear and unambiguous. They only speak of suspending the C
enforcement of the rights in Part,III and not suspending the rights them-
selves. We see no warrant, no justification and no basis for holding that the
suspension of enforcement of the rights means in effect the suspension of
the rights themselves. If that were the intention of the Founding Fathers,
they would have said so expressly. Indee.d, they have stated what they meant D
in explicit language. In view of the fact that the fundamental rights in
Part-III are allowed to be affected by a Presidential Order, we think, we

- ought not to read anything more than what the clause expressly says - and
its language leaves no room for any doubt. This is the view taken in Makhan
Singh [as well as by Bhagwati, J. in A.D.M. Jabalpur v. Shivkant Shukla,
(1976) 2 S.C.C. 521 at 719. Paras 479 and 480) and we agree with them E
respectfully. Then came clause (lA), introduced by the 38th Amendment
Act with retrospective effect from the date of the Constitution. It says that
while a Presidential Order suspending particular fundamental rights is in
operation, the State shall be entitled to make any law or to take any
executive action which it would not have been entitled to make or to take F
but for the suspension of the enforcement of the said rights. At the same
time, the clause says that any law so made shall, to the extent of incom-
petency, cease to have effect as soon as the Presidential Order ceases to
operate "except as respects things done or omitted to be done before the
law so ceases to have effect". The effect of these words ("except as
respects ....... effect") is evidently the same as that obtaining under Article 358 G
(which too employs identical words) which we have explained hereinbefore
at some length. .It is true that clause (1) of Article 359 does not provide
for the suspension of any of the fundamental rights but only their enforce-
ment and it is equally true that those fundamental rights (whose enforce-
ment is suspended) continue in theory to be alive, yet we must als? give H
32 SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.

A effect to clause (lA), which is equally a part of Article 359 now - and must
be deemed to be such a part at all points of time commencing from 26th
January, 1950. The conclusion is, therefore, inescapable that during the
period the Presidential Order under Article 359(1) suspending enforce-
ment of certain rights conferred by Part-III is in operation, the State is
empowered to make any law or to take any executive action inconsistent
B with such rights. All this is so because the emergency proclaimed to meet
the threat to the security of India has to be effectively implemented. The
requirements of emergency constitute both the foundation as well as an \
implied limitation upon the power. What is warranted is what is necessary
for effective implementation of emergency.
c
It may be appropriate at this juncture to refer to a few decisions of
this court relevant in this behalf. In Jaichand Lal. v. State of West Bengal,
(1966] Supl. S.C.R. 464, it is held by a Constitution Bench :

''But the appellant can challenge the validity of the order on a
D
' ground other than those covered by Art. 358, or the Presidential
Order issued under Art. 359(1). Such a challenge is outside the
purview of the Presidential Order. For instance, a citizen will not
be deprived of the right to move an appropriate court for a writ
of habeas corpus on the ground that his detention has been
E ordered mala fide. Similarly, it will be open to the citizen to
challenge the order of detention on the ground that any of the
grounds given in the order of detention is irrelevant and there is
no real and proximate connection between the ground given and
the object which the legislature has in view. It may be stated in
F this context that a ma/a fide exercise of power does not necessarily
1 imply any moral turpitude as a matter of law. It only means that

the statutory power is exercised for purposes foreign to those for
which it is in law intended. In other words, the power conferred
by the statute has been utilised for some indirect purpose not
connected with the object of the statute or the mischief it seek to
G remedy. 1'

To the same effect is the decision of another Constitution Bench in
Anandan Nambiar v. Chief Secretary, Government of Madras, (1966] 2
S.C.R.406. The majority opinion in A.D.M., Jabalpur, however, appears to
H take a view contrary to the one expressed in Jaichcnd Lal and Anandan
ATrORNEY GENL. FOR INDIA v. A. PRAJIVANDAS (JEEVANREDDY, J.] 33
.,
Nambiar but for the purposes of this case, it is not necessary to go into the A
correctness of the reasoning in A.D.M. Jabalpur, since it has not been
debated before us. Indeed, a Three-Judge Bench in Union of India v.
Bhanudas Krishna Gawde, [1977] 2 S.C.C. 719 has taken the extreme view,
purporting to follow A.D.M, Jabalpur, that even the restrictions placed and
facilities denied cannot be questioned in a Court during the period the B
I order under Article 359(1) is in operation!

The next issue that arises is whether it can be said in the case of
detention orders passed during the emergency (i.e., orders of detention to
which Section 12-A of COFEPOSA applies) that they are void or non-est,
so that they cannot be treated as orders of detention within the meaning C
of Section 2(2) (b) of SAFEMA? It is submitted by the learned Additional
Solicitor General that the said orders cannot be said to be void ab initio
or non- est. The orders were good and valid when they were made under
Section 3 of COFEPOSA. May be, he says, the said orders ceased to be

- operative with the cessation of the Presidential Order and cannot be D
continued beyond the said cessation,. but they were certainly competent,
legal and effective when they were made and continued to be so until the
cessation of the Presidential Order. They can, therefore, certainly be
treated as orders of detention under COFEPOSA for the purpose of aod
within the meaoing of Section 2(2) (b) of SAFEMA.
E
On the other haod, the learned counsel for the petitioners contend
that the order of detention made under Section 3 read with Section 12-A
of COFEPOSA is void for being inconsistent with the provisions in Article
22 which were not suspended. The mere suspension of enforcement of the
said Article does not amount to suspension of the right. The orders of F
detention were, therefore, void and they remained in operation only be-
cause the detenues were barred from questioning the validity of the said
orders on account of the ban imposed by the Presidential Order under
Article 359(1). They submit that the detention orders governed by Section
12-A of COFEPOSA are inherently arbitrary and unjust. An order of
preventive detention is made without even telling the detenue of the G
grounds of his detention aod without giving him an opportunity to make a
representation. Even the protection of consideration of his case .by an
\ndependent body {Advisory Board) is taken away. The detenue is
rendered totally helpless. He is left with no remedy. He cannot prove his
innocence. Such an order of detention is opposed to all concepts of H
. .
34 SUPREME COURT REPORTS [1994) SUPP. l S.C.R.

A fairness, civilized conduct and democratic norms. They submit that such
orders cannot form the foundation or the basis for applying SAFEMA to
them. Their argument is evocative of what Justice Cardozo once said : "We
must always take care to safeguard the law against the assaults of oppor-
tunism, the expediency of the passing hour, the erosion of the small
encroachments, and the scorn and derision of those who have no patience \
B with general principles."

The contending view points aforesaid give rise to two strands of
thought. One line of thought runs thus : By virtue of clause (lA) of Article
359, in_serted by the Constitution 38th (Amendment) Act with retrospective
c effect. Section 12-A must be deemed to have been competently enacted,
no doubt for the duration of and limited to the period of the Presidential
Order. If so, the detention thereunder cannot be said to be invalid. While
the order of detention cannot certainly subsist beyond the cessation of the
Presidential Order because Section 12-A cannot itself subsist beyond each
D cessation, neither Section 12-A nor the order of detention governed by it
can be characterised as illegal or invalid during the period the Presidential
Order was in force. Once this is so, such order of detention does undoub-
tedly represent an order of detention within the meaning and contempla-
tion of Section 2(2)(b) of SAFEMA. That it was not open to challenge
during the period of the Presidential Order, or that it was not subject to
E the constitutional safeguards provided by Article 22 does not affect its
validity or legality. It was a valid order of detention when made. It is not
being enforced or acted upon beyond the period of Presidential Order.
Since it is an existing fact, it is merely being taken notice of - and that is
enough to attract SAFEMA to such detenu, his relatives and associates.
F Section 2(1) of SAFEMA says, "the provisions of this Act shall apply only
to the persons specified in sub-section (2)" and sub-section (2) speaks inter
alia of a person "in respect of whom an order of detention has been made
under the COFEPOSA, 1974''. Indeed, provisos (i), (ii) and (iii) to clause
(b) of sub-section (2) of Section 2 of SAFEMA expressly refer to the order
of detention made under Section 12-A and expressly affirm that such an
G order of detention is an order of detention for the purposes of the said
clause. The fact remains that provisions of SAFEMA were enacted in the
first instance as an Ordinance issued on 5th November, 1975, i.e., during
the period of emergency and later enacted into an Act and given effect
from the date of the Ordinance. An order of detention governed by Section
H 11-A of COFEPOSA must, therefore, be held to be an order of detention
ATIORNEYGENL FOR INDIA v. A.PRAJIVANDA5 (JEEVANREDDY,J.j 35

for the purpose of and within the meaning of Section 2(2)(b) ofSAFEMA. A
The other line of reasoning goes along the following lines : an order of
detention governed by Section 12-A is a special type of order made for the
limited purpose of dealing effectively with the emergency. It has no exist-
ence, relevance or effect except for the said limited purpose. Outside such
purpose, it is non-est. It does not exist. If so, such an order of detention B
cannot furnish the foundation, the connecting link, or the basis for applying
SAFEMA. A normal order of preventive detention is itself an uncivilized
~ction. An order of detention governed by Section 12-A of COFEPOSA -
denying as it does even the minimum safeguards provided by clauses (4)
and (5) of Article 22 - is an abhorrent action. It may be tolerated as a cruel
necessity when the very life of the Nation is threatened but it cannot C
certainly be recognised or taken note of for any other purpose - much less
made the basis of applying an extremely drastic enactment like SAFEMA.
Treating such order of detention as an order of detention for the purpose
of and within the meaning of Section 2(2)(b) of SAFEMA amounts to
enforcing or giving effect to the said order of detention beyond and outside D
the period of emergency and for purposes foreign to emergency. This is
\9tally impermissible. Section 12-A does not sanction this - though it
sanctions a lot many things.

While we are attracted by the logic as well as the emotional appeal
of the second line of thought - it would appeal to any lover of liberty - we E
find ourselves constrained to reject it in the light of the language of Section
2(2)(b) of SAFEMA coupled with the fact that SAFEMA is armed with
the protective umbrella of Article 31-B read with !Xth Schedule. We
.) proceed to elaborate. Section 2(2)(b) of SAFEMA expressly includes an
order of detention to which the provisions of Section 12-A apply within the
purview of an order of dete12tion under COFEPOSA. For the sake of
F
facility of reference, we may reproduce the clause. It reads :

"(b) every person in respect of whom an order of detention has
been made under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (52 of 1974) : G
Provided that -

(i) such order of detention, being an order to which the.
provisions of Section 9 or Section 12-A of the said Act do
not apply, has not been revoked on the report of the Advisory H
36 SUPREME COURT REPORTS (1994) SUPP. 1 S.CR.

A Board under Section 8 of the said Act or before the receipt
of the report of the Advisory Board or before making a
reference to the Advisory Board ; or

(ii) such order of detention, being an order to which the
provisions of Section (9) of the said Act apply, has not been
B revoked before the expiry of the time for, or on the basis of,
the review under sub-section (3) of Section 9, or on the
report of the Advisory Board under Section 8, read with
sub-section (2) of Section 9, of the said Act; or

(iii) such order of detention, being an order to which the
c provisions of Section 12-A of the said Act apply, has not been
revoked before the expiry of the time for, or on the basis of,
the first review under sub-section (3) of that section, or on
the basis of the report of the Advisory Board under Section
8, read with sub-section (6) of Section 12-A, of that Act; or
D
(iv) such order of detention has not been set aside by a court
of competent jurisdiction.'

Proviso (iii) expressly treats 'an order (of detention) to which the
provisions of Section 12-A of the said Act apply' and which 'has not been
E revoked before the expiry of time for, or on the basis of, the first review
under sub-section (3) of that Section (Section 12-A) or on the basis of the
report of the Advisory Board under Section 8, read with sub-section (6) of
Section 12-A, of that Act', as an order of detention for the purpose of and
within the meaning of clause (b) of Section 2(2) of SAFEMA. In view of
F the fact that SAFEMA as well as COFEPOSA are included in the IXth
Schedule by the 39th and 40th (Amendment) Acts to the Constitution,
clause (b) of Section 2(2) of SAFEMA (including proviso (iii) appended
to it) are beyond constitutional reproach. One has to take the said
provisions as they stand - and they stand solidly against the petitioners'
G contentions. On this single ground, we h!Jld, as we must, that an order of
detention made under COFEPOSA, to which the provisions in Section
12-A applied, is an order of detention within the meaning of and for the
purposes of Section 2(2)(b) of SAFEMA and can, therefore, constitute the
basis for applying SAFEMA to such person.

H At this juncture, it would be appropriate to deal with two decisions
AITORNEYGENL. FOR INDIA v. A. PRNIVANDAS [JEEVA.NREDDY,J.] 37

of this Court brought to our notice. The first one is in Union of India v. A
Haji Maston Mina, (1984) 3 S.C.R. 1 rendered by a Bench of three Judges.
The respondent therein was first detained under Maintenance of Internal
Security Act (M.I.S.A.) under an order dated September 17, 1974. On
December 19, 1974 the said order was revoked but simultaneously an order
of detention was made under Section 3( 1) of CO FEPOSA. The grounds
B .
of detention were served on him on December 23, 1974. On June 25, 1975,
emergency was proclaimed under Article 352(1) on the ground of internal
disturbance, which continued in force upto March 21, 1977. The respo.n-
dent was released on March 23; 1977. Notice under Section 6(1) of
SAFEMA was issued to him, his relatives and associates where upon he
filed a writ petition in the Bombay High Court challenging the validity of C
the order of detention dated December 19, 1974 on the ground inter alia
that he was not supplied with the documents clearly and unmistakably
relied upon for arriving at the requisite satisfaction and which documents
were also referred to in the grounds of detention served upon him. The
Bombay High Court allowed the writ petition, against which the Union of D
India appealed to this Court. Vardarajan, J. speaking for the Bench
referred to the provisions of Sections 2, 6 and 7 of SAFEMA and observed
thus:

"Therefore, a valid order of detention under COFEPOSA is a
condition precedent to proceedings being taken under ss. 6 and 7 E
of SAFEMA. If the impugned order of detention dated 10.12.1974
is set aside for any reason, the proceedings taken under ss. 6 and
7 of SAFEMA cannot stand. Therefore, we have to consider
whether the impugned order of detention dated 19.12.1974 under
COFEPOSA is void and has to be quashed." F

From the facts stated above, it is clear that the order of detention
was made long prior to the proclamation of emergency on June 25, 1975.
He was served with the grounds of detention but not the documents relied
upon therein. It does not appear from the judgment whether a declaration G
under Section 12-A of COFEPOSA was made with respect to the said
respondent, though it can be so presumed from the fact that his detention

- was continued upto March 23, 1977. In the above circumstance~, this Court
said that it was open to the respondent-detenue to question the validity of
the order of detention when proceedings are taken against him under
Sections 6 and 7 of SAFEMA. It is not possible to agree with the reasoning H
38 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A of the decision. There are two ways of looking at the issue. If it is a normal
order of detention [not governed by Section 12-A nor protected by an
order under Article 359(1) suspending the enforcement of Article 22) and
if the detenue does not challenge it when he was deprived of his liberty, or
challenges it unsuccessfully, there is no reason why he should be allowed
to challenge it when action under SAFEMA is taken against him - for ·
B action under SAFEMA is not automatic upon the fact of detention but only
the starting point. On the other hand, if it is an order of detention governed
by Section 12-A (or by a Presidential Order under Article 359(1) suspend-
ing Article 22), it perhaps could still be challenged even during the period
of emergency on grounds not barred by the said provisions. Secondly, even
c if such an order is allowed to be challenged when action under SAFEMA
is taken, the challenge must be confined to grounds which were open or
available during the period of emergency; otherwise there would be no
meaning behind the concluding words in Article 358(1) and Article
359(1A). Hence, we say that a person who did not choose to challenge such
D an order of detention during the emergency when he was detained, or
challenged it unsuccessfully, cannot be allowed to challenge it when it is
sought to be made the basis for applying SAFEMA to him. In either of the
two situations mentioned above, i.e., whether the challenge is made during
the period of detention or later when proceedings under SAFEMA are .
taken against him, the grounds of challenge and scope of judicial scrutiny
E would be the same. Failure to challenge the detention directly when he was
detained, precludes him from challenging it after the cessation of deten-
tion, where it is made the basis for initiating action under SAFEMA.

The other case brought to our notice is in Union of India v. Manohar '
F Lal Narang, [1987] 2 S.C.C. 241, a decision rendered by a Bench comprising
Khalid and Oza, JJ. The facts of this case are rather involved. Respondent,
Manohar Lal Narang and one Ram Lal Narang were brothers. An order
of detention under Section 3(1) of COFEPOSA was made against Ram Lal
Narang on December 19, 1974. He challenged the same before the Delhi
High Court in Writ Petition No. 10 of 1975 which was allowed on April 30,
G 1975 and the order of detention. quashed. The Union oflndia preferred an
appeal against the said Order of the High Court to this Court alongwith
an application for stay. On May 1, 1975, this Court declined stay but
imposed certain conditions on the movement of Ram Lal Narang (Later,
the said appeal was dismissed for non-prosecution). After the proclamation
H of emergency on the ground of internal disturbance on June 25, 1975, a
ATIORNEY GENL. FOR INDIA v. A PRAIIVANDAS (JEEVAN REDDY. J.J 39

fresh order of detention was made on July 1, 1975 against Ram Lal on the A
very same facts and grounds on which he was detained earlier. The said
order of detention was challenged in Delhi High Court in Writ Petition
No. 115 of 1975 filed by a relative of Ram Lal but was dismissed on
November 25, 1975. An appeal was preferred against the said order to this
Court being Appeal No. 399 of 1977. At this stage, notice under Sections B
6 and 7 of SAFEMA was issued against Ram Lal which he questioned in
Delhi High Court in Writ Petition No. 720 of 1975. While the said writ
petition was pending in Delhi High Cour~ Appeal No. 399 of 1975 pending
in this Court came up for hearing and was disposed of saying that it would
be open to Ram Lal to raise all such contentions as are available to him
in Writ Petition No. 720 of 1975, notwithstanding the fact that those C
grounds were raised in Writ Petition No. 115 of 1975 (from which the said
appeal No. 399 of 1975 arose). Writ Petition No. 720 of 1975 was heard
and dismissed by the Delhi High Court against which Ram Lal filed S.L.P.
No. 9361 of 1982 wherein leave was granted and the appeal was numbered
as C.A2790 of 1985 which was said to be pending on the date of the said D
judgment. An order of detention under Section 3 of CO FEPOSA was
made against the respondent, Manohar Lal Narang, as well on January 31,
1975. He was then in England. He was brought to India and detained. He
challenged the same by way of W.P.2752 of1975 in the Bombay High Court
which was allowed and the detention quashed on July 8, 1980. An appeal E
preferred to this Court against the said order was also dismissed. There-
after, a show cause notice was issued to Manohar Lal Narang on the
ground that he is the brother (relative) of Ram Lal Narang, who was
detained under Section 3(1) of COFEPOSA. It may be remembered that
a writ petition questioning Ram Lal's detention under the order dated July F
1, 1975 (evidently, an order of detention to which Section 12{A) of
COFEPOSA applied) was dismissed by the Delhi High Court (W.P. No.
115 of 1975) and even Writ Petition No. 720 of 1975 (in which he was
allowed to raise all the available grounds against his detention) was also
dismissed. From the facts stated above, it is clear that the basis of action
under SAFEMA against Manohar Lal Narang was his brother Ram Lal's G
detention during the period of emergency, which detention was governed
by Section 12{A) of COFEPOSA. According to our opinion indicated
hereinbefore, such an order can constitute a basis for taking action under
SAFEMA. So far as the reasoning of the said decision is concerned, it is
to the effect that the validity of such an order of detention can be ques- H
40 SUPREME COURT REPORTS [1994] SUPP. I S.C.R.

A tioned by the detenue or his relative, as and whJij)-such an order is sought
to be made the foundation for taking action against them under SAFEMA.
On that basis, the court proceeded to examine the validity of the order of
detention of Ram Lal and found that the said order is bad for non-applica-
tion of mind to certain highly relevant and material circumstances. We
must, however, say that the validity of an order of detention to which
B
Section 12-A of COFEPOSA applied, could yet be examined even during
the emergency on the touchstone of the law as it obtained during the
operation of the Presidential Order under' Article 359(1) - say on the
ground that the provisions of Section 12-A were not complied with, or on
other grounds, as may.not have barred during the said period. But a person
C who could have so challenged the order of detention and yet chose not to
do, cannot be allowed to do so when such an order of detention is made
the basis for applying SAFEMA to him - this is for the reason that even if
he is allowed to challenge the said order when he is served with the notice
under Section 6 of SAFEMA, the challenge has to be examined with.
D reference to the position of law as was obtaining at the time the said order
was made and the law in force during the period the said order of detention
was in operation. Same would be the position in the case of a person who
challenged the order but failed in his challenge. Even in the case of a
normal order of detention under COFEPOSA, the position would be the
same. A person who did not challenge, (either by himself or through his
E next friend) the order of detention or challenged it but failed, cannot be
allowed to challenge the order of detention when action is taken against
him under SAFEMA.

Question 4: The definition of illegally acquired properties" in clause
F (c) of Section 3(1) of SAFEMA is :undoubtedly quite wide. It means and
includes any property acquired by such person, whether before or after the
commencement of this Act, wholly or pwtly out of or by means oj any
income, earnings or assets derived of obtained from or attributable to any
activity prohibited by or under any law for the time being in force relating to
any matter in respect of which Parliament has power to make law" [vide
G sub-clause (i)]. Sub-clauses (ii), (iii) and (iv) of clause (c) further widen
and elaborate its ambit. The definition thus takes in not only the property
acquired after the Act but also the property acquired before the Act,
whatever be the length of time. Secondly, it takes in property which may
have been acquired partly from out of illegal activity - in which case, of
H course, the provision in Section 9 would be attracted. Illegal activity is not
ATTORNEY GENL. FOR INDIA '· A. PRAJIV AND AS [JEEVA.N REDDY, J.] 41

confined to violation of the laws mentioned in Section 2 but all laws which A
the Parliament has power to make. To give an illustration, if a smuggler
has acquired some properties by evading tax laws or by committing theft,
robbery, decoity, mis-appropriation or any other illegal activity prohibited
by the Indian Penal Code or any other law in force (which the Parliament
has the power to make) all that would be liable to be forfeited. It is B
submitted by the petitioners that this is a case of excessive and dispropor-
tionate response by the Parliament. The argument is that the Act is penal
in nature and spreading its net as wide as is done by the definition of
"illegally acquired properties" brings it in conflict with Articles 14, 19 and
21. Alternatively, it is submitted that if the said definition is unassailable
on account of its inclusion in the !Xth Schedule, the definition may be read c
. down so as to confine it only to the properties acquired by violating the
prohibitions contained in the Acts mentioned in Section 2(a) of SAFEMA.
We do not find it possible to give effect to either of these submissions. Both
the enactments being placed in the !Xth Schedule, they enjoy the immunity
conferred by Article 31(B). We have observed hereinbefore that the D
petitioners have not been able to substantiate their submission that the 39th
(Amendment) Act and 40th (Amendment) Act, placing the said enact-
ments in the !Xth Schedule are unconstitutional. It is not necessary to
repeat the reasons for the said opinion here over again. In this view of the
matter, the attack upon the validity of the said definition on grounds of E
unreasonableness, arbitrariness or for that matter on any of the grounds
relatable to Part-III is of no avail. Even apart from the protection of Article
31(B), we see no substance in the submission that the definition is arbitrary
or discriminatory nor do we see any reason for reading down the said
definition to confine it to the violation of the acts referred to in Section
2(2)(a) of SAFEMA. We can take note of the fact that persons engaged
F
• in smuggling and foreign exchange manipulations do not keep regular and
proper accounts with respect to such activity or its income or of the assets
acquired therefrom. If such person indulges in other illegal activity, the
position would be no different. The violation of foreign exchange laws and
laws relating to export and import necessarily involves violation of tax laws. G
l:tdeed, it is a well-known fact that over the last few decades, smuggling,
foreign exchange violations, tax evasion, drugs and crime have all. got
mixed-up. Evasion of taxes is integral to such activity. It would be difficult
for any authority to say, in the absence of any accounts or other relevant
material that among the properties acquired by a smuggler, which of them H
42 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A or which portions of them are attributable to smuggling and foreign ex-
change violations and which properties or which portions thereof are
..
attributable to violation of other laws (which the Parliament has the power
to make). It is probably for this reason that the burden of proving that the
properties specified in the show cause notice are not illegally acquired
B properties is placed upon the person concerned. May be this is a case
where a dangerous disease required a radical treatment. Bitter medicine is
not bad medicine. In law it is not possible to say that the definition is
arbitrary or is couched in unreasonably wide terms. Further, in view of
clear and unambiguous language employed in clause (c) of Section 3, it is
not possible or permissible to resort to the device of reading down. The
C said device is usually resorted to save a provision from being declared
unconstitutional, incompetent and ultra vires. We are, therefore, of the
opinion that neither the constitutional validity of the said definition can be
questioned nor is there any warrant for reading down the clear and
unambiguous words in the clause. So far as justification of such a provision
D is concerned, there is enough and more. After all, all these illegally ac-
quired properties are earned and acquired in ways illegal and corrupt - at
the cost of the people and the State. The State is deprived of its legitimate
revenue to that extent. These properties must justly go back where they
belong - to the State. What we are saying is nothing new or heretical.
E Witness the facts and ratio of a recent decision of the Privy Council in
Attorney General for Hong Kong v. Reid (1993] 3 W.L.R. 1143. The Respon-
dent, Reid, was a crown- prosecutor in Hong Kong. He took bribes as an
inducement to suppress certain criminal prosecutions and with those
monies, acquired properties in New Zealand, two of which were held in
the name of himself and his wife and the third in the name of his solicitor.
F He was found guilty of the offence of bribe-taking and sentenced by a
criminal court. The Administration of Hong Kong claimed that the said ,
properties in New Zealand were held by the owners thereof as constructive
trustees for the Crown and must be made over to the Crown. The privy
Council upheld this claim over-ruling the New Zealand Court of Appeals.
G Lord Templeman, delivering the opinion of the Judicial Committee, based
his conclusion on the simple ground that any benefit obtained by a fiduciary
through a breach of duty belongs in equity to the beneficiary. It is held that
a gilt accepted by a person in a fiduciary position as an incentive for his
breach of duty constituted a bribe and, although in law it belonged to the
H fiduciary, in equity he not only became a debtor for the amount of the bribe
ATIORNEYGENL. FOR INDIA'· A PRAJIVANDAS(JEEVANREDDY,J.) 43

to the person to whom the duty was owned but he also held the bribe and A
any property acquired therewith on constructive trust for that person. It is
held further that if the value of the property representing the bribe
depreciated the fiduciary had to pay to the injured person the difference
between that value and the initial amount of the bribe, and if the property
increased in value the fiduciary was not entitled to retain the excess since B
equity would not allow him to make any profit from his breach of duty.
Accordingly, it is held that to the extent that they represented bribes
received by the first respondent, the New Zealand properties were held in
trust for the Crown, and the Crown had an equitable interest therein. The
learned Law Lord observed further that if the theory of constructive trust
is not applied and properties interdicted when available, the .properties C
"can be sold and the proceeds whisked away to some Shangri La which
hides bribes and other corrupt moneys in numbered bank accounts" - to
which we are tempted to add: one can understand the immorality of the
Bankers who maintained numbered accounts but it is difficult to under-
stand the amorality of the Governments and their laws which sanction such D
practices - in effect encouraging them. The ratio of this decision applies
equally where a person acquires properties by violating the law and at the
expense of and to the detriment of the State and its revenues where an
enactment provides for such a course, even if the fiduciary relationship
referred to in Reid is not present. It may be seen that the concept employed E
in Reid was a common law concept, whereas here is a case of an express
statutory provision providing for such forfeiture. May we say in conclusion
that "the interests of society are paramount to individual interests and the
two must be brought into just and harmonious relation. A mere property
career is not the final destiny of mankind, if progress is to be the law of F
the future as it has been of the past." (Lewis Henry Morgan: Ancient
Society).

Question No. 5 : It is contended by the counsel for the petitioners
that extending the provisions of SAFEMA to the relatives, associates and
other 'holders' is again a case of over-reaching or of over-breadth, as ii G
may be called - a case of excessive regulation. It is submitted that the
relatives or associates of a person falling under clause (a) or clause (b) of
Section 2(2) of SAFEMA may have acquired properties of their o'Yll> may
be by illegal means but there is no reason why those properties be forfeited
under SAFEMA just because they are related to or are associates of the H
44 SUPREME COURT REPORTS [1994] SUPP. l S.C.R.

A detenue or convict, as the case may be. It is pointed out that the definition
of the 'relative' in Explanation (2) and of 'Associates' in Explanation (3) is
so wide as to bring in a person even distantly related or associated with
the convict/detenue, within the net of SAFEMA, and once he comes within
the net, all his illegally acquired properties can be forfeited under the Act.
In our opinion, the said contention is based upon a mis-conception.
B SAFEMA is directed towards forfeiture of "illegally acquired properties"
of a person falling under clause (a) or clause (b) of Section 2(2). The
relatives and associates are brought in only for the purpose of ensuring that
the illegally acquired properties of the convict or detenue, acquired or kept
in their names, do not escape the net of the Act. It is a well-known fact
r
c that persons indulging in illegal activities screen the properties acquired
from such illegal activity in the names of their relatives and associates.
Sometimes they transfer such properties to them, may be, with an intent to
transfer the ownership and title. Jn fact, it is immaterial how such relative ·
or associate holds the properties of convict/detenue - whether as a benami
or as a mere name-lender or as a bona fide transferee for value or in any •'
D
other manner. He cannot claim those properties and must surrender them i.
to the State under the Act. Since he is a relative or associate, as defined
by the Act, he cannot put forward any defence once it is proved that that
property was acquired by the detenue - whether in his own name or in the
name of his relatives and associates. It is to counter-act the several devices
E that are or may be adopted by persons mentioned in clauses (a) and (b)
of Section 2(2) that their relatives and associates mentioned in clauses (c)
and (d) of the said sub-section are also brought within the purview of the
Act. The fact of their holding or possessing the properties of con-
vict/detenue furnishes the link between the convict/detenue and his rela-
F tives and associates. Only the properties of the convict/detenue are sought ,
to be forfeited, wherever they are. The idea is to reach his properties in
whosoever's name they are kept or by whosoever they are held. The
independent properties of relatives and friends, which are not traceable to
the convict/detenue, are not sought to be forfeited nor are they within the
purview of SAFEMA *. We may proceed to explaio what we say. Clause
G
That this was the object of the Act is evident from para 4 of the Preantble which states:
"And whereas such persons have in many cases been holding the properties acquired
by thent though such gains in the names of their relatives, associates and confidants".
We are not saying that the Preamble can be utilised or restricting the scope of the Act,
we are only referring to it to ascertain the object of the enactment and to re-assure
H ourselves that the construction placed by us accords with the said object.
A'ITORNEYGENL FOR INDIA v. A.PRAJIVANDAS (JEEVANREDDY,J.] 45

(c) speaks of a relative of a person referred to in clause (a) or clause (b) A
(which speak of a convict or a detenue). Similarly, clause (d) speaks of
associates of such convict or detenue. If we look to Explanation (3) which
specifies who the associates referred to in clause ( d) are, the matter
becomes clearer. "Associates" means: (i) any individual who had been or
is residing in the residential premises (including outhouses) of such person B
['such person' refers to the convict or detenue, as the case may be, referred
to in clause (a) or clause (b)]; (ii) any individual who had been or is
managing the affairs or keeping the accounts of such convict/detenue; (iii)
any association of persons, body of individuals, partuership firm or private
company of which such convict/detenue had been or is a member, partner
or director; (iv) any individual who had been or is a member, partner or c
director of an association of persons, body of individuals, partnership firm
or private company referred to in clause (iii) at any time when such person
had been or is a member, partner or director of such association of
persons, body of individuals, partnership firm or private company; (v) any
person who had been or is managing the affairs or keeping the accounts D
of any association of persons, body of individuals, partnership firm or
private company referred lo in clause (iii); (vi) the trustee of any trust
where (a) the trust has been created by such convict/detenue; or (b) the
value of the assets contributed by such convict/detenue to the trust
amounts, on the date of contribution, not less than 20% of the value of the E
assets of the trusts on that date; and (vii) where the competent authority,
for reasons to be recorded in Writing, considers that any properties of such
convict/detenue are held on his behalf by any other person, such other
person. It would thus be clear that the connecting link or the nexus, as it
may be called, is the holding of property or assets of the convict/detenue
or traceable to such detenue/convict. Section 4 is equally relevant in this
F
context. It declares that "as from the commencement of this Act, it shall
not be lawful for any person to whom this Act applies to hold any illegally
acquired property either by himself or through any other person on his
behalf'. All such property is liable to be forfeited. The language of this
section is indicative of the ambit of the Act. Clauses (c) and (d) in Section G
2(2) and the Explanations (2) and (3) occurring therein shall have to be
construed and understood in the light of the overall scheme and purpose
of the enactment. The idea is to forfeit the illegally acquired properties of
the convict/detenue irrespective of the fact that such properties are held
by or kept in the name of or screened in the name of any relative or H
\,

46 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A associate as defined in the said two Explanations. The idea is not to forfeit
the independent properties of such relatives or associates which they may
have acquired illegally but only to reach the properties of the con-
vict/detenue or properties traceable to him, wherever they are, ignoring
all the transactions with respect to those properties. By way of illustration,
B take a case where a convict/detenue purchases a property in the name of
his relative or associate - it does not matter whether he intends such a
person to be a mere name-lender or whether he really intends that such
person shall be the real owner and/or possessor thereof - or gifts away or
otherwise transfers his properties in favour of any of his relatives or
associates, or purports to sell them to any of his relatives or associates - in
c all such cases, all the said transactions will be ignored and the properties
forfeited unless the convict/detenue or his relative/associate, as the case
may be, establishes that such property or properties are not "illegally
acquired properties" within the meaning of Section 3(c). In this view of the
matter, there is no basis for the apprehension that the independently
D acquired properties of such relatives and associates will also be forfeited
even if they are in no way connected with the convict/detenue. So far as
the holders (not being relatives and associates) mentioned in Section
2(2)(e) are concerned, they are dealt with on a separate footing. If such
person proves that he is a transferee in good faith for consideration, his
E property - even though purchased from a convict/detenue - is not liable to
be forfeited. It is equally necessary to reiterate that the burden of estab-
lishing that the properties mentioned in the show cause notice issued
under Section 6, and which are held on that date by a relative or an
associate of the convict/detenue, are not the illegally acquired properties
of the convict/detenue, lies upon such relative/associate. He must establish
F
that the said property has not been acquired with the monies or assets
provided by the detenue/convict or that they in fact did not or do not
belong to such detenue/convict. We do not think that the Parliament ever
intended to say that the properties of all the relatives ati.d associates, may
be illegally acquired,· will be forfeited just because they happen to be the
G relatives or associates of the convict/detenue. There ought to be the con-
necting link between those properties and the convict/detenue, the burden
of disproving which, as mentioned above, is upon the relative/associate. In
this view of the matter, the apprehension and contention of the petitioners
in this behalf must be held to be based upon a mistaken premise. The
H bringing in of the relatives and associates or of the persons mentioned .in
A TfQR,'JEY GENL. FOR INDIA ''· A. PRAJIVANDAS [JEEV AN REDDY, J.] 47

clause (e) of Section 2(2) is thus neither discriminatory nor incompetent A
apart from the protection of Article 31-B.

Question No. 6: Petitioners challenge the validity of Section 5-A of
COFEPOSA on the ground of it being violative of the twin safeguards
provided by Clause (5) of Article 22. It is submitted that the said clause
gives two rights to the detenue viz., (i) to have the grounds on which the
B
order of detention is based communicated to him as soon as possible and
(ii) to be afforded the earliest opportunity of making representation against
the order of detention - See State of Bombay v. Atma Ram Vaidya, (1951]
S.C.R. 167. It the grounds included irrelevant or non-existent grounds, it is
submitted, the first right is violated and if the grounds included vague c
grounds, the second right is violated. According to the learned counsel,
Article 22(5), as interpretated by this Court over the last more than four
decades, means this: an order of preventive detention is based upon the
subjective satisfaction of the authority and where such satisfaction has been
arrived at on grounds some of which are relevant and definite grounds and
some irrelevant, vague and non-existent, it is not possible or permissible D
for the court to predicate which grounds have influenced the formation of
his satisfaction - which means that the order of detention must fall to the
ground; if this is what Article 22(5) means and says, it is not open to the
Parliament to make a law saying that where the grounds upon which the
requisite satisfaction has been formed are partly good and partly bad, yet E
the order must be held to be good with reference to and on the basis of
good grounds, eschewing the bad grounds. Such a law, it is submitted,
would be in direct conflict with Article 22(5). Let us examine this submis-
sion rather closely.

Section 5-A of COFEPOSA may be reproduced here 'for ready
F
reference. It reads:

"5-A. Grounds detention severable - Where a person has been
detained in pursuance of an order of detention under sub-section
(1) of Section 3 which has been made on two or more grounds,
such order of detention shall be deemed to have been made G
separatcl~ on each of such grounds and accordingly

(a) such order shall not be deemed to be invalid or inopera-
tive merely because one or some of the grounds is or are-

(i) vague, H
48 SUPREME COURT REPORTS [1994[ SUPP.1 S.C.R.

A (ii) non-existent

(iii) non relevant,

(iv) not connected or not proximately connected with such
person, or
B
(v) invalid for any other reason whatsoever,

and it is not therefore possible to hold that the Government
or officer making such order would have been satisfied as
provided in sub-section (1) of Section 3 with reference to the
c remaining ground or grounds and made the order·of deten-
tion;

(b) the Government or officer making the order of detention
shall be deemed to have made the order of detention under
D the said sub-section (1) after being satisfied as provided in
that sub-section with reference to the remaini~g grounds or
grounds."

The Section is in two parts. The first part says that where an order
of det'ention is made on two or more grounds, 11 such order of detention
E shall be deemed to have been made separately on each of such grounds",
. while the second part says that such order shall not be deemed to be invalid
or inoperative merely for the reason that one or some of the grounds are
either vague, non-existent, irrelevant or unconnected. That the second part
is merely a continuation of and consequential to the first part is evident
from the connecting words "and accordingly". The second part goes further
F and says that the order of detention must be deemed to have been made
on being satisfied with the remaining good ground or grounds, as the case
may be. Both the parts are joined by the word "and".

Now, it is beyond dispute that an order of Uetention can be based
G upon one single ground. Several decisions of this Court have held that even
one prejudicial act can be treated as sufficient for forming the requisite
satisfaction for detaining the person. In Debu Mahato v. State of West
Bengal, [1974] 4 S.C.C. 135, it was observed that while ordinarily- speaking
one act may not be sufficient to form the requisite satisfaction, there i~ no
such invariable rule and that in a given case one act may suffice. That was
H a ca.se of wagon-breaking and having regard to the nature of the Act, it
•
ATIORNEY GENL. FOR INDIA '·A PRAJIVANDAS (JEEVAN REDDY. J.f 49

was held that one act is sufficient. The same principle was reiterated in A
Anil Dey v. State of West Bengal, [1974] 4 SCC 514. It was a case of theft
of railway signal material. Here too one act was held to be sufficient.
Similarly, in lsrail SK v. District Magistrate of West Dinajpur & Ors. [1975]
3 S.C.C. 292 and Dhama Kanu v. State of West Bengal, [1975] 3 S.C.C. 527,
single act of theft of telegraph copper wires in huge quantity and ren1oval
of railway fish plates respectively was held sufficient to sustain the order
B
of detention. In Saraswathi Seshagiri v. State of Kera/a & Anr., [1982] 2
S.C.C. 310, a case arising under COFEPOSA, a single act, viz., attempt to
export a huge amount of Indian currency was held sufficient. In short, the
principle appears to be this; though ordinarily one act may not be held
sufficient to sustain an order of detention, one act may sustain an order of C
detention if the act is of such a nature as to indicate that it is an organised
act of a manifestation of organised activity. The gravity and nature of the
act is also relevant. The test is whether the act is such that it gives rise to
an inference that the person would continue to indulge in similar prejudi-
cial activity. That is the reason why single acts of wagon-breaking, theft of D
signal material, theft of telegraph copper wires in huge quantity and
removal of railway fish plates were held sufficient. Similarly, where the
person tried to export huge amount of Indian currency to a foreign country
in a planned and pre-meditated manner, it was held that such single act
warrants an inference that he will repeat his activity in future and, there-
fore, his detention is necessary to prevent him from indulging in such E
prejudicial activity. If one looks at the acts the COFEPOSA is designed to
prevent, they are all either acts of smuggling or of foreign exchange
manipulation. These acts are indulged in by persons, who act in concert
with other persons and quite often such activity has international ramifica-
tions. These acts are preceded by a good amount of planing and organisa-
tion. They are not like ordinary law and order crimes. If, however, in any F
given case a single act is found to be not sufficient to sustain the order of
detention that may well be quashed but it cannot be stated as a principle
that one single act cannot constitute the basis for detention. On the
contrary, it does. In other words, it is not necessary that there should be
mutiplicity of grounds for making or sustaining an order detention. G
Now, take a case, where three orders of detention are made against
the same person under COFEPOSA. Each of the orders is based upon
only one ground which is supplied to the detenue. It is found that the
ground of detention in support of two of such orders is either vague or
irrelevant. But the ground in support of the third order is relevant, definite H
50 SUPREME COURT REPORTS {1994) SUPP. 1 S.C.R.

A and proximate. In such a case, while the first two orders would be quashed,
the third order would stand. This is precisely what the first part (the main
part) of Section 5-A seeks to do. Where the order of detention is based on
more than one ground, the Section creates a legal fiction, viz., it must be
deemed that there are as many orders of detention as there are grounds
which means that each of such orders is an independent order. The result
B is the same as the one in the illustration given by us hereinabove. The
second part of it is merely clarificatory and explanatory, which is evident
from the fact that it begins with the word "accordingly" - apart from the
fact that it is joined to the first part by the word "and". In such a situation,
we are unable to see how can the section be characterised as inconsistent
c with Article 22(5). Had there been no first part, and had the section
consisted only of the second part, one can understand the contention that
the section is in the teeth of Article 22(5) as interpreted by this Court -
this was indeed the situation in K. Yadigiri Reddy v. The Commissioner of
Police I.L.R. 1972 AP. 1025 as we shall presently indicate. It is difficult to
conceive any inconsistency or conflict between Article 22(5) and the first
D - the main - part of Section 5-A. The Parliament is competent to create a
legal fiction and it did so in this case. Article 22(5) does not in terms or
otherwise prohibit making of more than one order simultaneously against
the same person, on different grounds. No decision saying so has been
brought to our notice. Be that as it may, we do not see why the Parliament
E is not competent to say, by creating a legal fiction, that where an order of
detention is made on more than one ground, it must be deemed that there
are as many orders of detention as there are grounds. If this creation of a
legal fiction is competent, then no question of any inconsistency between
the section and Article 22(5) can arise.

F It is true that validity of Section 5-A - or for that matter, of Section
5-A of National Security Act, 1980, which is in identical terms - does not
appear to have been questioned in this Court so far, though it has been
applied in several decisions. Three of the reported decisions are brought
to our notice, viz., State of Gujarat v. Chaman Lal Manjhibhai Soni [1981]
G 2 S.C.C. 24, Prakash Chandra Mehta v. Commissioner and Secretary, Kera/a
[1985] Suppl. S.C. 144 and N. Meera Rani v. St~te of Tamil Nadu, [1989] 4
S.C.C ..418. Actually, in the last-mentioned decision, there are observations
affirming its validity, though no final opinion has been expressed on the
question because it was not canvassed in that case. It is also brought to our
notice that a Bench of Gujarat High Court has affirmed and applied the
H said provision in a case arising under COFEPOSA.
AITORNEY GENL. FOR INDIA v. A. PRAJNAND AS (JEEVA)'J REDDY, J.] 51

Now, coming to the decision of the Andhra Pradesh High Court in A
K Yadigiri Reddy, Section 6(a) of the A.P. Detention Act, 1970 read as
follows :

"No detention order shall be invalid or inoperative merely by
reason that one or more of the grounds on which the order is made
is or are vague or irrelevant, when the other ground or grounds B
does not or do not suffer from any such informity."

The Andhra Pradesh provision thus contained a provision ap-
proximating to the second part of Section 5-A but did not contain any
provision correspouding to or approximating to the first (the main) part of
Section 5-A. It is the first part of Section 5-A that creates the deeming c
fiction; the second port merely elaborates the effect and consequence of
the legal fiction .in the first part. The second part, had it stood alone, could
perhaps have been characterised as being in the teeth of Articfe 22(5), as
understood and construed by this Court - and that is what the Andhra
Pradesh High Court says - but that is not the situation herein as explained D
· herein above. The said decision, therefore, does not advance the case of
the petitioners in any manner herein. Having said this, we must reiterate
the admonition of Gajendragadkar, J. regarding the exercise of the power
of detention under the various detention laws in force. Speaking for the
Constitution Bench in G. Sadanadan v. State of Kera/a, A.LR. (1966) S.C.
1925, the learned Judge observed : E
"We feel rudely disturbed by the thought that continuous exercise
of the very wide powers conferred by the Rules on the several
authorities is likely to make the conscience of the said authorities
insensitive, if not blunt, to the paramount requirement of the
Constitution that even during Emergency, the freedom of Indian F
citizens cannot be taken away without the existence of the justifying
necessity specified by the Rules themselves. The tendency to treat
these matters in a somewhal casual an<l cavalier manner which may
conceivably result from the continuous use of ~uch unfettered
powers, may ultimately pose a serious threat to the basic values on G
which the democratic way of life in this country is founded."

In matters touching.liberty, greater care is called for on the part of
the authorities exercising powers of detention.

An Additional question : Dr. Ghatate, appearing for one of the petitioners H
52 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A raised an interesting submission to the following effect : by Constitution
44th (Amendment) Act, the Parliament, acting in its constituent power, has
substituted clause (4) as well as clause (7) of Article 22 leaving it to the
Central Government to specify the date from which the said amendment
shall come into force. Sub-section (2) of Section 1 of the (Amendment)
Act empowers the Central Government to fix different dates for coming
B into force of different provisions of the said Act. Though the Central
Government has specified the date of coming into force in respect of
several other provisions of the Amendment Act, it has not chosen to specify
the date from which the Amendments to - substitution of - clauses ( 4) and
(7) of Article 22 shall come into force. The 44th (Amendment) Act was
c enacted as far back as April, 1979 and even though more than fourteen
years have passed by, the Central Government has not thought it fit to
enforce the said Amendments. This failure on the part of the Central
Government has the effect of virtually nullifying the said Amendments.
While enacting the said Amendments, the Parliament could never have
contemplated that the Central Government would sit on them for more
D than fourteen years. The Central Government must act in accordance with
the spirit of the Amendment Act. It must act reasonably. It cannot undo a
Constitution Amendment just by refusing to specify a date from which it
shall come into operation. Even if the power given to the Central Govern-
ment is characterised as a conditional legislation still shall the fact remains
E that such power too must have to be exercised reasonably and within
reasonable time. Can the Central Government wait for few more years and
would the Court be powerless to command the Central Government to
· bring into force the said Amendment? If no such command can be given,
would it not mean that the Parliament was, in the year 1979, amending the
Constitution, not for that generation but for the next generation? Section
F 1(2) of the 44th (Amendment) Act is indeed an instance of abdication of
or delegation of essential constituent power and, therefore, bad. Such a
thing has never happened and cannot be allowed to happen; the Central
Government ought not to be allowed to play with a constitutional amend-
ment - an amendment which, in particular, tends to strengthen the
G safeguard contained in clause (4) of Article 22, says the counsel.

We do not, however, think it necessary for the purposes of these
cases to express any opinion on Dr. Ghatate's submission, for the reason
that acceptance of his contention - assuming we do - makes no difference
to the result of these petitions. We have already held that the orders of
H deteotioh made under Section 3 of COFEPOSA, which were governed by
ATIORNEY GENL. FOR INDIA v. A.PRAJ!VANDAS (JEEVANREDDY,J.] 53

Section 12-A do yet represent orders of detention for the purpose of and A
within the meaning of Section 2(2)(b) read with Section 2(1) of SAFEMA.
Even if we assume that the amendments to clauses ( 4) and (7) effected by
the 44th (Amendment) Act have come into force on the day the Amend-
ment Act received assent of the President, the result would be no different.
In this view of the matter, it is also not necessary to express any opinion

-- on the respondent's submission based upon A.K. Roy v. Union of India, B
[1982] 2 S.C.R. 272, viz., whether the opinion in the said decision can be
validly applied even after a lapse of fourteen years.

To summarise :

(1) the Parliament was perfectly competent to enact both the
c
COFEPOSA and the SAFEMA.

(2) for the reasons given in the body of this judgment, we do not
express any opinion on the validity of the 38th and 40th Amendment Acts
to the Constitution of India placing COFEPOSA and SAFEMA in the !Xth D
' Schedule. We assume them to be good and valid. No arguments have also
been addressed with respect to the validity of 42nd Amendment Act to the
Constitution either.

- (3a) An order of detention made under Section 3 of COFEPOSA,
which was governed by Section 12-A thereof is yet an order of detention
for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA.
E

Since the President had issued an order under Article 359(1) suspending
Articles 14, 21 and 22, it became competent for the Parliament, by virtue

- of clause (lA) of Article 359 to enact Section 12-A of COFEPOSA for the
duration of and limited to the period for which the Presidential Order was
in force. It was meant to achieve the purposes of emergency. Once Section F
12-A is held to be a competent piece of legislation, orders of detention
made thereunder (i.e., orders of detention to which the said provision
applied) cannot be held to be not amounting to orders of detention for the
purpose of and within the meaning of Section 2(2) (b) of SAFEMA,
particularly in view of the express language of Section 2(2)(b) (including G
proviso (iii) thereto) - and the protection enjoyed by both the enactments
by virtue of their inclusion in the !Xth Schedule to the Constitution.

(b) An order of detention to which Section 12-A is applicable as well
as an order of detention to which Section 12-A was not applicable can serve
as the foundation, as the basis, for applying SAFEMA to such detenue and H
54 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A 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
detenue 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 thereon -
he, or his relatives and associates cannot attack or question its validity when
B it is made the basis for applying SAFEMA to him or to his relatives or
associates.

'(4) The definition of "illegally acquired properties" in clause (c) of
Section 3 of SAFEMA is not invalid or ineffective.

C (5) The application of SAFEMA to the relatives and associates [in
clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch
as the purpose and object of bringing such persons within the net of
SAFEMA is .to reach the properties of the detenue or convict, as the case
may be, wherever they are, howsoever they are held and by whomsoever
D they are held. They are not conceived with a view to forfeit the independent
properties of such relatives and associates as explained in this judgment.
The position of 'holders' dealt with by clause (e) of Section 2(2) is different
as explained in the body of the judgment.

(6) Section 5-A of COFEPOSA is not invalid or void. It is not
E violative of clause (5) of Article 22.
(7) Petitioners have failed to establish that any of the provisions of
SAFEMA are violative of Articles 14, 19 or 21 - apart from the protection
they enjoy by virtue of the inclusion of the Act in the !Xth Schedule to the
Constitution.
F
All the Writ Petitions, Transferred Cases and Appeals are disposed
of accordingly. The court and authorities before whom proceedings are
pending under SAFEMA shall proceed to dispose them of in accordance
with law and in the light of this judgment. It is in the interest of all
concerned that the proceedings are concluded with all deliberate speed.
G
Civil Appeal No. 1418 of 1981 dismissed as withdrawn.

No orders are called for on I.A. No. 1 of 1993 in T.P. (C) No. 17 of
'
1978.

A.G. Matters disposed of.