Holding

The revocation of a COFEPOSA detention order does not make a writ petition challenging that order infructuous, and the validity of the detention order must be examined because it is a condition precedent for SAFEMA proceedings.

Summary

The husband of the petitioner was detained under COFEPOSA and challenged the detention via a writ petition. While the petition was pending, the government revoked the detention order and the Gujarat High Court dismissed the petition as infructuous without addressing its merits. After the husband’s death, proceedings under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) were initiated against the wife, who contended that a valid detention order – a condition precedent for SAFEMA action – no longer existed. The High Court rejected her challenge, holding that the earlier revocation rendered the writ petition irrelevant and barred revival of the challenge. The Supreme Court held that the High Court erred: revocation does not make the writ petition infructuous, and the petitioner is entitled to have the validity of the detention order examined because it is essential for SAFEMA proceedings. Consequently, the appeal was allowed, the High Court order set aside, and the matter remanded for fresh disposal on merits.

Issues considered

Whether revocation of an order of detention under COFEPOSA renders a pending writ petition challenging that order infructuous.
Whether a valid order of detention is a condition precedent for initiating proceedings under SAFEMA, and if its absence bars such proceedings.
Whether the High Court can decline to consider the merits of the detention order after its revocation.

Legislation cited

Subjects

COFEPOSASAFEMAwrit of habeas corpusrevocationinfructuouscondition precedentforfeiture of propertysmugglingforeign exchange manipulationSupreme CourtHigh Court

Judgment

A KARIMABEN K. BAGAD
v. ,.. ...
STATE OF GUJARAT AND ORS.

JULY 22, 1998

B [DR. A.S. ANAND AND V.N. KHARE, JJ.]

Smugglers and Foreign Exchange Manipulators (Forfeiture ofProperty)
Act, 1976 :
•
C Ss. 2 and 7-0rder of detention under COFEPOSA challenged by
detenu under Article 226-Subsequently order revoked-Writ petition
dismissed as infructuous-Detenu died later-Subsequently proceedings under
s. 7 directed to be initiated against wife of detenu-She challenged the order
as also original order of detention in a writ petition-High Court dismissed
the petition holding that revocation of order ofdetention was in-consequential
D in so far as proceedings under SAFEMA were concerned and writ petition
challenging order to detention had been dismissed as infructuous-Held,
since there had been no adjudication on merits on order of detention, High
....
Court ought to have gone into question of validity thereof as existence of
such an order was sine qua non for initiating proceedings under SAFEMA-
E Matter remitted to High Court for disposal on merits.

Competent Authority, Ahmedabad, etc. etc. v. Amritlal Chandmal Jain
and Ors. etc. etc., (1998) AIR 2083, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No,
p 688 of 1998.
From the Judgment and Order dated 27.2.97 of the Gujarat High Court
in SC.A. No. 3436of1996.

Altaf Ahmad, Additional Solicitor General, S.H. Sanjanwal, Ashok H.
G Desai, M.R. Anand, T.L V. Iyer, Adhyaru Yashank Pravin, Romy Chako, Mrs.
Hemantika Wahi, Ms. Anu Sawhney, Huzeffa Ahmadi, R.N. Keshwani, P.H.
Parekh, Ms, Bina Mahavan, Prashant Kumar, Ms. Indira Sawhney and B.K.
Prasad for the appearing parties.
,.Ji:
The following Order of the Court was delivered :
H
898
K.K. BAGAD v. STATE OF GUJARAT 899
Leave granted. The husband of the appellant was detained by an order A
of detention, dated 25.2.1977 under the provisions of COFEPOSA. That order
of detention was challenged by filing a writ petition, being Special Criminal
Application No. I 01 of 1977 in the High Court of Gujarat. During the pendency
of the petition, the order of detention was revoked by the Government on
4.8.1977 and the court on 8.8.1977 made the following order :
B
"As the detention is revoked, the petition does not survive. Hence
Rule discharged with no order as to costs."

The High Court, thus, did not go into the merib of the case and the
various grounds on which the order of detention had been questioned. C

After the order of detention was revoked, it appears, that a notice under
Section 6 of SAFEMA was issued to the husband of the petitioner. While the
proceedings under SAFEMA were pending, the husband of the petitioner
died. Respondent NO. 4, then, made an order on 23.3.1993 holding that the
petitioner was a person who fell within the ambit of the mischief of Section D
2 of SAFEMA and directed proceedings under Section 7 of SAFEMA to be
taken against her. The petitioner questioned the procee~ings on various
1 grounds, including that on the date when proceedings were started against
her, there was no valid and existing order of detention against the husband
of the petitioner, which was a condition precedent to initiate proceedings E
under SAFEMA. Reliance was placed on the revocation of the order of
detention in support of this submission. While challenging the proceedings
of the competent authority and the appellate tribunal constituted under
SAFEMA, the petitioner also put in issue the validity of the order of detention
made against her husband on various grounds which had ben raised in the
writ petition filed by her husband and which the High Court had dismissed F
as "infructuous" without going into the merits of the case. The High Court
took the view that the revocation of the order of detention was inconsequential
insofar as proceedings under SAFEMA were concerned and also declined to
go into the merits of the challenge to the order of detention on the ground
that the petition filed by the husband of the petitioner had been dismissed G
as 'infructuous' in the year 1977 and the same could not be 'revived' after
a period of about twenty years. The writ petition of the petitioner was,
therefore, dismissed on these two grounds. The judgment of the High Court
has been put in issue before us.

We have heard learned counsel for the parties. H
900 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Admittedly, the order of detention was challenged by the husband of
the petitioner on various grounds at the appropriate time. The High Court
declined to go into the merits of the case being of the opinion that since the
order of detention had been revoked, the writ petition had been rendered
"infructuous". The High Court returned no finding on the merits of the
challenge to the order of detention. When proceedings under SAFEMA were
B initiated against the petitioner, after the death of her husband, she could
question the correctness of the grounds of detention while assailing the order
of detention since a valid order of detention is a condition precedent for
initiating proceedings under SAFEMA. Since, the validity of the order of
detention had been put in issue through a writ petition and the High Court
C returned no findings on the merits of the case, the petitioner was entitled to
question the order of detention while assailing the proceedings initiated
under SAFEMA against her. To deny her that right on the ground that after
twenty y~ars the challenge to the order of detention could not be revived was
unjust and improper. Since, there had been no adjudication on the merits of
the order of detention by the High Court, though the order had been
D challenged, the High Court ought to have gone into the question of validity
of the order of detention, since the existence of such an order was the sine-
qua-non for initiating proceedings under SAFEMA. The order of detention
had been challenged and that challenge was not unsuccessful on merits.

E A three Judge bench of this Court in Competent Authority, Ahmedabad,
etc. etc. v. Amritlal Chandmal Jain & Ors. etc. etc., (Criminal Appeal No. 2.
of 1994 with Civil Appeal NO. 1487/94 and Criminal Appeal No. 574/94)
considered a somewhat identical situation and opined :

"Once the detenu is released during pendency of his writ of habeas
F corpus by the detaining authority it cannot always be said that writ
petition had become infructuous and that the grounds on which the
order of detention become invalid. But then if the Court refases or
itself does not go into the merit of controversy in writ of habeas
corpus when detenu is released the detenu on that account cannot
be made to suffer holding that he did not successfully challenge his
G. order of detention. That is exactly what has happened ·in this case.
Writ Petition 1342/92 came to be disposed of on July JO, 1985. This
writ petition along with others was being heard together. This court
did not go into the question of validity of the order of detention but
disposed of the matter on account of the fact that detenu had already
H been released from his detention. We, therefore, cannot say that
K.K. BAGAD v. STATE OF GUJARAT 901
challenge to the order of detention by Amritlal was unsuccessful and A
that he or his relatives or his associates were in any way debarred
from challenging the order of detention subsequently when notices
under SAFEMA were issued to them. " (Emphasis ours).

The view expressed by the three Judge Bench in Amritlal Chandmal
Jain's case (supra) lends enough support to the view taken by us. B
For what we have said above, we find that the impugned order of the
High Court cannot be sustained. We, accordingly set it aside and remand the
writ petition to the High Court to be disposed of on merits. The appeal
succeeds and is allowed in the above terms. We clarify that we shall not be
taken to have expressed any opinion on the merits of the writ petition, hereby C
remanded to the High Court for its fresh disposal.

There is no order as to costs.

R.P. Appeal allowed.
D