STATE OF GOA AND ANR.versusHIRABHAI SOMABHAI TANDEL, NANI, DAMAN

A                     ST ATE OF GOA AND ANR.
                                 v.
             HIRABHAI SOMABHAI TANDEL, NANI, DAMAN

                              NOVEMBER 5, 1997

B                   [G.N. RAY AND G.B. PATTANAIK, JJ.]


          Conservation of Foreign Exchange and Prevention of Smuggling
    Activities Act, 1974 : Section 3(1)

C         Smugglers and Foreign Exchange Manipulators (Forfeiture ofProperty)
    Act, 1975 : Section 7.

           Detention Order-Validity of-Detention order under Section 3(1) of
     1974 Act passed against the step father of Respondent-Thereafter order
D   passed under Section 7of1976 Act forfeiting property of respondent-Order
    forfeiting property not challenged by respondent-Thereafter respondent
    challenged the order of detention of his step father-High Court set aside the
    detention order holding that grounds for detention were not served on the
    detenu-Appeal by State before Supreme Court-Held writ challenging
     detention was not maintainable-After the order of Forfeiture had been
E   passed under SAFEMA validity of detention order could not be scrutinised

         Attorney General of India and Ors. v. Amratlal Prajivandas and Ors.,
    [1994] 5 sec 54, referred to.

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 219
F   of 1991.

           From the Judgment and Order dated 15.11.89 of the Bombay High Court
    in Cr!. W.P. No. 27of1989.

          Ms. A. Subhashini for the Appellants.
G
          S.V. Deshpande for the Respondent.

          The following Order of the Court was delivered :

          The validity of the order dated 15th November, 1989 passed by the
H Division Bench of the Bombay High Court (Panaji Bench) Goa in Criminal Writ
                                         54
                 STATE OF GOA v. H.S. TANDEL, NANI, DAMAN                        SS

••   Petition No. 27/89 is under challenge in this appeal. On 24th July, 1975 an       A
     order of detention under Section 3( 1) of the Conservation of Foreign Exchange
     and Prevention of Smuggling Activities Act, 1974 was passed against the
     step father of the respondent. It is an admitted position that such respondent
     was kept on detention for more than a year but was released before the expiry
     of two years. On 29th October, 1979 a notice was issued to the respondent         B
     for forfeiture of the property held by the step father of the respondent under
     the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture
     of Property) Act 1976. No challenge was made against such notification and
     on 19th December, 1985 the competent authority under the said Act (hereinafter
     referred to as SAFEMA) passed order under Section 7 of the SAFEMA
     directing for forfeiture of the property of the respondent. No appeal or writ     C
     petition was filed by the respondent challenging such forfeiture. 1t may be
     stated that pursuant to the said order of forfeiture the property was sold in
     auction in August, 1989 to the Daman Administration for sum of Rs. 2,59,256
     and possession of the said property had been handed over to the said Daman
     Administration. The respondent filed that Criminal writ petition No. 27/89
     before the Goa Bench on 17th July, 1989 challenging the order of detention        D
     of her step father. The High Court entertained such writ petition and set aside
     the order of detention on the finding that the grounds for detention had not
     been served on the detenu.

            Ms. A. Subhashini the learned counsel appearing for the appellant has E
     submitted that the said writ petition should not have been entertained by the
     High Court. After the order of forfeiture had been passed under SAFEMA
     validity of the order of detention was not to be scrutinised. In support of such
     contention, she has referred to the nine judges' Bench decision of this Court
     made in Attorney General for India and Ors. v. Amratla/ Prajivandas and
     Ors., [1994] 5 sec 54. The ratio of the decision had been summarised in para F
     56 of the said decision and it has been clearly indicated that

             56. (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 G
             such detenu 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). If such detenu 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 H
    56                       SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.

A            associates cannot attack or question its validity when it is made the
             basis for applying SAFEMA to him or to his relatives or associates."

          In view of such decisipn of this Court, the said writ petition was not
    maintainable. We, therefore, set aside the impugned order by allowing this
    appeal.
B
    T.N.A.                                                       Appeal allowed.