THANESAR SINGH SODHI (D) THR. LRS.versusUNION OF INDIA AND ORS.

                 [2023] 14 S.C.R. 777 : 2023 INSC 997



                           CASE DETAILS

            THANESAR SINGH SODHI (D) THR. LRS.
                                    v.
                    UNION OF INDIA AND ORS.
                     (Civil Appeal No.5500 of 2011)
                        NOVEMBER 09, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]

                            HEADNOTES

     Issue for consideration: Detention order passed under Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
subsequently revoked/withdrawn, proceedings under Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976 if would become
non est and untenable, as claimed.
     Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976 – s.2(2)(b) and its proviso – Application –
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 – ss.3, 9, 12 – Detention order passed u/s.3 revoked/
withdrawn, impugned proceedings under the SAFEMA if can be
maintained:
     Held: s.2 provides for the application of the provisions of the Act
only to the persons specified in sub-section (2) thereof – According to
sub-section (2)(b) every person in respect of whom an order of detention
has been made under COFEPOSA, the Act would be applicable subject
to four clauses mentioned under the proviso thereto – For the purposes
of this case, the relevant provisions are confined to s.2(2)(b) and its
proviso – Apart from the four contingencies given in clauses (i) to (iv),
every person against whom an order of detention has been passed under
COFEPOSA, the provisions of SAFEMA would apply – Admittedly, an
order of detention under COFEPOSA was made against the appellants –
Order of detention was not revoked on the report of the Advisory Board
or before the receipt of the report of Advisory Board or before making a
                                   777
778          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


reference to the Advisory Board – Further, it was an order of detention
passed u/s.3, COFEPOSA – s.9 and s.12A, COFEPOSA had no application
to the detention order – As such, clause (i) would not be applicable – Clause
(ii) would also not be applicable in as much as neither the detention order
was made to which provisions of s.9, COFEPOSA would apply nor had it
been revoked before the expiry of the time on the basis of review on the
report of the Advisory Board – Furthermore, clause (iii) would also not be
applicable as s.12A, COFEPOSA had no application to the detention order
– Lastly, the detention order was not set aside by the Court of competent
jurisdiction – Therefore, clause (iv) would also have no application – To
the contrary, appellant had made a representation against the detention
order which was rejected – Said order was challenged before the High
Court by way of a writ petition which was also dismissed on merits – The
revocation however was made on a statement given on behalf of the Union
of India before Supreme Court in order to institute a complaint under the
relevant statute – The said revocation is not contemplated u/s.2(2)(b) and
its proviso, and, therefore, no benefit can be extended to the appellant(s)
on the said count – Therefore, the impugned judgment confirming the
order of forfeiture of properties u/s.7, SAFEMA does not suffer from any
infirmity warranting interference – Customs Act, 1962 - Gold (Control)
Act, 1968. [Paras 1, 22-22.4, 23]

      LISTS OF CITATIONS AND OTHER REFERENCES

    Attorney General for India vs. Amratlal Prajivandas and others (1994)
5 SCC 54: [1994] 1 Suppl. SCR 1 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CIVIL/CRIMINAL APPELLATE JURISDICTION : Civil Appeal
No.5500 of 2011.
     From the Judgment and Order dated 26.03.2010 of the High Court of
Delhi at New Delhi in WP No.1212 of 1995.
      With
      Criminal Appeal No.730 of 2014.
THANESAR SINGH SODHI (D) THR. LRS. v. UNION OF INDIA 779
                   AND ORS.

     Appearances:
     Chinmoy Pradip Sharma, Sr. Adv., Kumar Ankur, Karan Bindra, Bipul
Kedia, Chayan Sarkar, Anupam Prakash, Ms. Anzu. K. Varkey, Shailendra
Kumar, Irfan Hasieb, Krishnajyoti Deka, Rishabh Munjal, Ms. Mahesh
Sharma, Ms. Neelam Singh, Ms. Priyanshi Bhati, Advs. for the Appellants.
     Vikramjit Banerji, A.S.G., Mukesh Kumar Maroria, Prashant Rawat,
Siddharth Sinha, S.A. Haseeb, Pratyush Srivastava, Aaditya Aniruddha
Pande, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya
Krishna, Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     VIKRAM NATH, J.
      1. These two appeals challenge the impugned orders of the High Court
more or less on the same and similar grounds as such have been taken up
together and being decided by this common order. In Civil Appeal No.5500
of 2011, challenge is to an order passed by the Division Bench of the Delhi
High Court dated 26.03.2010 whereby Writ Petition (Civil) No.1212 of
1995 was dismissed confirming the order of forfeiture of properties under
section 7 of The Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 19761. In Criminal Appeal No.730 of 2014, the challenge is
to an order passed by the Division Bench of the Bombay High Court dated
03/17.12.2012 dismissing the Writ Petition No.3878 of 2011 wherein also
the order of forfeiture of properties under SAFEMA was upheld.
     2. Before the High Court, the main ground of challenge in both
the cases was that as the detention order passed under section 3 of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 19742 has been subsequently revoked/withdrawn as such SAFEMA
proceedings would become non est and untenable. An additional ground
taken in Civil Appeal No.5500 of 2011 was to the effect that even the criminal


1   SAFEMA
2   COFEPOSA
780            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


complaint filed under the Customs Act, 19623 wherein the appellant had
been discharged on the ground that there was no evidence, would further
render the proceedings under SAFEMA as untenable.
      3. At the outset, the arguments advanced by the learned senior counsel
for the appellant appears to be quite attractive and forceful but when the facts
and law of the case are scrutinised, we are of the firm view that argument
has to fail resulting into dismissal of the appeals.
    4. For sake of brevity, we are reproducing the facts of Civil Appeal
No.5500 of 2011 and will briefly refer to the facts in the other Criminal
Appeal No.730 of 2014.
      5. An order under section 3(1) of COFEPOSA for detaining
the appellant was passed by competent authority on 02.01.1978. The
representation dated 12.01.1978 made by the appellant against the detention
order was rejected by the appropriate authority on 15.02.1978. The appellant
thereafter preferred Cr. W.P. No.6 of 1978 before the Delhi High Court which
was dismissed by a detailed speaking order by judgment dated 25.09.1978.
This order of the Delhi High Court dismissing Cr. W.P.No.6 of 1978 was
not carried any further and became final.
      6. However, wife of the appellant preferred petition under Article
32 of the Constitution of India before this Court on 04.10.1978 which
was registered as W.P.No.4446 of 1978. In the said petition, the detention
order dated 02.01.1978 was challenged along with other ancillary reliefs.
The said petition was clubbed with group of petitions and were finally
dismissed as withdrawn by order dated 27.10.1978 passed by this Court,
on the undertaking given on behalf of the Union of India that the detention
order would be withdrawn and a complaint would be filed for prosecuting
the detenues which included the appellant and others also. Consequent to the
undertaking given before this Court, detention order against the appellant
was revoked on 09.11.1978. This closes the chapter relating to the detention
order, challenge to its validity and revocation.



3     The Act 1962
THANESAR SINGH SODHI (D) THR. LRS. v. UNION OF INDIA 781
            AND ORS. [VIKRAM NATH, J.]

      7. On 10.02.1981, the authority under section 6 of SAFEMA issued
show cause notice to the appellant to disclose the sources of income, earnings
or assets from which he acquired:
     i)     House No.2/32 A, Punjabi Bagh, New Delhi;
     ii)    M/s Apsara Hotel, Arya Samaj Road, New Delhi; and
     iii)   the deposits with the Bank of India, Karol Bagh, New Delhi.
      8. Reply was given to the aforesaid show cause notice by the appellant
on 21.03.1981. After considering the reply, notice dated 21.03.1983 was
given under section 7(1) of SAFEMA affording him opportunity of
being heard. Vide order dated 16.09.1983, the competent authority under
SAFEMA forfeited the properties under section 7 thereof. Aggrieved by
the same, the appellant preferred an appeal before the Appellate Tribunal
on 07.10.1983.
      9. Simultaneously, the appellant also preferred W.P.(Civil) No.12547
of 1983 before the Delhi High Court on 25.11.1983 wherein it challenged
the vires of SAFEMA as also the proceedings initiated under the said Act.
During the pendency of the writ petition, further proceedings before the
Appellate Tribunal under SAFEMA were stayed by the Delhi High Court.
      10. In the meantime, as there was challenge to the vires of SAFEMA
before various High Courts, all such pending matters were transferred to
this Court clubbed together with the title being Attorney General for
India vs. Amratlal Prajivandas and others4. This group of petitions
came to be decided vide judgment dated 12.05.1994. This Court upheld
the vires of SAFEMA and accordingly, where appeals were pending before
the Appellate Tribunals, were directed to be disposed of and be decided on
their own merits.
      11. The Appellate Tribunal vide order dated 02.03.1995 upheld the
forfeiture order passed by the competent authority on 16.09.1983. The
appellate orders were challenged before the Delhi High Court by way of
W.P.(C) No.1212 of 1995. During the pendency of writ petition, an interim
order was passed on 06.04.1995 staying the order passed by the appellate



4   (1994)5 SCC 54
782            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


tribunal on 02.03.1995. The said writ petition came to be dismissed vide
judgment dated 26.03.2010 which is impugned in the present appeal.
    12. Two additional facts relating to the complaint under the Act 1962
may also be noted here to complete the factual scenario.
      13. After the statement was given before this Court as recorded in the
order dated 27.10.1978 passed in Writ Petition Nos.4446-4447 of 1978 for
filing the complaint for prosecution, the same was filed under section 135(1)
(b) of the Act 1962 and under section 85 of Gold (Control) Act, 1968 5. The
Additional Chief Metropolitan Magistrate, New Delhi vide order dated
30.10.1981 discharged the appellant and closed the proceedings of the
criminal complaint. Further, consequent to the said discharge, the custom
authorities vide order dated 03.08.1987 set aside the penalties imposed
against the appellant under the Act 1962 as also the Act 1968.
       14. Insofar as the Criminal Appeal No.730 of 2014 is concerned, the
facts in brief are that the order of forfeiture dated 26.06.2001 was challenged
before the Appellate Tribunal which dismissed the appeal vide order dated
20.08.2002. Aggrieved by the same, the writ petition was preferred before
the Bombay High Court being Crl. W.P. No.1260 of 2002 which was
dismissed on 25.11.2002 and the SLP(Crl.) No.5558 of 2002 filed against
the said order was also dismissed on 09.01.2003 by this Court. Thereafter,
the appellant therein, filed a second petition being W.P.No.3878 of 2011
before the High Court of Bombay again challenging the same forfeiture
order dated 25.06.2001 on the ground that the order of detention under
COFEPOSA had been subsequently revoked by order dated 11.11.2009
passed by the Director (COFEPOSA) as such the order of forfeiture under
SAFEMA which was challenged afresh has been untenable once the order of
detention had been revoked. The Bombay High Court dismissed the second
petition and held that no second petition would lie for the same relief once
the earlier petition had been dismissed.
      15. In the aforesaid facts of the case, learned senior counsel appearing
for the appellant has strenuously urged with great vehemence that the
impugned proceedings under the SAFEMA could not be maintained and the


5     The Act 1968
THANESAR SINGH SODHI (D) THR. LRS. v. UNION OF INDIA 783
            AND ORS. [VIKRAM NATH, J.]

impugned orders need to be quashed as the proceedings under COFEPOSA
for detention stands revoked and also in Civil Appeal No.5500 of 2011 that
even the criminal complaint had been closed as the appellant was discharged
and further the penalty under the Act 1962 and the Act 1968 have also been
revoked.
      16. Learned counsel for the appellant had placed strong reliance on
section 2(2) (b) of the SAFEMA to support his submissions that once the
detention order under COFEPOSA had been revoked, the proceedings
under SAFEMA could not be maintained. The submission is that provisions
of SAFEMA could be made applicable only against the person in respect
of whom the order of detention has been made under COFEPOSA. Once
the order of detention itself had been revoked for whatever reasons there
would be no order of detention against such person under COFEPOSA and
therefore, no applicability of SAFEMA.
      17. On the other hand, Shri Vikramjit Banerji, learned Additional
Solicitor General submitted that the arguments advanced by the appellant are
misplaced. According to him, provisions of SAFEMA can be invoked against
the person in respect of whom the order of detention under COFEPOSA
had been made subject to the exception given under the proviso to section
2(2)(b) of SAFEMA. Until and unless any of the four clauses under the
proviso can be said to be attracted to the present appellant, the appellant
cannot derive any benefit out of the same. It is only where the revocation
is for the reasons and situations given under four clauses of the proviso
that SAFEMA would not be applicable to such a person against whom the
detention order had been passed under COFEPOSA.
      18. Mr. Banerji also submitted that the proceedings under the Act 1962
and the Act 1968 and the complaint and the withdrawal of penalty under the
said provisions also would not be of any help to the appellant in as much
as the appellant would be liable to be proceeded with proceedings under
SAFEMA as there was an order of detention under COFEPOSA against
which representation was rejected and writ petition before the High Court
had been dismissed on merits. The said order of the High Court had attained
finality. Any subsequent withdrawal or revocation of the detention order
which was not covered by any of the four clauses under proviso to section
2(2) (b) of SAFEMA, cannot be of any help to the appellant to canvas that
784          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


once an order of detention had been revoked, the provisions of SAFEMA
would become inapplicable.
      19. Primarily, the argument of the appellant is two- fold: firstly, benefit
is said to be derived from the revocation of the detention order passed under
COFEPOSA and secondly, the dismissal of the complaint and the withdrawal
of the penalty under the Act 1962 and Act 1968.
      20. In so far as the second argument is concerned, it has no relevance
to the applicability or non-applicability of the impugned proceedings and
forfeiture under SAFEMA. They were independent proceedings under the
provisions of the Act 1962 and the Act 1968.
      21. Now coming to the first argument relating to revocation of the
detention order passed under COFEPOSA. SAFEMA was enacted to provide
for the forfeiture of illegally acquired properties of smugglers and foreign
exchange manipulators and for matters connected therewith or incidental
thereto as such activities were having a deleterious effect on the national
economy. Section 2 provided for the application of the provisions of the
Act only to the persons specified in sub-section (2) thereof. According to
sub-section (2)(b) every person in respect of whom an order of detention
has been made under COFEPOSA, the Act would be applicable subject to
four clauses mentioned under the proviso thereto. For the purposes of this
case, the relevant provisions are confined to Section 2(2)(b) and its proviso.
As such the same is reproduced below:
      “Section 2. Application.-
      Xx                          xx                         xx
      (2) The persons referred to in sub-section (1) are the following,
      namely:-
      Xx                          xx                         xx
      (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)
      Provided that-
      (i) such order of detention, being an order to which the provisions of
      section 9 or section 12A of the said Act do not apply, has not been
THANESAR SINGH SODHI (D) THR. LRS. v. UNION OF INDIA 785
            AND ORS. [VIKRAM NATH, J.]

     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 Advisory Board;
     (ii) such order of detention, being an order to which the provisions of
     section 9 of the said Act apply, has not been 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 provision
     of section 12A 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 12A, of
     that Act; or
     (iv) such order of detention has not been set aside by a court of
     competent jurisdiction;”
      22. A perusal of the above quoted provision makes it clear that apart
from the four contingencies given in clauses (i) to (iv) above, every person
against whom an order of detention has been passed under COFEPOSA, the
provisions of SAFEMA would apply. In the present case, it is an admitted
position that an order of detention under COFEPOSA was made against
the appellants.
      22.1. The order of detention had not been revoked on the report of the
Advisory Board or before the receipt of the report of Advisory Board or
before making a reference to the Advisory Board. Further, it was an order
of detention passed under Section 3 of COFEPOSA. Section 9 and Section
12 A of COFEPOSA had no application to the detention order. As such,
clause (i) would not be applicable.
      22.2. Clause (ii) would also not be applicable in as much as neither the
detention order was made to which provisions of Section 9 of COFEPOSA
would apply nor had it been revoked before the expiry of the time on the
basis of review on the report of the Advisory Board.
     22.3. Further, clause (iii) would also not be applicable as Section 12A
of COFEPOSA had no application to the detention order.
786            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


     22.4. Lastly, the detention order had not been set aside by the Court
of competent jurisdiction. Therefore, clause (iv) would have no application.
      23. To the contrary, in the present case against the detention order, the
appellant had made a representation which had been rejected. Thereafter
the said order was challenged before the High Court by way of a writ
petition which had also been dismissed on merits by a detailed order
upholding the detention order. The revocation however had been made on
a statement given on behalf of the Union of India before this Court in order
to institute a complaint under the relevant statute. The said revocation is
not contemplated under Section 2(2)(b) and its proviso, and, therefore, no
benefit can be extended to the appellant(s) on the said count. Therefore, in our
view, the impugned judgment does not suffer from any infirmity warranting
interference. The appeals lack merit and are, accordingly dismissed.
      24. Pending application(s), if any, stand disposed of.


Headnotes prepared by:                                         Appeals dismissed.
Divya Pandey