ATTORNEY GENERAL FOR INDIA ETC. ETC. versus AMRRATLAL PRAJIVANDAS AND ORS. ETC. ETC.

Citation: [1994] SUPP. 1 S.C.R. 1 · Decided: 12-05-1994 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Disposed off

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Judgment (excerpt)

ATIORNEY GENERAL FOR INDIA ETC. ETC. 
v. 
AMRRATLAL PRAJIVANDAS AND ORS. ETC. ETC. 
MAY 12, 19?4 
[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.] 
A 
B 
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. 
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. 
1 
G 
H 
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 pro

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