KARIMABEN K. BAGAD versus STATE OF GUJARAT AND ORS.

Citation: [1998] 3 S.C.R. 898 · Decided: 22-07-1998 · Supreme Court of India · Bench: A.S. ANAND, V.N. KHARE · Disposal: Case Allowed
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Judgment (excerpt)

A 
B 
KARIMABEN K. BAGAD 
v. 
STATE OF GUJARAT AND ORS. 
JULY 22, 1998 
[DR. A.S. ANAND AND V.N. KHARE, JJ.] 
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) 
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 of detention 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. 
H 
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. 
The following Order of the Court was delivered : 
898 
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• 
.... 
,.Ji: 
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of the petition, the order of detention was revoked by the Government on 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 : 
"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 
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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 husban
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