NARENDER KUMAR versus UNION OF INDIA AND OTHERS

Citation: [2019] 6 S.C.R. 482 · Decided: 08-04-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 6 S.C.R.
NARENDER KUMAR
v.
UNION OF INDIA AND OTHERS
(Criminal Appeal No.1492 of  2009)
APRIL 08, 2019
[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]
Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976 (SAFEMA) : s.2(2)(b) and its proviso – Ap-
plicability of – Competent Authority under MISA directed detention
of one ‘R’ on 5.11.1974 with a view to prevent him from dealing in
smuggled goods prior to COFEPOSA came into force on 13.12.1974
– On 19.12.1974, the competent authority under COFEPOSA di-
rected his detention with a view to prevent him from dealing in
smuggled goods – Representation of detenu was rejected – On
29.4.1975, his son filed writ of habeas corpus and prayed for quash-
ing of detention orders dated 5.11.1974 and 19.12.1974 – Procla-
mation of Emergency on 25.6.1975 – With effect from 1.7.1975,
s.12A was inserted in COFEPOSA by Amendment Act of 1975 –
s.10A was inserted on 12.12.1975 dealing with extension of period
of detention – Later SAFEMA came into force w.e.f. 25.1.1976 –
Emergency was lifted on 21.3.1977 – Next day, i.e. on 22.3.1977,
detention orders in respect of 49 detenus including ‘R’ were re-
voked by the State Government and detenu was released – On
30.4.1977, Competent Authority under SAFEMA issued notice to
detenu and his wife to show cause the source of their income or
acts or by means of which they had acquired properties and why
said properties be not declared illegally acquired and forfeited –
Writ Petition for quashing of orders dated 5.11.1974 and
19.12.1974 which was alive and pending in High Court was dis-
posed of as having become infructuous – After considering replies
to the notices under SAFEMA, on 29.5.1978, the Competent Au-
thority held that the property mentioned in the schedule to the order
was illegally acquired and that it stood forfeited – Writ petition
filed against the said order was dismissed holding that there was no
revocation of detention before the expiry of the Emergency and as
such provisions of s.2(2)(b) of SAFEMA would get attracted – On
[2019] 6 S.C.R. 482
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appeal, held:  For the substantive provision under s.2(2)(b) to ap-
ply, the matter must not be covered under any of the four parts of
the proviso – Part (i) of the proviso to s.2(2)(b) deals with cases to
which s.9 or s.12A of COFEPOSA did not apply – In the instant
case, there was neither any declaration under s.9 nor any procla-
mation under s.12A – Thus, s.9 and s.12A did not apply – In terms
of Part (i) of the proviso, if the order of detention was not revoked
under the conditions stipulated therein, the substantive provisions
of s.2(2)(b) must apply – The order of detention was not revoked
under any of the postulates of the proviso to s.2(2)(b) nor was it set
aside by any competent court and as such the provisions of SAFEMA
must apply – In terms of Part (i) of the proviso, if the order of deten-
tion was not revoked under the conditions stipulated therein, the
substantive provisions of s.2(2)(b) must apply – In the instant case,
there was no such revocation and in view  of Part (i) of the proviso,
the provisions of SAFEMA must apply – High Court rightly ob-
served that the detention “had run right through the duration or
continuance of the emergency” – Maintenance of Internal Security
Act, 1971 (MISA) – s.3(2) – Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
Dismissing the appeals, the Court
HELD: 1. An order of detention under Section 3(1) of
COFEPOSA can be made against a person with a view to
“prevent him from acting in any manner prejudicial to the
conservation or augmentation of foreign exchange” or with a view
to prevent him from indulging in activities mentioned in said
Section 3(1).  If the Advisory Board finds that there is sufficient
cause for detention under Section 8(f), the period of detention
under Section 10 could be one year or the “specified period”
whichever expires later.  In cases where a declaration under
Section 9 was issued, the maximum period of detention in terms
of said Section 10, upon approval being accorded by the
Advisory Board, could be two years or the “specified period”
whichever period expires later.   Explanation to Section 10 states
the “specified period” to be the period during which the
proclamation of Emergency issued under Article 352 of the
Constitution, inter alia, on 25.06.1975 would be in operation.  If
an order of

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