UNION OF INDIA & OTHERS versus HAJI MASTAN MIRZA

Citation: [1984] 3 S.C.R. 1 · Decided: 23-02-1984 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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UNION OF INPIA & O'fHERS 
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HAJI MASTAN MIRZA 
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February 23, 1984 
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(S. MURTAZA FAZAL ALI, A. VARADARAJAN AND 
RANGAJ;IATH MISRA, JJJ 
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. Smutgler; and Foreign ExchanKe Manipulators (Forefeiture· of Prop,rty) 
-dct, 1976, Se~tions 2, 6 and 7 read with Section 3(1) of Conservation of Foreign 
and Prevention of Smuggling Activities Act, 1973 Scope of-Whether an appeal 
preferred and Pending under the Provision of SAFEMA, a bar for the maintain· 
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·ability ofa writ petition unaer Article ~26 4 the Constiiution chaUenglng. the 
detention under COFEPOSA and for an Incidental prayer quashing the notice 
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issued under SAFEMA P Non Supply of copies of mat,rlal documents based on 
which a de~entlon order ;is pa!sed vitiates the detentfon and the explanation for 
non sripply ·cannot be ~Ub$f/tute for the copies of the docuinent. 
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Haji Mastan Mir .. war detained under Section 3(1) (c) of the Main. 
tenanc~ of Inteinal Security Act, by order dated 17·9-1974. There was a formal 
release of the respondent from, deten lion under the MISA on 19·!2·1974, hut 
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he was-immediately detained under, Section 3(1) of COFEPOSA by an order 
· 'dited 19-12-1974 passed by the Minister of Finance of the Government of 
ludia on the basis of the ma teriais placed before him ... by bis Joint Secretary. 
The grounds of detention. were served on the respondent on 23-12·1974. A 
deCJaration under Section 5(1) of COFEPOSA was served on him on 19-1-1976. 
'Emersency. wa~ procJalrned throughout the country ~Y the President on 
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25-6'1975 and it continued to be in force until 21-3-1977o 
The respondent 
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was released on 23-3-1977 • 
Founded on the detention of the respondent under the order dated 
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19-12-1974, aftc,r issuing a show cause notice u/s 6(1) of SAFBMA' to the 
respondent and his relatives and alleged associates, an order u/s 7 ofSAFBMA 
was, passed f!Jrfeiting the properties ·of the refoondent and his 
rc1atives~ 
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Appeals preferred by all but one are ,pending be ore the Appellate Tribunal 
. comtituted under that Act. The Misce!Jiineo,1.is Petition. No. 548/7-7 filed by 
these affected parties challenging the vires·of certain previsions of COFEPOSA 
and SAFEMA in the Bombay fliah Court are still pending. 
A crjmial Application No. 780/1977 was filed by the respondent' under 
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Article 226 of the Constitution and under Section 482 of the Code of Criminal 
Pro~edvre in t!>e jlombay Hi$h Court in April 1981, chal!en$iD$ the validity 
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SUPREME COURT REPORTS . 
[1984] 3 s.c.R. 
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of the impugned Order of detention dated 19·12~1974 and the dec1aratidn 
dated 18-1-1975 under COFEPOSA for holding that the action taken under 
SAFE~IA is unsustainable. The High Court of Bombay, aCcepted the plea · 
that non sllpply of copiC:s of the material dccuments affected the making of 
effectivC representation and thus held that thC act!on taken under Sections 6(1) 
· and 7 of SAFBMA was invalid. The J-Iig;h Court restrained -the _appellants 
from taking any actidn under SAFEMA based on the said order dated 
19-12-1974. Hence the ~ppeal by special leave; 
Dis~iSsing the appeal, the_ Court 
HELD :-1.2: The respondent's petiiion under Art. 226 of the Constitu .. 
tion and S. 48.i of the Code of Criminal Procedure_ is m.lintainable. [6D] 
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1.2_, The pend~ncy of the appeal filed under the provisions of SAFEMA . 
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against the ofder for forfeiture of the respondent's properties made under the 
provisions of that Act is not a bar to the pres~nt proc<!ding. [6A] 
t.3 : The fact that the respondent did not challenge his det_ention. under 
COFEPOSA before his release cannot operate as estoppel against his right, 
·or moving the court for having the order Or detention ·quashed when that 
order was sought to be used as a basis for taking action against him under 
ss. 6 and 7 of SAFEMA. The respondent was in detention under MiSA frotll 
17-9-1974 to 19-12-1974 and thereafter under COFEPOSA until 23-3-1977. 
Durini thC period of. his detention under. COFEPOSA from 19.;.1z..1974 to 
23-3-19n proclamation of emer8:ency in the country was in force from 25-6-1975• 
to --.21-3-1977. ·: Theiefore, "for a major part ·or the respondeht's detentio·n · 
under COFEPOSA he could not move -any court of taW for redresS agaizist 
his detention anci be was released on 23-3-1977 soon after the emergency was' 
lifted on 21-3-1977. [6C; BJ 
2.f: A re.ading of Se~i

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