Three appeals challenging forfeiture of property under SAFEMA where detention order against the affected person was revoked before reference to the Advisory Board. Tribunal held the Authority lacked jurisdiction.
Impugned order forfeiting property set aside due to lack of jurisdiction; appellants entitled to consequential relief.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APPELLATE TRIBUNAL
(Under Section 12 of SAFEMA, 1976 as Amended by Finance Act, 2016)
Date of Decision: 10.03.2017
| MP-29/BOM/2011 (SP) & FPA-13/BOM/2010 |
|
|---|---|
| Neeru Chopra | … Appellant/Applicant |
| MP-30/BOM/2011 (SP) & FPA-14/BOM/2010 |
|
| Priyansu Chopra | … Appellant/Applicant |
| MP-31/BOM/2011 (SP) & FPA-15/BOM/2010 |
|
| Swati Chopra | … Appellant/Applicant |
| Versus | |
| The Competent Authority, Mumbai | … Respondent |
Advocates/Authorized Representatives who appeared
For the appellants : Shri B. Seshagopalan, Advocate For the respondent : Shri Stanly Joseph, Inspecting Officer
CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI KAUSHAL SRIVASTAVA : MEMBER SHRI ANAND KISHORE : MEMBER
JUDGMENT: SHRI KAUSHAL SRIVASTAVA
MP-29/BOM/2011 (SP) & FPA-13/BOM/2010, MP-30/BOM/2011 (SP) & FPA-14/BOM/2010, MP-31/BOM/2011 (SP) & FPA-15/BOM/2010
The subject three appeals arise out of the Order No. 3/SAFEMA/MUM/2010 dated 09.06.2010 passed by the Competent Authority, SAFEMA, Mumbai, forfeiting certain properties to the Central Government under the Section 7 of the Act. Being aggrieved with the order, the appellants have filed these appeals in respect of forfeited property namely 006, Ground Floor, Govind Nagar, HSG Ltd., Near Old Petrol Pump Meera –Bhayander Road, Distt. Thane. As the facts and issues involved in all the three appeals are common, these are being disposed of by this common order.
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2.1 Mr. Rajesh Hansraj Chopra (hereinafter referred to as Affected Person No.-1 or AP-1) was ordered to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Principal Secretary (Appeals and Security), Government of Maharashtra, vide order No. PSA 1004/18/SPL-3(A) dated 04.11.2004, therefore, he was the person as defined under Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA or the Act, for short), Ms. Neeru Chopra being the wife of AP-1(hereinafter referred to as Affected Person No. 2 or AP-2), Ms. Priyansu Chopra and Ms. Swati Chopra being the daughters of AP-1(hereinafter referred to as Affected Person no. 3 & 4, or AP-3 and AP-4 respectively), fell within the definition of relative as given under section 2(2)(c), hence the provisions of the Act were made applicable to all the APs.
2.2 On the basis of the investigation carried out by the Directorate of Revenue Intelligence, Mumbai Zonal Unit, a show cause notice under section 6 of the Act bearing No. CA/MUM/III/R-I/2004 dated 25.10.2005 was issued to the APs directing them to indicate within 35 days from the date of the receipt of that notice, the source of income, earnings or assets out of which or by means of which, the properties as mentioned in the show cause notice were acquired, the evidence relied upon and other relevant information and particulars failing which they were further asked to show cause as to why those properties, should not be declared as illegally acquired properties and forfeited to the Central Government free from all encumbrances.
2.3 On consideration of the written submissions/replies submitted by/on behalf of the different APs and after according opportunity for personal hearing and considering the submissions made, the Competent Authority passed the impugned order rejecting the contentions put forth.
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Being aggrieved with the order, the above mentioned parties have filed the present appeal(s).
2.4 The main ground on which the Show Cause Notice was contested was that the order of detention against AP-1 was revoked before making reference to the Advisory Board therefore, SAFEMA cannot be made applicable to them in accordance with the proviso (i) to Section 2(2)(b) of the Act. The learned Advocate cited the judgment of Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India reported as 1995(3) BOM. C.R. (SC) 69 wherein it was held that once an order of detention was revoked, all legal consequences should follow. Subsistence of a legal or valid order of detention is a sine qua non for invoking the provision of SAFEMA. Since in the present case no such legal or valid order exists, so the proceedings under SAFEMA suffer from the lack of jurisdiction, thereby rendering it to be null and void ab initio, he argued.
3 In the appeal also, apart from various other grounds, the foremost challenge to the order is on account of lack of jurisdiction. It was contended that the learned Authority had passed the impugned order without jurisdiction and therefore, the order was ab-initio null and void. This was for the reason that as envisaged in the first proviso to Section 2(2)(b) of SAFEMA 1976, the order of detention against AP-1 having been revoked by the Government of Maharashtra vide the order dated 22.10.2007 and therefore, the provisions of SAFEMA, 1976 would not apply to the AP-1 with effect from that date and consequently to the appellants also. Therefore, forfeiture of the property vide the impugned order dated 09.06.2010 under Section 7 of the Act suffered from lack of jurisdiction.
3.1 The impugned order was passed with non application of mind on part of the authority in as much as he did not give any finding on the
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pleas of the appellant raised in the reply dated 12.03.2010 and the documents submitted with the said reply. It was contended that previous to the present detention, an order of detention was passed against A.P. 1 on 22nd March‟ 1999 also; that the same Authority initiated the forfeiture proceeding against similar property in that case; that the said detention order was revoked under section 21 of General Clauses Act by the Principal Secretary to the Government of Maharashtra but the said Authority continued the proceedings; that AP-1 filed the Criminal Writ Petition No. 1698 of 2000 in the Mumbai High Court against the related show cause notice and the Writ Petition has been allowed against the Authority for lack of jurisdiction to proceed under SAFEMA after the detention Order has been revoked; that the said judgment in the case of AP-1 had been challenged by the Competent Authority through SLP Crmnl. MP no 8500-850 of 2002 but the same has been dismissed; that in the present case also the detention order passed against AP-1 issued on 4th November‟ 2004 has been similarly revoked on 22.10.2007 and therefore the proceeding initiated by SAFEMA ought to have been dropped in the light of the said judgment of Mumbai High Court. The impugned order is therefore liable to be set aside on this ground alone.
3.2 The learned authority has erroneously relied upon the judgment of the Hon‟ble Supreme Court in the case of Union of India V/s Mohanlal Likumal Punjabi and passed the impugned order against the Appellant completely ignoring the fact that the said judgment is distinguishable on facts from the present case in as much as in that case the detention order was executed against the detenu whereas in the present case it was revoked at pre-execution stage; that, once the detention order is revoked or withdrawn before its execution it becomes non est and question of reference to Advisory Board does not arise at all which is made only after a person is detained and that in the case of Mohanlal
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Likumal Panjabi, he was detained and report of Advisory Board was received against him as indicated in Para 12 of the said Judgment.
3.3 The learned authority also erroneously distinguished the judgment in the case of Mohd. Aslam Merchant, on the ground that it was on the interpretation of „illegally acquired property‟ as given in the NDPS Act and not under SAFEMA, 1976 ignoring the fact that there is no material difference in the definition in „illegally acquired property‟ under NDPS and SAFEMA 1976 and that the relevant provision of SAFEMA 1976 and NDPS 1985 are pari materia as held by the Hon‟ble Supreme Court in Para-12 of the said case of Aslam Mohamad itself.
3.4 Apart from further legal grounds, the case was also contested on the ground that the property under appeal was acquired by the appellant as gift from her Father-in-law Shri Hansraj Chopra under a valid gift deed dated 16.01.2003, that Mr. Hansraj Chopra purchased the said property vide an Agreement dated 16.07.1996 from M/S Rawal Builders which he gifted to the Appellant, hence, as per the settled law, the independent properties of relatives and friends which are not traceable to the convict / detenu are not sought to be forfeited nor are they within the preview of SAFEMA, that the person who had acquired the property died and as such the Appellant has not been able, and in fact cannot be expected to trace the source of his income in the year 1992/93 (after lapse of 17 years.)
4 The respondent has filed the written reply to the appeal. The main contentions raised in the reply are as follows:
4.1 The proviso (i) of section 2 (2)(b) makes it clear that the provisions of the SAFEMA are not applicable only in those cases where the detention order has been revoked under section 8 of the COFEPOSA, and only in the situations enumerated therein which are as follows:-
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Proviso (i) to section 2(2)(b) of SAFEMA does not cover orders of revocation passed u/s 21 of General Clauses Act. The case of the appellants did not fall into either of the three categories mentioned above, and hence they, being the relatives of the persons against whom a valid detention order was issued, would be covered under the Act.
4.2. In all the three situations covered under the first proviso to Section 2(2)(b) of SAFEMA, 1976 the legislature has deliberately and consciously used the term “Advisory Board”, thereby introducing a deliberate reference to proceedings before the Advisory Board after detention. It must be appreciated that the role of the „Advisory Board‟ comes into the picture only after a person is detained. Therefore, by introducing the term “Advisory Board” into the proviso (i) to section 2(2)(b), the legislature has made its intention to confer the benefit of this proviso only to persons who have been detained and not to fugitives/absconders, whose detention orders have been cancelled on the ground of inordinate delay in the execution of the same or on the ground of ill health, etc. As the detenu had not surrendered and had not been detained, and there was no question of proceedings before the Advisory Board, the benefit of this proviso would not be available to him.
4.3 There are several grounds on the basis of which an order of detention can be revoked under the different provisions of the different Acts. An order of detention can be revoked u/s 11 of COFEPOSA or u/s 21 of the General Clauses Act on the ground of inordinate delay in the
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execution of the same, or on health grounds. An order of detention can also be revoked u/s 8 of COFEPOSA by the government on the report of the Advisory Board, on the ground that there was no sufficient cause for the detention of the person concerned. Proviso (i) of section 2(2)(b) of SAFEMA would only cover situations in which an order of detention was revoked under section 8 of COFEPOSA, after detention and before or after reference to the Advisory Board, and before or after the receipt of its report.
4.4 The distinction be made between revocation of a detention order on the ground of illegality in its having been issued without the authority of law and revocation of the detention order on some extraneous considerations such as inordinate delay in execution or health grounds or on account of non following of the strict procedure laid down in the Act.
4.5 It was submitted that the detention order in the present case came to be revoked u/s 21 of the General Clauses Act, so it would not fall within proviso (i) to section 2(2)(b) of SAFEMA. The detention orders issued on 4/11/2004 could not be executed as the detenu was absconding throughout. After 3 years when he could not be detained, the detention order was revoked for non-execution on 22.10.2007. Thus, during this entire period of 3 years from 2004 onwards, the detenu remained fugitive and never surrendered. The detention orders issued under COFEPOSA are preventive in nature, and as such if the person could not be detained within a reasonable period of time from the date of detection of crime then it loses its meaning and purpose. The detention order issued in this case came to be revoked u/s 21 of the General Clauses Act on account of non execution and hence it would not fall within proviso (i) to section 2(2)(b) of SAFEMA.
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Punjabi (2004 (SC1) GJX-0140-SC, be considered and applied the same to the facts of the present case.
4.9 In the present case the detention order was issued on 4.11.2004, and for a period of 3 years till its revocation under Section 21 of the General Clauses Act on 22.10.2007, neither the detenu nor his relatives challenged the order of detention in any court of law, nor did the detenu surrender before the investigating authority and then challenge the legality of the order before the Advisory Board.
4.10 It is stated that in the cases of C.D.N Singh, Harish Kumar, Jayendra Thakur, Mohanlal Likumal Punjabi etc. the detenu had undergone the detention, after which their detention orders were revoked, and in spite of that the Hon‟ble Supreme Court held that forfeiture proceedings can be continued, as revocation issued under section 11 of COFEPOSA or section 21 of the General Clauses Act does not make the detention order void ab-initio. It is therefore, clear that for the continuation of forfeiture proceeding under SAFEMA, a valid detention order is a must, and a revocation made under Section 11 of COFEPOSA & 21 of General Clauses Act does not render the order of detention invalid or void ab-initio.
4.11 Finally, it was submitted that in the event of non-execution of the detention order within a reasonable time the orders of detention are invariably revoked, the logic being that detention being preventive in nature the order has to be executed immediately after it is issued in order to be effective and thus prevent the illegal activity. The decision of the Hon‟ble Appellate Tribunal in quashing the order of forfeiture under SAFEMA against the relatives of the persons who absconded and remained fugitives until the detention order was revoked would only encourage smugglers and foreign exchange manipulators to abscond, remain fugitives and continue their illegal activity until the order of
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detention is revoked. Such an order would serve to penalize persons who surrender to the detaining authority after the issuance of the detention order, but also face the forfeiture proceeding under SAFEMA. This makes an unfair distinction between the two groups of persons, which could not have been the intention of the legislature. It also goes against the aims and objects of the Act.
4.12 Proviso (i) to section 2(2)(b) of SAFEMA envisages three situations where the provisions of SAFEMA would not apply, all arising after a person has been detained, and all making a reference to proceedings before the Advisory Board. If the intention of the legislature was to give the benefit of revocation to revocation of all varieties, and not just revocation concerned with the Advisory Board, the proviso would have read, “Provided that the order of detention has not been revoked”. Thus the intention of the legislature was to give the benefit of the proviso only to a restricted few who surrendered before the detaining authority, and not to those who were absconding.
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1976 as no nexus of the impugned property with the AP-1 has been established. Reliance in this regard was placed on the following judgments:
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(a) (i) Who has been convicted under the Sea Customs Act, 1878 ( 8 of 1878), or the Customs Act, 1962 (5of 1962 of an offence in relation to goods of a value exceeding One Lakh of rupees; or
(ii) ………………,or
(iii)………………..,or
(iv)…………………… (all four clauses pertain to persons convicted under the Sea Customs Act, 1878, Customs Act, 1962 or under FERA, 1973).
(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 12-A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 or before the receipt of the Advisory Board or before making a reference to the Advisory Board.
(ii) ………………,or
(iii)………………..,or
(iv) Such order of detention has not been set aside by a court of competent jurisdiction
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Hon‟ble High Court in support of their contentions and contended that the case is squarely covered by earlier decisions of this Tribunal.
“3. The detention order issued to AP-1 which was the basis of initiation of the proceedings was revoked on 12.01.2009 before making a reference to the Advisory Board. The revocation order reads as follows:-
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“I am directed to refer to your representation dated nil, on the subject cited above, and to inform you that the representation dated nil, made by you on behalf of Shri Piyush Kishanlal Meghani, PD under COFEPOSA Act has been considered by the Detaining Authority and the Detaining Authority has revoked order of detention dated 23.08.2006 issued against Shri Piyush Kishanlal Meghani.”
In view of the above, detention order is no more in existence. According to the counsel for the appellants, SAFEMA itself is not applicable to the appellant and the Competent Authority has no jurisdiction to proceed with the case after revocation of the detention order.
4. The contention of the Competent Authority is that since the revocation order was passed even before he was detained, time for making a reference to the Advisory Board did not arise and therefore, revocation order has to be ignored. There is no material to show why detention order was revoked. Two decisions of the Hon‟ble Supreme Court were also cited by the representative of the respondent in support of the contentions. One is Union of India vs. Mohanlal Likumal Punjabi, 2004 AIR SCW 1453. In that case detention order dated 12.05.1994 was challenged before the High Court. During the pendency of the same, detention order was revoked on 19.12.2994 u/s 11(1) (6) of the COFEPOSA after it was confirmed by the Advisory Board. The writ petition was disposed of as in fructuous on 11.01.95 as detention order was revoked. On 31.08.95 the properties were forfeited by the Competent Authority u/s 7 of SAFEMA. Then writ petitions were filed questioning the detention order and proceedings under SAFEMA. The Bombay High Court allowed the writ petition holding that in view of first proviso to clause (b) of section 2(2) proceedings under SAFEMA became nonest. The above judgment was challenged before the Hon‟ble Supreme Court contending that revocation order was passed not on the advice of the Advisory Board or before making a reference to the Advisory Board. Hence, the first proviso to section 2(2) (b) is not attracted. But it was remanded to consider the challenge against the detention order as a valid order of detention is a condition precedent to proceed under SAFEMA. The above decision is not applicable on the facts of this case as in this case detention order was revoked even before a reference was made to the Advisory Board.
5. In Harish Kumar vs. Union of India & Anr. (Criminal Appeal no. 343 of 2007) cited by the representative of the Competent Authority, the detention order was issued to the appellant who was arrested and detained for the full term. The detention order was also confirmed by the Advisory Board. After he was released, he challenged the detention order. High Court set aside the detention order because his representation to the detaining authority was not considered without dely. The Hon‟ble Supreme Court has held that quashing of the detention order by the High Court was not correct. On that basis, the Hon‟ble Supreme Court has held that SAFEMA proceedings can also continue. The above decision has o relevance to the facts of this case.
6. Recent decision of the Delhi High Court in Thanesar Singh Sodhi vs. Union of India, (WPC) No. 1212 of 1995) passed on 26.03.2010 was also cited before us by the respondent. The detention order in that case was challenged unsuccessfully by the party. The High Court confirmed the detention order. The SAFEMA proceedings were pending. The appeal filed before the Hon‟ble Supreme Court was also dismissed. At that point of time, the detention order was revoked. Thereafter the party therein challenged the detention order and SAFEMA proceedings. High Court held that the detention order cannot be challenged against in view of the earlier proceedings. Further, it was held that after confirmation of the detention order by the Advisory Board and after dismissal of the writ petition challenging the same, an order of revocation of the detention order, has no effect on the SAFEMA proceedings as first proviso to Section 2(2)(b) has no application. In this case, the detention order was revoked even before making a reference to the Board and hence the first proviso to Section 2(2)(b) is applicable.
7.. Learned counsel for the appellant argued that the validity of the detention order is mandatory to take action under SAFEMA. When the order of detention which was the basis of the initiation of the proceedings under SAFEMA was withdrawn, proceedings cannot continue as the very basis in taking action is lost. The constitutional Bench of Hon‟ble Supreme Court in Attorney General for India vs. Amratlal Prajivandas and Others. (A.I.R. 1994 S.C. 2179), while examining the validity of the SAFEMA at paragraph 39 of the above judgment has quoted with approval of the following passage
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from Vardarajan, J. in Union of India and Others vs. Hazi Mastan Mirza, AIR 1984, SC 681.
“Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under Sections 6 & 7 of SAFEMA cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19.12.1974 under COFEPOSA is void and has to be quashed.”
8. In Mrs. Shashi Omprakash Arora Vs. Competent Authority, (Criminal Writ Petition No. 1171 of 2003) it was held that proceedings under SAFEMA can be taken only when there is a valid order of conviction or detention subsisted or operated. Similar contention raised by the Competent Authority was raised in that case before the Bombay High Court. Rejecting the above contention, it has held as follows:-
9. When the order of detention is withdrawn, it will relate back and hence, in view of withdrawal of the order of detention, the position will have to be construed as if there was not order of detention at all. That being so, this petition will have to be allowed and the Show Cause Notice issued under section 6(1) of the SAFEMA will have to be set aside.”
Special Leave Petition filed before the Hon‟ble Supreme Court was also dismissed by order dated 12.04.2003. Special Leave Petition filed before the Hon‟ble Supreme Court was also dismissed by order dated 13.09.2004.
9. Nikunj Kirti Kanakia vs. Union of India (Criminal Writ Petition No. 1649 of 2006) another division bench of the Bombay High Court held as follows:-
“Indeed, the law on this point is very clear that once the detention under COFEPOSA Act, is withdrawn, question of proceedings under SAFEMA Act does not arise at all. In this view of the matter, nothing further survives in the proceedings under SAFEMA Act as the detention of the petitioner has been revoked and thus, the SAFEMA proceedings are liable to be quashed. Accordingly the petition is allowed and rule is made absolute in terms of prayer clause 11(a) of the petition.”
It is also submitted that SLP (Crl.) No. 16982/2008 filed before the Hon‟ble Supreme Court was dismissed both on the ground of delay as well as on merits. A copy of the order of the Hon‟ble Supreme Court dated 07.11.2008 was also produced before us.
10. After considering the facts of the case and various statutory provisions and court decisions cited before us, we are of the opinion that when the Competent Authority passed the order, there was no order of detention as it was revoked even before it was referred to the Advisory Board and hence the Competent Authority lost jurisdiction to deal with the matter. Therefore, the order of the Competent Authority forfeiting the property of the appellants is illegal and we set aside the impugned order in the appeals.
16. The appeals are allowed”. (emphasis supplied)
12.1 On consideration, we find that the facts of the above mentioned
case are exactly similar to those in the present case. Thus, in the said decision also, the detention order against the accused therein was revoked prior to the detention of the accused and prior to making reference to the Advisory Board and the respondent had argued that for
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the aforesaid reason, the revocation should be ignored. In fact, in that case too, the respondent relied upon the judgment of the Hon‟ble Supreme Court in the cases of Union of India vs. Mohanlal Likumal Punjabi, Harish Kumar vs. Union of India & Anr. And of the Hon‟ble Delhi High Court in Thanesar Singh Sodhi vs. Union of India, supra, which have also been relied upon in the present case and all these judgments were distinguished.
12.2 It has also been mentioned by the learned counsel for the appellant that though an appeal had been preferred by the department against the decision before the Hon‟ble Bombay High Court by way of Crl. W.P. No. /2011, just a notice has been issued to the appellant therein Sh. Meghani and as of now neither has the order been set aside nor there is any stay against the said decision. These contentions are not opposed on behalf of the Competent Authority also. Being a decision of a co-ordinate Bench judicial discipline also requires that the decision is followed. We have gone through the said decision and we find that we are in complete agreement with the reasoning and conclusion arrived therein.
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Mumbai in FPA-86-91/BOM/2002 and dismissed vide its order dated 13.04.2011. The ratio of the said decision would apply to the present case.
13.1 The first proviso to Section 2(2)(b) of the Act has already been reproduced in para-9 of the order. The three categories of cases not being an order to which the provisions of Section 9 or section 12-A of the said Act (viz. COFEPOSA) apply, which are excluded from the applicability of the provisions of SAFEMA by virtue of this proviso are as follows: (i) Where the order of detention has been revoked on the report of the Advisory Board under section 8; (ii) Where the order of detention is revoked before the receipt of the report of the Advisory Board and (iii) Where the order of detention is revoked before making a reference to the Advisory Board. The present case is not one where Section 9 and 12 of the Act are applicable. While on first glance, the reasoning of the respondent on the first glance appears to be attractive in as much as the question of a reference to the Advisory Board would arise only after an accused person is detained and all the three categories in the proviso refer to the Advisory Board, however, such an interpretation was possible only if there was a provision to this effect either in the proviso itself or under some other provision of the Act. It is a settled principle of law that a provision in the statute has to be interpreted as per the plain meaning and plain words of the provision. It is neither permissible for a court or a Tribunal to either add or delete some words from the provision while interpreting the statute. We find that the plain meaning of the words used in the proviso does not enable an interpretation as argued by the respondent. In this case it is an admitted fact that the detention order against the AP-1 was revoked on 22.10.2007 and by which time even a reference to the Advisory Board was not made therefore, the case is covered under the third category of the proviso. Accordingly by virtue of the first proviso to Section 2(2)(b) of the Act, the provisions of SAFEMA
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would not be applicable to AP-1, and consequently to AP-2, AP -3 and AP-4, w.e.f. the said date.
13.2 We also find that this issue of interpretation of the proviso in question has already been dealt with threadbare by this Tribunal in the case of Pawan Kumar Didwania and Ors Vs. Competent Authority, Mumbai, supra . On going through the same we find ourselves to be in agreement with the same, and therefore, we take the liberty to reproduce the relevant paras from the said decision here in below as part of this order.
“17. The order of detention can be revoked or modified under Section 11 of the COFEPOSA on many grounds. All such revocation had no effect on the SAFEMA proceedings. Only three types of revocation will oust the jurisdiction of SAFEMA if the order is issued not being an order to which provisions of section 9 of the COFEPOSA apply: (i) revocation on the report of the Advisory Board under section 8; (ii) revocation of the detention order before the receipt of the report of the Advisory Board; and (iii) before making a reference to the Advisory Board. The authorities are bound to revoke the order on the advice of the Advisory Board under section 8 of COFEPOSA. All other orders of revocation can be made only under section 11. Section 11 of COFEPOSA reads as follows:
After issuance of the detention order on the basis of the representation or any other materials, it can be revoked on merit as made on a mistake of fact etc. All such revocation orders have also to be made under Section 11. It is true that for other reasons like continuation of the detention order is not necessary etc. also can be revoked under Section 11. The detention order also can be modified. In this case, revocation order was made before making a reference to the Advisory Board. It is true that if a person is detained, immediately the matter has to be referred to the Advisory Board and the Advisory Board is bound to submit the report within eleven weeks from the date of detention. If the order of detention is revoked on the basis of the report of the Advisory Board, it will come under category No (i). Thereafter, SAFEMA proceedings cannot continue. If the revocation order is passed after sending reference to the Advisory Board under section 8, but, before opinion is received, it will come under category No. (ii). But, if the revocation order is issued even before sending the matter to the Advisory Board, it will come under category No. (iii). such revocation order under category Nos. (ii) and (iii) can be passed only under section 11 of COFEPOSA. The contention of the appellants is that here the revocation order was passed before the matter was sent to the Advisory Board and the matter will come squarely under category No. (iii). According to the Competent Authority, sicne the revocation order is passed after long delay, it need not be considered and considering the objects of the Act, such revocation order need not be looked into. In other words, we have to import a word, we have to import a word that „if
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a person is detained‟ but before making a reference to the Advisory Board, it was revoked, then, only category No. (iii) can be applied and by interpreting the above, we have to supply the alleged omissions made by the Legislature.
18. It is true that has held by the Hon‟ble Supreme Court in Workmen of Dimakuchi Tea Estate v. Management of Dimakuichi Tea Estate (AIR, 1958 SC 353) „the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view.‟ If two interpretations are feasible, the Court will prefer that which advances the remedy and suppresses the mischief as the Legislature envisioned as held by the Hon‟ble Supreme Court in Carew and Company vs. Union of India (AIR 1975 SC 2260). It is contended that a strict interpretation cannot be adopted considering the object of the Act notwithstanding the fact that properties of a person is taken away of forfeited by the penal provisions of the Act. It is true that when the material words are capable of bearing two or more constructions, a purposive construction or mischief rule as adopted in Heydon‟s case (1584) 3 Co. Rep.) can be adopted which enables the court to adopt an interpretation which shall suppress the mischief and advance the remedy as held by the Hon‟ble Supreme Court in Bengal Immunity Co. Vs. State of Bihar (AIR 1955 SC 661 – Page-674). According to the appellant, purpose of the legislation itself is clear from the wordings that SAFEMA proceedings cannot continue if the proceedings were taken only on the basis of the detention order and such orders are revoked on the advice of the Advisory Board or before getting the report of the Advisory Board or before the matter is referred to the Advisory Board and an assumed object or purpose against the wording used by the legislature cannot be accepted by the Tribunals. We are of the opinion that the question of purposive, strict or liberal interpretation of the language of the words used in the Statute arises only when the words used in the Statute are not clear or ambiguous and capable of different interpretation as held by the Supreme Court in Nelson Motis Vs. Union of India (AIR 1992 SC 1981 at page 1984). When words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. This basic rule is propounded as early as in 1844 in Sussex Peerage Case (1844)11 CI & F 85) as the Hon‟ble Supreme Court held in State of UP Vs. Vijay Anand Maharaj (AIR 1963 SC 946) as follows:
“When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself.”
This principle was followed in various other cases. (See: Ansal Properties and Industries Ltd. vs. State of Haryana ((2009) 3-SCC 553 – paragraph 40.) In Kanailal Sur Vs. Pramnidhi Sandu Khan (AIR 1957 SC 907 at page 910), Shri Gajendragadkar, J. held as follows:
“The first and primary rule of construction is that the intention of the Legislature must be found in the word used by the Legislature itself.”
The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said as held in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. Custodian of Vested Forests (AIR 1990 SC 1747 at page 1752) State through CBI vs. Parmeshwaram Subramani & Anr. (AIR 2010 SC 584) Hon‟ble Supreme Court as follows”
“In a plethora of cases, it has been stated that where, the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what is should be.”
The alleged „ Casus Omissus‟ cannot be cured by the Courts or Tribunals. A matter which should have been but has not been provided for in the statue cannot be supplied by
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the Courts so as to do so be a legislation and not construction as held by the Privy Counsil in Hansraj Gupta v. Debra Du Mussorie Electric Tramway Co. Ltd. (AIR 1933 PC 63). There is no presumption that there is a „Casus Omissus‟ exist in the section. It is not permissible to add words or to fill in a lacuna and that is a part of legislation process. It is settled law that courts and tribunals cannot assume deficiency in the legislation and add or amend it by construction for making up the alleged deficiencies as held by the Hon‟ble Supreme Court in Nagar Palika Nigam vs. Krishi Upaj Mandi Samiti (AIR 2009 SC 187 – para-8). It is contrary to all rules of construction to read words into an Act as held by the Hon‟ble Supreme Court in Renula Bose v. Rai Manmathnath Bose (AIR 1945 PC 108 – Page-110). If first proviso to section 2(2) (b) is taken in its natural ordinary and popular sense, the revocation order passed before making a reference to the Advisory Board oust the jurisdiction of SAFEMA as such person under Section 2(b) will be no more covered under the Act.
19. The contention of the Competent Authority that revocation order passed on the basis of the advice of the Advisory Board alone need be taken into account cannot be accepted as, if such a construction is adopted, exception (ii) and (iii) carved out in the first proviso to section 2(2)(b) will become redundant or a mere surplusage. Just like the rule that it is not permissible to add words or fill up the gap lacuna when the words are clear, efforts should be made to give meaning to each and every word used by the legislature as held by Patanjali Shastri, CJI., in Aswini Kumar Ghose v. Arabinda Bose (AIR 1952 SC 369 – page 377) that “it is not a sound principle of construction to brush aside words in a statue as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statue.” It is a settled principle that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature cannot be accepted as held by the Hon‟ble Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner (AIR 1964 SC 766). If the interpretation given by the respondent is adopted the exception contained in (ii) and (iii) will have no meaning.”
(emphasis supplied)
13.2 It is also submitted by the appellant that the respondent had filed an appeal against the said decision before the Hon‟ble Bombay High Court and the said appeal was dismissed by the Hon‟ble High Court, vide its order dated 10th April, 2013 in CWP No. 368/2012, Union of India Vs. Pardeep Kumar Didwania. This submission on behalf of the appellant is not disputed by the representative of the Competent Authority. The ratio of the said decision is therefore squarely applicable to the present case.
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SAFEMA 1976 as involved in the present case namely revocation of detention order prior to reference to the Advisory Board. It has been held above that in the fact and circumstances of the present case the matter is squarely covered under category (iii) of those mentioned in the first proviso to Section 2(2)(b) of SAFEMA, 1976 which rule out the applicability of the Act in such cases. These cases are therefore of no help to the respondent.
(Justice Manmohan Singh) Chairman
(Kaushal Srivastava) Member
(Anand Kishore) Member
New Delhi, 10th March, 2017 „K‟
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3 issues framed by the court
Whether forfeiture proceedings under SAFEMA valid when detention order was revoked before reference to Advisory Board?
Whether lack of subsisting detention order renders SAFEMA proceedings null and void ab initio?
Whether exclusion under proviso (i) to Section 2(2)(b) applies when revocation occurred before reference to Advisory Board?
Colour shows how this judgement treated each authority
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Mohd. Aslam MerchantDistinguished¶33
Mohd. Aslam Merchant (NDPS Act interpretation)
Union of India vs. Harish KumarDistinguished¶60
Union of India vs. Harish Kumar, 2007-(SC-3) GJX-1196-SC
Meena Jayendra Thakur Vs. Union of IndiaDistinguished¶60
Meena Jayendra Thakur Vs. Union of India, 1999(XC3)GJX-4391-SC
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4 provisions across 1 enactments
Neeru Chopra
Priyansu Chopra
Swati Chopra
The Competent Authority, Mumbai
Justice Manmohan Singh
Shri Kaushal Srivastava
Shri Anand Kishore
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
