Dismissed

Padma Nirmal Agarwal v. Union of India and Ors.

Bombay HC11 Mar 2005WP/1398/2004

Case brief

AI extract

What is this about?

In a criminal writ petition, the petitioner, as the legal heir of a deceased detenu whose detention order under COFEPOSA was revoked, challenged the forfeiture of property under SAFEMA. The court held that proceedings initiated and concluded while the detention order was valid are not invalid merely due to subsequent revocation. The petition was dismissed.

What did the court decide?

Petition dismissed; no direction to unseal the flat or release the property; Rule discharged.

Padma Nirmal Agarwal Vs Union of India and Ors. — Property and Title | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE JURISDICTION
 CRIMINAL WRIT PETITION NO.1398 OF 2004

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 Smt.Padma Nirmal Agarwal, )
 an Indian Inhabitant, residing at )
 Flat No.16, 471/C, Manu Mahal, )
 King’s Circle, Matunga, )
 Mumbai - 400 019. )..Petitioner
 Vs.
 1. Union of India, )
 Ministry of Law and Justice, )
 Aayakar Bhavan, Annexe Building,)
 Marine Lines, )
 Mumbai - 400 020. )
 2. The Competent Authority, )
 SAFEMA & NDPS Acts, )
 Mittal Court, "C" Wing, )
 3rd Floor, Nariman Point, )
 New Delhi. )
 3. The Appellate Tribunal for )
 Forfeited Property, New Delhi. )
 4. The State of Maharashtra. )..Respondents
 --
 Shri Maqsood Khan for the Petitioner.
 Shri R.F.Lambay for respondent Nos.1, 2 and 3.
 Ms P.H.Kantharia, APP for respondent No.4-State.
 --

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 CORAM : R.M.S.KHANDEPARKAR &
 P.V.KAKADE, JJ.
 DATED : 11th March, 2005.

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JUDGMENT : ( Per R.M.S.Khandeparkar, J )

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 1. Heard. Perused the records. The petitioner
 challenges the orders passed by the Respondent Nos.2
 and 3 in relation to the forfeiture of the property in
 exercise of the powers under the Smugglers and Foreign
 Exchange Manipulators (Forfeiture of Property ) Act,
 1976, hereinafter called as "SAFEMA", and further for
 direction to unseal the property which was sought to
 be forfeited by those orders of forfeiture.

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 2. One Nirmal Motilal Agarwal, husband of the
 Petitioner herein, was detained under the provisions
 of Conservation of Foreign Exchange and Prevention of
 Smuggling Activities Act, 1974, hereinafter called as
 "COFEPOSA", and under the order dated 23rd March,
 1987, pursuant to the report of the Advisory Board
 under Section 8 dated 17th July, 2003, he was released
 on 4th August, 2003. Meanwhile, by an order dated
 28th June, 2001, in exercise of the powers under
 Sections 7 and 19(1) of SAFEMA, the property of the
 detenu comprised of Flat No.16, 417/C, Manu Mahal,
 King’s Circle, Mumbai - 400 019, was ordered to be
 forfeited to the Central Government. Being aggrieved

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 by the said order, the same was challenged by the
 detenu in Appeal being Appeal No.35/BOM of 2001 which
 came to be dismissed by the order dated 3rd December,
 2002. The order of detention was revoked on 17th
 July, 2003 on receipt of the report from the Advisory
 Board. The detenu, who was released on 4th August,
 2003, expired on 6th August, 2003. Writ Petition
 No.141 of 2003 came to be filed by the Petitioner
 herein in her capacity as legal heir of the deceased
 detenu praying for quashing of the orders dated 28th
 June, 2001 and 3rd December, 2002 passed by the
 Respondent Nos.2 and 3, respectively, and further for
 removal of the seal to the said Flat No.16 and to hand
 over the possession thereof to the Petitioner. The
 said Petition came to be disposed of by the order
 dated 29th April, 2004 while recording the statement
 of the learned Advocate for the Respondents that the
 Petitioner has already filed an application for
 release of the property consequent to the revocation
 of the detention order and the competent authority to
 dispose of the said application within a period of two
 weeks. Consequently, the Petitioner did not press for
 the relief in the Petition and it was withdrawn under
 the said order dated 29th April, 2004. The Respondent
 No.2 thereupon disposed of the said application under

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 the order dated 9th June, 2004 and did not grant any
 relief to the Petitioner. Hence the present Petition.

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 3. The impugned order is sought to be challenged
 on the ground that the detention order which was the
 basis for passing the order by the competent authority
 under SAFEMA having been revoked, for all purposes it
 is non-est, and therefore, the entire proceedings
 under SAFEMA also became void ab initio, and
 therefore, the orders passed by the Respondents are
 liable to be quashed and the petitioner, therefore, is
 entitled to get the property released in her favour.
 Drawing attention to the provisions of law comprised
 under Section 2(2)(b) of SAFEMA, the learned Advocate
 for the Petitioner has submitted that the Authority
 looses its jurisdiction to deal with the property
 consequent to the revocation of the detention order,
 pursuant to the report of the Advisory Board under
 Section 8 of COFEPOSA dated 17th July, 2003. He has
 further submitted that the question of applicability
 of Section 20 of SAFEMA does not arise as the entire
 proceedings under SAFEMA become void ab initio in view
 of the revocation of the order of the detention on the

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 advise of the Advisory Board. Reliance is sought to
 be placed in the decisions in the matter of Arvind

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Ganeshmal Jain v. The Union of India & Ors., reported
 in 1998 ALL MR (Cri) 1376, of Smt.Gangadevi v. Union
of India & Anr., reported in 1997 Cri.L.J. 228, and
Union of India & Ors. v. Mohanlal Likumal Punjabi &
Ors., reported in 2004 AIR SCW 1153.

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 4. The learned APP, on the other hand, referring
 to the fact that the proceedings under SAFEMA were
 concluded in all respects and the properties had
 already been vested in the Government much prior to
 the revocation of the order of the detention, the
 proceedings under SAFEMA are not affected and it had
 attained finality for all purposes, and therefore, it
 cannot be held to be void ab initio or otherwise bad
 in law and therefore, the Petitioner cannot seek the
 relief asked for. Reliance is placed in that regard
 in the decision of the Apex Court in the matter of
Karimaben K. Bagad v. State of Gujarat & Ors.,
 reported in 1998 ALL MR (Cri) 1444.

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 5. The point which arises for consideration is
 whether the proceedings for forfeiture of the property
 under SAFEMA which had attained finality prior to
 revocation of detention order, would be affected in
 any manner by such revocation of order of detention

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 pursuant to the report of the Advisory Board under
 Section 8 of COFEPOSA ?

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 6. The scheme of SAFEMA reveals that the
 enactment has been brought into force basically to
 provide for forfeiture of illegally acquired property
 of a person to whom SAFEMA applies, and for matters
 connected therewith or incidental thereto. It is
 essentially for the effective prevention of smuggling
 activities and foreign exchange manipulations which
 are having a deleterious effect on the national
 economy and to deprive persons engaged in such illegal
 activities and manipulation of their ill-gotten gains.
 It applies to two types of persons, one to those who
 are convicted either under the Sea Customs Act, 1878
 and Customs Act, 1962 or Foreign Exchange Regulations
 Act, 1947 and Foreign Exchange Regulations Act, 1973,
 and secondly to those persons against whom the order
 of detention is made under COFEPOSA.

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 7. Section 2(2)(b) of SAFEMA provides that every
 person in respect of whom an order of detention has
 been made under COFEPOSA, the provisions of SAFEMA
 would apply. However, the proviso to the said
 sub-section provides for cessation of applicability of

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 SAFEMA as well as for exemption from the applicability
 of SAFEMA. Clauses (i) to (iii) of the proviso relate
 to the first category and clause (iv) speaks of
 exemption. Accordingly, the clause (i) of the said
 proviso relates to an order of detention to which the
 provisions of Section 9 or 12A of COFEPOSA do not
 apply, in which case, SAFEMA would cease to apply on
 revocation of such order either on report of Advisory
 Board, or before the receipt of such report or before
 making such reference to the Advisory Board. The
 clause (ii) thereof relates to an order to which the
 provisions of Section 9 apply, in which case SAFEMA
 would cease to apply if such order is revoked before
 expiry of the time for or on the basis of the review
 under sub-section (3) of Section 9 or on report of the
 Advisory Board under Section 8 read with sub-section
 (2) of Section 9. The clause (iii) thereof relates to
 an order to which the provisions of Section 12A apply,
 in which case SAFEMA would cease to apply if such
 order is revoked before the expiry of the time for or
 on the basis of the first review under sub-section (3)
 of Section 12A or on the basis of the report of the
 Advisory Board under Section 8 read with sub-section
 (6) of Section 12A of COFEPOSA. In terms of the
 clause (iv) of the proviso, the provisions of SAFEMA

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 would not apply to an order which is set aside by the
 Court. The explanation 4 to the said provision of
 law, for the avoidance of doubt, provides that the
 question whether any person is a person to whom the
 provisions of SAFEMA apply may be determined with
 reference to any facts, circumstances or events
 including any conviction or detention which had
 occurred or taken place before the commencement of
 SAFEMA. It is to be noted that in the case in hand,
 we are not concerned about the provisions of law
 comprised under clause (ii) to (iv) but the point
 relates to the consequences which would follow under
 clause (i) on revocation of the order of detention
 pursuant to the report of the Advisory Board.

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 8. The provision relating to the power of
 revocation of detention order is to be found under
 Section 11 of COFEPOSA. It deals with the power of
 revocation of detention orders without prejudice to
 provisions of section 21 of the General Clauses Act,
 1897. Accordingly, any such detention order passed
 under COFEPOSA by an officer of State Government can
 be revoked or modified either by the State Government
 or the Central Government and in case of order of
 detention being made by an officer of the Central

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 Government, it can be revoked or modified by the
 Central Government. Sub-section (2) thereof provides
 that the revocation of a detention order shall not bar
 the making of another detention order under section 3
 against the same person. While Section 11 speaks of
 power of the Government to revoke detention order,
 Section 8(f) thereof speaks of obligation of the
 Government to revoke such order under the
 circumstances described thereunder.

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 9. Section 8 which deals with the subject of
 Advisory Board and its functions and powers under the
 COFEPOSA. Clause (a) of Section 8 deals with the
 powers of the Government to constitute the Advisory
 Board. Clause (b) thereof requires the Government to
 refer the order of detention of the Advisory Board
 within five weeks from the date of detention of a
 person. Clause (c) provides that the Advisory Board
 to which a reference is made under clause (b) shall
 after considering the reference and the materials
 placed before it and after calling for such further
 information as it may deem necessary from the
 appropriate Government or from any person called for
 the purpose through the appropriate Government, or
 from the person concerned, and if, in any particular

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 case, it considers it essential so to do or if the
 person concerned desires to be heard in person, after
 hearing him in person, prepare its report specifying
 in a separate paragraph thereof its opinion as to
 whether or not there is sufficient cause for the
 detention of the person concerned and submit the same
 within eleven weeks from the date of detention of the
 person concerned. Clause (d) deals with the situation
 in case of difference of opinion amongst the members
 of the Board. Clause (e) bars appearance of legal
 practitioner on behalf of the detenu before the Board.
 The clause (f), which is also relevant, provides that
 in every case where the Advisory Board has reported
 that there is in its opinion sufficient cause for the
 detention of a person, the appropriate Government may
 confirm the detention order and continue the detention
 of the person concerned for such period as it thinks
 fit and in every case where the Advisory Board has
 reported that there is in its opinion no sufficient
 cause for the detention of the person concerned, the
 appropriate Government shall revoke the detention
 order and cause the person to be released forthwith.

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 10. It is, therefore, clear that SAFEMA would
 apply to every person in respect of whom an order of

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 detention under COFEPOSA has been made. It does not
 require to have an order being actually implemented or
 executed. It does not require that the person should
 be actually detained pursuant to such order. The
 applicability of SAFEMA is not postponed till the
 actual enforcement of such order. It merely speaks of
 issuance of such order irrespective of the fact
 whether effect has been given to such order or not.
 This is apparent from the expression "has been made"
 used in Section 2(2)(b) of SAFEMA. It nowhere speaks
 of actual detention of such person pursuant to
 issuance of such order. Likewise, it is immaterial
 whether such order of detention was made prior to or
 after enforcement of SAFEMA. Even in cases where such
 orders were passed prior to enforcement of SAFEMA, the
 provisions of SAFEMA would be attracted. The
 explanation 4 to the said Section 2(2) is very clear
 in that regard.

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 11. The persons, however, would stand excluded
 from the net of SAFEMA on happening of certain events
 after issuance of the order of detention. Such
 persons are those in respect of whom the orders of
 detention undergo the changes specified under the
 proviso to Section 2(2)(b) of SAFEMA. Those are the

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 orders which are either revoked in the circumstances
 described under clauses (i) to (iii) thereof or set
 aside by the Court as stated in the clause (iv)
 thereof. Undoubtedly, therefore, in terms of clause
 (i) of the said proviso, on revocation of the order of
 detention either under Section 11 or 8(f) of COFEPOSA,
 the provisions of SAFEMA would cease to apply to those
 persons to whom the same were applicable consequent to
 the issuance of the order of detention. In other
 words, from the day the order is revoked, no action
 would lie against such persons or their properties
 under SAFEMA. Does it mean that it would render the
 action initiated and completed under SAFEMA prior to
 such revocation of detention order to be bad in law ?
 Whether the situation ante the order of detention
 which would result in case of declaration of detention
 order being void by the Court in terms of clause (iv)
 of the said proviso, would also result in cases of
 revocation of detention order under Section 11 and/or
 Section 8(f) of COFEPOSA ?

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 12. As already observed above, the revocation of a
 detention order is under Section 11 or Section 8(f) of
 COFEPOSA, whereas quashing of the order by the Court
 is under Article 226 of the Constitution of India.

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 Though the ultimate effect of the proceedings under
 both the sections as far as the detention is concerned
 may be the same, since either on revocation or
 quashing of detention order, there could be no further
 detention of the detenu based on the order which is
 revoked or quashed, yet quashing of the detention
 order by the Court would result in declaring the
 detention order to be void ab initio whereas the
 revocation of detention order would result in

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 recalling the detention order from the day of such
 revocation. In case of order being declared void by
 the Court, all the acts done in pursuance of the order
 during the period from the date of passing of
 detention order till it is quashed by the Court, would
 automatically be rendered bad as the order of
 detention itself is declared void ab initio, and
 therefore, anything done on the basis of such void
 order would also automatically become void. Since the
 original order of detention itself is rendered
 non-est, no act done on the basis of such an order,
 which has no legal sanctity at any point of time right
 from its inception, can survive or get legal sanction.
 It is to be noted that Section 2(2)(iv) of SAFEMA
 speaks of setting aside of "order of detention" by the
 Court and not an order of the Court merely declaring

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 "continued detention" to be bad for procedural
 irregularity resulting in violation of right accrued
 under Article 22(5) of the Constitution of India, or
 for some other reason.

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 13. Once the detention order is declared as void,
 obviously, it will render all the consequential acts
 and action taken on the basis of such void order to be
 bad in law ab initio. However, revocation of order
 would stand in different footing. Ipso facto, it
 would not affect the acts done pursuant to or after
 passing of the order of detention but before its
 revocation, unless there are statutory provisions to
 the contrary. In case of revocation, it implies
 cancellation of the order. Question of cancellation
 of an order can arise only when there exists an order.
 Cancellation implies termination. Termination is to
 put an end to something. It presupposes existence of
 the thing or contract or liability or the right which
 existed and which is being put to an end. Besides,
 the revocation of the order of detention under Section
 11 and/or Section 8(f) itself would not affect the
 proceedings under SAFEMA which had commenced. It is
 to be noted that the proceedings are initiated under
 Section 6 of SAFEMA in relation to illegally acquired

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 properties by the persons, who is either convicted
 under the Customs Act or Foreign Exchange Regulations
 Act or the person in respect of whom an order of
 detention is made under COFEPOSA or the relations of
 such persons who are benefited by the unlawful
 activities of the detenu. It is the making of the
 order of detention itself would entitle the Competent
 Authority to issue notice under Section 6 of SAFEMA to
 such person or persons, and the revocation of such
 order under Section 11 and/or Section 8(f) of COFEPOSA
 would not affect the proceedings once initiated under
 SAFEMA. The applicability of SAFEMA is terminated
 only on happening of the circumstances enumerated and
 the conditions to the extent provided under the
 proviso to sub-section 2(2)(b) of SAFEMA are satisfied
 and not otherwise.

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 14. In order to understand the difference between
 the effect of quashing of the order by the Court and
 revocation by the order of the authorities under
 Section 11 and/or 8(f) of COFEPOSA, it would be
 appropriate to lay our hands on the decision of the
 Apex Court in the matter of Union of India & Ors. v.
Haji Mastan Mirza, reported in AIR 1984 SC 681 and
Ibrahim Bachu Bafan v. State of Gujarat & Ors.,

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 reported in (1985) 2 SCC 24.

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 15. In Haji Mastan Mirza’s case (supra), the

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 detention order was set aside and the detention itself
 was held as bad in law. Consequently, the proceedings
 under Section 6(1) read with Section 7 of SAFEMA could
 not stand. It was specifically held that "a valid
 order of detention under COFEPOSA is a condition
 precedent for the proceedings being taken under Ss.6
 and 7 of SAFEMA". Obviously, if the order of
 detention passed under COFEPOSA is itself set aside,
 it will result in rendering such order "non est" and
 therefore, in the absence of any valid order of
 detention having not come in existence, question of
 action being taken in exercise of powers under the
 provisions of SAFEMA cannot arise. Albeit, the
 setting aside or quashing of detention order is by way
 of judicial pronouncement in that regard. It does not
 include revocation of order by the Government in
 exercise of its powers under Section 11 and/or 8(f) of
 COFEPOSA.

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 16. In Ibrahim Bachu Bafan’s case (supra), while
 dealing with the connotation of the word "revocation",
 it was held that when the High Court exercises its

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 jurisdiction under Article 226 of the Constitution, it
 does not make an order of revocation by issuing a high
 prerogative writ like habeas corpus or certiorari. By
 declaring the order to be void and striking down the
 same, it nullifies the order. As far as revocation is
 concerned, it is a process of recall of what had been
 done. It implies an idea of cancellation of the
 original order, but does not mean repudiation. Though
 the effect of revocation of order and quashing of
 order may appear to be the same, the consequences
 thereof are different in the sense that, in case of
 revocation of order, the authority is not forbidden
 from exercising power under Section 11(2) and thereby
 to clamp another order of detention on the same
 person, whereas in case of quashing of the order of
 detention by the High Court, such power of issuing
 fresh order of detention under Section 11(2) is not
 available and the decision in Ibrahim Bachu Bafan’s
case (supra) is very clear in that regard.

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 17. Taking into consideration both the above

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 quoted decisions of the Apex Court, declared by three
 Judges Bench in both the matters, it is clear that the
 pre-requirement, and rather only requirement, for
 invoking the powers under Section 6 and/or 7 of SAFEMA

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 is the valid order of detention issued under COFEPOSA.
 The validity of the order spoken of is at the stage of
 inception i.e. at the stage of making of or issuing
 the order of detention. In other words, if the order
 of detention remains valid, but continued detention is
 rendered illegal or bad, that by itself will not
 affect the validity of the order of detention but its
 implementation i.e. of detention, would not be
 permissible for certain supervening acts or reasons.
 In other words, for invoking powers under SAFEMA,
 valid order of detention issued is a pre-condition, in
 the absence whereof, question of exercising powers
 under Section 6 and/or 7 would not arise at all.
 Certainly therefore contention of the learned Advocate
 for the petitioner is obviously correct to the extent
 that the existence of valid order of detention under
 COFEPOSA at the time of invocation of the powers under
 Section 6 of SAFEMA is absolutely necessary.
 Therefore, for invoking powers under Section 6 and/or
 7 of SAFEMA, the issuance of valid order of detention
 under COFEPOSA coupled with the existence of such
 valid order of detention at the stage of invoking
 powers under those provisions of SAFEMA is necessary.

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 18. The requirement of valid order of detention

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 for the purpose of invoking the provisions of SAFEMA

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 was reiterated in Union of India and Ors. v.

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Monoharlal Narang, reported in AIR 1987 SC 1472.

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 However, it is to be noted that an order would not be
 invalid merely because it is revoked. For the purpose
 of non-applicability of the provisions of SAFEMA, it
 would be necessary to have the juridical pronouncement
 declaring the order of detention to have been set
 aside or quashed or to be an invalid or illegal one.
 In the absence of such declaration, it would not
 render the order of detention to be invalid.

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 19. Referring to the decision of the Apex Court in
Manoharlal Narang’s case (supra), it is sought to be
 argued that even in case of revocation, the
 proceedings under SAFEMA would not survive. In
Mohanlal Likumal Punjabi’s case (supra), the High

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 Court’s order dated 13th June, 1996 in Writ Petition
 No.1267 and 1268 of 1995 was sought to be challenged
 on the ground that since the revocation of detention
 order was in exercise of powers under Section 11(2) of
 COFEPOSA, the proviso to sub-section 2 of Section 2 of
 SAFEMA was not at all attracted and the said challenge
 was upheld by the Apex Court. However, since the
 validity of the order of detention itself was sought

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 to be disputed and as the said issue was not dealt
 with by the High Court, the matter was remanded. This
 decision is of no help to the petitioner to buttress
 his argument.

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 20. As already stated above, for invoking the
 jurisdiction in relation to the forfeiture of the
 property, the order of detention must be a valid
 order, and therefore, if the Court declares the order
 to be void ab initio, obviously, cause for taking
 action under Section 6 itself also would stand
 extinguished from its inception. Extinguishment of
 the cause from its inception is different from the
 cessation of the cause on happening of an event which
 leads to discontinuation of the cause, and such
 cessation will occur on revocation of the order of
 detention. In other words in case of order being
 declared to be void by the Court, it will cease to be
 in operation right from the very day it was issued or
 made. While the cessation will take effect from the
 date of revocation whereas the declaration of order
 being void will take effect from the date of issuance
 or making of the initial order of detention itself.
 However, as far as the powers of the competent
 authority to issue notice under Section 6 and/or

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 forfeit the property under Section 7 of SAFEMA are
 concerned, the applicability of the said provisions is
 not postponed till the decision on the point of
 revocation of the order of detention or declaration of
 the order to be void. The provisions of Sections 6
 and 7 of SAFEMA are attracted at once, on making or on
 issuance of the order of detention under COFEPOSA.
 The applicability of these provisions is not postponed
 till the State decides about the revocation or the
 Court decides the issue of legality or illegality of
 the order of detention. The competent authority is
 not required to wait for issuing the notice under
 Section 6 or declaration under Section 7 till the
 Government decides about the revocation or the Court
 declares the order being void.

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 21. The effect or the consequences which the
 revocation of order of detention will have on the
 forfeiture proceedings under SAFEMA are those which
 are specified under the proviso to Section 2(2)(b) of
 SAFEMA. It is pertinent to note that the proceedings
 for forfeiture are undoubtedly to be held before the
 competent authority constituted under SAFEMA, but
 under Section 15 of SAFEMA, such authority enjoys the
 powers akin to that of the civil Court available under

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 the Code of Civil Procedure, for the purpose of
 adjudication of the matter. Obviously, the aggrieved
 party gets an ample opportunity to establish his case
 including the right to lead evidence. Undoubtedly,
 the burden of proof regarding the property being
 legally acquired lies upon such person in terms of
 Section 8 of SAFEMA. There is also an appellate
 remedy under Section 12 of SAFEMA available against
 the order of the competent authority. The decision by
 the competent authority is subject to the appeal
 remedy and cannot be assailed in any civil Court in
 view of specific bar provided in that regard under
 Section 14 of SAFEMA. Besides, the provisions of
 SAFEMA have overriding effect as provided under
 Section 24 of SAFEMA. At the same time, Section 7(3)
 and (4) of SAFEMA provides for vesting of the
 forfeited property in the Government free from all
 encumbrances and further Section 19 empowers taking
 possession of such property by the competent
 authority. These provisions clearly disclose finality
 to the proceedings under Sections 6 and 7 of SAFEMA in
 relation to the forfeiture of the property. Being so,
 once the forfeiture proceedings attain finality, can
 it be said that any subsequent act, including the
 revocation, in relation to the detention order which

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 was valid on the day when it was issued, and
 consequent to which the proceedings for forfeiture
 were initiated, would affect such forfeiture
 proceedings ? The provisions of law comprised under
 SAFEMA nowhere even remotely suggest that in any such
 circumstances, those proceedings would be affected in
 any manner. The judicial pronouncement only speaks of
 the pending proceedings being rendered invalid
 provided the order of detention is declared to be void
 by the Court and not otherwise. Albeit, the question
 of initiating the proceedings under Section 6 of
 SAFEMA could not arise after revocation of the order
 as in that case ‘the cause’ for invoking such powers
 would not be "in existence", in view of clauses (i) to
 (iii) of the proviso to Section 2(2)(b) of SAFEMA.

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 22. The object behind SAFEMA is to provide for
 forfeiture of illegally acquired properties. Section
 4 provides for prohibition of holding illegally
 acquired property. Sub-section (1) thereof provides
 that as from the commencement of SAFEMA, it shall not
 be lawful for any person to whom SAFEMA applies to
 hold any illegally acquired property either by himself
 or through any other person on his behalf.
 Sub-section (2) provides that where any person holds

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 any illegally acquired property in contravention of
 the provision of sub-section (1), such property shall
 be liable to be forfeited to the Central Government in
 accordance with the provisions of SAFEMA. Section
 3(1)(c) defines what is the illegally acquired
 property. It primararily classifies a property to be
 illegally acquired when the same is acquired by any
 income or earnings or assets related to the activity
 prohibited under any law. In other words, a property
 acquired through illegal means or with illegally
 acquired wealth would be illegally acquired property
 for the purpose of SAFEMA. Any such property either
 belonging to the person against whom the order of
 detention under COFEPOSA is issued or his relative as
 defined under the Explanation 2 of Section 2 could be
 subjected to the proceedings under Sections 6 and 7 of
 SAFEMA for the purpose of forfeiture of the property,
 unless the person served with such notice proves that
 the property was not illegally acquired property.
 Apparently, therefore, it shows that the proceedings
 for forfeiture of the property essentially relates to
 the property which is acquired by illegal means and
 illegal wealth, undoubtedly, the cause or occasion to
 go after such property would arise pursuant to the
 issuance of the detention order and not prior to that,

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 however at the same time, once the cause accrues for
 issuance of such notice under Section 6, it is not
 postponed any further, though, however, it could cease
 to exist on revocation of such order or completely
 wipe out the same pursuant to the declaration of the
 order of detention to be void.

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 23. It is also to be noted that in the proceedings
 instituted under SAFEMA, the burden of proof lies upon
 the holder of the property to prove that the property
 is not illegally acquired. Section 8 clearly states
 that in any proceedings under SAFEMA, the burden of
 proving that any property specified in the notice
 served under section 6 is not illegally acquired
 property shall be on the person affected. Any
 transaction in relation to such property subsequent to
 the issuance of the notice under section 6 would be
 null and void and the provision in that regard is to
 be found in Section 11 of SAFEMA, which provides that
 whereafter the issue of a notice under section 6 or
 under section 10, any property referred to in the said
 notice is transferred by any mode whatsoever such
 transfer shall, for the purpose of the proceedings
 under SAFEMA, be ignored and if such property is
 subsequently forfeited to the Central Government under

¶84

 - 26 -

¶85

 section 7, then, the transfer of such property shall
 be deemed to be null and void.

¶86

 24. The decision in Karimaben K.Bagad’s case

¶87

(supra), is clearly distinguishable. In that case,
 the notice under Section 6 of SAFEMA was issued after
 revocation of the detention order. Apparently,
 therefore, when the provisions of Section 6 of SAFEMA
 were sought to be invoked, there was no order of
 detention in existence and therefore, the provisions
 of clause (i) of Section 2(2)(b) of SAFEMA were
 clearly attracted. That is not the case in the matter
 in hand. Similarly, the decision in Gangadevi v.

¶88

Union of India’s case (supra) is also of no help. In

¶89

 the said case, the order of detention was issued on
 25th September, 1975 and was served upon the detenu on
 11th March, 1976. On 1st May 1976, the detenu expired
 while in detention. The notice under Section 6 of
 SAFEMA was sought to be issued on 19th October, 1976.
 Obviously, pursuant to the death of the detenu, the
 order of detention had lapsed with effect from 1st
 May, 1976 and therefore on 19th October, 1976 the said
 order of detention was not in existence and therefore,
 competent authority could not have invoked the
 provisions of Section 6 of SAFEMA after 1st May, 1976.

¶90

 - 27 -

¶91

 Both the decisions having been delivered in totally
 different set of facts are of no help to the
 petitioner to canvass her case in the matter in hand.

¶92

 25. Reverting to the facts of the case,
 undisputedly, the detention order was issued on 23rd
 March, 1987, and it was revoked only 17th July, 2003.
 Meanwhile, pursuant to issuance of notice under
 Section 6 of SAFEMA, the declaration in terms of
 Section 7 of SAFEMA was issued on 28th June, 2001 and
 the said declaration was confirmed by the appellate
 Tribunal on 3rd December, 2002 i.e. much prior to
 revocation of the order of detention. In other words,
 the proceedings regarding the illegally acquired
 property was initiated and also attained finality
 during the existence of valid order of detention under
 COFEPOSA and before the decision of the Government to
 revoke the said order of detention. Being so, the
 provisions of clause (i) of the proviso to Section
 2(2)(b) of SAFEMA are not at all attracted in the case
 in hand.

¶93

 26. As regards Section 20 of SAFEMA is concerned,
 it merely speaks of rectification of mistake apparent
 from record, and that too which comes to the notice of

¶94

 - 28 -

¶95

 the competent authority or Appellate Tribunal within a
 period of one year from the date of the order of the
 competent authority. This provision does not empower
 such authority to pass any order contrary to the
 statutory provisions, nor to recall the order which
 has attained finality. Besides, the order of
 forfeiture was passed by the competent authority on
 28th June, 2001 and the application for releasing the
 property was filed on 4th August, 2003, beyond the
 period of one year. Besides, the application was not
 on account of any mistake in the order dated 28th
 June, 2001. In any case, the provisions of Section 20
 of SAFEMA are not at all attracted in the matter in
 hand.

¶96

 27. For the reasons stated above, there is no case
 for interference in the impugned order dated 28th
 June, 2001 and/or 3rd December, 2002 as also in the
 impugned order dated 9th June, 2004 and there is no
 case made out for issuance of direction to unseal the
 flat in question. Hence, the petition fails and is
 hereby dismissed. Rule is discharged with no order as
 to costs.

¶97

 ( R.M.S.KHANDEPARKAR, J )

¶98

 - 29 -

¶99

 ( P.V.KAKADE, J )

Padma Nirmal Agarwal v. Union of India and Ors.

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Padma Nirmal Agarwal v. Union of India and Ors.

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