NARENDRA KUMAR Vs. UOI

JUDGEMENT

(1.) WP (CRL.)509/1996 the Prayers in this writ petition are for the quashing of the Detention order dated 19. 12. 1974 passed under Section 3 (1) of Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA act); for quashing of the Order dated 29. 5. 1978 under Section 19 (1) of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short safema); and for restraining the respondent from acquiring/dispossessing petitioner's properties, namely, house property municipal no. 1115/x-5, Dhab khatika, RB Saindas Road, Amritsar and factory premises bearing no. 31, Khasra no. 745, Jawahar Nagar, Batala Road, Amritsar along with some machinery installed therein and for passing any other appropriate order that may be equitable and just. Notably, the Petitioner has not filed a copy of the impugned Order dated 29. 5. 1978 allegedly passed under Section 19 (1) of SAFEMA.

(2.) IT needs to be clarified at the threshold that Detention Order dated 5. 11. 1974 under Section 3 (2) of Maintenance of Internal Security Act, 1971 (for short 'misa') relates to the father of the Petitioner, namely, Late Roshan Lal wazirabadi, s/o Kanshi Ram (hereinafter referred to as Roshan Lal ). Proclamation of Emergency was declared on 25. 6. 1975 and was lifted on 21. 3. 1977. While Late roshan Lal was under detention, on 19. 12. 1974 he was ordered to be detained under Section 3 (1) of COFEPOSA. This impugned Detention Order was 'revoked' by orders dated 22. 3. 1977, and Late Roshan Lal appears to have been released on the following day, that is, 23. 3. 1977. In the interregnum Shri Om Prakash, brother of the present Petitioner (viz. another son of Late Roshan Lal) filed Criminal writ Petition 138/1975 in the High Court of Punjab and Haryana. In the meanwhile safema notices dated 30. 4. 1977 and 11. 1. 1978 had been served on Roshan Lal and sheela Wati respectively. Thereafter, Late Roshan Lal and Late Sheela Wati, father and mother of the Petitioner, filed CWP 219/1979 and 220/1979 in the supreme Court of India, which, along with other petitions on the same point, was disposed of by the Nine-Judge Constitution Bench in an unanimous Judgment reported as Attorney General for India -vs- Amratlal Prajivandas, (1994) 5 SCC 54 : JT 1994 (3) SC 83: AIR 1994 SC 2179. These concluding paragraphs are of seminal importance and are extracted for facility of reference:

(3.) THIS exposition of the legal position can be altered only by a constitution Bench constituting of more than Nine Judges, and any decision inconsistent with Amratlal would have little legal efficacy. Union of India -vs- Dhanwanti Devi, (1996) 6 SCC 44 explicates a precedent to contain 'the principle on the case is decided', which, when isolated, constitutes the ratio decideni. Dhanwanti Devi has been followed in B. T. Jayaram -vs- State of karnataka, AIR 2006 SC 1796 and in Girnar Traders -vs- State of Maharashtra, (2007) 7 SCC 555. In A-one Granites -vs- State of UP, AIR 2001 SC 1203 the following exposition of the law has been articulated:-11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs. Bremith Ltd. , (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. Following the said decision, this Court in the case of Municipal Corporation of delhi vs. Gurnam Kaur, (1989) 1 SCC 101 observed thus :-