KARIMABEN K BAGAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner above named, has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside an order passed by respondent no.4 herein under section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short, 'SAFEMA') dated 23.3.1993 placed at Annexure 'G' Page no.45 and subsequent order of the Appellate Tribunal being No.F.P.A.No.28/AHD/93 dated 7.12.1995 placed at Annexure 'H', page No.81 against the petitioner.

(2.) It appears from the record that on 25.2.1977, the husband of petitioner - Karim Bachubhai who was detained by order under section 3(2) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "COFEPOSA act"). The said order was challenged by filing a writ petition being Special Criminal Application No.101/77. On 3.8.1977 when the said matter was being argued before the Court a point was raised that the petition could succeed and the detention order could fall on the ground of delay. Therefore, the learned Public Prosecutor incharge of the matter on behalf of the Government had written a letter dated 3.8.1977 to the State Government stating the above fact. He also recommended that the order may be revoked. On the strength of the said recommendation, on 4.8.1977, the Government had revoked the said order of detention which has been placed at Annexure 'C', page 24 to the petition. Since the order of detention was revoked by the State Government, the Court passed an order in the above petition on 8.8.1977 to the effect that since the detention order was revoked, the petition did not survive and, therefore, rule was discharged. On 6.10.1980, respondent no.4 issued a notice under section 6 of the SAFEMA to the petitioner. (Annexure 'E') On 23.3.1993, respondent no.4 passed an order holding that the petitioner was a person who fell within the ambit of section 2 of SAFEMA and proceedings under section 7 be taken against her and the property of the petitioner be forfeited under section 7 of the SAFEMA. An appeal was preferred against the said order unsuccessfully before the tribuanl. The petitioner preferred this petition challenging the order passed under the SAFEMA and the order of detention which came to the dismissed by this Court by judgment dated 27.2.1997. An SLP was preferred before the Hon'ble the Supreme Court against the aforesaid dismissal i.e. Criminal Appeal No.688/98 from SLP No.(Cri.) 2758/97 which came to be allowed. The above judgment of this court was set aside and the matter was ordered to be remanded to this Court, by order dated 22.7.1998. Therefore, the petition is required to be heard.

(3.) The petitioner has challenged the aforesaid order on several grounds. It has been contended by and on behalf of the petitioner that the order impugned in this petition is illegal on the ground of delay since the order was required to be passed immediately and since there was an unexplained, inordinate delay, the order must fall on the ground of delay. It has also been contended that there was no material before the competent authority to pass an order impugned in this petition and therefore also the petition requires to be allowed and the order requires to be set aside. It is further contended that the order passed under SAFEMA was based on an order passed under the COFEPOSA. That the order passed under COFEPOSA did not remain in force and did not exist, then the order passed under SAFEMA could not be sustained and therefore, on that ground also, the order requires to be quashed and set aside. It is further contended that certain material was required to be placed before the appropriate authority and it has not been placed and certain material was not supplied to the petitioner and therefore, on this ground also the order impugned in this petition is illegal on the ground of non-observance of principles of natural justice. It has, therefore, been contended that the order impugned in his petition is illegal and, therefore, it may be set aside.