KARIMABEN K BAGAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of Special Civil Application under Art. 226 of the Constitution of India, the petitioners are either detenus or their family members and associates. They have challenged the original order of detention passed during Emergency under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA") as well as the proceedings instituted against them under Smuggling and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "SAFEMA") Prefectory Note : A proclamation of Emergency dated 3-12-1971 came to be issued under Art. 352(1) of the Constitution of India on the ground that "Security of India is threatened by external aggression". With a view to deal effectively with threats to the defence of India and to the security of India, the Maintenance of Internal Security Ordinance was promulgated which was replaced by the Act known as Maintenance of Internal Security Act, 1971 (hereinafter called as "MISA") on 2-7-1971. Realising smuggling, foreign exchange racketeering and such related activities having deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (hereinafter referred to as "COFEPOSA") was enacted to immobilise by detaining the persons engaged in the operations and to disturb the machineries established furthering of smuggling and foreign exchange manipulations with all their ramifications. COFEPOSA Act came into force with effect from 19-12-1974 by virtue of Notification under Sec. 1(3) of the Act. On the same day, by virtue of Sec. 14 of the Act, MISA Amendment Ordinance Act, 1974 and MISA Act, 1971 stood repealed.

(2.) On 25-6-1975, the President of India proclaimed Emergency under Art. 352(1) of the Constitution of India on the ground that "security of India is threatened by internal disturbances". The declaration had the effect of suspending fundamental rights under Art. 19 as provided under Art. 358 of the Constitution. On 27-6-1975, the President of India made an order under Art. 359(1) of the Constitution declaring "the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by Art. 14, Art. 21 and Art. 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Art. 352 of the Constitution on 3-12-1971 and on 25-6-1975 are both in force". The effects of administration and realisation of the purpose of COFEPOSA having been rendered defective by reason of clandestine manner in which the persons engaged in this operation carried on their activities and the consequent defects of securing sufficient evidence to comply with the standards insisted upon by the Courts and further that some of the persons engaged in smuggling and foreign exchange racketeering have been facing a serious threat to the economy and to the security of the nation, owing to their large resources and influences, it was conceded that during the Emergency, disclosure of grounds of detention to such persons and compliance with the usual procedure of rules and regulations of the Advisory Board would not be in the larger interest of the nation. Thus, the President promulgated on 1-7-1975, the COFEPOSA (Amendment) Ordinance, 1975 to remove the said defects and to provide a special provision introducing Sec. 12-A making special provisions in respect of persons whose detention is necessary for dealing effectively with the Emergency. On 5-11-1975, with an object to provide for forfeiture of illegally acquired properties of the offenders, Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Ordinance, 1976 was enacted which became an Act in January 1976. This Act applies to persons convicted under the Sea Customs Act, 1878, Customs Act, 1962, FERA, 1947 and to those detained under the COFEPOSA, whose detention order was neither set aside nor revoked in the circumstances mentioned therein. Besides, the persons so convicted/detained, the Act applies to their relatives and associates as well. The main purpose of the Act is to forfeit the illegally acquired properties of such smugglers and foreign exchange manipulators in whosoever's name they may have been kept.

(3.) COFEPOSA, by the 39th Constitution (Amendment) Act, 1975, was placed in the IXth Schedule. SAFEMA and COFEPOSA Amendment Acts were placed in the IXth Schedule by the Constitution 40th (Amendment) Act, 1976.