MANHARLAL NARANG Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition filed under Articles 226 and 227 of the Constitution, the petitioner seeks to quash the order dated January 31, 1975, passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act), and also for setting aside the order dated October 9, 1975, passed by the learned Sessions Judge, Bombay in a proceeding under Section 7(1)(b) of the said Act. The facts leading to the present petition are as follows : Two criminal cases being R.C. No. 17/66 and R.C. No. 21/66 were pending against the petitioner before the Chief Metropolitan Magistrate at New Delhi for the offences of smuggling out of India the prohibited antiques. With the permission of the learned Magistrate, the petitioner left India for medical treatment, on July 14, 1974. While the petitioner was still out of India, on January 31, 1975, the impugned order of detention was passed under Section 3(1) of the said Act by the Secretary to the Government of Maharashtra, Home Department (Special), directing that the petitioner be detained. According to the petitioner, he was not aware of this order since it was not served on him. Thereafter, the Government of Maharashtra issued an order on May 23, 1975 under Section 7(1)(b) of the said Act requiring the petitioner to appear before the Commissioner of Police, Greater Bombay. On the same day, the Government made a report to the Chief Metropolitan Magistrate, Bombay, for taking action under Sections 82 and 83 of the Criminal Procedure Code (hereinafter referred to as the said Code) against the petitioner. The order made on May 23, 1975 was published in the Maharashtra Government Gazette on May 29, 1975. On June 2, 1975, the Chief Metropolitan Magistrate, Bombay, issued a proclamation under Section 82 of the said Code, requiring the petitioner to appear in Court within 30 days. One Ramesh Narang, a Constituted Attorney of the petitioner, thereupon made an application on .June 20, 1975 to the learned Magistrate for cancellation of the said proclamation. On July 24, 1975, the learned Magistrate after cancelling the earlier proclamation at the instance of the State Government, issued a fresh proclamation under Section 82 of the said Code requiring the petitioner to appear before him between 30th and 45th day of the date of publication of the said proclamation. The proclamation was published in the official gazette on August 2, 1975. The period for appearance was to expire on September 16, 1975. It appears that thereafter a fresh application was made by the said Ramesh Narang, the Constituted Attorney of the petitioner, on July 24, 1975 for cancellation of the said fresh proclamation. The learned Magistrate heard the said application on September 19, 1975, and by his order of the same date, dismissed the said application made on behalf of the petitioner and also ordered attachment of the petitioner's properties, under Section 83 of the said Code. The petitioner through his said Constituted Attorney preferred a revision application before the Sessions Court, Greater Bombay against the said order of the learned Magistrate. The Sessions Court dismissed the revision application by its order dated October 9, 1975. Thereafter the petitioner through his said Constituted Attorney filed the present petition challenging, as stated earlier, both the order of detention as well as the said order of the learned Sessions Judge dismissing his revision application. This Court on October 16, 1975 admitted the petition and granted stay of the order of attachment of the properties, passed by the learned Magistrate on September 19, 1975. On October 21, 1975, the stay was vacated on the ground that the properties could not be sold until the expiry of six months from the date of the order of attachment. The State Government thereafter made an application before the Chief Metropolitan Magistrate for appointment of a Receiver of the petitioner's properties and the learned Magistrate granted the said application. The petitioner therefore moved this Court by an interlocutory application for setting aside the said order of the learned Magistrate and this Court by an order dated February 27, 1978, restrained the Receiver from taking possession of the properties and directed the learned Magistrate to dispose of the application under Section 83(3) of the Code, which was meanwhile made by -the petitioner. Thereafter, on November 19, 1979, the learned Magistrate decided the application under Section 85(3) and released the properties from attachment. Against the said order of the learned Magistrate, the State preferred a revision application to this Court which is Criminal Revision Application No. 23 of 1980 and the same is being heard along with the present petition.

(2.) WHILE the aforesaid proceedings under Sections 82 and 83 of the Code were pending, the petitioner on August 29, 1975 addressed an application to the Central Government under Section 11 of the said Act for revocation of the order of detention. This application was forwarded by the Central Government to the State Government for necessary action. Till this day, no action has been taken on the said application.

(3.) THE petitioner's challenge in the present petition is mainly directed against the order of detention and consequently against the order of attachment of his properties under Section 7 of the said Act read with Sections 82 and 83 of the Code.