MOHMOOD ABUBUKAR MARWARI Vs. UNION OF INDIAN

JUDGEMENT

(1.) This petition under Article 226 of the Constitution questions the validity of the order of detention dated July 1, 1975, under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, against one Yusuf Abdulla Patel, the brother-in-law of the petitioner herein, against whom in turn a show cause notice was issued under the provisions of the Smugglers and Foreign Exchange Manipulators (Forefeiture of Property) Act, 1976.

(2.) Facts and circumstances, briefly stated are as follows :- In September, 1974, an order of detention was made against the said Yusuf Patel under section 3(1) of the Maintenance of Internal Security Act. This order was challenged under, Articles 226 and 227 of the Constitution. In the meanwhile, Parliament enacted the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter the said Act). By virtue thereof, the above order lapsed and challenge thereto no longer survived. In december, 1974, another order of detention was made against the said Yusuf Patel this time under section 3 of the said Act. This order was challenged in the Delhi High Court which, by its judgment dated, April 18, 1975, quashed the same and directed release of the detenu. Against the said judgment, appeal pursuant to fitness certificate under Art. 134 of the Constitution as also special leave petition (in which leave was granted) were filed in the Supreme Court, but both were later dismissed as withdrawn. On June 25, 1975, the President of India declared Proclamation of emergency. On July 1, 1975, the said Act (COFEPOSA) was amended by an Ordinance which was later replaced by Amending Act No. 35 of 1975. On the same day, an order of detention (third in the series) was made against the said Yusuf Patel under section 3 of the said Act. He was also served with a declaration that the Central Government was satisfied that the detention in question was necessary for dealing effectively with the emergency in respect of which the proclamation referred to in sub-section (1) of Section 12A of the said Act had been issued. This order was also challenged in a writ petition before the Delhi High Court. Though rule nisi was issued, the same could not be heard in view of the Supreme Court judgment in A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 : (1976 Cri LJ 945). Petition was dismissed as withdrawn. On March 23, 1977 the detenu Yusuf Patel was, on revocation of emergency released from detention. Now, after the order dated July 1, 1975, against the said Yusuf Patel, notice under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, (hereinafter SAFEMA) was issued to the petitioner herein (being the brother-in-law of Yusuf Patel), to show cause why properties in the schedule to the said notice should not be declared as illegally acquired and forfeited to the Central Government. Similar notice but relating to his own properties was issued also to Yusuf Patel. The petitioner contested this notice through his Attorney's letters dated April 7, 1976 and February 18, 1977 as also through his further letter dated January 22, 1981. The competent authority under SAFEMA did not decide the matter. Hence this petition under Article 226 of the Constitution challenging the validity of the impugned order of detention against the said Yusuf Patel but which order also constituted the foundation of SAFEMA proceedings against the petitioner.

(3.) Before coming to merits, we may deal with two preliminary objections raised by Mr. Govilkar. The first : This petition suffers from delay and should, on this ground itself, be, therefore, dismissed. Now, it is true that jurisdiction under Article 226 of the Constn. should be invoked expeditiously. But that is a flexible concept much depending on the facts and circumstances which vary and change from case to case. What then is the position here in that behalf ? As factual enumeration supra indicates, there has been against the detenu one order of detention after another, the first under MISA, the second under COFEPOSA and the third under COFEPOSA (as amended). Each of these orders was challenged. The first order, however, lapsed. The second was quashed by the Delhi High Court and the challenges to the third qua detention did not survive. It was after the third order of detention that show cause notice under SAFEMA was issued to the petitioner as a relation of the detenu. In this context, would it be unreasonable to infer that the petitioner may have reasonably expected that after revocation of emergency and release of the detenu, the order itself would be revoked and proceedings under SAFEMA - A consequence flowing from that order - would be dropped ? That, however, did not happen. Still further, to the show cause notice, as many as three replies were sent but none was replied to. Indeed, even as of now, the authority under SAFEMA has not adjudicated upon the contentions raised in the said replies. Under such circumstances, where really is the purported delay ? And if there is, is it on the part of the petitioner or on the part of the SAFEMA authority in not hearing and deciding the matter ? That apart, mere lapse of time hardly means anything unless there has, in consequence, arisen or has accrued some equity or right which in justice should not be adversely affected by a delayed challenge. Contention on delay is thus rejected.