PADMA NIRMAL AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard. Perused the records. The petitioner challenges the orders passed by the Respondent Nos. 2 and 3 in relation to the forfeiture of the property in exercise of the powers under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, hereinafter called as "safema", and further for direction to unseal the property which was sought to be forfeited by those orders of forfeiture.

(2.) One Nirmal Motilal Agarwal, husband of the Petitioner herein, was detained under the provisions of Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974, hereinafter called as "cofeposa", and under the order dated 23rd March, 1987, pursuant to the report of the advisory Board under section 8 dated 17th July, 2003, he was released on 4th August, 2003. Meanwhile, by an order dated 28th June, 2001, in exercise of the powers under sections 7 and 19 (1) of SAFEMA, the property of the detenu comprised of Flat No. 16, 417/c, Manu Mahal, King's Circle, Mumbai - 400 019, was ordered to be forfeited to the Central Government. Being aggrieved by the said order, the same was challenged by the detenu in Appeal being Appeal No. 35/bom. of 2001 which came to be dismissed by the order dated 3rd December, 2002. The order of detention was revoked on 17th July, 2003 on receipt of the report from the Advisory Board. The detenu, who was released on 4th August, 2003, expired on 6th August, 2003. Writ Petition No. 141 of 2003 came to be filed by the Petitioner herein in her capacity as legal heir of the deceased detenu praying for quashing of the orders dated 28th june, 2001 and 3rd December, 2002 passed by the respondent Nos. 2 and 3, respectively, and further for removal of the seal to the said Flat No. 16 and to hand over the possession thereof to the Petitioner. The said petition came to be disposed of by the order dated 29th April, 2004 while recording the statement of the learned Advocate for the Respondents that the Petitioner has already filed an application for release of the property consequent to the revocation of the detention order and the competent authority to dispose of the said application within a period of two weeks. Consequently, the Petitioner did not press for the relief in the Petition and it was withdrawn under the said order dated 29th April, 2004. The Respondent No. 2 thereupon disposed of the said application under the order dated 9th June, 2004 and did not grant any relief to the Petitioner. Hence the present Petition.

(3.) The impugned order is sought to be challenged on the ground that the detention order which was the basis for passing the order by the competent authority under SAFEMA having been revoked, for all purposes it is non est, and therefore, the entire proceedings under SAFEMA also became void ab initio, and therefore, the orders passed by the Respondents are liable to be quashed and the petitioner, therefore, is entitled to get the property released in her favour. Drawing attention to the provisions of law comprised under section 2 (2) (b) of SAFEMA, the learned Advocate for the Petitioner has submitted that the Authority looses its jurisdiction to deal with the property consequent to the revocation of the detention order, pursuant to the report of the Advisory Board under section 8 of COFEPOSA dated 17th July, 2003. He has further submitted that the question of applicability of section 20 of SAFEMA does not arise as the entire proceedings under SAFEMA become void ab initio in view of the revocation of the order of the detention on the advise of the Advisory Board. Reliance is sought to be placed in the decisions in the matter of (Arvind Ganeshmal Jain v. Union of India and others) , reported in 1999 (Supp. ) Bom. C. R. 727 : 1998 All. M. R. (Cri. ) 1376, of (Smt. Gangadevi v. Union of India and another) , reported in 1997 Cri. L. J. 228, and (Union of India and others v. Mohanlal Likumal Punjabi and others) , reported in 2004 (2) Bom. C. R. (Cri. ) (S. C. ) 236 : A. I. R. 2004 S. C. W. 1153.