SUGHRABAI SADRUDDIN CHURANA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is the mother of one Sadik Sadruddin Chunara. Against the said Sadik, an order of detention has been issued on 31-10-2005 in terms of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA") by the Competent Authority. This order has neither been revoked nor quashed. On 25-1-2008, a Notice in terms of Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the SAFEMA") was issued against the petitioner and her son Sadik by the Competent Authority wherein it was mentioned that on 31-10-2005 an order was passed for detaining Sadik. The petitioner was informed that she was a person covered under Section 2(2)(b) of the SAFEMA and, therefore, there were reasons to believe that the property set out in the schedule to the Notice was an illegally acquired property within the meaning of clause (c) of sub-section (1) of Section 3 of the SAFEMA. The petitioner was called upon to show cause as to why the said property should not be declared to be illegally acquired and forfeited to the Central Government.

(2.) The petitioner claims an independent right to challenge the order of detention passed against Sadik as the said order is the basis for issuance of the Notice under Section 6(1) of the SAFEMA and visits her with civil consequences.

(3.) The order of detention has been challenged by the petitioner on various grounds. The petitioner's son was arrested along with one Dattatraya Chandrakant Bodke on 4-3-2005 for their alleged involvement in smuggling activities. The petitioner's son was released on bail on 6-4-2005. The seizure of the alleged offending goods was effected on 26-2-2005. Statements alleged to have been made by the petitioner's son were recorded on 3-3-2005, 7-3-2005, 16-3-2005 and 29-4-2005. The petitioner's grievance is that even though the crucial part of the investigation in the case qua the son of the petitioner was completed in April, 2005, the order of detention was passed only on 31-10-2005, that is to say there was an undue delay of six months in passing the order of detention and within this period if there were any links of the petitioner's son with any smuggling activity, those had been cut off. The petitioner does not have either the copy of the order of detention or the grounds of detention passed against her son but she assumes that the grounds of detention and the order of detention would be same as is passed in the case of the said Bodke as her son and Bodke were arrested on similar allegations. The petitioner submits that the order of detention passed by the detaining authority with respect to Bodke does not record satisfaction of the detaining authority that the detenu was involved in smuggling and as such the order of detention was bad. She presumes that such defect was there in the order so passed against the petitioner's son as well. Counter affidavits have been filed in which it is stated that the writ petition has been filed at a pre-execution stage and the detenu has not surrendered and is absconding. Therefore, the writ petition is not maintainable. It is also stated that all the material which was placed before the detaining authority was considered by the detaining authority before the order of detention came to be passed. It is denied that there was any undue delay in passing the order of detention. In the light of these pleadings, two questions arise for consideration by this Court. Firstly, whether the present petition is maintainable or not and secondly, if the petition is maintainable, whether the order of detention passed against the son of the petitioner can be quashed