UNION OF INDIA Vs. BISWANATH BHATTACHARYA

JUDGEMENT

(1.) On December 19, 1974 the respondent No. 1 was detained under MISA. His detention was continued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA"). The reason for detention as appears from the record was that the respondent No. 1 in active connivance with his brother who was staying at London at the material point of time was illegally dealing in foreign exchange. The allegation against the respondent No. 1 was that he used to arrange tours as travel agent of foreign nationals and/or persons coming from abroad touring India. They were looked after by the respondent No. 1 in India. The entire expenses were borne by him. In turn, his brother as receiving the expenses of such tour in foreign currency at London. Such transaction was illegal under the provisions of COFEPOSA. He challenged the order of detention. However, he was unsuccessful. He filed a habeas corpus petition before the Division Bench which was also dismissed. He was, however, released in 1977. While he was in custody he was served with a notice dated March 4, 1977 appearing at page 285 of the Paper Book under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "SAFEMA"). Since he was in custody his wife by a letter dated March 11,1977 replied to the said show cause notice appearing at pages 287-289 of the Paper Book wherein details of properties belonging to the elder brother of the respondent No. 1 was given. The wife contended that the elder brother should be proceeded with for the identical offence and in case he was proceeded with the truth would come out. Significant to note, the charges were not denied as such. After his release respondent No. 1 by letter dated April 11,1977 appearing at pages 190-291 of the Paper Book wrote to the authority reiterating what had been contended by his wife in the earlier reply. He applied for inspection of the documents being the report of the competent authority on the basis of which the authority issued the notice. Such tetter was written for the first time by the respondent on April 22,1988. Immediately thereafter, a copy of the reasoning appearing at pages 294-301 was supplied by the authority vide letter dated June 4,1988. After receipt of the reasoning the respondent No. 1 gave a further rejoinder dealing with each and every allegations made against him by his letter dated July 22,1988 appearing at pages 302-306 of the Paper Book. The authority afforded him adequate opportunity to defend himself in the proceeding. The competent authority by an order dated November 27, 1989 passed a reasoned order appearing at pages 307-334 of the Paper Book. An appeal was preferred by the respondent No. 1. The appellate Authority by a reason order appearing at pages 335-353 of the Paper Book partly allowed the appeal by setting aside the forfeiture in respect of item Nos. 1 and 4 and affirmed the forfeiture of the remaining items made by the competent authority. In terms of the order of the competent authority so modified and affirmed by the Appellate Authority two properties at Salt Lake and investment in M/s. Bijaya Publishing House were confiscated by the appropriate authority.

(2.) Challenging the order of the competent authority so merged in the order of the Appellate Authority the respondent No. 1 filed a writ petition on August 23, 1991, inter alia, for the following reliefs :-

(3.) The writ petition was heard and disposed of by the learned Single Judge by judgment and order dated May 10, 2002 appearing at pages 182-222 of the Paper Book. On perusal of the judgment and order of the learned Single Judge it appears that although the vires of the said Act was under challenge the respondent No. 1 only asked for cancellation of the order of detention issued under Section 3 of the COFEPOSA and the orders passed by the competent authority so merged in the appellate authority under Section 6(1) of the SAFEMA as well as prayed for release of the properties confiscated by the appellate authority in terms of the order impugned therein.