PAKHAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) PAKHAR Singh petitioner has come with this petition under Articles 226/227 of the Constitution of India for quashing the order of detention F. No. 673/56/76-Cus. VIII dated 11-11-1975 (Annexure P. 1) passed by respondent No. 1 and also order of the Competent Authorityrespondent No. 2, forfeiting the properties mentioned in Order No. F. CA/(15)/71-79/1168, dated 29-10-1980 (Annexure P.2) under section 6 (1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (herein-after referred to as 'the SAFEMA') and for setting aside all consequential orders thereof.

(2.) THE petitioner has averred that he left India sometime in 1976 for U.K. and since thereafter not returned to India. That a notice under section 6 (1) of the SAFEMA is alleged to have been issued by the Competent Authority-respondent No. 2 to the petitioner. This notice is alleged to have been issued on the basis of order of detention dated 11th November, 1976 passed by respondent No. 1 purported to have been issued under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). Copy of this order is Annexure P.1. The petitioner has not been served with the said detention order nor he was arrested and on the date of passing of the order he was not in India that the detention order had been passed malafide at the behest of the Enforcement Officers, who have falsely sponsored the case of the petitioner for detention during emergency. The said Detention Order was passed during emergency only and the declaration under section 12-A of the COFEPOSA was also made. This was special provision and the emergency having been lifted in March. 1977, the provision elapsed and as such declaration made under section 12-A of the COFEPOSA had no effect. The fact that the petitioner was out of country was not kept in mind by the Detaining Authority while passing the order under Section 3 (1) and the declaration under-section 12-A of the COFEPOSA. No grounds for detention were framed and formulated simultaneouly with the orders and as such the order was non est and nullity in law. That the petitioner having been detained in London Jail for a period of four years in connection with a Drugs Act case the purpose of the detention order has since been served. That he has now learnt from the relations of his previous wife Smt. Sukhjit Kaur that properties had been forfeited under the provisions of sections 6(1) and 7 (1) of the SAFEMA. That in fact he has no connection with the properties as the same belong to his wife Smt. Sukhjit Kaur with whom his marriage was dissolved by a decree of divorce, which decree became final on 8th July, 1980.

(3.) THE main plea of the petitioner is that no grounds for detention were formulated simultaneously and contemporaneously by the detaining authority and in fact no grounds had been prepared till date which fact is not disputed at the bar. Learned counsel for the petitioner further urges that in view of the fact that no grounds for detention had been prepared it is for the respondents to satisfy the Court that there was sufficient material for the subjecti怀e satisfaction of the Detaining Authority before passing of the detention order and the mere statement that the petitioner had slipped out of India fearing his detention on account of his involvement in FERA will not justify the detention order.