PAKHAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Pakhar Singh petitioner has come with this petition under Article 226/227 of the Constitution of India for quashing the order of detention F. No. 673/56/76-Cus. Viii dated 11/11/1976 (Armexure P. I) passed by respondent No. 1 and also order of the Competent Authority respondent No. 2, forfeiting. the properties mentioned in Order No. F. CA/( 15)/78-79/1168, dated 29/10/1980 (Armexure P-2) under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter 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 there after 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 & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). Copy of this order is Armexure P.1. The petitioner has not been served with the said detention order nor he was arrested and on the date of the passing of the order he was not in India. That the detention order had been passed mala fide 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 12A of the COFEPOSA Act was also made. This was special provision and the emergency having been lifted in March, 1977, the provision elapsed and as such declaration made u/s. 12-A of the COFEPOSA Act 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 sec. 3(1) and the declaration u/s. 12A of the COFEPOSA Act. No grounds for detention were framed and formulated simultaneously with the orders and as such the order was not est and nullity in law. That the petitioner having been detained in London J ail 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 section 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 petition has been contested and certain preliminary objections have been made to which reference shall be made presently. The record relating to the detention was produced by the Counsel and he had conceded at the bar that no grounds of detention had been prepared and only history sheet of the petitioner had been prepared which was sent to the detaining authority and on the basis of that history sheet, an order of detention was passed.