NDLI: Narender Kumar Vs. Union of India and Others

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	s.2(2)(b) and its proviso Applicability of SAFEMA
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) Smugglers and Foreign Exchange Manipulators (forfeiture of Property) Act, 1976 (13 of 1976)
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) : s.2(2)(b) and its proviso – Applicability of – Competent Authority under MISA directed detention of one ‘R’ on 5.11.1974 with a view to prevent him from dealing in smuggled goods prior to COFEPOSA came into force on 13.12.1974 – On 19.12.1974, the competent authority under COFEPOSA directed his detention with a view to prevent him from dealing in smuggled goods – Representation of detenu was rejected – On 29.4.1975, his son filed writ of habeas corpus and prayed for quashing of detention orders dated 5.11.1974 and 19.12.1974 – Proclamation of Emergency on 25.6.1975 – With effect from 1.7.1975, s.12A was inserted in COFEPOSA by Amendment Act of 1975 – s.10A was inserted on 12.12.1975 dealing with extension of period of detention – Later SAFEMA came into force w.e.f. 25.1.1976 – Emergency was lifted on 21.3.1977 – Next day, i.e. on 22.3.1977, detention orders in respect of 49 detenus including ‘R’ were revoked by the State Government and detenu was released – On 30.4.1977, Competent Authority under SAFEMA issued notice to detenu and his wife to show cause the source of their income or acts or by means of which they had acquired properties and why said properties be not declared illegally acquired and forfeited – Writ Petition for quashing of orders dated 5.11.1974 and 19.12.1974 which was alive and pending in High Court was disposed of as having become infructuous – After considering replies to the notices under SAFEMA, on 29.5.1978, the Competent Authority held that the property mentioned in the schedule to the order was illegally acquired and that it stood forfeited – Writ petition filed against the said order was dismissed holding that there was no revocation of detention before the expiry of the Emergency and as such provisions of s.2(2)(b) of SAFEMA would get attracted – On appeal, held: For the substantive provision under s.2(2)(b) to apply, the matter must not be covered under any of the four parts of the proviso – Part (i) of the proviso to s.2(2)(b) deals with cases to which s.9 or s.12A of COFEPOSA did not apply – In the instant case, there was neither any declaration under s.9 nor any proclamation under s.12A – Thus, s.9 and s.12A did not apply – In terms of Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of s.2(2)(b) must apply – The order of detention was not revoked under any of the postulates of the proviso to s.2(2)(b) nor was it set aside by any competent court and as such the provisions of SAFEMA must apply – In terms of Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of s.2(2)(b) must apply – In the instant case, there was no such revocation and in view of Part (i) of the proviso, the provisions of SAFEMA must apply – High Court rightly observed that the detention “had run right through the duration or continuance of the emergency” – Maintenance of Internal Security Act, 1971 (MISA) – s.3(2) – Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
Judge	Honble Mr. Justice Uday Umesh Lalit
Neutral Citation	2019 INSC 470
Petitioner	Narender Kumar
Respondent	Union Of India And Others
SCR	[2019] 6 S.C.R. 482
Judgement Date	2019-04-08
Case Number	1492

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