KAPIL DUTTA BALI & ANR V. UNION OF INDIA & ORS

CRWP/883/2012

AI Insights

The case involves Kapil Dutta Bali and another petitioner challenging a preventive detention order and the subsequent forfeiture of their property under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The detention order was initially issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and was upheld by the Supreme Court. The petitioners argued that the detention order and the property forfeiture were unjust, citing that similar cases had been set aside and that no proceedings under the Foreign Exchange Regulation Act (FERA) were initiated against them. However, the court dismissed their petition, emphasizing the finality of the Supreme Court's decision on the detention order and the mandatory application of SAFEMA provisions.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 724251 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 07-05-2012
• Assessment Year: misc
• Other Referred Cases: M/s Sterling Agro Industries Ltd. Vs. Union of India, Master Bhavdeep Bali Vs. Union of India and others
• Laws Referred To: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, Foreign Exchange Regulation Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: M S RAKKAR; SUNIL DIXIT
• Keywords: FERA; Forfeiture of property; Preventive Detention; Challenge to detention order; COFEPOSA; SAFEMA
• Section: 3(1); 102; 6(1)

Judgement Text

"Criminal Writ Petition No.883 of 2012 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION : MAY 07, 2012 Kapil Dutta Bali & another .....Petitioners VERSUS Union of India & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.M.S.Rakkar, Senior Advocate with Mr.Sunil Dixit, Advocate, for the petitioners. **** RANJIT SINGH, J. Having remained unsuccessful in his challenge to the detention order passed in respect of petitioner No.1, he has yet again raised a challenge to the same detention order ( Annexure P-4) with a prayer to quash the same with post-facto effect. The reasons for petitioner No.1 to persist with his challenge to the preventive detention order passed against him are quite obvious and this is the order passed against him forfeiting his property as well as of his son (petitioner No.2). The petitioners accordingly have also prayed for Criminal Writ Petition No.883 of 2012 (O&M) : 2 : quashing the order dated 31.1.2001, whereby their property was ordered to be forfeited consequent to the detention of the petitioners passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short). The petitioners would also challenge the order passed by the Appellate Tribunal upholding the order passed by the authority to forfeit the property of the petitioners. The Tribunal has also directed Deputy Commissioner, Hoshiarpur to take possession of the forfeited property immediately. Incidentally, the petitioners are before this court with this challenge once the High Court of Delhi has declined to entertain the petition, which they have withdrawn. The challenge in the petition is made in the light of following facts, which are noticed in brief:- Suram Singh and Deep Chand were caught while carrying Indian currency of `50.00 lacs in a Fiat Car No.PB-24-2300 on 12.9.1993. It is stated that this money was meant for delivery to Tarsem Singh of Urmar Tanda by Shri K.D.Kaushal, who were his counter-part. The said currency was seized under Section 102 Cr.P. C. and Suram Singh and Deep Chand were arrested. The petitioners would urge that this normal business transaction of a property dealer was given the colour of Foreign Exchange Regulation Act (for short “FERA”) violation and Enforcement Officers from the Directorate of Enforcement were immediately summoned. It is alleged that Suram Singh and Deep Chand were tortured at the police station and were made to state as dictated by these officials. They both, however, retracted their statements when they were Criminal Writ Petition No.883 of 2012 (O&M) : 3 : remanded to judicial custody on 20.9.1993. While in police custody, they both had named petitioner No.1 stating that the money was meant to be delivered to him for onward distribution of the same to the Indian relatives of the NRIs. It also surfaced that the seized currency was collected from J.P.Gupta at New Delhi, who was working under the instructions of Prem Prakash and was meant for petitioner No.1. Tarsem Singh of Urmar Tanda is stated to have approached Garshankar Police to claim this money and he was told that the same has been transferred to Enforcement Directorate, FERA, Jalandhar. He was accordingly summoned to appear before the Enforcement Directorate, but instead he filed a writ petition before this court on 8.7.1994. The same was admitted on 1.8.1995. It is accordingly urged that Tarsem Singh was relentlessly pursuing his claim for retrieving this seized currency. Tarsem Singh, however, apparently was caught well when Income Tax Officer, Hoshiarpur assessed him for tax on the seized currency. Tarsem Singh thereafter withdrew the writ petition filed before this court. Suram Singh, from whom the currency was seized, thus, remained the only petitioner in this regard before this court and his petition was tagged with income tax appeal filed by the Department. On this basis, it is urged that name of petitioner No.1 was maliciously and falsely introduced only on account of torture and tutored statements of Suram Singh and Deep Chand. On the basis of these allegations, respondent No.1 passed an order under Section 3 (1) of the COFAPOSA on 6.5.1994 for detaining petitioner No.1 in preventive detention. This order was Criminal Writ Petition No.883 of 2012 (O&M) : 4 : duly served on petitioner No.1 on 25.5.1994 and he was accordingly detained at Central Jail, Patiala, where he remained for one year from 25.5.1994 to 24.5.1995. Detention order was also passed against Shri Munna Lal Khandelwal, who was allegedly generating money from Hawala transactions. Shri Rameshwar Dass, who was allegedly collecting money from Khandelwal and Prem Parkash, was stated to be his boss. It is pointed out that the orders of detention of Munna Lal Khandelwal, Rameshwar Dass, J.P.Gupta and Prem Parkash were quashed by Delhi High Court. The detention orders of Suram Singh and Deep Chand remained pending. It appears that Petitioner No.1 has also challenged his detention order before Delhi High Court, but his petition was dismissed, against which he filed a Special Leave Petition, which was also dismissed by the Hon'ble Supreme Court on 3.5.1993. Copy of this order is annexed as Annexure P-6 with this petition. As per the petitioners, detention orders passed in respect of Prem Parkash and J.P.Gupta, however, were quashed by the Hon'ble Supreme Court on 7.9.1996 and 20.11.1998. It is in this background that petitioners were issued a show cause notice under Section 6(1) of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) for forfeiture of their property. The petitioners filed a reply to the show cause notice and thereafter the competent authority passed an order forfeiting the property of the petitioners. Order in this regard is annexed with the petition as Annexure P-12. Petitioners thereafter filed an appeal against this order, but the Appellate Criminal Writ Petition No.883 of 2012 (O&M) : 5 : Tribunal dismissed the said appeal on 19.4.2002 and the copy thereof is annexed with the record as Annexure P-14. The petitioners thereafter had filed a Criminal Writ Petition No.561 of 2002 before High Court of Delhi. On 23.5.2002, the Hon'ble High Court passed an interim direction to the following effect:- “Till the next date, the forfeited property will not be sold, subject to the condition that the petitioner will not sell, transfer, alienate or part with possession or create any third party interest.” This interim order has continued till 19.3.2012, when the petitioners got their writ petition dismissed as withdrawn with liberty to approach appropriate forum. It would be useful to reproduce the order passed by the Delhi High Court, which is as under:- “1. Learned counsel for the petitioner seeks permission to withdraw the petition with liberty to approach the appropriate forum. The learned Standing Counsel, Mr.Jatan Singh has no objection, subject to the he may raise all such objections before the transfree forum. 2. In view of the statement made by learned counsel for the parties, the writ petition is dismissed as withdrawn, with liberty as prayed for, subject to the condition that the learned counsel for the respondent shall be at liberty to take all such p[leas as may be permitted in law. With these observations, the petition is treated to be dismissed as withdrawn.” The petitioners would plead that they have withdrawn the Criminal Writ Petition No.883 of 2012 (O&M) : 6 : petition from Delhi High Court in view of the law laid down by the Full Bench decision of the said Court in the matter of M/s Sterling Agro Industries Ltd.Vs. Union of India, concerning the jurisdiction of the Court to entertain petition. However, no such mention is found recorded in either the prayer made while withdrawing the petition or while granting permission to the petitioners to withdraw the same to approach the appropriate forum. The simple and straight prayer recorded through the counsel for the petitioners is that he be permitted to withdraw the petition with liberty to approach the appropriate forum. The Standing counsel did not object to the prayer as made, but subject to the condition that he may raise all such objections before the transfree forum. The writ petition was dismissed as withdrawn with liberty as prayed for and respondents were further given liberty to take all such pleas as may be permissible in law. It is in this background that the petitioners have now filed the present petition. The senior counsel for the petitioners has not been able to satisfy this court if he had raised any challenge to the detention order before the Delhi High Court on the grounds as he has raised now. Apparently, the petitioners had only challenged the order passed by the Authority under the SAFEMA, which was upheld by the Appellate Authority. The petitioners have again come up to challenge the detention order after expiry of almost 19 years. Whether they can do so, thus, would be a first question. No doubt, a person can challenge a detention order on any fresh ground if available to him, which he has not raised in his earlier writ petition, but that he has to Criminal Writ Petition No.883 of 2012 (O&M) : 7 : do within a reasonable time. The order, which has acquired finality as far as back in 1995, is sought to be challenged again after expiry of nearly 20 years without any explanation. The petitioners have even not averred in their petition that they had raised any challenge to this detention order on the grounds now raised in the present petition in their writ petition filed before the High Court of Delhi. It appears that petitioners had only challenged the order passed under SAFEMA in the writ petition before the High Court of Delhi and after withdrawing the same, they have now decided to challenge the detention order on the grounds which are available to them ever since the year 1995. This time, petitioners have challenged the detention order on the ground that on the same facts the detention orders of their co- accused have been set-aside and that the same relief could not be granted to the petitioners as their petition was decided earlier. As already noticed, this fresh cause to challenge the detention order really is the order passed against the petitioners under SAFEMA, which has been upheld on the ground that detention order passed in respect of petitioner No.1 has been upheld upto the Hon'ble Supreme Court. The second ground raised to challenge the detention order is that the proceedings initiated against him under FERA were dropped. The petitioner, thus, not only pleads that his detention order can be so challenged by him, but also that no proceedings under SAFEMA could be initiated against him once he was not found to have violated the provisions of FERA. Once the detention order passed against petitioner No.1 has been upheld by the Hon'ble Supreme Court long ago, propriety Criminal Writ Petition No.883 of 2012 (O&M) : 8 : would demand that this court should not venture to reconsider the challenge raised by petitioner No.1 to the same detention order, which has already been so upheld. No doubt, it may be open for the petitioner to challenge the detention order on fresh grounds, if available to him, but these grounds became available to petitioner No.1 long ago, but still he did not take any proceedings to challenge the detention order on these grounds. Incidentally, his challenge to detention order was never dismissed or declined by the High Court of Delhi on the ground of jurisdiction. In fact, petitioner No.1 had unsuccessfully challenged his detention order before the Delhi High Court and the order, so passed by the High Court, was even upheld by the Hon'ble Supreme Court. In this background, the action of the petitioners to change track at this stage and to file the present petition before this court would not be free from suspicion. The petitioners at least could maintain their challenge to the detention order before the High Court of Delhi. Even the orders passed under SAFEMA were challenged in the writ petition before the High Court of Delhi, which has remained pending since the year 2002 for ten years till 19.3.2012. Suddenly, the petitioners chose to withdraw the said writ petition without there being any challenge raised to the same on the ground of jurisdiction. Once the challenge of the petitioners to the detention order had been decided by the High Court of Delhi, the Court apparently could not lack in jurisdiction to entertain the petition, which the petitioners has withdrawn. In fact, the petitioners had challenged the order passed by the Appellate Authority located under the jurisdiction of the Delhi High Court. The order of Full Bench of the Criminal Writ Petition No.883 of 2012 (O&M) : 9 : Delhi High Court, relied upon by the petitioners, would clearly show that the court has held that an order of the Appellate Authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the Appellate Authority was situated. No doubt, same may not be singular factor to compel the High Court to decide the matter on merits and the High Court may refuse to exercise its discretionary jurisdiction by invoking doctrine of forum conveniens. There is no finding that the petitioners have approached the High Court of Delhi and the court was not inclined to entertain the petition by invoking the doctrine of forum conveniens. Rather, it appears that the petitioners have chosen to approach this court which may give the appearance or impression that they are invoking the jurisdiction of this court, which would attract the doctrine of forum conveniens. Besides, I am not inclined to go into the challenge to the detention order at this belated stage, when the petitioners have slept over their right to challenge this order for nearly two decades. Coupled with all, this is the position that the petitioners had been unsuccessful in their challenge before the Hon'ble Supreme Court and it may rather be an impropriety on the part of this court to entertain a challenge to that detention order, which has already been upheld by the Hon'ble Supreme Court, may be when this ground was not raised in earlier writ petition. I am also not impressed with the challenge made by the petitioners to the order passed under SAFEMA, which was upheld by the Appellate Tribunal. While dealing with the challenge raised by the Criminal Writ Petition No.883 of 2012 (O&M) : 10 : petitioners in the impugned order under SAFEMA. The Appellant Authority has noticed that the provisions of Section 2 (2) (b) are independent of other sub-sections under which the provisions of SAFEMA are applicable to any person. It is accordingly noticed that once a detention order has been passed against a person and the said detention order was neither revoked on the report of Advisory Board nor was set aside by the court of competent jurisdiction, then the provisions of SAFEMA automatically apply to such a person as well as to his relatives and associates as defined in SAFEMA. These provisions have been held to be mandatory. It is also observed that the competent authority has no power to go into the merits of the detention order nor has he any discretion to decide as to who are the persons to whom the provisions of the SAFEMA would apply. In short, the competent authority has no jurisdiction to ignore the detention order, which was neither revoked nor set aside by any court of competent jurisdiction. In this regard, the Appellate Authority, referred to the decision of the Delhi High Court in Master Bhavdeep Bali Vs. Union of India and others, Crl. M.36/01 and Crl.W.44/01. The relevant extracts of which are also found reproduced in the impugned order and is as under:- “We have heard Mr.P .P.Malhotra, Sr.Advocate for the petitioner and Mr.K.K.Sood, Additional Solicitor General for Union of India. We are in agreement with the contention of Mr.K.K.Sood, ASG, that the order of detention passed against the father of the petitioner having attained finality when the same was confirmed by Criminal Writ Petition No.883 of 2012 (O&M) : 11 : the Supreme Court, the same now cannot be challenged by the petitioner by way of this Writ Petition. Secondly, as per Explanation 2 of the Sub section 2 of Section 2 of SAFEMA, the authority is within its right to forfeit the property of the detainee as well as of his ascendant and/or descendants. For the reasons stated above, we find no merit in the petition. Dismissed.” It is accordingly observed that the petition filed by Appellants No.2 (petitioner No.2) answered all the legal issues raised by the petitioners. The learned counsel for the petitioners has not been able to say anything to contradict this observation recorded by the Appellate Tribunal. The obvious answer ofcourse was that petitioners were raising the challenge to the detention order as well and till that challenge would survive, the petitioners can maintain their writ petition to challenge the order passed by the Authority and the Appellate Tribunal. Since the challenge raised by the petitioners to detention order is not being entertained on the grounds as already noticed, no case for interference in the impugned order passed under SAFEMA is made out. The criminal writ petition accordingly is dismissed in limine. May 07, 2012 ( RANJIT SINGH ) ramesh JUDGE "