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PETITIONER: STATE OF GOA & ANR,

       Vs.

RESPONDENT: HIRABHAI SOMABHAI TANDEL, NANI, DAMAN

DATE OF JUDGMENT:       05/11/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 5TH DAY OF NOVEMBER, 1997 Present:                 Hon’ble Mr. Justice G.N.Ray                 Hon’ble Mr. Justice G.B.Pattanaik Ms.A.Subhashini, Adv. for the appellants. S.V.Deshpande, Adv. for the Respondent                          O R D E R      The following Order of the Court delivered:      The validity  of the  order dated  15th November,  1989 passed b the Division Bench of the Bombay High Court (Panaji Bench) Goa  in Criminal  Writ  Petition  No.27/89  is  under challenge in  this appeal.  On 24th  July, 1975  an order of detention under Section 3 (I) of the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities  Act, 1974 was passed  against the step father of the respondent. It is an admitted  position  that  such  respondent  was  kept  on detention for  more than  a year but was released before the expiry of  two years.  On 20th  October, 1979  a notice  was issued to the respondent for forfeiture of the property held by the step father of the respondent under the provisions of the Smugglers  and Foreign Exchange Manipulators (Forfeiture of Property)  Act, 1976.  No challenge was made against such notification  and  on  19th  December,  1985  the  competent authority under  the said  Act (hereinafter  referred to  as SAFEMA) passed order under Section 7 of the SAFEMA directing for forfeiture  of the property of the respondent. No appeal or writ  petition was  filed by  the respondent  challenging such forfeiture.  It may be stated that pursuant to the said order of  forfeiture the  property was  sold in  auction  in August, 1989  to the  Daman  Administration  for  a  sum  of Rs.2,59,256/- and  possession of  the said property had been handed over  the said  Daman Administration.  The respondent filed that  Criminal writ  petition No. 27.89 before the Goa Bench on  17th July, 1989 challenging the order of detention of her  step father.  The High  Court entertained  such writ petition and set aside the order of detention on the finding that the  grounds for  detention had  not been served on the detenue.      Ms. A  Subhashini the learned counsel appearing for the appellant has  submitted that  the said writ petition should

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not have been entertained by the High Court. After the order of forfeiture  had been  passed under SAFEMA validity of the order of  detention was  not be  scruitinised. In support of such contention,  she has referred to the nine judges’ Bench decision of  this Court  made in  Attorney General for India Ors. Vs.  Amratlal Prajivandas  and Ors.  (1994 (5) SCC 54). The ratio  of the decision had been summarised in para 56 of the said decision and it has been clearly indicated that      56.(b): An  order of  detention  to      which Section 12-A is applicable as      well as  an order  of detention  to      which   Section    12-A   was   not      applicable   can   serve   as   the      foundation,  as   the  basis,   for      applying SAFEMA  to such detenu and      to  his  relatives  and  associates      provided such  order  of  detention      does not  attract any  of the  sub-      clauses in  the proviso  to Section      2(2). If such detenu did not choose      to  question   the  said  detention      (either by  himself or  through his      next  friend)   before  the   Court      during the  period when  such order      of detention was in force, -- or is      unsuccessful in his attack thereon-      he, or his relatives and associates      cannot  attack   or  question   its      validity when  it is made the basis      for applying  SAFEMA to  him or  to      his relatives or associates." In view  of such  decision of  this  Court,  the  said  writ petition was  not maintainable. We, therefore, set aside the impugned order by allowing this appeal.