Judgment:
1. This appeal is filed by T. Ugam Bai, widow of the late Tejraj, who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), against the order of the Competent Authority, Madras, dated September 29, 1995, directing the forfeiture of a house property and cash-on-hand, under section 7(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA).
2. The appellant had earlier filed a writ petition in the High Court of Madras in W.P. No. 3259 of 1999 challenging the order of detention dated December 19, 1974. The said writ petition was dismissed by the High Court by an order dated March 1, 1999, observing "moreover, the order passed by the Competent Authority dated September 29, 1995, is only consequential to the Government order dated December 19, 1974.
Learned senior counsel has not even placed any authority to show that the Tribunal has no jurisdiction to deal with the issue. At this stage, this court cannot entertain the writ petition after 24 years.
Therefore, it is for the petitioner to agitate the same in accordance with law before the Tribunal". Based on the said observation, it was contended for the appellant that the correctness or otherwise of the order of detention is not being challenged before us and the question raised is, whether the order of detention stood revoked, within the meaning to the proviso to sub-section (2) of section 2 of the SAFEMA.3. Learned counsel for the appellant, Shri Ramachandran, raised several contentions, the main contention being that the detenu was not a person to whom the provisions of the SAFEMA were applicable under section 2 of the said Act. He submitted that the late Tejraj was detained by virtue of an order of detention dated December 19, 1974, made under section 3 of the COFEPOSA Act and that he died on January 15, 1975, and inasmuch as there was no reference made to the Advisory Board under section 8 of the COFEPOSA Act and no opinion of the Advisory Board was obtained as required by clause (c) of section 8 and there was no consequent confirmation or revocation of the order of detention, the order of detention is deemed to have been revoked. He further submitted that the proviso (i) to sub-section (2) of section 2 of the SAFEMA, came into operation, excluding the application of the provisions of the SAFEMA, as per sub-section (1) of section 2.
4. In support of his contention, learned counsel relied upon a decision in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155. That was a case where no order of confirmation of detention was passed within three months of commencement of detention, as required by sections 5, 8(f) and 10 of the COFEPOSA Act (Act No. 52 of 1974). The Supreme Court held as follows (page 1157) : "Read in the light of article 22(4) of the Constitution and the context of the words 'continue the detention', they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation of the detention order by the appropriate Government. Conversely, the non-confirmation of the initial order by the appropriate Government before the expiry of the period of three months' detention, shall automatically result in'revocation and termination of the legal authority for its continuance." 5. From a reading of the above decision it is clear that unless there is a confirmation of the detention order by the appropriate Government before the expiry of the period of three months of detention, it shall automatically result in revocation and termination of the legal authority for its continuance.
6. The Supreme Court in the aforesaid decision in Nirmal Kumar, approvingly referred to the decision in Ujjal Mondal v. State of West Bengal, AIRDeb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924, Micki Khan v. State of West Bengal, AIR 1972 SC 2262, and Shibapada Mukherjee v. State of West Bengal, AIR 1972 SC 1356, which arose out of orders of detention passed under the West Bengal (Prevention of Violent Activities) Act, 1970.In Ujjal Mondal v. State of West Bengal, AIR 1972 SC 1446, the Supreme Court observed thus (page 1448-49) : "Now the Board has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person concerned ... To put the matter in a nut-shell; the State Government has power under the Act to detain a person without trial beyond a period of three months but limited to a period of one year. That power the State Government may exercise on the receipt of the opinion of the Board that there is sufficient cause for the detention."In Deb Sadhan Ray v. State of West Bengal, AIR 1972 SC 1924, the Supreme Court observed as follows (page 1927) : "It may be pertinent to refer to clause (4) of article 22 of the Constitution under which no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a Board consisting of persons who are or have been or are qualified to be appointed as judges of the High Court, as referred to above, has reported within three months that there is in its opinion sufficient cause for such detention ... In cases where the law provides for a reference to the Board or the receipt of its affirmative opinion the initial detention is only tentative for three months and only when the Board reports that there is sufficient cause for detention that the question of confirmation and extension of the period beyond three months will arise ... The State Government has to take action only after a report is received from the Board expressing its opinion, as to the sufficiency or otherwise of the detention ... It is, therefore, a crucial requirement of the Constitutional provision that the appropriate Government has to take action on the report of the Board, because as we said on that action would depend the revocation of the order and his release or the continuance of the detention beyond three months ... Viewed from any angle it is essential that the appropriate Government should take positive action on the report of the Board which action alone determines whether the detention is to be terminated or continued ... but in any case failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation."In Shibapada Mukherjee v. State of West Bengal, AIR 1972 SC 1356, the Supreme Court held (page 1358) : "If such detention is to continue thereafter, it can be done only where there is the report of the Board certifying the sufficiency of the cause for detention ... If on receipt of the Advisory Board's report, Government wants to continue the detention for a further period, it has got to make an order or a decision to confirm that order and continue the detention, for, without such an order or decision the detention would not validly subsist beyond the period of three months ... As aforesaid, Government cannot keep a person under detention for a day longer than three months if the report of the Board does not justify the detention ... If there is no such decision to confirm the order and to continue the detention thereunder, detention has to come to an end on the expiry of three months from the date of detention." 10. From a conspectus of the decisions of the Supreme Court, it is clear that it is incumbent on the part of the appropriate Government to refer to the Advisory Board for its opinion with regard to the correctness of the order of detention. It is also incumbent on the part of the appropriate Government to release the detenu if in the opinion of the Advisory Board, the detention was not justified. Even if the Advisory Board opines that the detention was incorrect, it is open to the appropriate Government to revoke the detention order and to release the detenu or to confirm the order of detention and to continue the detention for the specified period.
11. The Advisory Board constituted under article 22(4)(a) comprises high dignitaries such as persons who are, or have been, or are qualified to be appointed as judges of the High Court. If in the opinion of the Advisory Board, there was no sufficient cause for such detention, the appropriate Government has to revoke the detention order and release the detenu. Clause (f) of section 8 of the COFEPOSA is very clear on this aspect and reads as follows : "... in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." 12. Even though the detenu died within a short period after being detained, i.e., within four weeks, and there was no need to refer the matter to the Advisory Board for the purpose of either continuing the order of detention or to revoke the same and release the detenu, it became necessary to obtain such an opinion, when follow-up action was proposed to be taken under the provisions of the SAFEMA.13. It is apt to refer to a passage in Maxwell on the Interpretation of Statutes, 12th edition, at page 251, which is as follows : "Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted." 14. This view is based on the decisions in Walsh v. Secretary of State for India [1863] 10 H.L.C. 367, per Lord Westbury L.C.; Hough v. Windus [1884] 12 QBD 224 (CA), per Bowen L.J. and David v. Da Silva [1934] AC 15. The SAFEMA is a statute which encroaches on the rights of citizens, enacted with a view to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators or matters connected therein or incidental thereto. It was enacted for the effective prevention of smuggling activities and foreign exchange manipulations, which are having a deleterious effect on the national economy and it is necessary to deprive persons engaged in such activities and manipulation of their ill-gotten gains.
16. As per clause (b) of section 2(2) of the SAFEMA, every person in respect of whom an order of detention has been made under the COFEPOSA Act is covered by the provisions of the Act. Under the proviso to section 2(2), the provisions of the Act will not be applicable if the detention order has been revoked on the report of the Advisory Board, or revoked before the expiry of the time, or the detention order has been set aside by a court of competent jurisdiction. It is, therefore, clear that it is necessary for the appropriate Government to refer to the Advisory Board for its opinion, with regard to the sufficiency of the cause for the detention of the person concerned. In the absence of such a reference being made to the Advisory Board, the detenu or the legal heirs of the detenu in the event of the death of the detenu, lose a valuable right of having the opinion of the Advisory Board with regard to sufficiency of the cause for detention.
17. This Tribunal has no jurisdiction to go into the question of the validity of an order of detention, nor are we addressing ourselves to the said question. We have to examine whether the order of detention stood revoked within the meaning of clause (i) to the proviso to section 2(2) of the Act in the light of the decision of the Supreme Court in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155.
If we take the view that the order of detention stood automatically revoked, the appellant cannot be considered as a person to whom the provisions of the Act are applicable and no further proceedings of forfeiture of the properties can be taken.
18. In the present case, there was no reference to the Advisory Board, inasmuch as the detenu died within four weeks after his detention. May be that the appropriate Government was justified in not making a reference to the Advisory Board, as the question of continuing or revoking the detention of the detenu did not arise. All the same, it was necessary for the Government to have made a reference to the Board when the provisions of the SAFEMA were sought to be made applicable to the properties of the detenu, as it encroaches on the rights of the subject, which operates the same way as a penal provision. As held in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155, the order of detention automatically stood revoked. We are of the considered view that such automatic revocation of the order of detention is to be construed as an order of revocation, within the meaning of clause (i) to the proviso to section 2(2) of the SAFEMA. As observed by the High Court of Madras in the order dated March 1, 1999, the order of the Competent Authority dated September 29, 1995, is only consequential to the order of detention dated December 19, 1974, and could not have been made when the order of detention stood revoked automatically.
19. In the above mentioned view we have taken, we hold that the order of detention of the detenu stood automatically revoked within the time and the detenu or his legal heir cannot be treated as persons to whom the provisions of the SAFEMA apply and there was no jurisdiction in the Competent Authority to proceed to forfeit the properties. The appeal is accordingly allowed and the order of the Competent Authority, Madras, dated September 29, 1995, is set aside.