petition under Article 32 of the Constitution concerns constitutional validity of Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, ‘COFEPOSA’) to the extent it empowers the competent authority to make an order of detention against any person ‘with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange’.The order of detention in question has not been executed so far in view of the contumacious conduct of the second petitioner. He is alleged to have absconded initially. Then on December 14, 2009 Delhi High Court, by an interim order directed that the detenue shall not be arrested till the next date of hearing, i.e. December 22, 2009. The said interim order was continued until the disposal of writ petition by the High Court and thereafter that interim order was continued by this Court in the special leave petition. In the writ petition also an interim order has been in operation. In view of the order dated July 13, 2010 passed by this Court, the petitioners cannot be permitted to challenge the order of detention until its execution. 67. In view of the above, the leave to make additional prayer for quashing the detention order dated September 23, 2009 by means of criminal miscellaneous application does not deserve to be granted and is rejected. However, it is clarified that after the execution of the detention order, the petitioners shall be at liberty to challenge the detention order in accordance with law. 68. Since we have rejected the criminal miscellaneous application, the argument of the learned counsel for the petitioners that the impugned order of detention was passed way back on September 23, 2009; the impugned order was preventive in nature and the maximum period of detention as per law is one year, which would have lapsed by now and, therefore, no purpose for the execution of the detention order survives is noted to be rejected. The detention order could not be executed because of the contumacious conduct of the second petitioner and, therefore, he cannot take advantage of his own wrong. 69. Writ petition and criminal miscellaneous application, for the reasons indicated above, are liable to be rejected and are rejected.

                                                                  REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                            ORIGINAL  JURISDICTION


                    WRIT PETITION (Crl. ) NO. 65 OF 2010


Dropti Devi & Anr.                                       ….
Petitioners

                                   Versus

Union of India & Ors.
….Respondents











                                  JUDGMENT


R.M. Lodha, J.


            The central issue in this  petition  under  Article  32  of  the
Constitution  concerns  constitutional   validity   of   Section   3(1)   of
Conservation of Foreign Exchange  and  Prevention  of  Smuggling  Activities
Act, 1974 (for short, ‘COFEPOSA’) to the extent  it empowers  the  competent
authority to make an order of detention against any person ‘with a  view  to
preventing him from acting in any manner prejudicial to the conservation  or
augmentation of foreign exchange’.
2.          It is necessary to state few material  facts  which  have  given
rise to this petition. The first petitioner – Dropti   Devi – is the  mother
                                                                 of   second
petitioner – Raj Kumar Aggarwal. In respect of second  petitioner  an  order
of detention has  been   passed  on  September  23,  2009  by  Smt.  Rasheda
Hussain, Joint Secretary to the Government  of  India,  specially  empowered
under Section 3(1) of the COFEPOSA (as amended). The  said  order  reads  as
follows :
                         “No. 673/02/2009-Cus. VIII
                             Government of India
                             Ministry of Finance
                            Department of Revenue
                    Central Economic Intelligence Bureau
                                COFEPOSA Unit

                                  6th Floor, ‘B’ Wing, Janpath Bhawan,
                             Janpath, New Delhi – 110001

                                           Dated 23rd September, 2009

                                    ORDER


             Whereas,  I  Smt.  Rasheda  Hussain,  Joint  Secretary  to  the
      Government of India, specially empowered under  Section  3(1)  of  the
      Conservation of Foreign Exchange  & Prevention of Smuggling Activities
      Act, 1974 (as amended), am satisfied with respect to the person  known
      as Shri Raj Kumar Aggarwal @ Munna, R/o SU-184, G.F.  Near  Park  Citi
      Hostel Pitampura, New Delhi  that with a view to preventing  him  from
      acting in any manner prejudicial to the conservation and  augmentation
      of foreign exchange in future, it is necessary to make  the  following
      order:-

            Now, therefore, in exercise of the powers conferred  by  Section
      3(1) of  the  Conservation  of  Foreign  Exchange  and  Prevention  of
      Smuggling Activities Act, 1974 (as amended), I direct  that  the  said
      Shri Raj Kumar Aggarwal @ Munna , be detained and kept in  custody  in
      the Central Jail, Tihar, New Delhi.

                                             Sd/-
                                        (Rasheda Hussain)
                             Joint Secretary  to  the  Government  of
India”


3.          The above detention order came to be passed in the  backdrop  of
the  following  events.   On  February  17,  2009  the  premises  of  Ambika
Electronics situate at 136, MCD Market, Karol Bagh, New Delhi was raided  by
the Office of the Directorate of Enforcement, New Delhi. In  the  course  of
search,  Indian currency amounting  to  Rs.  8.9  lacs  (approximately)  was
recovered along with some documents. The enforcement authorities  took  into
custody the  passport  of second  petitioner  (hereinafter  referred  to  as
‘detenue’) as well. On that day itself, i.e. February  17,  2009  Office  of
the Directorate of Enforcement also  raided   the  residential  premises  of
detenue’s brother Anil Kumar Aggarwal at Pitam Pura, New Delhi  and  another
commercial premises of Ambika Electronics at  Beadanpura,  Karol  Bagh,  New
Delhi and M/s. Bhagwati Electronics, 135 Municipal Market, Karol  Bagh,  New
Delhi belonging to one  Kapil Jindal were  also  raided.  The  detenue   was
also taken away by the officials of the Directorate of Enforcement to  their
office at Jamnagar House, Akbar Road, New Delhi in the intervening night  of
 February 17, 2009 and February 18, 2009. The detenue was  interrogated  and
his statement was recorded. On February 19, 2009 the detenue retracted  from
 the statement recorded in the previous night. The detenue was  summoned  on
various occasions but he did  not  appear  before  the  authorities  on  the
ground of his illness. On May 15,  2009  the  detenue  appeared  before  the
authorities and his statement was recorded on that day and  subsequently  on
May 18, 2009. May 20, 2009 and May 28, 2009. The evidence  gathered  in  the
course of searches and the follow up action revealed that  the  detenue  was
indulging in hawala activities, the last of such  activity  being  on  April
24, 2009. Hence, the detention order which has been quoted above.
4.           Initially  a  writ  petition  was  filed  before   this   Court
challenging  the  detention  order  but  that  was  withdrawn.   The   first
petitioner then filed a writ petition before Delhi High  Court  being   W.P.
(Crl.) No. 1787 of 2009 challenging the detention order dated September  23,
2009.
5.          The Division Bench of the Delhi High Court on December 14,  2009
by an interim order directed  that the detenue – Raj  Kumar  Aggarwal  shall
not be arrested till the next date of hearing, i.e. December 22, 2009.
6.          On December 22, 2009 the Division Bench allowed the  application
for impleadment of Raj Kumar Aggarwal  as petitioner no. 2, issued rule  and
made interim order dated December 14, 2009 absolute during the  pendency  of
writ petition, subject to his joining the investigation as and when  called.
The court on that day also issued  a direction  to  the  detenue  to  remain
present in the matter  during the course of hearing.
7.          The Division Bench completed the hearing  on  February  4,  2010
and reserved the judgment in the matter. On March  18,  2010,  the  Division
Bench dismissed the writ petition. While dealing with the effect of  Foreign
Exchange Management Act,  1999  (for  short,  ‘FEMA’)  and  the  repeal   of
Foreign Exchange Regulation Act, 1973 (for short,  ‘FERA’)  ,  the  Division
Bench relied  upon a decision of this Court in Union of India   &  Anr.  vs.
Venkateshan S. and another[1]  and observed that  if  the  activity  of  any
person was prejudicial  to  the  conservation  or  augmentation  of  foreign
exchange, the authorities were empowered to make a detention  order  against
such person.

8.          Not satisfied with the judgment of the Delhi High  Court  passed
on March 18, 2010, the petitioners filed a  special  leave  petition  before
this Court and it was mentioned on April 1, 2010.  On that  day,  the  Court
directed for listing the matter on  April  9,  2010  and  in  the  meanwhile
continued the interim order that was passed  by  the  High  Court  operative
during the pendency of the writ petition.
9.          It may  be  noted  here  that  while  the  above  special  leave
petition was pending, the petitioners preferred the present  writ  petition.
On May 11, 2010 the Court ordered the writ petition to be heard  along  with
special leave petition (Crl.) no.  2698  of  2010.  On  May  13,  2010,  the
special leave petition and the present writ petition were listed before  the
Court. On that day in the special leave  petition  following  interim  order
was passed :



      “By order dated  December  22,  2009,  the  High  Court  directed  the
      Petitioner No. 2 i.e. Mr. Raj Kumar Aggarwal to join the investigation
      as and when called. The grievance made by the respondents is that  Mr.
      Raj Kumar Aggarwal has failed to  join  the  investigation,  which  is
      disputed by Mr.  Soli J. Sorabjee,  learned  senior  counsel  for  the
      petitioners. Mr. Sorabjee further states that Mr. Raj  Kumar  Aggarwal
      will present himself on 19th May, 2010 at 11 A.M. in the office of the
      Enforcement Director, Delhi Zonal Office, Jamnagar  House,  New  Delhi
      and shall also remain present before the  said  officer  as  and  when
      called along with the requisite documents. Mr. Raj Kumar  Aggarwal  is
      directed to comply with and act according to the statement made at the
      Bar by his learned counsel.


      Interim orders shall continue subject to the direction given above.


      In view of the order passed above,  learned  senior  counsel  for  the
      petitioners seeks permission to withdraw the application for extension
      of interim order granted by this Court on 1.4.2010. The permission, as
      prayed for, is granted and application is disposed of accordingly.


      On the joint request of the learned counsel of the parties, the matter
      is adjourned to 13th July, 2010.”

10.         In the writ petition, notice was  issued  and  it  was  detagged
from special leave petition (Crl.) No.  2698 of 2010.
11.         On July 13, 2010, the special leave petition  was  dismissed  as
withdrawn. The Court passed the following order :

      “The Special Leave Petition is dismissed as withdrawn.


      The petitioners are  at  liberty  to  avail  such  remedy  as  may  be
      available in law challenging the order of detention and the grounds on
      which detention order has been passed after its  execution.  In  which
      event, the matter shall be considered on its own  merits  uninfluenced
      by the observations made in the impugned order as well as dismissal of
      this petition.  The  High  Court  may  consider  the  request  of  the
      petitioners/detenue for expeditious disposal of the writ  petition  to
      be filed.”






12.         We have heard Mr. Vikram  Chaudhari,  learned  counsel  for  the
petitioners and Mr. P.P. Malhotra, learned Additional Solicitor General  for
the respondents.
13.         The crux of the argument advanced by  Mr.  Vikram  Chaudhari  is
this: Articles 14,  19  and  21  of  the  Constitution  do  not  contemplate
preventive detention for an ‘act’ where no punitive detention   (arrest  and
prosecution) is even contemplated or  provided  under  law.  Such  an  ‘act’
cannot be made the basis for a preventive detention and such an ‘act’  could
 not be termed as prejudicial so as to  invoke   the  power  of   preventive
detention and, therefore, Section 3(1) of   COFEPOSA  to  the  extent  noted
above is unconstitutional.
14.         Elaborating his arguments, Mr. Vikram Chaudhari  submitted  that
there were three other Central Preventive Acts apart from COFEPOSA,  namely,
(a) National Security  Act,  1980,  (b)  Prevention  of  Blackmarketing  and
Maintenance  of  Supplies  of  Essential  Commodities  Act,  1980  and   (c)
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Act,  1974.
In all these three enactments,  there are corresponding penal provisions  in
the form of prosecution. However, in  COFEPOSA viz., the power to  detain  a
person to prevent him from indulging in any prejudicial activities  relating
to conservation or augmentation of foreign exchange is given although  there
is no corresponding penal punitive law available.  He  referred  to  various
provisions of FEMA, particularly, Chapter IV that deals  with  contravention
and penalties; Chapter V that provides for adjudication as  well  as  appeal
against the order  of  adjudicating  authority  vide  Sections  16  and  17;
Chapter VI that provides for establishment of  Directorate  of  Enforcement;
Section 40 that stipulates that the Central Government may in  any  peculiar
circumstances suspend either  indefinitely  or  for  a  limited  period  the
operation of all or any of the provisions  of  FEMA  and  Section  49  which
provides for repeal of FERA and sub-section (3) thereof that envisages  that
no court shall take cognizance of an offence  under  the  repealed  Act  and
submitted that there was  major shift in the  approach  of  the  Legislature
inasmuch as foreign exchange violation  has been made a  civil  compoundable
offence only under FEMA.

15.         It was argued by learned counsel for  the  petitioners   that  a
dichotomy had arisen on repeal of FERA as conviction under FERA would be  no
longer a relevant basis for initiation of proceedings  under  the  Smugglers
and  Foreign  Exchange  Manipulators  (Forfeiture  of  Property)  Act,  1976
(SAFEMA) whereas on the  same  set  of  accusations  detention  order  under
COFEPOSA could be made thereby warranting proceedings under SAFEMA.

16.         Relying on the decisions of this Court in Motor General  Traders
and another v. State of Andhra Pradesh and others[2], John  Vallamattom  and
another v. Union of India[3]  and Satyawati Sharma (Dead) by LRs.  v.  Union
of India and another[4], learned counsel for the petitioners contended  that
impugned portion of Section 3 might not have been  unconstitutional  at  the
initial stage when it was enacted but by reason  of  the  new  legal  regime
articulated in FEMA and replacement of FERA by FEMA, the said provision  has
become unconstitutional in the changed situation.
17.         Learned  counsel  for  the  petitioners  submitted  that  though
Article 31B of the Constitution provided protection to  the  laws  added  to
the Ninth Schedule by amendments  but, as exposited by this Court   in  I.R.
Coelho (Dead) by LRs. v. State of T.N.[5], constitutionality  of  such  laws
can be examined and if in judicial review, it is  found  that  any  of  such
laws   abrogates  or  abridges  rights  guaranteed  by   Part-III   of   the
Constitution, the Court can invalidate such law.   According to  him,  since
the impugned provision violates fundamental rights reflected in  Article  21
read with Articles 14 and  19, despite protection granted to COFEPOSA  being
 part of Ninth Schedule, in the judicial  review  the  Court  has  power  to
declare the said law unconstitutional.

18.         Mr. Vikram Chaudhari contended  that  preventive  detention  was
aimed at preventing a  person  from  committing  prejudicial  act  which  is
necessarily an offence capable  of  inviting  penal  consequences.  If  such
prejudicial act was not prosecutable in law and such act has not  been  made
part  of  criminal  penal  law,  preventive  detention  of  a  person   from
committing the prejudicial act which is not an offence is impermissible.  In
this regard, he sought to draw support  from  decisions  of  this  Court  in
State of Bombay v. Atma Ram Sridhar Vaidya[6]; Bhut Nath Mete v.  The  State
of West Bengal[7]; Haradhan Saha v. The State of West Bengal and  others[8];
Kanchanlal Maneklal Chokshi v. State of Gujarat and others[9]; Smt.  Hemlata
Kantilal Shah v. State of Maharashtra and another[10]; State  of  Punjab  v.
Sukhpal Singh[11] and Rekha v. State of  Tamil  Nadu  Through  Secretary  to
Government and Another[12].
19.         As regards the  decision  of  this  Court  in  Venkateshan  S.1,
learned counsel submitted that in that case the  events  which  led  to  the
detention of the detenue  therein had taken place when  FERA  was  in  place
and FEMA had not come into force and  in  view  of  the  sunset  clause  the
prosecution for violation of FERA could continue for  next  two  years  and,
therefore,  the  said  decision  was  clearly  distinguishable.  He  further
submitted that constitutionality of Conservation of Foreign Exchange  (COFE)
part of COFEPOSA was not in issue. The Court  proceeded  on  the  assumption
that the past act which was made  basis  for  preventive  detention  invited
punishment by way of prosecution and  decided  the  matter  accordingly.  He
thus,  argued  that  Venkateshan  S.1  did  not  come  in  the  way  of  the
petitioners in assailing the constitutional validity of part  of  Section  3
of COFEPOSA.


20.         Learned counsel vehemently contended that  since  FEMA  did  not
regard its violation a criminal offence, the whole idea, spirit, intent  and
object behind the enactment of preventive detention had ceased to exist  and
the continuation of such provision was violative of  Article  21  read  with
Articles 14 and 19 of  the  Constitution.   He,  thus,  submitted  that  the
provision for preventive detention under COFEPOSA was  wholly  unsustainable
and untenable.
21.         Mr. Vikram Chaudhari in his written submissions has  also  dealt
with  legal position with regard to preventive detention  existing  in  USA,
England, Australia and Germany.  He  referred  to  the  excerpts  from  “The
Limits of Preventive Detention” by Rinat Kitai –  Sangero  2009  (Pgs.  904-
932) and  submitted that in USA and  in  England  law  regarding  preventive
detention does not exist except during war time.  He,  however,  did  submit
that in  United  States  v.  Anthony  Salerno  and  Vincent  Cafaro[13]  the
constitutionality of pre-trial detention  on  the  ground  of  dangerousness
under the Bail Reform Act of 1984 was upheld and after Anthony  Salerno  and
Vincent Cafaro 13  preventive detention laws were adopted in number of  U.S.
States but the said procedure has been used sparingly and in U.K. under  the
Prevention of Terrorism (Temporary Provisions) Act, 1984  a  person  may  be
detained upto  7  days.   In  Australia   preventive  detention  orders  and
prohibited conduct orders are two mechanisms available under   criminal  law
for  addressing   terrorism  concerns  and  dangerous  sex  offenders.   The
preventive detention order permits detention of a person for a short  period
of time (upto 48 hours) subject to certain procedural rights. In Germany  in
1998 law for the prevention of sexual offences and other dangerous  criminal
acts has been enacted.
22.         Mr.  P.  P.  Malhotra,   learned  Additional  Solicitor  General
stoutly defended the constitutional validity of the part of Section 3(1)  of
COFEPOSA put in issue in the writ petition. He extensively referred  to  the
provisions of FERA and FEMA and the preamble of COFEPOSA and submitted  that
dealings  in  foreign  exchange  by   a   person   other   than   authorised
persons/dealers have  serious  and  deleterious  consequences.  The  foreign
exchange is the most precious reserve for  national  economy  and  necessary
for the economic security  of  the  State  and  illegal  and/or  unaccounted
transactions through hawala  have  vide  ramifications  and  are  definitely
prejudicial to the conservation and augmentation  of  foreign  exchange  and
since the  need  for  conservation  and  augmentation  of  foreign  exchange
resources of the country continue to exist, preventive mechanism  laid  down
in COFEPOSA warrants its continuance  and there is nothing  unconstitutional
about it.
23.          Learned  Additional  Solicitor  General  submitted   that   the
legislative power of the Parliament to enact criminal  laws  and  preventive
detention laws was traceable from two distinct Entries appearing in  Seventh
Schedule  (List  III)  of  the  Constitution,  i.e.,  Entry  nos.  1  and  3
respectively. Parliament is, thus, fully competent to enact a law of  either
type (criminal or preventive detention) or both  the  types  (criminal  laws
and  preventive  detention)  to  deal  with  any  prejudicial  activity.  He
submitted  that  there  was  no   constitutional   prescription   that   the
Legislature must enact a criminal law as well while making a  detention  law
to curb any prejudicial activity. It is not imperative  that  detention  law
should co-exist with a criminal law or vice versa.

24.         Mr. P.P. Malhotra submitted  that  the  constitutional  validity
of COFEPOSA had already been upheld by a 9-Judge  Bench  of  this  Court  in
Attorney  General  for  India  and  others  v.  Amratlal   Prajivandas   and
others[14].     In  Amratlal  Prajivandas14   this  Court  has   held   that
Parliament was competent to enact COFEPOSA.  Once   constitutional  validity
of COFEPOSA has been upheld by  a  9-Judge  Bench  of  this  Court,  learned
Additional Solicitor General  submitted that  constitutionality  of  Section
3 was not open to challenge again. He submitted that in I.R. Coelho5   a  9-
Judge Bench of this Court had observed that  if  the  validity  of  a  Ninth
Schedule law had already been upheld by this Court, it would not be open  to
challenge such law again on the principles laid  down  in  the  case  (i.e.,
I.R. Coelho5 ).  However, if a law held to be violative  of  any  rights  in
Part-III was subsequently incorporated in the  Ninth  Schedule  after  April
24, 1973, such a violation/infraction would be  open  to  challenge  on  the
ground that it was destructive of the basic structure of  the  Constitution.
The present case is not covered by the exception carved out in I.R.  Coelho5
and moreover, the petitioners have miserably failed to make out  a  case  as
to how COFEPOSA  or   impugned  provision  was  destructive  of   the  basic
structure of the Constitution.
25.         In support of  his  submissions,  learned  Additional  Solicitor
General  heavily  relied  upon  the  observations  made  by  this  Court  in
Venkateshan S.1.
26.         Mr. P.P. Malhotra submitted that  the  objects  and  reasons  of
COFEPOSA clearly showed  that the purpose of the enactment  was  to  prevent
violation of foreign exchange regulation   and  smuggling  activities  which
have increasingly deleterious serious effect on the security of  the  State.
 Section 3 of COFEPOSA has not  been  amended  or  repealed  by  Parliament.
Section 3(1) of COFEPOSA that authorises detention with a  view  to  prevent
activities prejudicial  to  the  conservation  or  augmentation  of  foreign
exchange is valid from constitutional angle.
27.         On 26th day of November,  1949,  People  of  India  resolved  to
constitute India into Sovereign Democratic Republic and in  the  Constituent
Assembly adopted, enacted and gave to themselves  an  instrument  of  social
contract – the Constitution of India – which became effective  from  January
26, 1950. The  Constitution  of  India  is  fountainhead  of  all  laws  and
provides the machinery by which laws are made.  Any statutory law, in  order
to be valid, must be in conformity  with  the  constitutional  requirements.
There cannot be any departure or deviation from  this  principle.   For  the
purposes of the present matter,  it  is  not  necessary  to  deal  with  the
diverse features of  the  Constitution  elaborately,  suffice,  however,  to
state that Part III  that  provides  for  fundamental  rights  is  the  most
important chapter insofar as individuals and citizens are concerned.
28.         Article 12 for the purposes of Part III defines ‘the State’.
29.         Article 13(2) mandates that the State shall  not  make  any  law
which takes away or abridges the rights conferred by Part III  and  any  law
made in contravention of this provision shall be void to the extent  of  the
contravention.
30.         Article 14 states that the State shall not deny  to  any  person
equality before the law or the equal  protection  of  the  laws  within  the
territory of India.
31.         Article 19 protects certain rights of the citizens. It  provides
that all citizens shall have the right  –  (a)  to  freedom  of  speech  and
expression; (b)  to  assemble  peaceably  and  without  arms;  (c)  to  form
associations or  unions  or  co-operative  societies;  (d)  to  move  freely
throughout the territory of India; (e) to reside and settle in any  part  of
the territory of India and (g) to practice any profession  or  to  carry  on
any occupation, trade or business. The above clauses  (a),  (b),  (c),  (d),
(e) and (g) are,  however,  subject  to  restrictions  set  out  in  Article
19(2)(3)(4)(5) and (6) respectively.
32.         Article 21, which is the most sacrosanct  and  precious  of  all
other Articles insofar as an individual is concerned, guarantees  protection
of life and personal liberty. It mandates that no person shall  be  deprived
of his life or personal liberty, except according to  procedure  established
by law.
33.   Article 31B saves challenge to the Acts and Regulations  specified  in
the Ninth Schedule on the ground  of  inconsistency  with,  taking  away  or
abridging any  fundamental  right.  It  was  brought  into  statute  by  the
Constitution (First Amendment) Act, 1951.  It  reads as follows:
      “31B. Validation of certain Acts and Regulations.—Without prejudice to
      the generality of the provisions contained in article 31A, none of the
      Acts and Regulations specified in the Ninth Schedule nor  any  of  the
      provisions thereof shall be deemed to be void, or ever to have  become
      void, on  the  ground  that  such  Act,  Regulation  or  provision  is
      inconsistent with,  or  takes  way  or  abridges  any  of  the  rights
      conferred by, any provisions of this  Part,  and  notwithstanding  any
      judgment, decree or order of any court of tribunal  to  the  contrary,
      each of the said Acts and Regulations shall, subject to the  power  of
      any competent Legislature to repeal or amend it, continue in force.”


34.         COFEPOSA is specified in the Ninth Schedule  at  Item  No.  104.
The amendment in COFEPOSA therein by Central Act 20 of 1976 is specified  at
Item No. 129  in  the Ninth Schedule.
35.         Article 22 is in  two  parts.  First  part  that   comprises  of
clauses 1 and 2 is applicable to those persons arrested or detained under  a
law otherwise  than  a  preventive  detention  law.  The  second  part  that
comprises of clauses 4 to 7 applies to persons arrested  or  detained  under
the preventive detention law.
36.         In the backdrop  of  the  above  constitutional  provisions  and
scheme, the issue with regard to constitutional validity of Section 3(1)  of
COFEPOSA to the extent  it empowers  the  competent  authority  to  make  an
order of detention against any person with a view  to  preventing  him  from
acting in any manner prejudicial to the  conservation  and  augmentation  of
foreign exchange has fallen for consideration.
37.         There appears to be consistent  line  of  cases  of  this  Court
beginning from  1950  itself   which  says  that  preventive  detention  can
constitutionally operate.    In A.K. Gopalan v.  The  State  of  Madras[15],
which was decided by this Court within few months of coming  into  force  of
our Constitution,  the Court upheld the constitutional validity  of  Section
3(1) of the Preventive Detention Act, 1950  on the  touchstone  of  Articles
13, 14, 19, 21 and 22 of the Constitution.

38.         In Atma Ram Sridhar Vaidya6 , Chief Justice Hari Lal Kania  said
that preventive detention was not by itself considered  an  infringement  of
any of the fundamental rights mentioned in Part  III  of  the  Constitution.
He, however, clarified that this was, of course, subject to the  limitations
prescribed in  clause  (5)  of  Article  22.  Echoing  the  same  sentiment,
Patanjali  Sastri,  J.  stated,  “the  Constitution  itself  has  authorised
preventive detention and denied to the subject the right of trial  before  a
court of law and of consulting or being  defended by  a  legal  practitioner
of his choice, providing  only  certain  procedural  safeguards,  the  Court
could do no more than construe the  words  used  in  that  behalf  in  their
natural sense consistently with  the  nature,  purpose  and  scheme  of  the
measure thus authorised, to ascertain what powers  are  still  left  to  the
court in the matter”.
39.         A Constitution Bench of  this  Court  in  Haradhan  Saha8    was
concerned with constitutional validity of Maintenance of  Internal  Security
Act, 1971 (for short, ‘MISA’) which enabled  the  State  and  its  delegated
authority to order preventive detention of a person. The  Court  articulated
the concept of preventive  detention  in  contra-  distinction  to  punitive
action in the following words :
      “19. The  essential  concept  of  preventive  detention  is  that  the
      detention of a person is not to punish him for something he  has  done
      but to prevent him from doing  it.  The  basis  of  detention  is  the
      satisfaction of the Executive  of  a  reasonable  probability  of  the
      likelihood of the detenu acting in a manner similar to his  past  acts
      and preventing him by  detention  from  doing  the  same.  A  criminal
      conviction on the other hand is for an act already done which can only
      be possible by a trial  and  legal  evidence.  There  is  no  parallel
      between prosecution in a court of law and a detention order under  the
      Act. One is a punitive action and the other is a  preventive  act.  In
      one case a person is punished to  prove  his guilt and the standard is
      proof beyond reasonable doubt whereas in preventive detention a man is
      prevented from doing something  which  it  is  necessary  for  reasons
      mentioned in Section 3 of the Act to prevent.”




With regard to the rights guaranteed to a detenue under Article  22(5),  the
Court said, “Article 22(5) shows that law as to detention is necessary.  The
requirements of that law are to be found in Article  22.  Article  22  gives
the mandate as to what will happen in such circumstances”.
39.1.       The Court in para 32 (pg. 208 of the Report)   drew  distinction
between the power of preventive detention and punitive detention thus :



      “32. The power of preventive detention is qualitatively different from
      punitive  detention.  The  power  of   preventive   detention   is   a
      precautionary power exercised in reasonable anticipation.  It  may  or
      may not relate to an offence. It is not a parallel proceeding. It does
      not overlap with prosecution even if it relies on  certain  facts  for
      which prosecution may be launched or may have been launched. An  order
      of preventive detention may be made before or during  prosecution.  An
      order of preventive detention may be made with or without  prosecution
      and in anticipation or after discharge or even acquittal. The pendency
      of prosecution is no bar to an order of preventive detention. An order
      of preventive detention is also not a bar to prosecution.”


40.         In Khudiram Das v. The State of West Bengal  and  others[16],  a
four-Judge Bench of this Court held that  although  a  preventive  detention
law may  pass the test of Article 22 yet it has to satisfy the  requirements
of other fundamental rights such as Articles 14 and 19.
40.1.       While dealing with the  constitutional  validity  of  MISA,  the
four-Judge Bench in Khudiram Das16  stated in para 12  (pgs.  93-95  of  the
Report) as follows :
      “12. The next question which then arises for consideration is  whether
      Section 3 of the Act insofar as it empowers the detaining authority to
      exercise the power  of  detention  on  the  basis  of  its  subjective
      satisfaction imposes  unreasonable  restrictions  on  the  fundamental
      rights of the petitioner under clauses (a) to (d) and (g)  of  Article
      19, and is, therefore, ultra vires and void. The  view  taken  by  the
      majority in A.K. Gopalan v. State of Madras, (1950) SCR 88,  was  that
      Article  22  is  a  self-contained  code,  and  therefore,  a  law  of
      preventive detention does not have  to  satisfy  the  requirements  of
      Articles 14, 19 and 21. This view came to be considered by this  Court
      in  three  subsequent  decisions  to  all  of  which  one  of  us  (P.
      Jaganmohan, Reddy, J.) was a party. In Rustom Cavasjee Cooper v. Union
      of India ((1970) 3 SCR 530) it was held by a majority of Judges,  only
      Ray, J., as he then was, dissenting, that though a law  of  preventive
      detention may pass the test of Article 22, it has yet to  satisfy  the
      requirements of other fundamental rights such as Article 19. The ratio
      of the majority judgment in R.C. Cooper’s case was explained in  clear
      and categorical terms by Shelat,  J.,  speaking  on  behalf  of  seven
      Judges in Shambhu Nath Sarkar v. State of West Bengal (1973) 1 SCC 856
      . The learned Judge said : [SCC p. 879 : SCC (Cri) p. 641, para 39)


          “In Gopalan case  the majority court had held that Article 22 was
          a self-contained code and therefore a law of preventive detention
          did not have to satisfy the requirements of Articles 19,  14  and
          21. The view of Fazl  Ali,  J.,  on  the  other  hand,  was  that
          preventive detention was a  direct  breach  of  the  right  under
          Article  19(a)(d)  and  that  a  law  providing  for   preventive
          detention had to  be  subject  to  such  judicial  review  as  is
          obtainable under clause (5) of that Article. In  R.C.  Cooper  v.
          Union of India the aforesaid premise of the majority in Gopalan’s
          case was disapproved and therefore it no longer holds the  field.
          Though Cooper’s case dealt with the inter-relationship of Article
          19  and  Article  31,  the  basic  approach  to  construing   the
          fundamental rights guaranteed in the different provisions of  the
          Constitution adopted in this case held the major premise  of  the
          majority in Gopalan’s case to be incorrect.”


      Subsequently in Haradhan Saha v. State of West Bengal,  (1975)  3  SCC
      198,  a Bench of five Judges, after referring to the decisions in A.K.
      Gopalan’s case and R.C. Cooper’s case and pointing out the context  in
      which R.C.  Cooper’s  case  held  that  the  acquisition  of  property
      directly impinged the right of the bank to carry  on  business,  other
      than banking, guaranteed under Article 19 and Article 31(2) was not  a
      protection  against  the  infringement  of  that   guaranteed   right,
      proceeded on the assumption that  the  Act  which  is  for  preventive
      detention has to be  tested  in  regard  to  its  reasonableness  with
      reference to Article 19. That decision accepted and applied the  ratio
      in Shambhu Nath Sarkar’s case as well as R.C. Cooper case to  both  of
      which Ray, C.J., was a party. This question,  thus,  stands  concluded
      and a final seal is put on this  controversy  and  in  view  of  these
      decisions, it is not open to any one now to  contend  that  a  law  of
      preventive detention, which falls within Article 22, does not have  to
      meet the requirement of Article 14 or Article 19. Indeed, in  Haradhan
      Saha’s case this Court proceeded to consider the challenge of  Article
      19 to the validity of the Act and held that the Act  did  not  violate
      any of the constitutional guarantees embodied in Article  19  and  was
      valid. Since this Court negatived the challenge to the validity of the
      Act on the ground of infraction of Article 19 and upheld it as a valid
      piece of legislation in Haradhan Saha’s case, the petitioner cannot be
      permitted to reagitate the same question merely  on  the  ground  that
      some argument directed against the constitutional validity of the  Act
      under Article 19 was not advanced or considered by the Court  in  that
      case. The decision in Haradhan Saha’s case must be regarded as  having
      finally laid at rest any question as to the constitutional validity of
      the Act on the ground of challenge under Article 19.”


41.         In Smt. Hemlata Kantilal Shah10  while  dealing  with  detention
of the petitioner’s husband under Section 3(1) of COFEPOSA and  the  diverse
submissions  made  on  behalf  of  the  petitioner,  the  Court  held   that
prosecution or the absence of it was not an absolute  bar  to  an  order  of
preventive detention. It was further held:  “but,  if  there  be  a  law  of
preventive  detention  empowering  the  authority  to  detain  a  particular
offender in order to disable him to repeat his offences, it can do  so,  but
it will be obligatory on the part of the  detaining  authority  to  formally
comply with the provisions of Article 22(5) of the Constitution”.
42.         The necessity of preventive detention was succinctly   explained
by a two-Judge Bench of this Court in Sukhpal Singh11.  In  that  case,  the
Court was concerned  with  detention  of  the  respondent’s  father    under
Section 3(2) of the National Security Act, 1980 read  with  Section  14A  as
inserted by National Security (Amendment) Act, 1987. In paragraphs 8  and  9
(pgs. 42 - 44 of the Report)  this Court held :

      “8.……….A  clear  distinction  has  to  be  drawn  between   preventive
      detention in which anticipatory and precautionary action is  taken  to
      prevent the recurrence of apprehended events, and  punitive  detention
      under which the action is taken after the event has already  happened.
      It is true that the ordinary criminal process of trial is  not  to  be
      circumvented and short-circuited by apparently handy and easier resort
      to preventive detention……


      …….To apply what was said in Rex v. Halliday, ex parte Zadig (1917  AC
      260), one of the most obvious  means  of  taking  precautions  against
      dangers such as are enumerated is to impose some  restriction  on  the
      freedom of movement of persons whom there may be any reason to suspect
      of being disposed to commit what is enumerated in  Section  3  of  the
      Act. No crime is charged. The question is whether a particular  person
      is disposed to commit the prejudicial acts. The duty of deciding  this
      question is thrown upon the State. The justification is  suspicion  or
      reasonable probability and not  criminal  charge  which  can  only  be
      warranted by legal evidence. It is true that in a case  in  which  the
      liberty of such person  is  concerned  we  cannot  go  beyond  natural
      construction of the statute. It is the duty of this Court to see  that
      a law depriving the person  of  his  liberty  without  the  safeguards
      available even to a person charged with  crime  is  strictly  complied
      with. We have, however, to remember that individual liberty is allowed
      to be curtailed by an anticipatory action only in interest of what  is
      enumerated in the statute.”


      9. ….. As we have already seen the power of  preventive  detention  is
      qualitatively  different  from  punitive  detention.  The   power   of
      preventive detention is precautionary power  exercised  reasonably  in
      anticipation and may or may not relate to an  offence.  It  cannot  be
      considered to be a parallel proceeding. The anticipated behaviour of a
      person  based  on  his  past  conduct  in  the  light  of  surrounding
      circumstances may provide sufficient ground for detention….”.



43.         A three-Judge Bench of this Court  in  Additional  Secretary  to
the  Government  of  India  and  others  v.  Smt.  Alka  Subhash  Gadia  and
another[17], was concerned with a criminal appeal  preferred  by  Government
of India and its authorities against the judgment of the Bombay  High  Court
which quashed the detention order of the husband  of  the  first  respondent
issued under Section 3(1) of  COFEPOSA.   The  Court  framed  the  principle
question of law: ‘whether the detenue or anyone  on his behalf  is  entitled
to  challenge  the  detention  order  without  the  detenue  submitting   or
surrendering to it’.  It was held that the provisions of Articles 21 and  22
read together make it clear that a person can be deprived  of  his  life  or
personal liberty according to procedure established by law, and if  the  law
made for the purpose is valid, the person who is deprived  of  his  life  or
liberty has to challenge his arrest  or  detention,  as  the  case  may  be,
according to the  provisions of the  law  under  which  he  is  arrested  or
detained.  The Court further observed: “what is necessary  to  remember  for
our purpose is  that the Constitution permits both punitive  and  preventive
detention provided it is according to procedure established by law made  for
the purpose and if both the law and the  procedure  laid  down  by  it,  are
valid”.
44.         A nine-Judge Bench of this  Court  in   Amratlal   Prajivandas14
was directly concerned with constitutional validity  of  COFEPOSA.   One  of
the issues before the Court was whether  Parliament  was  not  competent  to
enact that Act. We shall refer to this judgment a little later  as  it   has
substantial  bearing   on  the  matter  under  consideration   and  requires
detailed reference.
45.         In Sunil Fulchand Shah v. Union of  India  and  others[18],  the
view of this Court on the  question  of  law  under  consideration  was  not
unanimous.  Chief Justice  Dr.  A.S.  Anand  speaking  for  majority  noted:
“personal liberty is one  of  the  most  cherished  freedoms,  perhaps  more
important than the other freedoms guaranteed  under  the  Constitution.   It
was for this reason that the Founding  Fathers  enacted  the  safeguards  in
Article 22 in the Constitution so as to limit the  power  of  the  State  to
detain a person without trial, which may otherwise pass the test of  Article
21, by humanizing  the  harsh  authority  over  individual  liberty.  Since,
preventive detention is a form of precautionary State  action,  intended  to
prevent a person from indulging in a conduct, injurious to  the  society  or
the security of the State or public order, it  has  been  recognised  as  “a
necessary evil” and is tolerated in a free society in  the  larger  interest
of security of the State and  maintenance  of  public  order.  However,  the
power being drastic, the restrictions placed on  a  person  to  preventively
detain must, consistently with the effectiveness of detention,  be  minimal.
In a democracy governed by the rule of law, the drastic power  to  detain  a
person without trial for security of the State and/or maintenance of  public
order, must be strictly construed.  This  Court,  as  the  guardian  of  the
Constitution, though not the  only  guardian,  has  zealously  attempted  to
preserve and protect the liberty of a  citizen.  However,  where  individual
liberty comes into conflict with an interest of the security  of  the  State
or public order, then the liberty of the individual must  give  way  to  the
larger interest of the nation”.
45.1.       In the minority opinion, G.T.  Nanavati,  J.  although  differed
with the view of majority on the question of law but  he  also  noted:  “the
distinction between preventive detention  and  punitive  detention  has  now
been well recognised. Preventive detention is qualitatively  different  from
punitive detention/sentence. A person is preventively   detained  without  a
trial but punitive detention is after a regular trial and when he  is  found
guilty of having committed an offence. The basis of preventive detention  is
suspicion and its justification is necessity. The basis  of  a  sentence  is
the  verdict  of  the  court  after  a  regular  trial.  When  a  person  is
preventively detained his detention can be justified only so long as  it  is
found necessary”.

46.          In the case of Venkateshan S.1 ,  a  two-Judge  Bench  of  this
Court was concerned with the judgment and order of the Karnataka High  Court
whereby it quashed and set aside the detention order  passed  by  the  Joint
Secretary, Ministry of Finance, Department of Revenue, Government  of  India
under Section 3(1) of COFEPOSA on the ground that  what  was  considered  to
be a criminal violation of  FERA has ceased to be so on the repeal  of  FERA
which is replaced by FEMA.   The Court  considered  the  two  situations  of
preventive detention contemplated by COFEPOSA, the objectives  of  FEMA  and
the repeal of FERA and  discussed the matter thus:


      “8. Hence, the limited question  would  be  —  whether  a  person  who
      violates the provisions of FEMA to a  large  extent  can  be  detained
      under the preventive detention  Act,  namely,  the  COFEPOSA  Act.  As
      stated above,  the  object  of  FEMA  is  also  promotion  of  orderly
      development and maintenance  of  foreign  exchange  market  in  India.
      Dealing in foreign exchange is regulated by the Act. For violation  of
      foreign exchange regulations, penalty can be levied and such  activity
      is certainly an illegal activity, which is prejudicial to conservation
      or augmentation of foreign exchange. From the objects and  reasons  of
      the COFEPOSA Act, it is apparent that the purpose of  the  Act  is  to
      prevent  violation  of  foreign  exchange  regulations  or   smuggling
      activities which are having increasingly  deleterious  effect  on  the
      national economy and thereby serious effect on  the  security  of  the
      State. Section 3  of  the  COFEPOSA  Act,  which  is  not  amended  or
      repealed, empowers the authority to exercise its  power  of  detention
      with a view to preventing any person inter alia  from  acting  in  any
      manner prejudicial to the  conservation  or  augmentation  of  foreign
      exchange. If  the  activity  of  any  person  is  prejudicial  to  the
      conservation or augmentation of foreign  exchange,  the  authority  is
      empowered to make a detention order against such person  and  the  Act
      does not contemplate that such activity should be an offence.


      9. The COFEPOSA Act contemplates two situations for exercise of  power
      of preventive detention — (a) to prevent violation of foreign exchange
      regulations; and (b) to prevent smuggling  activities.  Under  Section
      2(e) of the COFEPOSA Act, “smuggling” is to be understood  as  defined
      under clause (39) of Section 2 of the Customs Act, 1962 which provides
      that “smuggling” in relation to any act or omission will  render  such
      goods liable to confiscation under Section 111 or Section 113. Section
      111 contemplates confiscation of improperly imported goods and Section
      113 contemplates confiscation of  goods  attempted  to  be  improperly
      exported. This has nothing  to  do  with  the  penal  provisions  i.e.
      Sections 135 and 135-A of the Customs Act which provide for punishment
      of an offence relating to smuggling activities. Hence, to contend that
      for exercising power under the COFEPOSA Act for detaining a person, he
      must be involved in criminal offence is not  borne  out  by  the  said
      provisions.

     10. The other important aspect is that the COFEPOSA Act and FEMA occupy
     different fields. The COFEPOSA Act deals with preventive detention  for
     violation of foreign exchange regulations and FEMA  is  for  regulation
     and management  of  foreign  exchange  through  authorised  person  and
     provides for penalty for contravention  of  the  said  provisions.  The
     object as  stated  above  is  for  promoting  orderly  development  and
     maintenance of foreign exchange market in India.  Preventive  detention
     law is for effectively keeping out of circulation the detenu  during  a
     prescribed period by means of preventive detention (Poonam Lata v. M.L.
     Wadhawan, (1987) 3 SCC 347).  The  power  of  detention  is  clearly  a
     preventive measure. It does not partake in any manner of the nature  of
     punishment. It is taken by way of precaution to prevent mischief to the
     community (Khudiram Das v.  State  of  W.B.,  (1975)  2  SCC  81).  The
     Constitution Bench while dealing with the  constitutional  validity  of
     the Maintenance of Internal Security Act, 1971 (MISA), in Haradhan Saha
     v. State of W.B., (1975) 3 SCC 198,  held: (SCC pp. 208-09,  paras  32-
     33)


        “32. The power of preventive detention is  qualitatively  different
        from punitive detention. The power of  preventive  detention  is  a
        precautionary power exercised in reasonable anticipation. It may or
        may not relate to an offence. It is not a parallel  proceeding.  It
        does not overlap with prosecution even  if  it  relies  on  certain
        facts for which prosecution  may  be  launched  or  may  have  been
        launched. An order of preventive detention may be  made  before  or
        during prosecution. An order of preventive detention  may  be  made
        with or without prosecution and in anticipation or after  discharge
        or even acquittal. The pendency of prosecution  is  no  bar  to  an
        order of preventive detention. An order of preventive detention  is
        also not a bar to prosecution.


        33. Article 14 is inapplicable  because  preventive  detention  and
        prosecution are not synonymous. The  purposes  are  different.  The
        authorities are different. The nature of proceedings is  different.
        In a prosecution an accused is sought to be  punished  for  a  past
        act. In preventive detention, the past act is merely  the  material
        for inference about the future course of probable  conduct  on  the
        part of the detenu.”



In light of the above reasoning, the Court while setting aside the order  of
the High Court held, “in our  view  the  order  passed  by  the  High  Court
holding that what was considered to be the criminal violation  of  FERA  has
ceased to be criminal offence under FEMA,  the  detention  order  cannot  be
continued after 1-6-2000, cannot be justified”.

47.         The Constitution  recognizes  preventive  detention   though  it
takes  away  the  liberty  of  a  person  without  any  enquiry  or   trial.
Preventive  detention  results  in  negation  of  personal  liberty  of   an
individual; it deprives an individual freedom and is not seen as  compatible
with rule of law, yet the framers of the Constitution  placed  the  same  in
Part III of the  Constitution.  While  giving  to  an  individual  the  most
valuable right – personal liberty – and also providing  for  its  safeguard,
the Constitution has perceived preventive detention as a potential  solution
to prevent the danger to the state security.   The  security  of  the  State
being  the  legitimate  goal,  this  Court  has  upheld  the  power  of  the
Parliament and State Legislatures to enact  laws  of  preventive  detention.
The Court has time and again given the  expression  ‘personal  liberty’  its
full significance and  asserted  how  valuable,  cherished,  sacrosanct  and
important the right of liberty given to an individual  in  the  Constitution
was and yet legislative power to enact preventive detention  laws  has  been
upheld in the larger interest of state security.
48.         The power of  Parliament to enact a law of preventive  detention
for reasons connected with (a) defence, (b) foreign  affairs,  (c)  security
of India; (d) security of State, (e) maintenance of public order or (f)  the
maintenance of supplies and services essential to the community, is  clearly
traceable to Article 22, Article 246 and Schedule Seven, List I Entry 9  and
List III Entry 3.   With  specific  reference  to  COFEPOSA,   a  nine-Judge
Bench  of  this  Court  in   Amratlal   Prajivandas14   has  held  that  the
enactment was  relatable to Entry 3 of List III inasmuch as it provides  for
preventive detention for reasons connected with the security  of  the  State
as well as the  maintenance  of  supplies  and  services  essential  to  the
community besides Entry 9 of List I.   In the words of this Court  (para  23
pg. 73 of the Report):




      “…COFEPOSA is clearly relatable to Entry 3 of List III inasmuch as  it
      provides for preventive  detention  for  reasons  connected  with  the
      security of the State as well  as  the  maintenance  of  supplies  and
      services essential to the community besides Entry 9 of List I…….”




49.         In Amratlal  Prajivandas14  constitutionality  of  COFEPOSA  was
directly in issue. The Court made the following  weighty  prefatory  remarks
in paragraph 1 (pg.  62  of  the  Report)  highlighting  the  importance  of
regulation and control of foreign exchange:

      “Till the wind of liberalisation started  blowing  across  the  Indian
      economic landscape over the last year or two, the Indian economy was a
      sheltered one. At the time of Independence,  India  did  not  have  an
      industrial base worth the name. A firm industrial base had to be laid.
      Heavy  industry  was  the  crying  need.  All  this  required  foreign
      exchange. The sterling balances built up during World War II were fast
      dissipating.  Foreign  exchange  had  to  be  conserved,  which  meant
      prohibition  of  import  of  several  unessential  items   and   close
      regulation of other imports. It was  also  found  necessary  to  raise
      protective walls to nurture  and  encourage  the  nascent  industries.
      These controls had, however, an unfortunate fall-out. They  gave  rise
      to a class of smugglers and foreign exchange manipulators who were out
      to frustrate the regulations and restrictions  —  profit  being  their
      sole motive, and success in life the sole earthly judge of  right  and
      wrong. As early as 1947, the Central Legislature found it necessary to
      enact the Foreign  Exchange  Regulation  Act,  1947  and  Imports  and
      Exports (Control) Act, 1947. Then came  the  Import  (Control)  Order,
      1955 to place the policy regarding imports on a surer footing. In  the
      year 1962, a new Customs Act replaced the antiquated Sea Customs  Act,
      1878.  The  menace  of  smuggling  and  foreign  exchange  violations,
      however, continued to rise unabated. Parliament then came forward with
      the Conservation of  Foreign  Exchange  and  Prevention  of  Smuggling
      Activities Act, 1974 (COFEPOSA). It provided for preventive  detention
      of these antisocial elements”.









The Court in paragraphs 3 to 7 referred to COFEPOSA, SAFEMA and  FERA,   the
amendments carried out in these Acts,   and  the  constitutional  protection
given to COFEPOSA and SAFEMA.   The preamble and the provisions of  COFEPOSA
were noted in paragraphs 9 to 14. The provisions of  SAFEMA  were  noted  in
paragraphs 15 to 19.  In paragraph 20 (pg. 71 of the  Report)  ,  the  Court
made following  clarificatory observations:
      “……Though a challenge to the constitutional validity of 39th, 40th and
      42nd Amendments to the Constitution was levelled in the writ petitions
      on the ground that the said Amendments — effected after  the  decision
      in Kesavananda Bharati v. State  of  Kerala,  (1973)  4  SCC  225)   —
      infringe the basic structure of the Constitution, no  serious  attempt
      was made during the course of arguments to  substantiate  it.  It  was
      generally argued that Article 14 is one of the basic features  of  the
      Constitution and  hence  any  constitutional  amendment  violative  of
      Article  14  is  equally  violative  of  the  basic  structure.   This
      simplistic argument overlooks the raison d'etre of Article 31-B  —  at
      any rate, its continuance and relevance after Bharati  —  and  of  the
      39th and 40th Amendments placing the  said  enactments  in  the  Ninth
      Schedule. Acceptance of the petitioners' argument would mean  that  in
      case of post-Bharati constitutional amendments  placing  Acts  in  the
      Ninth Schedule, the protection of Article 31-B would not be  available
      against Article 14. Indeed, it was suggested that Articles 21  and  19
      also represent the basic features of the Constitution. If so, it would
      mean a further enervation of Article 31-B. Be that as it may,  in  the
      absence of any effort to substantiate the said challenge,  we  do  not
      wish to express any opinion on the constitutional validity of the said
      Amendments. We take them as they are, i.e., we assume them to be  good
      and valid. We must also say that no effort has also been made  by  the
      counsel to establish in what manner the said  Amendment  Acts  violate
      Article 14.”



Then, in paragraph 21, the Court observed that COFEPOSA was a  law  relating
to preventive detention and it has, therefore, to conform to the  provisions
in  clauses  (4)  to  (7)  of  Article  22.  The  Court   quoted   following
observations in R.K. Garg v. Union of India & Ors.[19]:





      “The court must always  remember  that  ‘legislation  is  directed  to
      practical problems, that the economic mechanism  is  highly  sensitive
      and complex, that many problems are singular and contingent, that laws
      are not abstract propositions and do not relate to abstract units  and
      are not to be measured by abstract symmetry’; ‘that exact  wisdom  and
      nice adaptation of remedy are not always possible’ and that  ‘judgment
      is largely a prophecy based on meagre and  uninterpreted  experience’.
      Every legislation particularly  in  economic  matters  is  essentially
      empiric and it is based on experimentation or what one may call  trial
      and error method and therefore it  cannot  provide  for  all  possible
      situations or anticipate all possible abuses. There may  be  crudities
      and inequities in complicated experimental economic legislation but on
      that account alone it cannot be struck down  as  invalid.  The  courts
      cannot, as pointed out by the United States Supreme Court in Secretary
      of Agriculture v.  Central  Roig  Refining  Co.,  94  L.Ed.  381,   be
      converted  into  tribunals  for  relief  from   such   crudities   and
      inequities. There may even be possibilities of  abuse,  but  that  too
      cannot of itself be a ground for invalidating the legislation, because
      it is not possible for any legislature to anticipate  as  if  by  some
      divine prescience, distortions and abuses of its legislation which may
      be made by those subject to its provisions and to provide against such
      distortions and abuses.  Indeed,  howsoever  great  may  be  the  care
      bestowed on its framing, it is difficult to conceive of a  legislation
      which is not capable of being abused by perverted human ingenuity. The
      Court must therefore adjudge the constitutionality of such legislation
      by the generality of its  provisions  and  not  by  its  crudities  or
      inequities or by the possibilities of abuse of any of its  provisions.
      If any crudities, inequities or possibilities of abuse come to  light,
      the legislature can always  step  in  and  enact  suitable  amendatory
      legislation. That is the essence  of  pragmatic  approach  which  must
      guide and inspire the legislature in  dealing  with  complex  economic
      issues.”
                                             (emphasis added)

In  the  above  backdrop,  the  Court  considered  the   question,   whether
Parliament was not competent to enact COFEPOSA and SAFEMA  in  paragraph  23
(pgs. 73-74 of the Report) as follows:





      “23. It is argued for the petitioners that COFEPOSA is  not  relatable
      to Entry 9 of List I of  the  Seventh  Schedule  to  the  Constitution
      inasmuch as the preventive detention  provided  therefor  is  not  for
      reasons connected with defence, foreign affairs or security of  India.
      Even Entry 3 of List III, it is submitted, does not warrant  the  said
      enactment. So far as SAFEMA is concerned, it  is  argued,  it  is  not
      relatable to any of the Entries 1 to 96 in List I or  to  any  of  the
      Entries in List III. We are not prepared to agree. COFEPOSA is clearly
      relatable to  Entry  3  of  List  III  inasmuch  as  it  provides  for
      preventive detention for reasons connected with the  security  of  the
      State as well as the maintenance of supplies and services essential to
      the community besides Entry 9 of List I. While Entry  3  of  List  III
      speaks of “security of a State”, Entry 9 of List I speaks of “security
      of India”. Evidently, they are two distinct and different expressions.
      “Security of a State” is a much wider expression. A State with a  weak
      and vulnerable economy cannot guard its security well. It will  be  an
      easy prey to economic colonisers.  We  know  of  countries  where  the
      economic policies are not dictated by the interest of that  State  but
      by the interest of multinationals and/or other powerful  countries.  A
      country with a weak economy is  very  often  obliged  to  borrow  from
      International Financial Institutions who in turn seek to  dictate  the
      economic priorities of the borrowing State — it is immaterial  whether
      they do so in  the  interest  of  powerful  countries  who  contribute
      substantially to their fund or in the interest of their loan.  In  the
      modern world, the security of a  State  is  ensured  not  so  much  by
      physical might but by economic strength — at  any  rate,  by  economic
      strength as much as by armed might. It is, therefore, idle to  contend
      that COFEPOSA is unrelated to the security of the State. Indeed in the
      very preamble to the Act, Parliament states  that  the  violations  of
      foreign exchange regulations and smuggling activities  are  having  an
      increasingly  deleterious  effect  on  the  national  economy  thereby
      casting serious adverse effect on the security of the State.  Be  that
      as it may, it is not necessary to pursue this line of reasoning  since
      we are in total agreement with the approach evolved in Union of  India
      v. H.S. Dhillon, (1971) 2 SCC 779 — a decision by a Constitution Bench
      of seven Judges. The test evolved in the  said  decision  is  this  in
      short: Where the legislative  competence  of  Parliament  to  enact  a
      particular statute is questioned, one must look at the several entries
      in List II to find out (applying the  well-known  principles  in  this
      behalf) whether the said statute is relatable to any of those entries.
      If the statute does not relate to any of the entries in  List  II,  no
      further inquiry is necessary. It  must  be  held  that  Parliament  is
      competent to enact that statute whether by virtue of  the  entries  in
      List I and List III or by virtue of Article 248 read with Entry 97  of
      List I. In this case, it is not even suggested that either of the  two
      enactments in question are relatable to any of the entries in List II.
      If so, we need not go further and enquire to which entry or entries do
      these Acts relate. It should be held  that  Parliament  did  have  the
      competence to enact them.”



The Court concluded  that  Parliament  did  have  the  competence  to  enact
COFEPOSA and SAFEMA.
50.         The constitutionality of COFEPOSA has been already upheld  by  a
nine-Judge Bench of this Court.  Its constitutionality is  again  sought  to
be assailed by the petitioners in the present  matter  on  the  ground  that
with the change of legal regime by repeal of  FERA  and  enactment  of  FEMA
(the provisions contained in FEMA did not regard its  violation  a  criminal
offence)   the  intent  and  object  behind  the  enactment  of   preventive
detention in COFEPOSA had ceased to  exist  and  continuation  of   impugned
provision in COFEPOSA was violative of Article 21 read with Articles 14  and
19 of the Constitution.
51.         In I.R. Coelho5, this Court  had an occasion  to  consider   the
power of judicial review in relation to the Acts  falling  under  the  Ninth
Schedule. After discussing His Holiness Kesavananda  Bharati  Sripadagalvaru
v. State of Kerala & Anr. [20], Indira Nehru Gandhi v. Shri Raj  Narain[21],
Minerva Mills Limited and others v. Union of  India  and  others[22],  Waman
Rao and others v.  Union of India and  others[23]  and  Maharao  Sahib  Shri
Bhim Singhji v. Union of India and others[24]  and relevant Articles of  the
Constitution, particularly, Article 31B and  368,  in  paragraph  131,   the
Court  referred to the  decision in Amratlal Prajivandas14 . With regard  to
decision in Amratlal Prajivandas14  in paragraph 132,  the Court held :  “It
is evident from the aforenoted passage that the  question  of  violation  of
Articles 14, 19 or 21 was not gone into.  The  Bench  did  not  express  any
opinion on those issues. No attempt  was  made  to  establish  violation  of
these provisions. In para 56, while summarising the  conclusion,  the  Bench
did not express  any  opinion  on  the  validity  of  the  Thirty-ninth  and
Fortieth Amendment Acts to the Constitution of India  placing  COFEPOSA  and
SAFEMA in the Ninth Schedule. These Acts were assumed to be good and  valid.
No arguments were also addressed with respect to the validity of the  Forty-
second Amendment Act”.
51.1.       The Court affirmed the view taken in Waman Rao24  that the  Acts
inserted in the Ninth Schedule after April 24, 1973 would not  receive  full
protection.
51.2.       In paragraph 151 (pg. 111 of the Report),   the  Court  recorded
its conclusions.  Clauses  (iii)  and  (v)  thereof  are  relevant  for  the
present purposes which read as follows:
      “(iii) All amendments to the Constitution made on or  after  24-4-1973
      by which the Ninth Schedule is amended by inclusion  of  various  laws
      therein shall have to be tested on the  touchstone  of  the  basic  or
      essential features of the Constitution as reflected in Article 21 read
      with Article 14, Article 19, and the principles  underlying  them.  To
      put it differently even though an Act is put in the Ninth Schedule  by
      a constitutional amendment, its provisions would be open to attack  on
      the ground that they destroy or damage  the  basic  structure  if  the
      fundamental right or  rights  taken  away  or  abrogated  pertains  or
      pertain to the basic structure.


      (v) If the validity of any Ninth Schedule law has already been  upheld
      by this Court, it would not be open to challenge such law again on the
      principles declared by this judgment. However, if a  law  held  to  be
      violative of any rights in Part III is  subsequently  incorporated  in
      the Ninth Schedule after 24-4-1973, such a violation/infraction  shall
      be open to challenge on the ground that it  destroys  or  damages  the
      basic structure as indicated in  Article  21  read  with  Article  14,
      Article 19 and the principles underlying thereunder.”


52.         Para 151(v)  in I.R. Coelho5    leaves no manner of  doubt  that
where the  validity of any Ninth Schedule law has  already  been  upheld  by
this Court, it would not  be  open  to  challenge  such  law  again  on  the
principles  declared  by  the  judgment.  The  constitutional  validity   of
COFEPOSA has already been upheld by this  Court  in  Amratlal  Prajivandas14
and, therefore, it is not open for challenge again.  On  this  ground  alone
the challenge to the constitutional validity of the impugned provision  must
fail. Despite this, we intend to consider the  forceful submission  made  by
the learned counsel  for  the  petitioners   that  on  repeal  of  FERA  and
enactment of FEMA (FEMA did not regard its violation  of  criminal  offence)
an act  where  no  punitive  detention  (arrest  and  prosecution)  is  even
contemplated or provided under law, such an act cannot  be  made  the  basis
for preventive detention and any law declaring it to be prejudicial  to  the
interest of the State so as to invoke the power of preventive  detention  is
violative of Articles 14,  19  and  21  of  the  Constitution  and  must  be
struckdown.
53.         FERA was enacted to consolidate and  amend  the  law  regulating
certain payments, dealings in foreign exchange and securities,  transactions
indirectly affecting foreign exchange and the import and export of  currency
for the conservation of the foreign exchange resources of  the  country  and
the proper utilization thereof in the interest of the  economic  development
of  the  country.  Section  2(b)  defined  ‘authorised  dealer’.  Section  6
provided, inter alia, for authorisation of any person by  the  Reserve  Bank
of India (RBI) to deal in foreign exchange. The restrictions on  dealing  in
foreign exchange were provided in Section 8. Sub-sections  (1)  and  (2)  of
Section 8 read as follows :



      “8.  Restrictions on dealing in foreign exchange.—(1) Except with  the
      previous general or special permission of the Reserve Bank, no  person
      other than an authorised dealer shall in India, and no person resident
      in India other than an authorised dealer shall outside India, purchase
      or otherwise acquire or borrow from, or sell, or otherwise transfer or
      lend to or exchange with, any person not being an  authorised  dealer,
      any foreign exchange:


           Provided that nothing in this sub-section  shall  apply  to  any
      purchase or sale of foreign currency effected  in  India  between  any
      person and a money-changer.




            Explanation.—For the purposes of this sub-section, a person, who
      deposits  foreign exchange with another person or opens an account  in
      foreign exchange with another person, shall be deemed to lend  foreign
      exchange to such other person.


            (2)   Except with the previous general or special permission  of
      the Reserve Bank, no person, whether an authorised dealer or a  money-
      changer or otherwise, shall enter into any transaction which  provides
      for the conversion of Indian currency into foreign currency or foreign
      currency into Indian currency at rates  of  exchange  other  than  the
      rates for the time being authorised by the Reserve Bank”.



FERA contained penal provisions.  Section  50  provided  for  imposition  of
fiscal penalties  while  Section  56  made  provision  for  prosecution  and
punishment.  FERA stood repealed by FEMA in 1999.
54.         Before we refer to FEMA, a brief look at  the  COFEPOSA  may  be
appropriate. COFEPOSA came into force on December  19,  1974.  Its  preamble
reads as under:
      “An Act to provide for preventive detention in certain cases  for  the
      purposes of conservation and  augmentation  of  foreign  exchange  and
      prevention  of  smuggling  activities  and   for   matters   connected
      therewith.
      WHEREAS violations  of  foreign  exchange  regulations  and  smuggling
      activities are  having  an  increasingly  deleterious  effect  on  the
      national economy and thereby a serious adverse effect on the  security
      of the State;
      AND WHEREAS having regard to the persons by whom  and  the  manner  in
      which such activities or violations are organised and carried on,  and
      having regard to the fact that  in  certain  areas  which  are  highly
      vulnerable  to  smuggling,  smuggling  activities  of  a  considerable
      magnitude are clandestinely organised and carried on, it is  necessary
      for the effective prevention of  such  activities  and  violations  to
      provide for detention of persons concerned in any manner therewith;”




55.         Section  3  of  COFEPOSA  provides  for  power  to  make  orders
detaining certain persons. Sub-section (1)  thereof  to  the  extent  it  is
relevant, it reads as follows :
      “S.3 - Power to make orders detaining certain persons

      1) The Central Government or the State Government or  any  officer  of
      the Central Government, not below the rank of  a  Joint  Secretary  to
      that Government, specially empowered for the purposes of this  section
      by that Government, or any officer of the State Government, not  below
      the rank of a Secretary to that Government,  specially  empowered  for
      the purposes of this section by that Government,  may,  if  satisfied,
      with respect to any person (including a foreigner), that, with a  view
      to preventing him  from  acting  in  any  manner  prejudicial  to  the
      conservation or augmentation of foreign exchange or  with  a  view  to
      preventing him from--


        (i) smuggling goods, or


        (ii) abetting the smuggling of goods, or


        (iii) engaging in transporting or concealing  or  keeping  smuggled
        goods, or


        (iv) dealing in  smuggled  goods  otherwise  than  by  engaging  in
        transporting or concealing or keeping smuggled goods, or


        (v) harbouring persons engaged in smuggling goods  or  in  abetting
        the smuggling of goods,


      it is necessary so to do, make an order directing that such person  be
      detained:”





Sub-section (3) mandates compliance set out therein as required  in  Article
22(5). Certain other safeguards as required under Article 22,  particularly,
sub-clause (a) to Clause (4) and sub-clause (c) to Clause (7) of Article  22
of the Constitution  have been provided in Sections 8 and 9. Maximum  period
of detention is provided in  Section  10.   Notwithstanding  the   provision
contained in Section 10, Section 10A provides for  extension  of  period  of
detention  in  the  situations  contemplated  therein  and  to  the   extent
provided.  Section  11  empowers  the  Central  Government  or   the   State
Government, as the case may be, to revoke any detention order.
56.         As noted above,  FERA  has  been  repealed  by  FEMA.  FEMA  was
enacted to consolidate and amend the law relating to foreign  exchange  with
the objective of facilitating  the  external  trade  and  payments  and  for
promoting the  orderly  development  and  maintenance  of  foreign  exchange
market in India. Section 2(c) of  FEMA  defines  ‘authorised  person’  which
means an authorised dealer, money changer, off-shore  banking  unit  or  any
other person for  the  time  being  authorised  under   sub-section  (1)  of
Section 10 to deal in  foreign  exchange  or  foreign  securities.  RBI  may
authorise any person to deal in foreign exchange or  in  foreign  securities
as an authorised dealer, money changer or off-shore banking unit or  in  any
other manner as  it  deems  fit.  Section  10  provides  for  the   complete
procedure for authorisation of any  person  to  deal  in  foreign  exchange.
Section 13 provides for fiscal penalty to  the  extent  of  thrice  the  sum
involved in such contravention where such amount  is  quantifiable  or  upto
two lac  rupees  where  the  amount  is  not  quantifiable  and  where  such
contravention is a continuing one,  further penalty which may extend to  Rs.
5000/-  for every day after the first day  during  which  the  contravention
continues. On failure of a person  to  make  full  payment  of  the  penalty
imposed on him, Section 14  is  an   enforcement  provision.   If  a  person
remains in default in discharge of the penalty awarded to him, he is  liable
to  civil   imprisonment.   Section   15   provides   for   compounding   of
contravention.  By Section 49, FERA has been repealed  and  sub-section  (3)
thereof provides :  “Notwithstanding anything contained  in  any  other  law
for the time being in force, no court shall take cognizance  of  an  offence
under the repealed  Act and no adjudicating officer  shall  take  notice  of
any contravention under Section 51 of the repealed Act after the  expiry  of
a period of two years from the date of the commencement of this Act.”
57.         It is true that  provisions of FERA  and  FEMA  differ  in  some
respects, particularly in respect of penalties.  It is also true  that  FEMA
does not have provision for prosecution and punishment like  Section  56  of
FERA and  its  enforcement  for   default  is  through  civil  imprisonment.
However, insofar as conservation and/or augmentation of foreign exchange  is
concerned, the restrictions in FEMA continue to be as rigorous as they  were
in FERA. FEMA continues with the  regime  of  rigorous  control  of  foreign
exchange and dealing in the  foreign  exchange  is  permitted  only  through
authorised person. While its aim is to promote the orderly  development  and
maintenance of foreign exchange markets in India, the  Government’s  control
in  matters of foreign exchange has not been diluted. The  conservation  and
augmentation of foreign exchange continues to be  as  important  as  it  was
under FERA.  The restrictions on the dealings in foreign  exchange  continue
to be as rigorous in FEMA as they were  in  FERA  and  the  control  of  the
Government over foreign exchange continues to be as complete and full as  it
was in FERA.
58.         The importance of foreign  exchange  in  the  development  of  a
country  needs  no  emphasis.  FEMA  regulates  the  foreign  exchange.  The
conservation and augmentation  of  foreign  exchange  continues  to  be  its
important theme. Although contravention of its provisions  is  not  regarded
as a criminal offence, yet it is an illegal activity jeopardizing  the  very
economic  fabric  of  the  country.   For  violation  of  foreign   exchange
regulations, penalty can be levied and its non-compliance results  in  civil
imprisonment of the defaulter. The whole intent and idea behind COFEPOSA  is
to  prevent  violation  of  foreign  exchange   regulations   or   smuggling
activities which  have  serious  and  deleterious  effect  on  the  national
economy. In today’s world the physical  and  geographical  invasion  may  be
difficult but it is easy to imperil the security of a  State  by  disturbing
its economy. The smugglers and foreign  exchange  manipulators  by  flouting
the regulations and restrictions imposed by FEMA –  by  their  misdeeds  and
misdemeanours – directly affect the national economy  and  thereby  endanger
the security of the country. In  this  situation,  the  distinction  between
acts  where  punishments  are  provided  and  the  acts  where  arrest   and
prosecution  are  not  contemplated  pales  into  insignificance.  We   must
remember : the person who violates foreign exchange regulations or  indulges
in smuggling activities succeeds in frustrating the development  and  growth
of the country. His acts and omissions seriously  affect  national  economy.
Therefore, the relevance of provision  for  preventative  detention  of  the
anti-social elements indulging in smuggling and violation  and  manipulation
of foreign exchange in COFEPOSA continues even after repeal of FERA.
59.         The menace of smuggling and foreign exchange violations  has  to
be curbed. Notwithstanding the many disadvantages of  preventive  detention,
particularly in a country like ours where  right  to  personal  liberty  has
been  placed  on  a  very  high  pedestal,  the  Constitution  has   adopted
preventive detention to prevent the greater evil of elements imperiling  the
security, the safety of State and the welfare of the Nation.
60.         On the touchstone of constitutional jurisprudence, as  reflected
by Article 22 read with Articles 14, 19 and 21, we do  not  think  that  the
impugned provision is rendered unconstitutional. There is no  constitutional
mandate that preventive detention cannot exist for an act where such act  is
not a criminal offence and does not provide for punishment. An act  may  not
be declared as an offence under law but still for such an act, which  is  an
illegal activity, the law can provide for preventive detention if  such  act
is prejudicial to the state security. After all, the  essential  concept  of
preventive detention is not to punish a person for what he has done  but  to
prevent him from doing an illegal activity prejudicial to  the  security  of
the State. Strictly speaking, preventive detention is not  regulation  (many
people call it that way), it is something much  more  serious  as  it  takes
away the liberty of a person but it is  accepted  as  a  necessary  evil  to
prevent danger to the community. The law of preventative detention arms  the
State with precautionary action and must be seen as  such.  Of  course,  the
safeguards that the Constitution and preventive detention laws provide  must
be strictly insisted upon whenever the Court is called upon to  examine  the
legality and validity of an order of preventive detention.
61.         The following  features,  (i)  detention  order  was  issued  on
February 8, 2000 and the detenue was served with the same  on  February  15,
2000; (ii) the  events had  taken place when FERA was in place as  FEMA  had
come into force only with effect from June 1, 2000; in view  of  the  sunset
clause in FEMA the prosecution for violation  of  FERA  could  continue  for
next two years; (iii) High Court had  held  the  continued  detention  after
coming into  force  of  FEMA  to  be  bad;  (iv)  the  constitutionality  of
Conservation of Foreign Exchange (COFE) part of COFEPOSA was  not  in  issue
and the facts brought the  prejudicial  act  within  the  mischief  of  FERA
inviting penal consequences, were highlighted by  the  learned  counsel  for
the petitioners to distinguish Venkateshan S.1 . We are  afraid,  the  above
features hardly render Venkateshan S.1  inapplicable  to  the  issue  raised
before us.  We are  in  complete  agreement  with  the  position  stated  in
Venkateshan S.1: “if the activity  of  any  person  is  prejudicial  to  the
conservation  or   augmentation  of  foreign  exchange,  the  authority   is
empowered to make a detention order against such person  and  the  Act  does
not contemplate that such activity should be an offence”.
62.         It is too naïve to suggest that in  today’s   economic  scenario
of abundant foreign exchange and booming  foreign  trade,  contravention  of
foreign exchange laws does not pose any threat to the national interest  for
 which a person has to be detained.
63.         In view of the above, we do not find any merit in  challenge  to
the constitutional validity of impugned part of Section 3(1) of COFEPOSA.
64.         Then comes the  question  upon  the  prayer  made  by  means  of
criminal miscellaneous application for permitting the  petitioners  to  make
an additional prayer: “This Hon’ble  Court  may  be  pleased  to  quash  the
detention order bearing No.  673/02/2009  –  CUS/VIII  dated  September  23,
2009”.
65.         The prayer made in the  criminal  miscellaneous  application  by
the  petitioners  cannot  be  granted  for  more  than  one   reason.   For,
petitioners initially  filed  a  writ  petition  (Crl.  No.  97/2009)  under
Article 32 of the Constitution before this Court challenging  the  detention
order dated September 23, 2009. The said  writ  petition  was  dismissed  by
this Court as withdrawn on  December  4,  2009.  The  petitioners  have  not
stated the above fact in the present writ petition.
66.         The petitioners then filed a writ  petition  before  Delhi  High
Court.  That writ petition was dismissed by the  High  Court  on  March  18,
2010 on the ground that the petition was filed at pre-execution  stage.  The
petitioners filed special leave petition (Crl.  No.  2698  of  2010)  before
this Court challenging the judgment of the  Delhi  High  Court.  During  the
pendency of special leave petition, the petitioners filed the  present  writ
petition wherein the only prayer made is that impugned part of Section  3(1)
of COFEPOSA be declared unconstitutional.  Presumably, the  detention  order
was not challenged because  special  leave  petition  was  already  pending.
Later on, the special leave  petition  was  withdrawn  by  the  petitioners.
While dismissing  the  special  leave  petition  as  withdrawn,  this  Court
granted liberty to the petitioners to avail such remedy as may be  available
in law in challenging the order  of  detention  and  the  grounds  on  which
detention order has been passed after  its  execution  (emphasis  supplied).
The order of detention in question has not been executed so far in  view  of
the contumacious conduct of the second petitioner.  He is  alleged  to  have
absconded initially. Then on December 14,  2009  Delhi  High  Court,  by  an
interim order directed that the detenue shall not be arrested till the  next
date of hearing, i.e.  December  22,  2009.   The  said  interim  order  was
continued until the  disposal  of  writ  petition  by  the  High  Court  and
thereafter that interim order was continued by this  Court  in  the  special
leave petition. In the writ petition  also  an interim  order  has  been  in
operation.  In view of the order dated July 13, 2010 passed by  this  Court,
the petitioners cannot be permitted to  challenge  the  order  of  detention
until its execution.
67.         In view of the above, the leave to make additional  prayer   for
quashing the detention order dated September 23, 2009 by means  of  criminal
miscellaneous application does not deserve to be granted  and  is  rejected.
However, it is clarified that after the execution of  the  detention  order,
the petitioners shall be at liberty to  challenge  the  detention  order  in
accordance with law.
68.         Since we have rejected the criminal  miscellaneous  application,
the argument of the learned counsel for the petitioners  that  the  impugned
order of detention was passed way back on September 23, 2009;  the  impugned
order was preventive in nature and the maximum period of  detention  as  per
law is one year, which would have lapsed by now and, therefore,  no  purpose
for the execution of the detention order survives is noted to  be  rejected.
The detention order could  not  be  executed  because  of  the  contumacious
conduct of the second petitioner and, therefore, he  cannot  take  advantage
of his own wrong.
69.         Writ petition and criminal miscellaneous  application,  for  the
reasons indicated above, are liable to be rejected and are rejected.

                                                  …………………….J.
                                                   (R. M.Lodha)
                                                  …………………….J.
                                                     (H. L. Gokhale)
July  2, 2012
New Delhi.
-----------------------
[1]     (2002) 5 SCC 285
[2]     (1984) 1 SCC 222
[3]     (2003) 6 SCC 611
[4]     (2008) 5 SCC 287
[5]     (2007) 2 SCC 1
[6]     1951 SCR 167
[7]     (1974) 1 SCC 645
[8]     (1975) 3 SCC 198
[9]     (1979) 4  SCC 14
[10]    (1981) 4 SCC 647
[11]    (1990) 1 SCC 35
[12]    (2011) 5 SCC 244
[13]    481 US 739
[14]    (1994) 5 SCC 54
[15]    1950 SCR 88
[16]    (1975) 2 SCC 81
[17]    1992 Suppl (1) SCC 496
[18]    (2000) 3 SCC 409
[19]   (1981) 4 SCC 675
[20]    (1973) 4 SCC 225
[21]    (1975) Supp SCC 1
[22]    (1980) 3 SCC 625
[23]    (1981) 2 SCC 362
[24]    (1981) 1 SCC 166

-----------------------
41

conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 IPC and sentence of rigorous imprisonment for a period of 10 years and fine?- There is no evidence to suggest any pre-meditation on the part of the appellants to assault the deceased leave alone evidence to show that assailants intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on 22nd May, 2001 the incident near the drain involved the appellant-Bishnu Sarkar and the complainant- Debabrato Mazumder son of the deceased. It was only when the deceased noticed the incident and intervened to save the complainant, that Madhab Sarkar started assaulting the deceased and inflicted injuries on his body that resulted in his death. Both the Courts below have no doubt believed the prosecution case that appellant-Bishnu Sarkar was exhorting appellant-Madhab Sarkar to assault the deceased and, therefore, convicted him under Section 304 Part I with the help of Section 34 IPC. A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant-Bishnu Sarkar who is over sixty five years old and that to be awarded to appellant-Madhab Sarkar. In the totality of the circumstances to which we have referred above, we are of the view that a rigorous sentence of three years to appellant no.1-Bishnu Sarkar and seven years to appellant no.2-Madhab Sarkar would meet the ends of justice. The sentence of fine and imprisonment in default of payment thereof will, however, remain unaltered. We accordingly allow the appeal in part and to the extent indicated above in modification of the orders passed by the Courts below.

                                                     REPORTABLE



                        IN THE SUPREME COURT OF INDIA



                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.  876 OF 2012
                (Arising out of S.L.P (Crl.) No.546 OF 2011)


Bishnupada Sarkar & Anr.                     …Appellants

      Versus

State of West Bengal                         …Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.
2.    This appeal arises out of a judgment and order dated 15th  July,  2010
passed by the High Court of judicature at Calcutta whereby  Criminal  Appeal
No.641 of 2006  filed  by  the  appellants  has  been  dismissed  and  their
conviction for the offence of culpable  homicide  not  amounting  to  murder
punishable under Section 304 Part I read with Section 34  IPC  and  sentence
of rigorous imprisonment for a period of 10 years and fine upheld.
3.    Facts giving rise to the commission of the offence by  the  appellants
and their eventual conviction have  been  set  out  in  the  judgment  under
appeal which need not be recounted again especially because notice  in  this
appeal was issued by us limited to the question of quantum  of  sentence  to
be awarded to the appellants.   Suffice  it  to  say  that  the  unfortunate
incident in which the deceased-Shyamalendu who was then  working  as  Income
Tax Inspector did no more than object to the commission of the  nuisance  in
front of his house escalated into  an  uncalled  for  assault  on  him  that
culminated in his death. The prosecution case is that on 21st May,  2001  at
about 7.00 p.m. Sudhir who was also a resident  of  the  same  locality  was
found committing nuisance in an open drain in front  of  the  house  of  the
deceased.  The deceased appears to have objected to the nuisance leading  to
a verbal altercation between the two.  On the following day at  about  11.30
a.m. the appellant Bishnu Sarkar who happens to  be  the  nephew  of  Sudhir
came to the house of the deceased and threatened him. The deceased tried  to
reason with the appellant Bishnu Sarkar that he had done  nothing  wrong  in
protesting against the nuisance.  At about 6.00 p.m. in the evening  on  the
same day Madhav Sarkar, appellant No.2  and  brother  of  Bishnu  Sarkar  is
alleged to have called PW-1 Debabrato Mazumder son of the deceased  and  the
complainant in the case to the slab near the drain and started beating  him.
The deceased who was leaving for the market  intervened  to  save  Debabrato
Mazumder.   Madhav Sarkar left  the  complainant  and  started  beating  the
deceased with fists  and  blows.   Appellant  Bishnu  Sarkar  was  allegedly
standing nearby and instigating him. The complainant  cried  for  help  that
attracted some local people who rushed to the place and  took  the  deceased
to the hospital in an injured condition where he succumbed to  the  injuries
inflicted by Madhav Sarkar-appellant no.2 with the help of a brick.
4.     The  police  filed  a  charge-sheet  against  the  appellants   after
completing the investigation for commission  of  offences  punishable  under
Section 304 read  with  Section  34  IPC.   At  the  trial  the  prosecution
examined as many as 13 witnesses  including  the  Investigating  Officer  to
prove the charge while the  defence  examined  Parvat  Kumar  Paria  besides
placing reliance on certain documents. By its order dated 30th August,  2006
the Trial Court came  to  the  conclusion  that  the  deceased  had  died  a
homicidal  death  because  of  the  injuries  inflicted  by  Madhab  Sarkar-
appellant no.2 at the exhortation of appellant no.1-Bishnu Sarkar.  Both  of
them were accordingly convicted under Section 304 Part I read  with  Section
34 IPC and sentenced to undergo rigorous imprisonment for ten years  besides
a fine of Rs.5,000/- each and in default to suffer further imprisonment  for
a period of one year. The  High  Court  by  the  order  impugned  before  us
affirmed the said conviction and sentence while dismissing the appeal  filed
by the appellants.
5.    Appearing for the appellants Mr. Ranjan Mukherjee submitted  that  the
appellant-Bishnu Sarkar had not inflicted any injury  on  the  deceased  and
that all that was alleged against him was that he exhorted  appellant  no.2-
Madhab to assault the deceased and  teach  him  a  lesson.  It  was  further
submitted that the appellant-Bishnu Sarkar is more than 65 years of age  and
had already undergone 1½ years sentence in jail. He is also  afflicted  with
various age related ailments that call for a lenient view in his case.
6.    In so far as appellant no.2 was concerned, Mr. Mukherjee  argued  that
the incident was more than 12 years old and that  a  drawn  long  trial  and
proceedings in appeal have already put  the  said  appellant  to  tremendous
financial and physical hardship.  Being  the  only  earning  member  of  the
family even appellant no.2, argued Mr. Mukherjee, deserves  a  reduction  in
the sentence especially when there was no intention  to  kill  the  deceased
and the whole incident had taken place in the heat of passion on account  of
a sudden quarrel unfortunately culminating in the demise of the deceased.
7.    Learned counsel appearing for  the  respondent,  on  the  other  hand,
argued that the nature of injuries sustained by the deceased and the  manner
in which the incident had taken place did not justify the reduction  in  the
sentence awarded to the appellants.
8.    There is no evidence to suggest any pre-meditation on the part of  the
appellants to assault  the  deceased  leave  alone  evidence  to  show  that
assailants intended to kill the  deceased.  There  was  no  previous  enmity
between the parties who were residents of  the  same  locality  except  that
there was a minor incident in which some hot words  were  exchanged  between
the deceased and Sudhir. Even on the following day i.e. on  22nd  May,  2001
the incident near the drain involved the  appellant-Bishnu  Sarkar  and  the
complainant- Debabrato Mazumder son of the deceased.  It was only  when  the
deceased noticed the incident and intervened to save the  complainant,  that
Madhab Sarkar started assaulting the deceased and inflicted injuries on  his
body that resulted in his  death.  Both  the  Courts  below  have  no  doubt
believed the prosecution case that  appellant-Bishnu  Sarkar  was  exhorting
appellant-Madhab Sarkar to assault the deceased  and,  therefore,  convicted
him under Section 304 Part I with the help of Section 34 IPC. A  distinction
has, however, to be made in the facts and circumstances of the case  between
the sentence awarded to the appellant-Bishnu Sarkar who is over  sixty  five
years old and  that  to  be  awarded  to  appellant-Madhab  Sarkar.  In  the
totality of the circumstances to which we have referred  above,  we  are  of
the view that a rigorous sentence of three years  to  appellant  no.1-Bishnu
Sarkar and seven years to appellant no.2-Madhab Sarkar would meet  the  ends
of justice.  The sentence of fine and imprisonment  in  default  of  payment
thereof will, however, remain unaltered. We accordingly allow the appeal  in
part and to the extent indicated above in modification of the orders  passed
by the Courts below.



                                                          ……………………….……..……J.
                                                               (T.S. THAKUR)





                                                          ………………………….…..……J.
                                                          (GYAN SUDHA MISRA)
New Delhi
July 2, 2012

under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination.Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words: “What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.” 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. 17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court and an opportunity to cross-examine the said witnesses afforded to the appellant. In fairness to the counsel for the appellant, we must record that he assured us that given an opportunity to examine the witnesses the needful shall be done on two dates of hearing, one each for each witness without causing any un-necessary delay or procrastination. The Trial Court shall endeavour to conclude the examination of the two witnesses expeditiously and without unnecessary delay.

                                                           REPORTABLE



                        IN THE SUPREME COURT OF INDIA



                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOS.  874-875 OF 2012
              (Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011)


P. Sanjeeva Rao                              …Appellant

      Versus

The State of A.P.                                  …Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    These appeals arise out of an order dated 29th March, 2011, passed  by
the High Court of Judicature for Andhra Pradesh  whereby  Criminal  Revision
Petitions No.534 and 710 of 2011 filed by the appellant have been  dismissed
and order dated 22nd January, 2011 passed  by  the  Special  Judge  for  CBI
cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld.

3.    The appellant  is  being  prosecuted  for  offences  punishable  under
Sections 7 & 13 (1) read with Section 13(1)(D) of Prevention  of  Corruption
Act, 1988, before the Special Judge for CBI cases at Hyderabad.  Around  the
time the prosecution concluded its evidence, the appellant filed Crl.  Misc.
Petitions No.18 and 19 of 2011  under  Sections  242  and  311  Cr.P.C.  for
recall of prosecution  witnesses  No.1  and  2  for  cross-examination.  The
appellant’s case in the said Criminal Misc. Petition No.18 of 2011 was  that
cross-examination of PWs 1 and 2 had been deferred till such time  the  Trap
Laying Officer (PW 11) was examined by the prosecution and  since  the  said
officer had been  examined,  PWs  1  and  2  need  be  recalled  for  cross-
examination by counsel for the accused-appellant.  In  Crl.  Misc.  Petition
No.19 of 2011  the  petitioner  made  a  prayer  for  deferring  the  cross-
examination of Investigating Officer (PW12) in the case till such  time  PWs
1 and 2 were cross-examined.
4.    Both the applications mentioned above were opposed by the  prosecution
resulting in the dismissal of the said applications by the  Trial  Court  in
terms of its order dated 22nd January, 2011. The Trial Court observed:

         “For what ever be the reasons the cross-examination of PWs 1 and  2
         has been recorded as “nil”. There is nothing to show on the  record
         that the petitioner had reserved his right  to  cross  examine  the
         witnesses at a later point of time. The dockets of the Court do not
         reflect any such intention of the petitioner.”




5.    The Trial Court also held that recall  of  PWs  1  and  2  for  cross-
examination more than 3  and  ½  years  after  they  had  been  examined  in
relation to an incident that had taken place 7  years  back,  was  bound  to
cause prejudice to the prosecution. The Trial Court was  of  the  view  that
the appellant had adopted a casual  and  easy  approach  towards  the  trial
procedure and that he could not ask for the recall of  any  witness  without
cogent reasons.
6.    Aggrieved by the order passed by the Trial Court the  appellant  filed
two revision petitions before the High  Court  which,  as  noticed  earlier,
have been dismissed by the High Court in terms  of  the  order  impugned  in
these appeals. The High Court took the view  that  PWs  1  and  2  had  been
examined on 13th June, 2008 and 31st July,  2008  respectively  followed  by
examination of nearly one dozen prosecution witnesses. The High  Court  held
that since this was an old case of the year 2005  and  the  matter  was  now
coming up  for  examination  of  the  appellant-accused  under  Section  313
Cr.P.C., there was no justification for recall of the prosecution  witnesses
No.1 and 2.  The revision petitions were accordingly dismissed.
7.    Appearing for the appellant Mr. A.T.M Ranga Ramanujan, learned  senior
counsel, contended that the Trial Court as also the High Court had  taken  a
hyper  technical  view  of  the  matter  without  appreciating  that   grave
prejudice will  be  caused  to  the  appellant  if  the  prayer  for  cross-
examination of PWs. 1 and 2 was not granted and the recall of the  witnesses
for that purpose declined. He  submitted  that  counsel  for  the  appellant
before the Trial Court  was  under  a  bona  fide  belief  that  the  cross-
examination of the prosecution witnesses PWs. 1 and 2, who  happened  to  be
the star witnesses, one of them  being  the  complainant  and  the  other  a
witness who allegedly           heard  the  conversation  and  observed  the
passing of the bribe to the accused could be conducted after PW-11 had  been
examined. It was contended that the lawyer appearing before the Trial  Court
had also filed a personal affidavit stating that PWs. 1 and 2 had  not  been
cross-examined by him under a bona fide  impression  that  he  could  do  so
after the evidence of the Trap Laying Officer  (PW-11)  had  been  recorded.
Mr. Ramanujan urged that while the lawyer may have committed  a  mistake  in
presuming that the prosecution witnesses No. 1 and 2 could be  recalled  for
cross-examination at a later stage without the Trial Court granting  to  the
accused the liberty to do so, such a mistake should not  vitiate  the  trial
by denying to the appellant a fair opportunity  to  cross-examine  the  said
witnesses.  Heavy reliance was placed by learned counsel on the decision  of
this Court in Rajendra Prasad Vs. Narcotic Cell [1999 SCC  (Cri)  1062],  in
support of his submission that no  party  to  a  trial  can  be  denied  the
opportunity to correct errors if any committed by it.   If  proper  evidence
was not adduced or the relevant material was not brought on  record  due  to
any inadvertence, the Court should  be  magnanimous  in  permitting  such  a
mistake to be rectified.
8.    Appearing for  the  respondent  Mr.  H.P.  Rawal,  learned  Additional
Solicitor General, contended that while cross-examination of PWs.  1  and  2
could be deferred at the option of the accused to a later stage,  the  Court
record does not show any such request having been made or any liberty  being
reserved to the accused.  It was, according to Mr. Rawal, a  case  where  an
opportunity to cross-examine had been given to the accused and  his  counsel
but they had chosen not to avail of  the  same,  in  which  case  a  belated
request for recall of the witnesses to exercise the right  to  cross-examine
could and has been rightly rejected by the Trial Court  and  that  rejection
affirmed by the High Court.  It was also submitted that the  recall  of  the
prosecution  witnesses,  who  have  gone  without  cross-examination  at  an
earlier stage, is likely  to  prejudice  the  prosecution  inasmuch  as  the
incident in question is as old as of the year 2005, while  the  request  for
recall was made only in the year 2011, nearly four years after  the  framing
of the charges against the appellant.
9.    The appellant who  was  working  as  Sub  Divisional  Officer  in  the
B.S.N.L., Karimnagar, is accused of having demanded and received a bribe  of
Rs.3,000/- from the  complainant who was examined as PW1 at the  trial.  The
trap led by the CBI in which PW2 was associated as  an  independent  witness
is said to have succeeded in catching the  petitioner  red-handed  with  the
bribe money eventually leading to the filing of a charge-sheet  against  him
before the Court of Special Judge for  CBI  cases  at  Hyderabad  in  March,
2005. Charges were framed against the  petitioner  on  7th  December,  2006.
While PW1, the complainant in the case, was examined on two different  dates
i.e. 3rd March, 2008 and 13th  June,  2008,  prosecution  witness  No.2  was
similarly examined on 18th July, 2008 and 31st July,  2008.   It  is  common
ground that both the witnesses have stood by the prosecution case  for  they
have not been declared hostile by the prosecution.  This  implies  that  the
depositions of the two witnesses are  incriminating  against  the  appellant
and in the absence of any cross-examination their version may  be  taken  to
have remained unchallenged.  It is also common ground  that  PWs.  3  to  11
were examined during the period 31st July, 2008  and  28th  December,  2011.
The Trap Laying Officer (PW 11) was examined on 18th February, 2010  and  on
1st April, 2010. The two applications referred to earlier were filed  before
the Trial Court at that stage, one asking for recall  of  PWs.  1  &  2  for
cross-examination and the other asking  for  a  deferring  that  the  cross-
examination of PW 12 till PWs. 1 and 2 are recalled and cross-examined.
10.   The only question that arises in the above  backdrop  is  whether  the
decision not to cross-examine PWs 1 and 2 was for the reasons stated by  the
petitioner or for any other reason. There  is  no  dispute  that  no  formal
application was filed by the petitioner nor even an oral prayer made  before
the Trial Court to the effect that the  exercise  of  the  right  to  cross-
examine the two witnesses was being reserved till such time the Trap  Laying
Officer was examined.  This is precisely where  counsel  for  the  appellant
has stepped in and filed a personal affidavit in which he  has  stated  that
even though there is no formal prayer made to that  effect  he  intended  to
cross-examine the two witnesses  only  after  the  deposition  of  the  Trap
Laying Officer was recorded.  In the peculiar circumstances of the case,  we
feel that the version given by the counsel may indeed  be  the  true  reason
why two witnesses  were  not  cross-examined  on  the  conclusion  of  their
examination-in-chief.  We say so primarily because no lawyer worth his  salt
especially one who had  sufficient  experience  at  the  Bar  like  the  one
appearing for the appellant would have let the opportunity to  cross-examine
go unavailed in a case where the witnesses  had  supported  the  prosecution
version not only in regard to the demand of bribe but also its  payment  and
the success of the trap laid for that purpose. There is no  gainsaying  that
every prosecution witness need not be cross-examined  by  the  defence.   It
all depends upon the nature  of  the  deposition  and  whether  the  defence
disputes the fact sought to be established  thereby.  Formal  witnesses  are
not at times cross-examined if the defence does not dispute what  is  sought
to be established by reference to his/her deposition. The decision to cross-
examine is generally guided by the nature of the depositions and whether  it
incriminates the accused.  In  a  case  like  the  one  at  hand  where  the
complainant examined as PW1 and the  shadow  witness  examined  as  PW2  had
clearly indicted the appellant and supported  the  prosecution  version  not
only regarding demand of the bribe but also its  receipt  by  the  appellant
there was no question of the  defence  not  cross-examining  them.  The  two
witnesses doubtless  provided  the  very  basis  of  the  case  against  the
appellant and should their testimony have remained unchallenged,  there  was
nothing much for the appellant to argue at  the  hearing.   The  depositions
would then be taken to have been accepted as  true  hence  relied  upon.  We
may, in this connection, refer to the following passage  from  the  decision
of this Court in Sarwan Singh v. State of Punjab (2003) 1 SCC 240:

         “It is a rule of essential justice that whenever the  opponent  has
         declined to avail himself of the opportunity to  put  his  case  in
         cross-examination it must follow that the evidence tendered on that
         issue ought to be accepted.”


11.   We are, therefore,  inclined  to  believe  that  the  two  prosecution
witnesses were not cross-examined by  the  counsel  for  the  appellant  not
because there was nothing  incriminating  in  their  testimony  against  the
appellant but because counsel for  the  appellant  had  indeed  intended  to
cross-examine them after the Trap Laying  Officer  had  been  examined.  The
fact that the appellant did not make a formal  application  to  this  effect
nor even an oral prayer to the Court to that effect at the time  the  cross-
examination was deferred may be a mistake which could be avoided  and  which
may have saved the appellant a lot  of  trouble  in  getting  the  witnesses
recalled. But merely because a mistake was committed, should not  result  in
the accused suffering a penalty totally disproportionate to the  gravity  of
the error committed by his lawyer. Denial of an opportunity  to  recall  the
witnesses for cross-examination would amount  to  condemning  the  appellant
without giving him the opportunity  to  challenge  the  correctness  of  the
version and  the  credibility  of  the  witnesses.  It  is  trite  that  the
credibility of witnesses whether in a civil or criminal case can  be  tested
only when the testimony  is  put  through  the  fire  of  cross-examination.
Denial of an opportunity to do so will result in a  serious  miscarriage  of
justice in the present case keeping in view the  serious  consequences  that
will follow any such denial.


12.   The nature and extent of the power vested in the Courts under  Section
311 Cr.P.C. to recall witnesses was examined by this Court  in  Hanuman  Ram
v. The State of Rajasthan & Ors. (2008) 15 SCC 652.  This  Court  held  that
the object underlying Section 311 was  to  prevent  failure  of  justice  on
account of a mistake of either party to bring on  record  valuable  evidence
or leaving an ambiguity in the statements  of  the  witnesses.   This  Court
observed:

         “This  is  a  supplementary  provision  enabling,  and  in  certain
         circumstances imposing on  the  Court,  the  duty  of  examining  a
         material witness who would not be otherwise brought before  it.  It
         is  couched  in  the  widest  possible  terms  and  calls  for   no
         limitation, either with regard to the stage at which the powers  of
         the Court should be exercised, or with  regard  to  the  manner  in
         which it should be exercised. It is not only  the  prerogative  but
         also the plain duty of a Court to examine such of  those  witnesses
         as it considers absolutely necessary for doing justice between  the
         State and the subject. There is a  duty  cast  upon  the  Court  to
         arrive at the truth by all lawful means and one of  such  means  is
         the examination of witnesses of its own  accord  when  for  certain
         obvious reasons either party is not prepared to call witnesses  who
         are known to be in a position to speak important relevant facts.

         The object underlying Section 311 of the Code is that there may not
         be failure of justice on account of  mistake  of  either  party  in
         bringing the valuable evidence on record or  leaving  ambiguity  in
         the statements of the witnesses  examined  from  either  side.  The
         determinative factor  is  whether  it  is  essential  to  the  just
         decision of the case. The section  is  not  limited  only  for  the
         benefit of the accused, and it will not be an improper exercise  of
         the powers of the Court to  summon  a  witness  under  the  Section
         merely because the evidence supports the case  of  the  prosecution
         and not that of the accused. The section is a general section which
         applies to all proceedings, enquires and trials under the Code  and
         empowers the Magistrate to issue summons  to  any  witness  at  any
         stage of such proceedings, trial  or  enquiry.  In  Section 311 the
         significant expression that occurs is "at any stage of  inquiry  or
         trial or other proceeding under this Code". It is, however,  to  be
         borne in mind that whereas the section confers a very wide power on
         the Court on summoning witnesses, the discretion conferred is to be
         exercised judiciously, as the wider the power the  greater  is  the
         necessity for application of judicial mind.”


                                        (emphasis supplied)


13.   Grant of fairest opportunity to the accused  to  prove  his  innocence
was the object of every fair trial, observed this Court in  Hoffman  Andreas
v. Inspector of Customs, Amritsar (2000) 10 SCC 430.  The following  passage
is in this regard apposite:

         “In such circumstances, if the new  Counsel  thought  to  have  the
         material witnesses further examined, the Court could adopt latitude
         and a liberal view in the interest of  justice,  particularly  when
         the Court has unbridled  powers  in  the  matter  as  enshrined  in
         Section 311 of the Code. After all the trial is basically  for  the
         prisoners and courts should afford the opportunity to them  in  the
         fairest manner possible.”

                                           (emphasis supplied)
14.   The extent and  the  scope  of  the  power  of  the  Court  to  recall
witnesses was examined by this Court in Mohanlal Shamji  Soni  v.  Union  of
India & Anr. 1991 Supp (1) 271, where this Court observed:

         “The principle of law that emerges from the views expressed by this
         Court in the above decisions is that the criminal court  has  ample
         power to summon any person as a witness or  recall  and  re-examine
         any such person even if the evidence on both sides  is  closed  and
         the jurisdiction  of  the  court  must  obviously  be  dictated  by
         exigency of the situation, and fair-play and good sense  appear  to
         be the only safe guides and that only the requirements  of  justice
         command and examination of any person which  would  depend  on  the
         facts and circumstances of each case.”

                                        (emphasis supplied)
15.   Discovery of the truth is  the  essential  purpose  of  any  trial  or
enquiry, observed a three-Judge Bench  of  this  Court  in  Maria  Margarida
Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs.  2012  (3)  SCALE
550.  A timely reminder of that solemn duty  was  given,  in  the  following
words:

         “What  people  expect  is  that  the  Court  should  discharge  its
         obligation to find out where in fact the  truth  lies.  Right  from
         inception  of  the  judicial  system  it  has  been  accepted  that
         discovery, vindication and establishment  of  truth  are  the  main
         purposes underlying the existence of the courts of justice.”





16.   We are conscious of the fact that recall of  the  witnesses  is  being
directed nearly four years after  they  were  examined  in  chief  about  an
incident that is nearly seven years old. Delay takes a  heavy  toll  on  the
human memory  apart  from  breeding  cynicism  about  the  efficacy  of  the
judicial system  to  decide  cases  within  a  reasonably  foreseeable  time
period.  To that extent the apprehension expressed by Mr.  Rawal,  that  the
prosecution may suffer prejudice on account of a belated recall, may not  be
wholly without any basis.  Having said that, we are of the opinion  that  on
a parity  of  reasoning  and  looking  to  the  consequences  of  denial  of
opportunity to cross-examine the  witnesses,  we  would  prefer  to  err  in
favour of the appellant getting an opportunity rather  than  protecting  the
prosecution against a possible prejudice  at  his  cost.   Fairness  of  the
trial is a virtue that is sacrosanct in our judicial system and no price  is
too heavy to protect that virtue. A possible  prejudice  to  prosecution  is
not even a price, leave alone one  that  would  justify  denial  of  a  fair
opportunity to the accused to defend himself.


17.   In the result, we allow these appeals, set aside the orders passed  by
the Trial Court as also the High  Court  and  direct  that  the  prosecution
witnesses  No.1  and  2  shall  be  recalled  by  the  Trial  Court  and  an
opportunity to cross-examine the said witnesses afforded to  the  appellant.
In fairness to the counsel  for  the  appellant,  we  must  record  that  he
assured us that given an opportunity to examine the  witnesses  the  needful
shall be done on two dates of hearing, one each  for  each  witness  without
causing any un-necessary delay or procrastination.  The  Trial  Court  shall
endeavour to conclude the examination of  the  two  witnesses  expeditiously
and without unnecessary delay. The parties shall  appear  before  the  Trial
Court             on             6th              August,              2012.





                                                          ……………………….……..……J.
                                           (T.S. THAKUR)





                                                          ………………………….…..……J.
                                                          (GYAN SUDHA MISRA)
New Delhi
July 2, 2012

O R D E R (1) The Appeal No.28/2012 filed by the wife challenging the decree of dissolution of marriage between the parties and divorce is dismissed. Instead, the said decree, passed by the Family Court at the instance of the respondent/husband, is upheld and maintained. (2) The Family Court Appeal No.29/2012 is allowed. The judgment and decree, passed in Petition No. C-136/2006 is quashed 17 of 18 fca28.12.sxw and set aside. Instead, the parties are relegated before the Principal Judge, Family Court, Mumbai for reconsideration of the said Petition afresh from the stage of oral arguments. All questions therein are left open. (3) The parties shall appear before the Principal Judge of the Family Court, Mumbai on 2nd July, 2012, who may take up the said Petition No.C-135/2006 himself or assign it to any other Judge of the Family Court at Mumbai for denovo reconsideration from the stage of arguments. The Concerned Judge shall dispose of the said Petition expeditiously. (4) No order as to costs. (5) In view of the above order, Civil Application stands disposed of. (A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)

fca28.12.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012
Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. ... Appellant
(Ori.Respondent)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
(Ori.Petitioner)
AND
FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012
IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
1 of 18
SQP
fca28.12.sxw
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. ... Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
…...
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
…...
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and
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divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance
Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed
with one daughter named Palak. After few years, discord between the
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spouses took place as a result of very rude behaviour of the wife. The
wife was uninterested in domestic work. She picked up quarrels on
unessential matters and created unhealthy atmosphere in the house. The
wife was in the habit of making false, frivolous and concocted allegations
against the husband and his family members. She went to the extent of
making false allegations against the husband having illicit relationship
with his two real sisters. That on 1st June, 2005, the wife left her
matrimonial home on her own and inspite of persuasion by the husband
and his relatives, she refused to join the company of the husband. On the
basis of these allegations, the husband prayed for dissolution of marriage
between the parties solemnized on 5th February, 1990 at Mumbai and the
decree of divorce.
6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing
emphasis on the admissions given by the appellant wife in her crossexamination,
accepted the claim of the respondent husband. The Family
Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did
not lodge any complaint before police against respondents or his family
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members. Further, she does not have any evidence to show that she was
tortured mentally as well as physically. She admitted that she got her
daughter admitted in Nazareth School without consent of her husband and
she had never discussed with husband about the same. She has also
admitted that the husband and his family members approached her and
tried to convince her to come back to her matrimonial home on two
occasions. She has admitted in the cross-examination that she saw the
illicit relations between her husband and his real sisters. The Family
Court has then considered the admission of appellant's witness PW 2
i.e. daughter Palak. It has then noted that besides the oral admissions of
the appellant and her witness, even the documentary evidence goes
against the appellant. It took into account the pleadings and oral
evidence of the parties, more particularly, in respect of the allegation
about the illicit relations of husband with his sisters. The appellant had
made those allegations in her letters sent to the husband and reiterated the
same in the pleading and also in the oral evidence and justified the same
on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit
relation between husband and his sister were unsubstantiated and
frivolous. The Family Court has noticed the letters Exhibit 62 and
Exhibit 63, in addition to the stand taken in the written statement as well
5 of 18
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as oral evidence of the appellant. The Family Court on analysis of the
above material then proceeded to authoritatively hold that the wild
allegations made by the wife against the husband about illicit relations
between him and his sisters, coupled with the fact that inspite of attempt
made by the husband and his family members to persuade the appellant
wife to come back to her matrimonial home and resume
cohabitation/conjugal rights, she failed to do so, answered the issue
against the appellant wife and therefore, dissolved the marriage between
the parties on the ground of cruelty within the meaning of Section 13(1)
(ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum
and substance of the finding and the conclusion reached by the Family
Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that
the common Judgment of the Family Court is completely unsustainable as
it fails to analyse the evidence properly and to record finding of fact in
the context of the separate issue that was required to be answered before
concluding that the petition filed by husband for dissolution of marriage
and divorce deserves to be allowed. The argument is attractive at the first
6 of 18
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blush. However, as aforesaid, the Family Court has adverted to the
substance of the pleading and oral and documentary evidence adduced by
the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record,
which this Court in appeal is expected to do, the conclusion reached by
the Family Court in dissolving the marriage between the parties and
passing decree of divorce is inevitable. We are inclined to uphold the
order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our
opinion, the decree passed by the Family Court ought to be upheld on the
ground of cruelty considering the fact that the appellant wife in her
communication dated 11th May, 2006 in response to the letters sent by the
respondent husband dated 5th December, 2005 and 11th January, 2006 has
stated about the incidents she had personally noticed indicative of illicit
relations between the respondent husband and his sisters. We refrain
from reproducing those allegations in this Judgment. Suffice it to
mention that the same are serious and disparaging remarks. The
7 of 18
fca28.12.sxw
respondent husband in his petition has pointedly referred to the said
communication, being one of the acts committed by the appellant wife
which had caused immense mental agony and cruelty to him. The
appellant wife in the written statement went on to reiterate those
allegations and gave justification that the letters sent by her on 11th May,
2006 was a privileged communication between the husband and wife.
She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is
found in paragraph XIV of the written statement. The husband in his
evidence has reiterated the position that making of such malafide,
reckless and frivolous allegations by the wife constituted severe mental
cruelty to him. Nevertheless, the appellant wife in her oral evidence
(cross-examination) went on to assert that she personally saw the illicit
relations between the respondent husband and his real sisters and she had
written about the same in her communication dated 11th May, 2006 sent to
respondent husband on the basis of her inner feelings. Admittedly, no
contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making
of such false, frivolous and unsubstantiated allegations against the
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husband in the communication as well as reiterating the same in the
written statement and also in the oral evidence given by the wife before
the Court was bound to cause mental cruelty to the husband. It was
clearly an attempt to sully the reputation not only of the respondent
husband but also of the two sisters who were in the profession of
Medicine and Law respectively. That, by itself, is a good and germane
ground to dissolve the marriage between the parties and to grant decree
of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need
not deal with the other allegations concerning ground of cruelty. Even the
Family Court has not touched upon those allegations but in substance has
opined that this ground established from the record was sufficient to grant
decree of divorce. In other words, the decree of divorce under Section
13(1)(ia) deserves to be upheld in the fact situation of the present case.
9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)
(ib) i.e. desertion. As an appellate Court, having upheld the decree of
divorce on one count, which is formidable one and unassailable on any
count, it may not be necessary to dilate on other grounds to sustain the
decree. Be that as it may, we find that even though the Family Court has
not thoroughly analysed the pleadings and evidence on record in the
9 of 18
fca28.12.sxw
context of Section 13(1)(ib), but has certainly referred to the substance of
the pleadings and the evidence. The Family Court has noted that
appellant wife left the matrimonial house on her own on 1st June, 2005
and that inspite of persuasion by the respondent husband and his family
members on two different occasions, she refused to resume
cohabitation/conjugal rights. The fact that she left her matrimonial home
on 1st June, 2005 is admitted by the wife. She has also admitted that after
leaving the matrimonial home, she stayed with her father. Further, she
took away her daughter along with her and got her admitted in Nazareth
School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come
to her on two occasions to convince her to resume cohabitation/conjugal
rights, but she did not go back to her matrimonial house. On the basis of
these admitted facts, the Family Court has granted decree of divorce also
on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
10 of 18
fca28.12.sxw
communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
11 of 18
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12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
12 of 18
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“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
13 of 18
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matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18
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Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read - “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18
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requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18
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Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
17 of 18
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and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
18 of 18

The 'court' has been defined under Section 2(1)(e) of the Act to mean the principal Civil Court of original jurisdiction in a district. The principal court of civil jurisdiction in a district is the District Judge. Therefore, the mandate of an arbitrator has to be terminated not by the High Court but by the principal civil court i.e. the District Judge. Their Lordships of the Supreme Court held that irrespective of the fact that the arbitrator was appointed by the Supreme Court the objections would lie before the 'court' and the matter should go to the District Judge and for that purpose Supreme Court would not be a 'court'. In view of above discussion, the mandate of an arbitrator is terminable on an application to be moved before the court i.e. the principle civil court of original jurisdiction in a district and since High Court of Judicature at Allahabad is not a court within the meaning of Section 2(1)(e) of the Act, the application is not maintainable. It is accordingly rejected with� liberty to the petitioner to approach the appropriate court.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 10 

Case :- ARBITRATION AND CONCILI. APPL.U/S11 No. - 32 of 2012 

Petitioner :- M/S B.M.G. Construction 
Respondent :- National Small Industries Corporation Ltd. And Others 
Petitioner Counsel :- J.P. Pandey 

Hon'ble Pankaj Mithal,J. 

Heard Sri J.P. Pandey, learned counsel for the petitioner. 
Certain disputes arose between the parties in relation to the agreement dated 13.1.2006 which contained an arbitration clause. Accordingly, on 7.7.2010 respondent No.3 was appointed as the sole arbitrator to resolve the aforesaid disputes as per the mechanism provided under the agreement itself. 
Now the petitioner has come up by means of this� petition seeking� termination of the mandate of the aforesaid arbitrator respondent No.3 on various grounds. 
The mandate of the arbitrator already appointed is terminable under Section 14/15 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). 
Section 14 of the Act provides that the mandate of an arbitrator shall terminate, if he becomes de jure or de facto unable to perform his functions or�fails to act for any other reason and withdraws from his office or the parties agree to terminate his mandate. 
Sub-Section (2) of Section 14 of the Act provides that where any controversy regarding termination of the mandate of the arbitrator aforesaid arises the party may unless otherwise agreed by the parties apply to the court to decide on the termination of the mandate.
Thus, from the above it is sufficiently clear that the mandate of an arbitrator is to be terminable on an application to the court by one of the parties. 
The 'court' has been defined under Section 2(1)(e) of the Act to mean the principal Civil Court of original jurisdiction in a district. The principal court of civil jurisdiction in a district is the District Judge. Therefore, the mandate of an arbitrator has to be terminated not by the High Court but by the principal civil court i.e. the District Judge. 
Sri J.P. Pandey, learned counsel for the petitioner submitted that the definition of the court under Section 2(1)(e) of the Act includes High Court. 
It is true that under Section 2(1)(e) of the Act 'court' means the principle civil court of original jurisdiction in a district and includes the High Court but such inclusion of the High Court is qualified which is evident from the plain reading of the definition of the 'court' contained in Section 2(1)(e) of the Act itself. It reads as under:- 
"Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes; 
Thus on the plain reading of the above definition of the 'court', High Court is included within the principle civil court of original jurisdiction only if it exercises original civil jurisdiction and in such exercise has the power to determine the subject matter of arbitration had it been brought before it by way of a suit. Therefore, for including the High Court within the principle civil court of original jurisdiction two conditions are necessary namely; 
(i) High Court must exercise original civil jurisdiction; and 
(ii) in such exercise of original jurisdiction it must also have the jurisdiction to decide the subject matter of the arbitration as a regular suit. 
It is not disputed before me that the High Court of Judicature at Allahabad does not exercise original civil jurisdiction. Therefore, apparently the first of the above two conditions is not fulfilled by this High Court so as to include it within the meaning of the civil court of original jurisdiction. Accordingly, the High Court of Allahabad is not a 'court' under Section 2(1)(e) of the Act before whom an application for seeking termination of the mandate of the arbitrator can be maintained. 
This High Court is not even vested with the original jurisdiction to decide the subject matter of the arbitration had it been subjected to the suit.� 
In M/s Pandey & Company Builders Pvt. Ltd. Vs. State of Bihar and another AIR 2007 S.C. 465 their Lordships of the Supreme Court held that if a High Court does not exercise of a original jurisdiction it would not be a 'court' within the meaning of Section 2(1)(e) of the Act. 
His Lordship of this court in M/s I.T.I. Ltd. Vs. District Judge Allahabad and others AIR 1998 All. 313 held that the court of District Judge alone is the principle civil court of original jurisdiction in a district and an application under Section 34 of the Act for setting aside arbitral award which lies in a 'court' cannot be entertained even by an Additional District Judge. 
In Garhwal Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 the arbitrator was appointed by the Supreme Court and as such the controversy arose as to before whom the objections against the award can be filed. Their Lordships of the Supreme Court held that irrespective of the fact that the arbitrator was appointed by the Supreme Court the objections would lie before the 'court' and the matter should go to the District Judge and for that purpose Supreme Court would not be a 'court'. 
In view of above discussion, the mandate of an arbitrator is terminable on an application to be moved before the court i.e. the principle civil court of original jurisdiction in a district and since High Court of Judicature at Allahabad is not a court within the meaning of Section 2(1)(e) of the Act, the application is not maintainable. It is accordingly rejected with� liberty to the petitioner to approach the appropriate court. 
Order Date :- 31.5.2012 
piyush