Oral Judgment: (V.M. Kanade, J.)
1. By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking appropriate writ order and direction for setting aside the order of detention dated 02/09/1994 passed by Respondent No.2 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
2. Brief facts are as under:-
3. On 02/09/1993, a jeep which was parked at Worli, Mumbai was seized and Mandrax Tablets were found in the said jeep. Petitioner's husband was made an accused in the said case. On 02/09/1994, an order of detention was passed by Respondent No.2. The said order of detention could not be served on Petitioner's husband, though, according to Respondent No.2, various steps were taken to serve him and, till today, the order of detention and grounds of detention have not been served on Petitioner's husband. Petitioner has challenged the said order of detention. In the meantime, a show-cause notice was issued to the Petitioner, asking her why her properties mentioned at Serial Nos. 2 to 5 of the List of Properties annexed to the show-cause notice should not be forfeited under the provisions of section 68-I of the Narcotic Drugs and Psychotropic Substances Act, 1985. Reply was given by the Petitioner to the said show-cause notice and after holding inquiry, Competent Authority was pleased to forfeit the property of the Petitioner and her husband. The said order was challenged by the Petitioner before the Appellate Tribunal. However, the appeal was dismissed. Petitioner, thereafter, filed Writ Petition in this Court challenging the said order of forfeiture. However, the said Writ Petition was also dismissed. The appeal was filed in the Supreme Court, challenging the said order. However, the appeal was dismissed by the Apex Court.
4. Brother-in-law of the Petitioner also filed Petition challenging the said order of detention. However, the said Writ Petition was also dismissed.
5. Principal Secretary to the Government of Maharashtra, was pleased to file her affidavit-in-reply dated 26/07/2011. Senior Police Inspector attached to Anti-Narcotic Cell, CBCID, Mumbai also filed his reply dated 26/07/2011. Two affidavits were filed on behalf of Union of India â Respondent No.1; one is affidavit-in-reply dated 5/10/2012 filed by Nafees A. Khan, Supdt(Admn.) in the Office of the Competent Authority, SAFEMA/NDPSA, Mumbai and the second additional affidavit has been filed by Stanley Joseph, Inspecting Officer, SAFEMA/NDPS Mumbai.
6. Mrs Kantharia, the learned Counsel appearing on behalf of Union of India has raised preliminary objection regarding maintainability of this Petition. Firstly, it is submitted that the Petitioner is challenging the order of detention passed on 02/09/1994 which has not been served on the detenu and which is not executed and, as such, the Writ Petition challenging the order of detention which has not been executed is not maintainable except on grounds mentioned in the judgment of the Supreme Court in Additional Secretary to the Government of India and others vs. Smt. Alka Subhash Gadia and others (Judgment Today 1991 (1) SC 549). Secondly, it is submitted that the order of detention of the Petitioner's husband was also challenged by her brother-in-law and the said Writ Petition was dismissed by the Division Bench of this Court by judgment and order dated 28/04/1999 in Writ Petition No.274 of 1999 and, therefore, it was not open for the Petitioner to again challenge the said order of detention by filing a separate Writ Petition. Thirdly, it is submitted that the Petitioner had challenged the order of forfeiture of property mentioned in the show-cause notice by filing an appeal against the order of Competent Authority. However, the said appeal was dismissed, the Writ Petition filed in the High Court vide Writ Petition No. 1867 of 1999 was also dismissed and the appeal filed against the said order in the Supreme Court was also dismissed and, as such, it is not now open for the Petitioner to challenge the order of forfeiture.
7. Mrs Kantharia, the learned Senior Counsel appearing on behalf of Union of India then submitted that so far as the property situated at Bhopal is concerned, the order of forfeiture of the said property was also challenged. However, the order passed by the Competent Authority in respect of the said property situated at Bhopal was confirmed by the Appellate Tribunal, High Court and the Supreme Court. It is, therefore, submitted that the order of forfeiture having attained finality, it is not now open for the Petitioner to challenge the order of forfeiture of the said property.
8. On the other hand, Mr. Shirish Gupte, the learned Senior Counsel appearing on behalf of the Petitioner, submitted that it is open for the Petitioner to challenge the said order at pre-execution stage and reliance was placed on the judgment of the Apex Court in SubhashPopatlal Dave vs. Union of India and Anr (Supreme Court Judgment in WP (Crl) No.137/2011 dated 10.7.2012)He submitted that by the said judgment, the ratio of the judgment in SmtAlka Gadia (Judgment Today 1991 (1) SC 549) (supra) was referred to the larger Bench. He also relied on the judgment of the Apex Court in Deepak Bajaj vs. State of Maharashtra and another (2008) 16 SCC 14) He, therefore, submitted that in view of the said judgments, Writ Petition challenging the order of detention at pre-execution stage is maintainable.
9. Mr. Gupte, the learned Senior Counsel appearing on behalf of the Petitioner then submitted that, Petitioner, being the wife of detenu against whom order of detention was passed, is entitled to challenge the order of detention since she is directly affected by issuance of show-cause notice under the provisions of section 68-H by which notice her property was sought to be acquired by the Competent Authority. He relied on the following judgments:-
â1. Union of India and Others vs. Manoharlal Narang (1987) 2 SCC 241)
2. Attorney General for India vs. Amratlal Prajivandas (1995 CRI.L.J. 426).â
10. The learned Senior Counsel for the Petitioner then submitted that so far as writ of habeas corpus is concerned, doctrine of constructive res judicata is not applicable and in support of the said submission, he relied on the following judgments:-
â1. GulamSarwar vs. Union of India and others (AIR 1967 SC 1335).
2. LallubhaiJogibhai Patel vs. Union of India and Ors (AIR 1981 SC 728).
3. Smt. Sughrabai Sadruddin Chunara vs. Union of India and Ors. (2009 ALL MR (Cri) 3696).â
11. So far as merit of the case is concerned, learned Senior Counsel for the Petitioner submitted that there was gross and unexplained delay in issuing the order of detention. He submitted that incident in question took place on 02/09/1993, proposal was sent after 9 months from the said date and sanction was granted after three and half months thereafter. He submitted that in the affidavit-in-reply filed by the Principal Secretary Mrs. Medha Gadgil, no explanation has been given as to why the said delay had caused. He submitted that on that ground alone the order of detention is liable to be set aside. Secondly, he submitted that no explanation has been given as to why the said order of dentition could not be served. He submitted that on that ground also the order of detention is liable to be set aside.
12. The first question which falls for consideration is: whether the wife of the detenu is entitled to challenge the order of detention. It is an admitted position that the order of detention which was passed by Respondent No.2 dated 2/9/1994 has not been served on the husband of the Petitioner. In the present case, show-cause notice was issued to the Petitioner asking her to show-cause why her properties mentioned in the show-cause notice should not be forfeited under the provisions of section 68-I of the NDPS Act, 1985 Consequently, as a result of the said order of detention, in view of provisions of NDPS Act, the properties belonging to the relatives of the detenu are liable to be forfeited after the competent authority is satisfied that the said property is illegally acquired property of the detenu. The relevant provisions of the NDPS Act reads as under:-
[CHAPTER V-A
FORFEITURE OF PROPERTY DERIVED FROM OR USED IN, ILLICIT TRAFFIC
68-A. Application â (1) The provisions of this Chapter shall apply only to the persons specified in sub-section (2).
(2) The persons referred to in sub-section (1) are the following, namely:-
(a)........
(b)........
(c) every person in respect of whom an order of detention has been made under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988), or under the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988:
Provided that such order of detention has not been revoked on the report of the Advisory Board constituted under the said Act or such order of detention has not been set aside by a Court of competent jurisdiction.
[(cc)................
(d) every person who is a relative of a person referred to in clause (a) or clause (b) or clause (c ) [or clause (cc)]
(e)........
(f).........â
â68-B. Definitions.- In this Chapter, unless the context otherwise requires -
(a)...... to (f)..........
(g) âillegally acquired propertyâ, in relation to any person to whom this Chapter applies, means,-
(i) any property acquired by such person, whether before or after the commencement of this Chapter, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to [the contravention of any provisions of this Act]; or
(ii) any property acquired by such person, whether before or after commencement of this Chapter, for a consideration, or by any means wholly or partly traceable to any property referred to in sub-clause (i) or the income or earnings from such property, and includes-
(A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holders or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;
(B) any property acquired by such person, whether before or after the commencement of this Chapter, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom;
(h) âpropertyâ means property and assets of every description, whether corporeal or incorporeal, movebale or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets, derived from, or used in, the illicit traffic;
(i) ârelativeâ means-
(1) spouse of the person;
(2) â¦.. to (7)........â
(j).......
(k)......â
â68-C. Prohibition of holding illegally acquired property.- (1) As from the commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any illegally acquired property either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Chapter:
[Provided that no property shall be forfeited under this Chapter if such property was acquired, by a person to whom this Act applies, before a period of six years from the date he was arrested or against whom a warrant or authorization of arrest has been issued for the commission of an offence punishable under this Act or from the date the order of detention was issued, as the case may be.]â
â68-H. Notice of forfeiture of property.- (1) If, having regard to the value of the properties held by any person to whom this Chapter applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, and any other information or material available to it as a result of a report from any officer making an investigation under section 68-E or otherwise, the competent authority has reason to believe (the reasons for such belief to be recorded in writing) that all or any of such properties are illegally acquired properties, it may serve a notice upon such person (hereinafter referred to as the person affected (calling upon him within a period of thirty days specified in the notice to indicate the sources of his income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government under this Chapter.
(2) Where a notice under sub-section (1) to any person specifies any property, as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.
[Provided that no notice for forfeiture shall be served upon any person referred to in clause (cc) of sub-section (2) of section 68-A or relative of a person referred to in that clause or associate of a person referred to in that clause or holder of any property which was at any time previously held by a person referred to in that clause]â
Perusal of the aforesaid provision, therefore, clearly establishes that once an order of detention is passed by the Detaining Authority and if the said order of detention is not revoked by Advisory Committee or quashed by the Court, the Competent Authority under the NDPS Act is entitled to issue show-cause notice under section 68(i) of the NDPS Act. The Petitioner being wife of the detenu, therefore, is directly affected by the order of detention and, therefore, would be entitled to challenge the order of detention even at the pre-execution stage. Petitioner has an independent right to challenge the order of detention passed against her husband as the said order is the basis for issuance of notice under section 68(i) of the NDPS Act and visits her with civil consequences. Division Bench of this Court in Smt. Sughrabai Sadruddin Chunara vs. Union of India and Ors. (2009 ALL MR (Cri) 3696) has observed in para 7 of its judgment as under:-
â7. In view of the discussion as above, we hold that a person who is aggrieved by the application of the SAFEMA to him/her consequent to passing an order of detention under the COFEPOSA, such a person has an independent right to challenge the order of detention, although such person may not seek a writ of habeas corpus. After holding as above, it will have to be seen whether the order of detention is bad.â
In the said case also, the Petitioner who was a relative of the detenu had challenged the order of detention since a notice of forfeiture under section 6(1) of the SAFEMA was issued to her. It is an admitted position that the said provision of section 6(1) of SAFEMA and section 68-I of NDPS Act are parimateria. Division Bench of this Court in Mohideen Tayab Sony vs K.K. Dwivedi and others (Judgment in Criminal Writ Petition No.1380 of 1986 dated 20/8/1987) also came to the same conclusion after relying on two judgments; first in Jayantilal Bhagwandas vs. State of Maharashtra (1981 CR.L.J. 767) and the second in Criminal Writ Petition No.622 of 1982 delivered on 21/11/1983. Division Bench in Mohidden Tayab Sony (supra) has observed in para 5 of its judgment as under:-
â5. â¦..... We need not go into this aspect of the matter, for the question of locus-standi can be settled on a different basis. In regard to the petitioner, it cannot be said that he does not have a personal grievance entitling him to question the order of detention. It is the existence of that order which has deprived him of the right to get a refund of the fine paid to get over the order of forfeiture passed under the SAFEMA..............The position emerging is that the subsistence of the impugned detention order is coming in the way of the Petitioner exercising a civil right vested in him viz, to get a refund of the fine amount paid by him and and his sister. He therefore has a right pertaining to him to impugned the legality of the order of detention made against Taher Sony.â
In view of the settled legal position, therefore, we are of the view that the Petitioner being relative of the detenu whose property is being acquired would be entitled to challenge the order of detention.
13. In our view, taking into consideration the facts and circumstances of the case, It is not now open for the Petitioner to challenge the order of detention. Petitioner, in her Petition has nowhere stated as to when she became aware of the order of detention. Petition has been filed in 2011. The order of detention was passed on 02/09/1994. The brother-in-law of the Petitioner had filed an independent Petition challenging the very same order of detention being Writ Petition No. 274 of 1999. The said Writ Petition, however, was dismissed by Division Bench of this Court in 1999 and the Court, on the basis of the judgment of the Apex Court in SmtAlka Gadia (Judgment Today 1991 (1) SC 549) (supra) came to the conclusion that the Petition challenging the order of detention at pre-execution stage is not maintainable. Petitioner herein was aware about the order of detention though it was not served on her husband. Secondly, the show-cause notice was issued in 1995 and 1997 and, as such, even at that time, Petitioner could have challenged the order of detention. However, instead of adopting the said procedure, Petitioner has chosen to challenge the show-cause notice before the Competent Authority and the Appellate Tribunal. Petitioner could have challenged the order of detention in the Writ Petition which was filed by her in this Court, challenging the order passed by the Competent Authority forfeiting her property mentioned in the show-cause notice. However, Petitioner chose not to take the said ground in the Writ Petition which was filed in this Court.
14. The second question which falls for our consideration is : whether the present petition is barred by the principle of constructive res judicata? In our view, there is much substance in the preliminary objection taken by the learned Counsel appearing on behalf of Union of India regarding maintainability of the Writ Petition. It is an admitted position that the Petitioner had challenged the show-cause notice which was issued to her. After the competent authority passed the order of forfeiture, she challenged the said order before the Appellate Tribunal and, thereafter, filed Writ Petition in this Court, challenging the said orders. It was open for her to have also challenged the order of detention which was passed against her husband in the first Petition. However, she did not challenge the order of detention. The said Writ Petition was dismissed by this Court and the order was confirmed by the Apex Court in SLP which was filed by the Petitioner. The order of forfeiture, therefore, had attained finality. Even the property mentioned in the show-cause notice was sought to be auctioned and the part of the property has been sold in auction. The auction, however, is yet to be finalized. In our view, it will not be open now for the Petitioner to challenge the order of detention since it will be barred by the principle constructive res judicata.
15. There cannot be any dispute about the proposition that so far as writ of habeas corpus is concerned, successive Petitions can be filed and such Petitions would not be barred by the principle of res judicata. In the present case, however, Petitioner has not filed a writ of habeas corpus but has filed merely a Petition challenging the order of detention which order was also challenged by brother-in-law of the Petitioner and the Writ Petition filed by him was dismissed by Division Bench of this Court by a reasoned judgment and order.
16. This Petition challenging the order of detention has been filed after all the attempts of the Petitioner to save her property from forfeiture failed and the highest Court in the Country viz Supreme Court of India confirmed the order of forfeiture. Therefore, it will not be now open for the Petitioner to approach this Court by making a back door entry to save her property from forfeiture when all her attempts have failed. Petitioner could have raised this point in the Writ Petition which was filed by her and it was open for the Petitioner to have taken this stand in the said Writ Petition. However, Petitioner chose not to raise this ground and, therefore, in view of the principle of constructive res judicata, it will not be now open for the Petitioner to challenge the order of detention by filing this Writ Petition which admittedly has been filed on account of show-cause notice of forfeiture which was issued to her. Apex Court in HeenaKausar vs Competent Authority (2008) 14 SCC 724) in paras 13 to 16 has observed as under:-
â13. Admittedly, the order of the appellate authority was the subject matter of the writ petition. The contentions raised herein were not raised before the said authority or before the High Court. The order of the High Court dated 15-12-1999 attained finality.â
â14. The flats in question stood forfeited to the State (sic Central) Government. The said proceedings cannot be permitted to be reopened.â
â15. Only because in relation to the bank accounts, the matter was remanded, during pendency whereof, the proviso appended to Section 68C was inserted, the same by itself, in our opinion, would not give rise to another cause of action so as to enable the appellant to  raise the contentions which he could and ought to have raised in the earlier proceedings.â
â16. The principle of âconstructive res judicataâ, it is true, applies also to a writ proceeding. Furthermore, admittedly such a contention has not been raised even in the second writ application. The documents which were necessary to be taken into consideration for determining the said question are also not before us. We, therefore, are of the opinion that it is not possible for us to go into the said question.â
Ratio of the said judgment in HeenaKausar (supra) would also squarely apply to the facts of the present case and, in our view, Petitioner cannot be permitted now to file this Petition.
17. Writ Petition is accordingly dismissed.
18. So far as the application for intervention is concerned, since the Writ Petition is dismissed, application for intervention does not survive. The Intervener, pursuant to the advertisement of auction had purchased the property situated at Bhopal. He has paid 25% of the amount and the balance 75% was not paid on account of interim stay granted by this Court. Since this Petition has now been dismissed, the Intervention Application does not survive and it is accordingly disposed of. However, it is made clear that the intervener may be given an opportunity to make balance payment of 75%. It is an admitted position that the order of status quo was passed and, as such, thereafter, the question of intervener paying the balance amount did not arise. After the period of four weeks of stay which is granted by this Court expires, the intervener shall deposit the balance amount and if the payment is so made, it may be accepted by the competent authority.
19. After the judgment was pronounced by this court, the learned Counsel for the Petitioner seeks interim stay for a period of four weeks. The order of stay granted by this Court shall continue for a period of four weeks after the certified copy is made available.