D.P Wadhwa, J.— These are three appeals. Two appeals (Criminal Appeals Nos. 2 and 574 of 1994) are directed against the judgment dated 29-4-1993 of a Division Bench of the Gujarat High Court and have been filed respectively by the Competent Authority and the State of Gujarat. By this impugned judgment the High Court allowed two writ petitions filed by the respondents declaring that the order of detention passed against the first respondent Amritlal Chandmal Jain (“Amritlal”) under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA”) was illegal and it quashed the proceeding initiated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) against the respondents. The third appeal (Civil Appeal No. 1487 of 1994) has been filed by the Competent Authority and is directed against the judgment dated 23-6-1993 of another Division Bench of the Gujarat High Court by which the High Court dismissed the writ petition filed by the Competent Authority in which the Competent Authority had sought directions restraining the Commissioner of Income Tax, Gujarat-I from releasing seized silver to M/s Agra Bullion Company and Amritlal. In this appeal the Commissioner of Income Tax, Gujarat-I is also the respondent. The Competent Authority has been constituted under the SAFEMA and it means an officer of the Central Government to perform the functions under SAFEMA.
2. By order dated 21-7-1982, passed under Section 3 of the COFEPOSA by the State of Gujarat Amritlal was detained. He challenged his detention by filing a writ of habeas corpus under Article 32 of the Constitution in this Court (WP No. 1151 of 1982). State of Gujarat, however, revoked the order of detention by order dated 18-10-1982 but by separate order on the same grounds and passed on the same day Amritlal was again detained. This led to filing of second writ of habeas corpus by Amritlal in this Court (WP No. 1342 of 1982). First writ petition was disposed of on 20-10-1982 by the following order:
“Shri Ram Jethmalani, learned counsel for the petitioners, states that the impugned order of detention in each of these cases has since been revoked and the petitioners were thereafter released. The learned counsel further states that sometime after their release, on the day of release itself, each of the petitioners had been served with a fresh order of detention and taken into custody. He proposes to file fresh petitions under Article 32 of the Constitution. Such petitions, if and when filed, may be listed for preliminary hearing. Liberty to mention.
The petitions are, therefore, dismissed as infructuous.”
3. During the pendency of the second writ petition the detenu Amritlal was ordered to be released on parole by order dated 8-11-1982. In the meanwhile the period of detention of Amritlal was reduced by the detaining authority up to 16-8-1983 when he was released from detention. Second writ petition was disposed of on 10-7-1985 by the following order:
“Insofar as these cases are concerned, the period during which the petitioners were on parole shall be taken into account while calculating the total period of detention. The order of detention was passed more than two and a half years ago.
The writ petitions will stand disposed of in terms of this order.”
4. On 10-10-1985 the Competent Authority issued notice under Section 6 of the SAFEMA to the respondents in Criminal Appeals Nos. 2 and 574 of 1994. That was challenged by filing a writ petition in the Gujarat High Court (SCA No. 5684 of 1985). Subsequently, however, the grounds on which notice of forfeiture under Section 6 of SAFEMA was issued were revised and another notice under Section 6 was issued. That led to filing of another writ petition in the Gujarat High Court (Special Criminal Appeal No. 499 of 1991). When notice under Section 8 of SAFEMA was issued on 28-7-1991 yet another writ petition (SCA No. 5900 of 1991) was filed. Since the very foundation of action under SAFEMA was the order of detention passed against Amritlal under COFEPOSA, that very order was challenged in these writ petitions. By the impugned judgment dated 29-4-1993 SCA No. 5684 of 1985 was allowed to be withdrawn and Special Criminal Appeal No. 499 of 1991 and SCA No. 5900 of 1991 were allowed. It was held that the order of detention of Amritlal was illegal and the proceedings initiated under SAFEMA on the basis of the said illegal order were quashed.
5. To understand the third appeal (Civil Appeal No. 1487 of 1994) we may refer to some of the facts. Search and seizure operations were conducted at the premises of Amritlal by the authorities under the Income Tax Act, 1961 on 24-12-1981, which led to seizure of 1465.201 kgs of silver. Out of that M/s Agra Bullion Company claimed ownership of 301.203 kgs of silver. Amritlal approached the Settlement Commissioner under the Income Tax Act on 7-12-1984 and the proceedings were admitted by the Settlement Commission. The Settlement Commissioner, it would appear, passed orders in favour of Amritlal and Agra Bullion Company for releasing the seized silver to them. By letter dated 21-10-1991 the Competent Authority requested the Commissioner of Income Tax, Gujarat-I not to release the silver to Amritlal and Agra Bullion Company until the proceedings under SAFEMA, which had been initiated in the meanwhile, were concluded. Commissioner of Income Tax, Gujarat-I by his letter dated 4-11-1991 expressed his inability to accede to the request of the Competent Authority and said it was not possible to hold back the silver ordered to be released to Amritlal and Agra Bullion Company by the Settlement Commission. This prompted the Competent Authority to file writ petition (SCA No. 309 of 1992) in the Gujarat High Court challenging the order of the Commissioner of Income Tax, Gujarat-I which had been communicated to the Competent Authority by letter dated 4-11-1991. This SCA No. 309 of 1992 subsequently came to be unconditionally withdrawn on 8-4-1991. Having thus withdrawn SCA No. 309 of 1992 the Competent Authority, it is stated that under legal advice, filed another writ petition (SCA No. 7623 of 1992) practically claiming the same reliefs which it had prayed earlier in SCA No. 309 of 1992. The High Court was called upon to decide the validity and legality of the order passed by the Settlement Commission under the Income Tax Act as well as that contained in the letter dated 4-11-1991 of the Commissioner of Income Tax, Gujarat-I. By impugned judgment dated 23-6-1993, SCA No. 7623 of 1992 was dismissed by the High Court holding the same as infructuous as proceedings under SAFEMA had been quashed against Amritlal and others. The High Court also did not go into the question whether second writ petition by the Competent Authority was maintainable after the first having been withdrawn when relief claimed in both the writ petitions was practically the same. The High Court took notice of decision dated 29-4-1993 of another Division Bench where it was held that detention of Amritlal was illegal and since the very foundation for initiation of proceedings under SAFEMA was knocked out the proceedings under SAFEMA had come to an end and there was nothing further that was required in SCA No. 7623 of 1992 to be considered which had thus become infructuous. Aggrieved by the judgment dated 23-6-1993 (in SCA No. 7623 of 1992) the Competent Authority has filed appeal in this Court (Civil Appeal No. 1487 of 1984).
6. We may also note that the High Court in its judgment dated 29-4-1993 had held that the order of detention of Amritlal was bad on two counts, viz., (1) that second order of detention on the same grounds could not be passed and (2) the order of revocation of the first detention order was itself null and void. The High Court, however, did not consider other challenges to the validity of detention order.
7. Mr Goswamy, learned counsel appearing for the Competent Authority, submitted that the Division Bench in SCA No. 7623 of 1992 did not go into the merits of the controversy and had solely relied on a decision of this Court in Union of India v. Haji Mastan Mirza (1984) 2 SCC 427, AIR 1984 SC 681 which was held not to be good law in the nine-Judge Bench decision of this Court in Attorney General for India v. Amratlal Prajivandas (1994) 5 SCC 54. Mr Goswamy did not refer to the decision of the Gujarat High Court dated 29-4-1993 which was the subject-matter of two other appeals when all the three appeals were being heard together. He confined his attack to the judgment of the High Court dated 23-6-1993. However, whatever he said also touched upon the validity of the order of the High Court dated 29-4-1993. Mr Goswamy said that the order of detention passed in 1982 was being challenged in 1991 which he said could not be done in view of the law laid down by this Court in Amratlal Prajivandas case (1994) 5 SCC 54. His submission was that proceeding under SAFEMA could not be challenged on the alleged ground of detention being illegal unless the detenu chose to question his detention before the Court during the period when such order of detention was in force or he is unsuccessful in his attack thereon. To support his submission he relied upon detailed observations of this Court in paras 40, 41 and 42 of the judgment in Amratlal Prajivandas case (1994) 5 SCC 54 and particularly on para 56 where this Court summarized its decision on various issues raised before it in that case. We are concerned with sub-para 3(b) of para 56 which is as under:
“56. (3)(b) An order of detention to which Section 12-A is applicable as well as an order of detention to which Section 12-A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub-clauses in the proviso to Section 2(2)(b). If such detenu did not choose to question the said detention (either by himself or through his next friend) before the Court during the period when such order of detention was in force, — or is unsuccessful in his attack thereon — he, or his relatives and associates cannot attack or question its validity when it is made the basis for applying SAFEMA to him or to his relatives or associates.”
8. None of the appellants questioned the validity of the order of the High Court in its judgment dated 29-4-1993 holding that second order of detention on the same grounds could not have been passed and on that account order of detention was illegal. Their only contention was that the order of detention had not been challenged at the appropriate time and that the impugned judgment could not be sustained in view of the decision of this Court in Amratlal Prajivandas case (1994) 5 SCC 54. That does not appear to us to be quite correct. We may at this stage refer to challenges made to the orders of detention by Amritlal when the orders of detention were in force. First order of detention was itself revoked by the detaining authority. This, therefore, ceased to exist. This is apart from the fact that the High Court had held that revocation was not validly made. Nevertheless the detenu had been released. Second order of detention was challenged on various grounds but this Court again did not go into the validity of the order of detention. If Amritlal had not challenged his order of detention during the period the orders of detention were in force Mr Goswamy would have been right but, unfortunately, for him that is not so. There were challenges to both the orders of detention. True, it is not enough that there is a mere challenge and that challenge has to be upheld or negatived by the court. When there is challenge to the legality of detention in a writ of habeas corpus the challenge is in effect to the legality and validity of the grounds on which the order of detention is made. It is not that to challenge the legality and validity of the grounds on which order of detention is passed the detenu has to file a separate writ petition seeking a writ of certiorari. Once the detenu is released during pendency of his writ of habeas corpus by the detaining authority it cannot always be said that the writ petition had become infructuous and that the grounds on which the order of detention (sic) become invalid. But then if the court refuses or itself does not go into the merit of controversy in a writ of habeas corpus when the detenu is released the detenu on that account cannot be made to suffer holding that he did not successfully challenge his order of detention. That is exactly what has happened in this case. Writ Petition No. 1342 of 1992 came to be disposed of on 10-7-1985. This writ petition along with others was being heard together. This Court did not go into the question of validity of the order of detention but disposed of the matter on account of the fact that the detenu had already been released from his detention. We, therefore, cannot say that challenge to the order of detention by Amritlal was unsuccessful and that he or his relatives or his associates were in any way debarred from challenging the order of detention subsequently when notices under SAFEMA were issued to them.
9. Accordingly, we do not find any merit in these appeals. These are dismissed.