Madras High Court
Shri P.Rahamatoulla (Died) vs Competent Authority on 24 January, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.Nos.44211 of 2002 and 8518 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2025
PRONOUNCED ON : 24.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.Nos.44211 of 2002 and 8518 of 2004
WMP.No.10003 of 2004
1. Shri P.Rahamatoulla (died)
2. Abdoul Cassime
3. Hamidabivy
4. Ahamadusa
(petitioners 2 to 4 substituted vide order dated 24.01.2025
in WMP.No.2062 of 2025 in WP.No.44211 of 2002
rep by their power of Attorney Mr.A.Anis Ahamed)
(petitioners 2 to 4 substituted vide order dated 15.04.2019
in WMP.No.11195 of 2019 in WP.No.8518 of 2004
rep by their power of Attorney Mr.A.Anis Ahamed)
… Petitioners in both cases
… Vs ...
Competent Authority
SAFEM (FOP) Act & NDPS Act
“UTSAV” 64/1, G.N.Chetty Road,
T.Nagar, Chennai – 600 017.
2.The Collector
Chengai MGR District
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Kancheepuram, Tamil Nadu
3.The Collector
Secretariat Buildings
Pondicherry.
4.The Registrar
Appellate Tribunal for Forfeited Property
4th Floor, Loknayak Bhavan
Khan Market,
New Delhi – 110003.
... Respondents in both cases
PRAYER in WP.No.44211 of 2002 : Writ petition filed under Article
226 of Constitution of India to issue a Writ of Certiorari to call for the
records pertaining to the order of the 4th respondent passed in
MP.No.11/MDS/97 and 26/MDS/97 in FPA.No.4/MDS/97 dated
31.07.1997, and of the orders passed by the first respondent in
F.No.OCA/MDS/2836/91 dated 15.09.1993 passed under Section 7(1) of
the Smugglers and Foreign Exchange Manipulators (forfeiture of
property) Act 1976, and the consequential order of the first respondent in
proceedings F.No.OCA/MDS/2836/91 dated 17.10.1996 passed under
Section 19(1) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 and quash the same.
PRAYER in WP.No.8518 of 2004: Writ petition filed under Article 226
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of Constitution of India to issue a Writ of Certiorari to call for the records
of the first respondent bearing F.No.OCA/MDS/2836/91 dated
26.02.2004 and quash the same.
For Petitioner : Mr.V.Raghavachari, Sr.Counsel
for Mr.L.Damodaran
For Respondents : Mr.AR.L.Sundaresan
Addl. Solicitor General of India
Assisted by Mr.Prasad Vijayakumar, SPC for R1
Mr.P.Balathandayutham, Spl.GP for R2
No appearance – R3
Mr.J.Madanagopal Rao, SPC for R4.
COMMON ORDER
(The Order of the Court made by Justice M. JOTHIRAMAN)
Under assail :-
(i)WP.No.44211 of 2002 is the order of the 4th respondent passed
in MP.No.11/MDS/97 and 26/MDS/97 in FPA.No.4/MDS/97 dated
31.07.1997 and of the orders passed by the first respondent in
F.No.OCA/MDS/2836/91 dated 15.09.1993 passed under Section 7(1) of
the Smugglers and Foreign Exchange Manipulators (forfeiture of
property) Act 1976, and the consequential order of the first respondent in
proceedings F.No.OCA/MDS/2836/91 dated 17.10.1996 passed under
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Section 19(1) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976.
(ii) WP.No.8518 of 2004 is the order dated 26.02.2004 passed in
Proceedings F.No.OCA/MDS/2836/91 on the file of the Competent
Authority functioning under the SAFEM (FOP) & NDPS Acts, Chennai.
The unsuccessful appellant before the Authority has preferred the present
writ petitions before this Court.
2. Originally, Shri.P.Rahamatoulla had filed the above two writ
petitions. Challenging the impugned orders in FPA.No.4/MDS/97 dated
31.07.1997 and in Proceedings F.No.OCA/MDS/2836/91 dated
15.09.1993 and F.No.OCA/MDS/2836/91 dated 17.10.1996 in
WP.No.44211 of 2002 and impugned order dated 26.02.2004 in
F.No.OCA/MDS/2836/91 in WP.No.8518 of 2004. During the pendency
of the above writ petitions, the said P.Rahamatoulla / writ petitioner died
on 05.10.2009 leaving behind the following persons as his legal heirs (i)
2. Abdoul Cassime (ii)Hamidabivy and (iii)Ahamadusa and they have
been brought on record as the legal heirs of the deceased. The above said
legal heirs have been represented by their power of attorney A.Anis
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Ahamed. Shri.P.Rahamatoulla, writ petitioner herein after referred to
as petitioner.
3. The case of the petitioner in brief is as follows :-
(i) The petitioner was residing and working in France. During his
visit to India in 1988, he had bought some gold weighing about 560
grams in order to give to his relatives. At Bombay Airport he was
intercepted by Customs Officials and the Gold brought by him was seized
and confiscated under Section 111 of the Customs Act, 1962 and imposed
a fine under Section 112 of the Customs Act. The petitioner was
prosecuted by the Customs authorities for alleged offence under Section
135(1)(a)(i), 135(1)(b)(i) of the Customs Act, 1962 and Section 5 of the
Imports and Exports Act, 1974, before the Chief Metropolitan Magistrate,
Bombay in CC.No.304/CW, 1988 vide order dated 01.07.1988, he was
convicted and sentenced to undergo one day Simple Imprisonment and to
pay fine of Rs.18,000/- in default to undergo six months rigorous
imprisonment.
(ii) As per the findings of the learned Chief Metropolitan
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Magistrate, Bombay, the petitioner does not come under the definitions of
“Smuggler” and “smuggling activities” under the respective acts.
Subsequently, he left for France in 1988 and has been residing there since
then.
(iii) After a lapse of about six years, the Competent Authority
initiated proceedings in respect of immovable properties standing in his
name, situated at Door No.272 & 273, MKN Road, Alandur, Chennai –
16, under the Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976 [herein after referred to as “SAFEM (FoP) Act”]
and passed an order under Section 7(1) of the Act on 15.09.1993,
declaring the aforesaid property as illegally acquired property which was
forfeited to the Central Government, free from all encumbrances. The
petitioner was not aware of the above proceedings stated supra. When he
came to India on 13.01.1997, the order passed by the first respondent /
Competent Authority under Section 7(1) and Section 19(1) of the Act in
Proceedings F.No.OCA/MDS/2836/91 dated 15.09.1993 and
F.No.OCA/MDS/2836/91 dated 17.10.1996 respectively came to be
served on the petitioner on 14.01.1997. Initially, the aforesaid orders of
the first respondent were attempted to be served at an address were the
petitioner did not reside. The address mentioned in
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F.No.OCA/MDS/2836/91 dated 17.10.1996 passed by the first
respondent also reflected the wrong address. After an enquiry made by
the respondents, the said orders were served on the petitioner's wife at the
correct address on 18.10.1996 and the same was served on him only on
14.01.1997.
(iv) While the petitioner was residing outside of India in France the
authorities stated in their orders that they had served the alleged notice
under Section 6(1) of the Act. They proceeded further and passed an
order under Section 7(1) of the Act on 15.09.1993. Further they passed
an order under Section 19(1) of the Act on 31.05.1994 and modified the
order on 17.10.1996. This was done without giving the petitioner with a
fair opportunity to defend himself and thereby violated the principles of
natural justice and Section 20 of the Act.
(v) The petitioner arrived in India on 13.01.1997 and the order
passed by the first respondent under Section 7(1) & 19(1) of the Act was
served on him on 14.01.1997. The respondents herein have not served
notice as contemplated under Section 6(1) of the Act. The first
respondent had also proceeded to pass order dated 17.10.1996 under
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Section 19(1) of SAFEM (FoP) Act, directing to hand over the possession
of the immovable property to the Collector. Aggrieved by the order dated
15.09.1993 passed under Section 7(1) of the Act and the order dated
17.10.1996 passed under Section 19(1) of the Act, the petitioner preferred
an appeal.
(vi) Thereafter, the petitioner preferred an appeal under Section
12(4) r/w.Rule 5 of the Act before the 4th respondent / Appellate Tribunal
on 25.02.1997. The Appellate Tribunal dismissed the appeal by an order
dated 31.07.1997, citing grounds of limitation without examining the
facts and merits of the case. Although the copy of the order was served
on the petitioner's counsel, it was not communicated to petitioner in a
timely manner. Consequently, the petitioner received the said order copy
only on 21.05.2002.
4 (i) Mr.V.Raghavachari, learned Senior Counsel appearing on
behalf of the petitioner would submit that the deceased Rahamatoulla was
not a person affected and he was not imposed a minimum sentence of one
year as contemplated under Section 135(1)(i) of the Customs Act or six
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months rigorous imprisonment under Section 5 of the Imports and
Exports Act, 1974. The punishment imposed by the learned Chief
Metropolitan Magistrate, Bombay cannot be termed as a conviction in
terms of Customs Act, 1962.
4.(ii) To invoke the provisions of the Act against the petitioner, as
per requirement of Section 6 of the Act, the first respondent ought to have
applied the provisions of Section 18 of the Act (i.e.,) he ought to have
evaluated the property's value sources of income, earnings or assets and
any other information or materials available to him and reasons to believe
that the said property was illegally acquired property. Only thereafter, he
may initiated the process of issuing the notice to the person affected /
petitioner herein. In the present case, none of the above conditions
precedent had been observed or followed before the issuance of the
alleged notice under Section 6(1) of the Act.
4.(iii) The learned Senior Counsel would further submit that the
property was acquired by the petitioner as early as in 1968 from and out
of his earnings much prior to obtaining his passport in 1985. He had also
assessed himself to the income tax authorities under the Income Tax Act,
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1961. The first respondent had miserably failed to hastily said to show
that the alleged notice under Section 6(1) of the Act was issued unserved.
The first respondent knowing well that the petitioner was a resident
outside India had merely stated that they had served the alleged notice
under Section 6(1) of the Act without taking recourse to find the exact
place of the petitioner with the assistance of the Embassy and serve the
alleged notice in person, to his correct address. The order passed by the
first respondent under Section 7(1) of the Act based on the alleged service
of the notice under Section 6(1) of the Act is vitiated for want of proof of
alleged issuance and the alleged service of notice under Section 6(1) of
the Act.
4.(iv) Furthermore, the first respondent had earlier passed a similar
order dated 31.05.1995, directing the Collector, Pondicherry / third
respondent herein to take possession of the very same property of the
petitioner. The subsequent order dated 17.10.1996 was passed after a
lapse of one year and both orders were passed under the same provision
under Section 19(1) of the Act. In the first instance, the order was
directed to the Collector, Pondicherry / third respondent and in the
second instance it was directed the Collector, Chenngai MGR District,
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Kancheepuram / second respondent herein to take possession of the very
same property of the petitioner which illegal and contrary to the
provisions of Section 20 of the Act.
4.(v) The learned Senior Counsel for the petitioner would further
submit that the property was acquired during 1968, i.e., 20 years prior to
the said conviction in 1988. The appellate Tribunal had erred in holding
that the appeal is barred by limitation. The appeal against the alleged
order under Section 7(1) could only be taken from the date of knowledge
i.e., 14.10.1996 and not the order under Section 19(1) as stated in the
letter dated 31.10.1996.
4.(vi) The learned Senior Counsel appearing for the petitioner to
strengthen his contentions relied upon the following judgments :-
(a) (1997) 11 SCC 421 – Yakub Abdul Razak Memon –
Competent Authority wherein it has been held as follows :-
“4. The contention raised by Mr Salve being
one of law based on admitted facts, we do not find
any substance in the objection raised on behalf of the
respondents. Coming now to the merits we find that
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the respondents, in their counter-affidavit stated that
the order under Section 7 (which was made on 28-9-
1993) was served on 1-10-1993 by affixation. The
question, therefore, is whether such service was a
proper and valid service under Section 22 of the Act
which reads as under:
“22. Any notice or order issued or made under
this Act shall be served—
(a) by tendering the notice or order or sending
it by registered post to the person for whom it is
intended or to his agent;
(b) if the notice or order cannot be served in
the manner provided in clause (a), by affixing it on a
conspicuous place in the property in relation to
which the notice or order is issued or made, or on
some conspicuous part of the premises in which the
person for whom it is intended is known to have last
resided or carried on business or personally worked
for gain.”
5. From a plain reading of the above section it
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is manifest that service under clause (b), that is by
affixation, would be permissible if the notice or order
cannot be served in the manner provided in clause
(a). Therefore, without making any effort to serve in
terms of clause (a) the respondents could not have
invoked service by affixation under clause (b). As,
admittedly, no steps were taken to serve the order
passed under Section 7 by tendering or sending it by
registered post, and, on the contrary, within 3 days of
the making thereof it was sought to be served for the
first time by affixation, it must be said that there was
no valid service within the meaning of Section
12(4).”
(b) AIR 2009 SC 536 – Aslam Mohd. Merchant v. Competent
Authority & Others wherein it has been held as follows :-
“26. Chapter V-A contains stringent
provisions. It provides for forfeiture of property.
Such property, however, as the heading of the
Chapter shows, must be derived from or used in
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illicit traffic. Illegally acquired property in relation
to any person to whom the Chapter applies would
mean only such property which was acquired wholly
or partly out of or by means of any income
attributable to the contravention of any provision of
the Act or for a consideration wholly or partly
traceable to any property referred to in sub-clause (i)
or the income or earning from property.
27. It is, therefore, evident that the property
which is sought to be forfeited must be the one which
has a direct nexus with the income, etc. derived by
way of contravention of any of the provisions of the
Act or any property acquired therefrom. What is
meant by identification of such property having
regard to the definition of “identifying” is that the
property was derived from or used in the illicit
traffic.”
(c) 2015 (5) SCC 423 – Radhey Shyam and another v. Chhabi
Nath and others wherein it has been held as follows :-
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“...... ….. 11. In dealing with the powers of the
High Court under Article 226 of the Constitution, this
Court has expressed itself in almost similar terms, vide
G. Veerappa Pillai v. Raman & Raman Ltd. [(1952) 1
SCC 334 : AIR 1952 SC 192 : 1952 SCR 583] and said
: (AIR pp. 195-96, para 20)
‘20. Such writs as are referred to in Article
226 are obviously intended to enable the High
Court to issue them in grave cases where the
subordinate tribunals or bodies or officers act
wholly without jurisdiction, or in excess of it, or in
violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or
there is an error apparent on the face of the record,
and such act, omission, error or excess has
resulted in manifest injustice. However extensive
the jurisdiction may be, it seems to us that it is not
so wide or large as to enable the High Court to
convert itself into a court of appeal and examine
for itself the correctness of the decisions impugned
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and decide what is the proper view to be taken or
the order to be made.’”
(d) (2011) 6 SCC 739 – Thirumalai Chemicals Limited V.
Union of India and others wherein it has been held as follows :-
22. Law is well settled that the manner in
which the appeal has to be filed, its form and the
period within which the same has to be filed are
matters of procedure, while the right conferred on a
party to file an appeal is a substantive right. The
question is, while dealing with a belated appeal
under Section 19(2) of FEMA, the application for
condonation of delay has to be dealt with under the
first proviso to sub-section (2) of Section 52 of
FERA or under the proviso to sub-section (2) of
Section 19 of FEMA. For answering that question it
is necessary to examine the law on the point.
24. Right of appeal may be a substantive right
but the procedure for filing the appeal including the
period of limitation cannot be called a substantive
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right, and an aggrieved person cannot claim any
vested right claiming that he should be governed by
the old provision pertaining to period of limitation.
Procedural law is retrospective meaning thereby
that it will apply even to acts or transactions under
the repealed Act.
25. Law on the subject has also been
elaborately dealt with by this Court in various
decisions and reference may be made to a few of
those decisions. This Court in Garikapati Veeraya v.
N. Subbiah Choudhry [AIR 1957 SC 540] , New
India Insurance Co. Ltd. v. Shanti Misra [(1975) 2
SCC 840] , Hitendra Vishnu Thakur v. State of
Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri)
1087] , Maharaja Chintamani Saran Nath Shahdeo
v. State of Bihar [(1999) 8 SCC 16] and Shyam
Sunder v. Ram Kumar [(2001) 8 SCC 24] , has
elaborately discussed the scope and ambit of an
amending legislation and its retrospectivity and held
that every litigant has a vested right in substantive
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law but no such right exists in procedural law. This
Court has held that the law relating to forum and
limitation is procedural in nature whereas law
relating to right of appeal even though remedial is
substantive in nature.
44. Though both Section 52(2) of FERA and
Section 19(2) of FEMA provide a limitation of 45
days and also give the discretion to the appellate
authority to entertain an appeal after the expiry of
45 days, if the appellant was prevented by sufficient
cause from filing an appeal in time, the appellate
authority under FERA could not condone the delay
beyond 45 days whereas under FEMA, if the
sufficient cause is made out, the delay can be
condoned without any limit.
(e) (2017) 9 SCC 489 – Domnic Alex fernandes (D) Through
Lrs and others v. Union of India and others wherein it has been held
as follows :-
“20. In the present case, it is undisputed that
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only adjudication which has taken place by the
competent authority is that the property was owned by
the person to whom the Act applied i.e. against whom
the order of detention had been confirmed. The rights
of the appellants, who claim to be bona fide tenants
even prior to purchase of the property by the person to
whom the Act applied, have not been adjudicated upon
on the assumption that their rights will stand
automatically terminated. In view of law laid down by
this Court, noticed above, we are of the view that rights
of a bona fide tenant will not stand automatically
terminated by forfeiture of property and vesting thereof
in the Central Government. Such forfeiture will
extinguish the rights of the person to whom the Act
applies in the present case Krishna Budha Gawde, who
was the owner of the property in question or his
relative or associate having nexus with him in relation
to the said property. However, we do not express any
opinion whether the appellants are the bona fide
tenants and had no nexus with the acquisition of the
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property by the person to whom the Act applied as
claimed by them. This question needs to be determined
independently by the competent authority as defined in
Section 3(1)(b) of the Act.
21. Accordingly, we allow this appeal, set aside
the order [Domnic Alex Fernandes v. Union of India,
2007 SCC OnLine Bom 1471] of the High Court and
remit the matter to the competent authority for passing
an appropriate order in accordance with law. The
parties are directed to appear before the competent
authority for further proceedings on 9-10-2017.”
5.(i) Per contra, Mr.AR.L.Sunderasan, learned Additional Solicitor
General of India appearing for the first respondent would submit that the
petitioner has admittedly been convicted on 01.07.1988 by the learned
Chief Metropolitan Magistrate, Bombay vide Proceedings in
CC.No.304/CW of 1988 under Section 2(2)(a)(i) of SAFEM (FoP) Act,
any person who is convicted under the Customs Act, 1878 or Customs
Act, 1962 for a value exceeding Rs.1 Lakh is a person in respect of whom
the Act applies. Since, the value of the gold smuggled by the petitioner is
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Rs.1,75,200/-, the petitioner is a person to whom the Act applies. He
would further submit that notice under Section 6(1) of the Act has been
attempted to be served in person as contemplated under Section 22(1) of
the Act by registered post. The said notice has been returned with an
endorsement “left India”. As such, it is a service on the address of the
petitioner, which amounts to valid service. Even otherwise, the notice
affixed under Section 22(B) of the Act and his wife who was also there
has refused to divulge the proper address of the petitioner in France and
attempts to serve the notice in France have also failed due to the evasion
of service by the petitioner. Hearing notices were also refused to be
received and returned with an endorsement “left India”. Even such
notices have been affixed under Section 22(B) of the Act.
(ii) The learned Additional Solicitor General of India would submit
that after passing any order under Section 7(1) of the Act on 15.09.1993,
the same was served on the wife on 26.10.1993, and also affixed in the
property on 03.12.1993, along with order under Section 19(1) of the Act.
It was again served on wife of the petitioner on 17.10.1996, in the
presence of witnesses and a mahazar was drawn for the same. HE would
submit that the petitioner preferred an appeal on 27.02.1997 which is
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beyond 45 days provided under Section 12(4) of the Act. Even as per the
proviso, the appeal may be entertained after the period of 45 days but not
after 60 days. As such, the appeal filed by the petitioner on 27.02.1997
was not entertainable by the Appellate Tribunal and the Appellate
Tribunal had no jurisdiction to condone the delay . Accordingly the
appeal was dismissed on 31.07.1997.
(iii) The learned Additional Solicitor General of India further
submits that under the provisions of the Act, “illegally acquired property”
has been defined under Section 3(1)(c) of the Act. As such, in terms of
the Act, it is not necessary that the property to be forfeited should be one
which is acquired after the conviction or detention of the person
concerned. The burden of proving that any properties specified in the
notice under Section 6 are not illegally acquired lies on the person
concerned. The plea of the petitioner for condonation of delay deserves
to be rejected for the reasons that the petitioner was consistently evading
service of notice at all stages. His wife had been made aware of the
proceedings at all stages. In spite of having full knowledge about the
proceedings, the petitioner kept away from the proceedings and did not
avail the opportunities provided under the Act. The jurisdiction of the
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Appellate Tribunal to entertain appeals is only within 45 days and beyond
45 days only if sufficient cause is shown for the delay, but not later than
60 days. Thus the order of the Appellate Tribunal refusing to entertain
the appeal is perfectly in order.
(iv) To strengthen his arguments, the learned Additional Solicitor
General of India relied upon the following judgments :-
(i)2001 (8) SCC 470 – Union of India V. Popular
Construction Company.
(ii)2009 (5) SCC 791 – Commissioner of Customs
and Central Excise V. Hambo India Pvt Ltd.,
(iii)2008 (7) SCC 169 – Consolidated
Engineering Enterprises V. Principal Secretary,
Irrigation Department.
(iv)2011 (15) SCC 30 – Ketan V Parekh Vs.
Special Director, Directorate of Enforcement.
(v)2010 (5) SCC 23 – Chattisgarh State
Electricity Board v. Central Electricity Regulatory
Commission.
6. We have considered the rival submissions made on either sides
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and perused the materials available on record.
7. It is seen from records that the property in question has been
purchased by the writ petitioner for a total sale consideration of
Rs.35,000/- in the year 1968. On 23.05.1988, the petitioner arrived in
India at Bombay Airport from Paris. He proceeded through Green
Channel without declaring any gold being bought by him and while
screening his baggage round spots were indicated . On questioning, the
petitioner did not give a proper reply. The briefcase was thereafter
emptied and one zipper hand bag was found. Everything in the handbag
has been emptied, and again, it was put on screening and the dark small
spots were visible on the screen. Thereafter, the cardboard bottom of the
said zipper hand bag was removed, which was fixed with staple pins at
the bottom and below that 70 sovereigns of gold, 8 grams each, with
foreign markings were found wrapped with carbon paper packed in
between the flaps of the cardboard base. The concealed gold was seen
only by the above process. On further questioning, he removed one gold
chain weighing 40 grams from his pocket. The above act of petitioner
made him liable for confiscation of gold under Section 111(d) of the
Customs Act and for penalties under Section 112 of the Customs Act.
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8. On 23.05.1988, an order was passed by the Deputy Collector,
Customs Airport Bombay confiscating 70 gold coins weighing 560 grams
under Section 111(d) and 111(i) of the Customs Act, and further a penalty
of Rs.10,000/- was imposed under Section 112 of the Customs Act.
Admittedly, the petitioner was convicted on 01.07.1988 by the Chief
Metropolitan Magistrate, Bombay, wherein the operative portion of the
order reads hereunder :-
“14. The accused does not appear to be a
regular smuggler as such. He has shown repentance.
He had lost the gold. The gold appears to be brought
not for the purpose of making profit, but for family
consumption. I feel that I do not intend to give
minimum sentence of One year, which is prescribed
by Section 135(1)(i) of the Customs Act or even 6
months R.I. that is prescribed by Section 5 of the
Imports and Exports (Central) Act. Considering all
the circumstances, I Sentence the accused to 1 (One)
day's S.I. and to pay a fine of Rs.18,000/- (Rupees
Eighteen Thousand only) or in default to suffer 6 (six)
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WP.Nos.44211 of 2002 and 8518 of 2004
months R.I. on each of the three charges.”
9. In the case filed in CC.No.304/CW of 1988 on the file of Chief
Metropolitan Magistrate, Bombay for the offences under Section
135(1)(e)(i) of the Customs Act and Section 5 of the Import and Export
Act, 1947, the petitioner appeared through counsel and pleaded guilty.
At the time of sentencing for the conviction, the petitioner pleaded that he
was not a regular smuggler and that he had lost the gold also. The Court
recorded that the gold appeared to be brought not for the purpose of
making a profit but for family consumption. Hence, he was directed to
undergo for one day simple imprisonment and to pay a fine of
Rs.18,000/-. The notice was issued under Section 6(1) of SAFEMA
(FoP) Act to the address of the petitioner at Pondicherry. The said notice
was returned unserved with an endorsement “left India”. The wife of the
petitioner Smt.Hamida Beevi, was unable to furnish the current address in
France where the petitioner resided at abroad. On the basis of
information collected, notice was sent to the address in France where the
petitioner was residing. The said notice was also returned unserved.
Thereafter, the notice was served by affixture on the premises of the last
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WP.Nos.44211 of 2002 and 8518 of 2004
residing address. A hearing was fixed on 06.09.1992, under Section 7 of
the Act and the notice relating to the same was returned unserved with the
postal endorsement “left India”. Notice was affixed under Section 22(B)
of the Act in the last known residence.
10. In order to give an opportunity, another date of hearing was
fixed on 21.09.1992. Notice was affixed under Section 22(B) of the Act
in the last known address. The Competent Authority passed the order on
15.09.1993, under Section 7(1) of the Act, forfeiting the property. The
aforesaid order was served on the wife of the petitioner on 26.10.1993.
Thereafter, the copy of the order was affixed in the property under
Section 22(B) of the Act on 03.12.1993. Further notice was issued under
Section 19(1) of the Act for taking possession of the property on
17.10.1996. The copy of the order under Section 7 was also served on
the wife of the petitioner in the presence of witnesses and a mahazar was
recorded. A letter was addressed by the petitioner to the Competent
Authority from France stating that he had come to India for medical
treatment and was in India for about 18 months and came back to France
in September 1996. The Appellate Tribunal by holding that the appeal
had been filed beyond 60 days and the Tribunal did not have the power to
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WP.Nos.44211 of 2002 and 8518 of 2004
condone the delay and accordingly the appeal was dismissed.
11. As per Section 2(2)(a)(i) of SAFEMA Act, any person who is
convicted under the Sea Customs Act, 1878 or the Customs Act, 1962 of
an offence in relation to goods of a value exceeding one lakh rupees, is a
person in respect of whom the Act applies. In the present case, the value
of gold smuggled by the petitioner was Rs.1,75,200/-, as such, the
petitioner was a person to whom the Act applies.
12. It is relevant to read Section 3(1)(c)(1) to (3) of the Act :-
“3. Definitions.—(1) In this Act, unless the
context otherwise requires,—
(c) “illegally acquired property”, in
relation to any person to whom this Act applies,
means—
i) any property acquired by such person,
whether before or after the commencement of this
Act, wholly or partly out of or by means of any
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WP.Nos.44211 of 2002 and 8518 of 2004
income, earnings or assets derived or obtained
from or attributable to any activity prohibited by
or under any law for the time being in force
relating to any matter in respect of which
Parliament has power to make laws; or
(ii) any property acquired by such person,
whether before or after the commencement of this
Act, wholly or partly out of or by means of any
income, earning or assets in respect of which any
such law has been contravened; or
(iii) any property acquired by such person,
whether before or after the commencement of this
Act, wholly or partly out of or by means of any
income, earnings or assets the source of which
cannot be proved and which cannot be shown to
be attributable to any act or thing done in respect
of any matter in relation to which Parliament has
no power to make laws; or
13.It is pertinent to mention that the said provision under Sec
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WP.Nos.44211 of 2002 and 8518 of 2004
3(1)(c) of the Act was subjected to challenge as arbitrary and is in
violation of Article 14 of the Constitution. The said contention were
rejected and the wide definition was upheld by the Hon'ble Supreme
Court in the case of Attorney General in (1994) 5 SCC 54. As such in
terms of the Act, it is not necessary that the property to be forfeited
should be one acquired after the conviction or detention of the person
concerned.
14. It is settled law that any property for which lawful sources are
not shown by the person concerned is liable for forfeiture. The
opportunity of rebuttal under Section 8 of the Act has been provided for
the purpose. The burden of proving that any properties specified in the
notice under Section 6 are not illegally acquired property lies on the
person concerned. A plain reading of Sections 6, 7 and 8 together with
Section 2(2)(a)(i) and Section 3(1)(c) of the Act, shows that there is no
room for doubt that any property of a persons even if it had been acquired
earlier is liable for forfeiture under the Act, if the person is unable to
show lawful sources for its acquisition. Therefore, the contention of the
petitioner that the property was acquired prior to conviction and hence
was not liable for forfeiture is not an acceptable one.
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WP.Nos.44211 of 2002 and 8518 of 2004
15. It is settled law that appeal is not an inherent right. Right of
appeal is only a creature of statue. As per Section 12(4) of the Act, an
appeal against the order under Section 7 must be filed within a period of
45 days the proviso to Section 12(4) of the Act, gives jurisdiction to the
Appellate Tribunal to entertain appeals within 45 days and beyond 45
days if sufficient cause is shown for delay, but not later than 60 days.
From a plain reading of Section 12(4) of the Act, it is manifest that the
period of limitation is mandatory and is not considered beyond the period
of 60 days.
16. The petitioner was continuously evading service of notice at all
stages, and his wife had been made aware of all the proceedings. Inspite
of having full knowledge about the proceedings, the petitioner kept away
from the proceedings and did not avail himself of the opportunities
provided under the Act. The contention of the petitioner for condonation
of delay and further opportunity to be granted to him also not acceptable
one.
17. In the light of the above discussion, the order of the Appellate
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WP.Nos.44211 of 2002 and 8518 of 2004
Tribunal refusing to entertain the appeal is in order, as per law. We do
not find any reason to interfere with the impugned order in
FPA.No.4/MDS/97 dated 31.07.1997, and in Proceedings
F.No.OCA/MDS/2836/91 dated 15.09.1993 and
F.No.OCA/MDS/2836/91 dated 17.10.1996 in WP.No.44211 of 2002 and
impugned order dated 26.02.2004 in F.No.OCA/MDS/2836/91 in
WP.No.8518 of 2004.
18. In the result, both the writ petitions stand dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
(S.M.S., J.) (M.J.R., J.)
24 .01.2025.
tsh
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
To
1. Competent Authority
SAFEM (FOP) Act & NDPS Act
“UTSAV” 64/1, G.N.Chetty Road,
T.Nagar, Chennai – 600 017.
2.The Collector
Chengai MGR District
Kancheepuram, Tamil Nadu
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WP.Nos.44211 of 2002 and 8518 of 2004
3.The Collector
Secretariat Buildings
Pondicherry.
4.The Registrar
Appellate Tribunal for Forfeited Property
4th Floor, Loknayak Bhavan
Khan Market, New Delhi – 110003.
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WP.Nos.44211 of 2002 and 8518 of 2004
S.M.SUBRAMANIAM.J,
and
M.JOTHIRAMAN.J,
tsh
Pre-Delivery Common Order in
W.P.Nos.44211 of 2002 and 8518 of 2004
24.01.2025
https://www.mhc.tn.gov.in/judis
