IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY MONDAY, THE3D DAY OF SEPTEMBER201212TH BHADRA1934OP.No. 25128 of 1999 (N) ------------------------ PETITIONER(S): ---------------------- P. MOHANDAS, AGED54 SIVARAM DRUG HOUSE, IRINJALAKKUDA P.O., TRICHUR DISTRICT, PIN-680 121. BY ADVS. SRI.P.K.JOSEPH, SMT.M.M.BABY. RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI.
2. THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, 4TH FLOOR, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003.
3. THE COMPETENT AUTHORITY, OFFICE OF THE COMPETENT AUTHORITY, SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY) ACT, 'UTSAV', NO.64/1, G.N. CHETTI ROAD, T. NAGAR, MADRAS-600 017.
4. THE INCOME TAX OFFICER, WARD4 DIVISION I, AAYAKAR BHAVAN, S.T. NAGAR, TRICHUR. BY ADV. SRI.JOHN VARGHESE, SC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON0309-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
None appears. Dismissed for default. 03/09/2012. SD/- B.P.RAY, JUDGE //TRUE COPY// P.A. TO JUDGE rs. A.V. RAMAKRISHNA PILLAI, J.
-------------------------------------------------- O.P. No. 25128 of 1999 -------------------------------------------------- Dated this the 29th day of October, 2013
JUDGMENT
This original petition was filed by the petitioner for quashing Exts.P20 and P22 (wrongly stated as 'Ext.P21') passed by respondents 2 and 3 respectively, for restraining the respondents from forfeiting the right, title and interest of the petitioner with respect to M/s. Sivaram Drug House pursuant to Exts.P20 and P22 and, for an order prohibiting the respondents from giving effect or implementing the aforesaid orders.
2. The petitioner suffered detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("COFEPOSA" for short), alleging that the petitioner was in possession of certain movable assets, which were believed to have been acquired through illegal earnings. A forfeiture notice under Section 6(1) of the Smugglers O.P. No. 25128 of 1999 ..2.. and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ("SAFEMA" for short) was issued to the petitioner on 22.12.1978 proposing forfeiture of assets contained therein. The 3rd respondent, thereafter, passed an order dated 29.01.1997 under Section 7(1) of the Act forfeiting the assets as illegally acquired since the petitioner could not establish the nature of source of his acquisition. Aggrieved by the order passed by the 3rd respondent, the petitioner preferred an appeal before the 2nd respondent, who vide order dated 13.07.1999 in FPA No.14/CHN/97 dismissed the appeal and concluded that there is no reason to interfere with the order of the 3rd respondent. The petitioner was directed to deliver/surrender possession of the forfeited assets. Aggrieved by the said order, the petitioner has come up before this Court.
3. The main contention raised by the respondent is that the petitioner being a detenue under the provisions of COFEPOSA, is a "person" in terms of Section 2(2)(b) of SAFEMA. According to the respondent, investigations O.P. No. 25128 of 1999 ..3.. reveal that the petitioner was found in possession of certain movable properties, which were believed for the reasons recorded in writing to have been acquired through illegal sources and that was the reason for issuing a forfeiture notice.
4. The main argument advanced by the learned counsel for the petitioner is that there is no jurisdiction to follow Section 2(2)(b) of SAFEMA as there was no valid order of detention. In support of the argument, the learned counsel for the petitioner invited my attention to the relevant portion of the statute also.
5. The learned Standing Counsel for the Central Government per contra submitted that the order of detention has not been challenged by the petitioner before any competent authority.
6. In answer to the said argument, the learned counsel for the petitioner would submit that the Presidential Order declaring national emergency was in force during that time and, therefore, the petitioner was debarred from asserting his rights before any competent O.P. No. 25128 of 1999 ..4.. forum. It was pointed out that the national emergency was declared with effect from 25.06.1975 and the petitioner was taken into custody by the then Circle Inspector of Police, Irinjalakkuda in the evening of 26.08.1975. In that evening itself, the petitioner was sent to Thiruvananthapuram and; he was detained in the Central Prison there. He was released only two days after the date of revoking the emergency. In support of the argument, the learned counsel for the petitioner invited my attention to the decision of the apex court in Additional District Magistrate, Jabalpur v. Sivakanth Shukla [AIR1976SC1207, which by a majority of decisions held as follows: "in view of the Presidential Order dated 27th June, 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal, or is based on extraneous considerations." Therefore, according to the learned counsel for the petitioner, the petitioner was not in a position to challenge his detention under COFEPOSA. His remedy was completely barred not only with regard to his challenge on O.P. No. 25128 of 1999 ..5.. the ground of violation of his fundamental rights, but also, on all the grounds available to him, namely, that his detention was not under or not in compliance with the Act or was illegal or vitiated by malafides or based on extraneous considerations. I see valid force in the submission made by the learned counsel for the petitioner. On a consideration of the entire facts and circumstances of the case, this Court is of the definite view that there was no valid order of detention, which gives jurisdiction to the respondent to follow Section 2(2)(b) of SAFEMA. As valid reasons are pointed out by the learned counsel for the petitioner for not challenging the detention order, this Court is of the definite view that the impugned orders shall not be allowed to stand. In the result, the writ petition is allowed. Exts.P20 and 22 are hereby quashed. No costs. A.V. RAMAKRISHNA PILLAI, JUDGE bka/-