Karnataka Restaurant and ors. Vs. Competent Authority (Safemfopa) and ors.

Karnataka Restaurant and ors. vs Competent Authority (Safemfopa) and ors.

Type Court Judgment Court Karnataka Decided Feb 07, 1990

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Citation: sooperkanoon.com/385148
Court: Karnataka High Court
Judge: M.P. Chandrakantaraj Urs, J.
Decided On: Feb 07, 1990
Case Number: Writs Petition Nos. 15568 to 15572/1989
Subject: Customs

Case Summary

AI-generated summary - not the official court judgment text.

SAFEMFOPA - COFEPOSA--Confiscation--Validity--A, partner of first petitioner-firm detained under COFEPOSA, 1994--Competent authority issuing notice under SAFEMFOPA and initiating proceedings against property of A and Firm--Competent authority directing confiscation of Property--On writ petition High Court quashing d...

Key legal issue: Customs

Parties & Advocates

Appellant / Petitioner

Karnataka Restaurant and ors.

Respondent

Competent Authority (Safemfopa) and ors.

Advocate Sri. D.V. Shylendra Kumar

Legal References

Reported In: 1991(34)ECC150

Excerpt

.....party claims, loss to the insurance company is not liable to cover the risk of any other person. the contract of insurance being governed by the contract qua contract, the tribunal without examining the policy, by totally misdirecting itself, has erroneously passed the award, by invoking section 140 of the act, be it a third party to the contract or party to the contract. the appellant did not cover in the policy, the risk or injury to the owner himself and hence the award could not have been passed against the appellant. - 18551 of 1988 disposed of on 6-2-1990 reported in [1990] 27 ecc 89 (kar), i quashed the impugned detention order as well as the consequential notice issued under the smugglers and foreign exchange manipulators (forfeiture of property) act, 1976 ('the act') following the decision of the supreme court in union of india v. the said order as at annexure-a is the one which has been quashed in the aforementioned writ petition, by my order dated 6-2-1990. in this petition, therefore what remains for consideration on the facts of the case is whether the proceedings initiated under the act against his property as well as that of the firm would survive......notice issued under the smugglers and foreign exchange manipulators (forfeiture of property) act, 1976 ('the act') following the decision of the supreme court in union of india v. hazi masthan : 1984 crilj610 . the only difference on the facts of that case and facts in these petitions are as follows: 2. one b.m. abdul rahiman a partner of the 1st petitioner messrs karnataka restaurant was detained under the conservation of foreign exchange and prevention of smuggling activities act, 1974 (cofeposa) in the year 1976 as evidenced by annexure-a to the petition. that order was not challenged by him. the said order as at annexure-a is the one which has been quashed in the aforementioned writ petition, by my order dated 6-2-1990. in this petition, therefore what remains for consideration on the facts of the case is whether the proceedings initiated under the act against his property as well as that of the firm would survive. if the detention order disappears then there is no further cause of action for the respondent-competent authority to issue notice for confiscation in the light of the decision if hazi mastan's case. principally the detention order is the basis for assumption of jurisdiction under the act by the competent authority. if there is no detention, the proceedings would be without jurisdiction. 3. in that view of the matter the order of the competent authority directing confiscation requires to be quashed. it appears that the order under appeal was stayed by this court. in that view, quashing of the order under appeal is only formal. 4. sri d.v. shylendra kumar, learned counsel for the respondent stated that he is not aware, as a matter of fact, whether petitioners 2 to 5 also were detained under cofeposa and as such he is not in a position to submit whether proceedings initiated by the competent authority under the act was in respect of the detention order as at annexure-a.5. on the facts given impugned order in question is quashed. the.....

Full Judgment

ORDER

M.P. Chandrakantaraj Urs, J.

1. In W.P. No. 18551 of 1988 disposed of on 6-2-1990 Reported in [1990] 27 ECC 89 (Kar), I quashed the impugned detention order as well as the consequential notice issued under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ('the Act') following the decision of the Supreme Court in Union of India v. Hazi Masthan : 1984 CriLJ610 . The only difference on the facts of that case and facts in these petitions are as follows:

2. One B.M. Abdul Rahiman a partner of the 1st petitioner Messrs Karnataka Restaurant was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) in the year 1976 as evidenced by Annexure-A to the petition. That order was not challenged by him. The said order as at Annexure-A is the one which has been quashed in the aforementioned writ petition, by my order dated 6-2-1990. In this petition, therefore what remains for consideration on the facts of the case is whether the proceedings initiated under the Act against his property as well as that of the firm would survive. If the detention order disappears then there is no further cause of action for the respondent-competent authority to issue notice for confiscation in the light of the decision if Hazi Mastan's case. Principally the detention order is the basis for assumption of jurisdiction under the Act by the Competent Authority. If there is no detention, the proceedings would be without jurisdiction.

3. In that view of the matter the order of the competent authority directing confiscation requires to be quashed. It appears that the order under appeal was stayed by this Court. In that view, quashing of the order under appeal is only formal.

4. Sri D.V. Shylendra Kumar, learned Counsel for the respondent stated that he is not aware, as a matter of fact, whether petitioners 2 to 5 also were detained under COFEPOSA and as such he is not in a position to submit whether proceedings initiated by the Competent Authority under the Act was in respect of the detention order as at Annexure-A.

5. On the facts given impugned order in question is quashed. The respondents may seek review of that order if facts turn out to be different.

6. Subject to the above observation, these petitions are allowed and writ as prayed for shall be issued and made absolute.

7. Order accordingly.

Same Court & Year Karnataka · 1990 Same Parties Karnataka Restaurant and ors. vs Competent Authority (Safemfo... Same Subject Customs Same Judge M.P. Chandrakantaraj Urs, J.

Customs