Nabeeesa and others v Union of India and The Competent Authority

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE NOHONOURABLE MR JUSTICE V.K.MOHANAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 26046 of 2006(A) -------------------------1. SMT. NABEESA, W/O.LATE ABDUL KHADER, IV/224, SAKKUR COMPOUND, NEW ROAD, KOCHI-2, NOW RESIDING AT VI/1303 A, KOTTUKULAM ROAD,KOCHI-2 2. A. ABDUL AZEEZ, S/O.LATE ABDUL KHADER, AGED 39 YEARS, IV/224 SAKKUR COMPOUND, NEW ROAD, KOCHI-2, NOW RESIDING AT VI/1303 A,KOTTUKULAM ROAD 3. SHAHIIDE NAZAR, W/O. T.M.NAZAR, AGED 35 YEARS, H.NO.7/686 B, KOCHI-2. 4. SHAHIRE RAZEED, W/O. K.W.RAZEED, AGED 32 YEARS, KALITH HOUSE, KOCHI-1 5. SHAMSHAD SIDDIQUE,S/O.LATE ABDUL KHADER, AGED 37 YEARS, H.NO.14/297, KOCHI-2. 6. A. NOUSHAD, S/O. ABDUL KHADER, AGED 30 YEARS, 6/1303 A, KOCHI-2. BY ADV. SRI.V.B.NARAYANAN 1. UNION OF INDIA, - REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, GOVT. OF INDIA, NEW DELHI. 2. THE COMPETENT AUTHORITY, - SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS (FOREFEITURE OF PROPERTY), UTSAV NO.61/1, G.N.CHITTY ROAD, T.NAGAR, MADRAS-17. - BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG SRI.D.SOMASUNDARAM, ADDL.CGSC FOR R SRI.P.PARAMESWARAN NAIR,ASST.SG. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-6-2008, THE COURT ON 15-7-2008 DELIVERED THE APPENDIX ## PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER NO.36389/SSI/75 HOME DATED 16-8-75 ISSUED AGAINST ABDUL KHADER UNDER SECTION 3 OF COFEPOSA BY THE SPECIAL SECRETARY TO GOVERNMENT OF KERALA. EXT.P2: TRUE COPY OF THE JUDGMENT DATED 23-6-2005 IN OP NO.12472/95. EXT.P3:TRUE COPY OF THE LETTER DATED 18-10-05 ISSUED BY THE COMPETENT AUTHORITY. EXT.P4: TRUE COPY OF THE OBJECTION DATED 4-11-2005 FILED BY THE PETITIONERS. EXT.P5: TRUE COPY OF THE LETTER F.NO.OCA/MDS/300/76 DATED 10-11-2005. EXT.P6: TRUE COPY OF THE CLARIFICATION DATED 30-11-2005 FILED BY PETITIONERS. EXT.P7: TRUE COPY OF THE LETTER NO.F.NO.OCA/MDS/300/76 DATED 10-1-2006. EXT.P8: TRUE COPY OF THE FAX MESSAGE DATED 23-1-2006. EXT.P9: TRUE COPY OF ORDER F.NO.OCA/MDS/300/76 DATED 27-1-2006 PASSED BY THE 2ND RESPONDENT. EXT.P10: THE TRUE COPY OF THE ORDER PASSED UNDER SECTION 20 OF THE SAFEM(FOP) DATED 2-5-06. //TRUE COPY// ## **C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ.** ---------------------------------------------- W.P.(C) No.26046 OF 2006 ---------------------------------------------Dated, 15[th] July, 2008. ## JUDGMENT ## **Mohanan, J** . The petitioners herein are the wife and children, respectively, of one late B.Abdul Khader who was a COFEPOSA detenu, kept under detention as per the order dated 16-8-75. His detention was lifted before completing the period and he died subsequently. Ext.P1 is the detention order. According to the petitioners, the detention was revoked on 23-3-77, otherwise, the detention period would have expired only on 17-8-77. Thus it is the specific case of the petitioners that since the detention was revoked, the respondents have no authority or jurisdiction to forfeit the properties originally belonged to late Abdul Khader which on his demise, was enjoyed by the petitioners. Therefore, the petitioners hopefully approached this Court by filing the above writ petition under Article 226 of the constitution with the following WPC 26046/06 **-:2:-** prayers, “ to issue: “i. writ in the nature of a declaration that late Abdul Khader is not a person coming under the provision of SAFEMA and hence the properties owned by him and Ist petitioner are not liable to be forfeited; ii. writ of certiorari or appropriate order to quash Ext.P9 order dated 27-1-2006 passed by the 2[nd] respondent; iii. Issue such other writ or order as this Hon'ble court deem fit and proper to grant in the circumstances of the case”. 2. According to the petitioners, while the said Abdul Khader was undergoing detention, a notice dated 8-11-76 was issued to him as well as to the Ist petitioner by the Ist respondent under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, (for short,`SAFEM(FOP)Act') calling upon them to show the sources of income for acquiring the properties shown in the notice annexed to the notice dated 8-11-76 thereto. Consequently, late Abdul Khader and the first petitioner furnished their explanation, but without considering the explanation offered, the 2[nd] respondent ordered forfeiture of WPC 26046/06 **-:3:-** two items of landed properties and a sum of Rs.5000/- due to late Abdul Khader from one Moideenkutty as per order dated 21-9-94. Challenging the said order, late Abdul Khader and his wife, the first petitioner herein, preferred an appeal before the Appellate Tribunal for Forfeited Property challenging the legality of the order. The Appellate Tribunal, after considering the matter, allowed the appeal partly and released the house property at 1/224 Sukkur compound Kochi-2 wholly owned by the detenu but upheld the forfeiture of property bearing No. VI/811 to 814 at New Road Jointly owned by the late Abdul Khader and the first petitioner and also Rs.5000/- due from one Moideenkutty. Again, late Abdul Khader and the first petitioner challenging the orders of the Competent Authority and the Appellate Tribunal, to the extent it is against them, preferred O.P.No.12472/95 in this Court. During the pendency of the above Original Petition, the detenu, namely, Abdul Khader, who is the husband of the first petitioner herein, expired and their children were impleaded WPC 26046/06 **-:4:-** as additional petitioners 3 to 7 in the above O.P. As per Ext.P2 judgment, the above O.P. was disposed of by this court. In Ext.P2 judgment, this court had held as follows: “Though this Court issued a direction to the State Government to produce the relevant files, an affidavit has been produced on behalf of the State of Kerala submitting that no records pertaining to the detention/revocation is available since the issue is of the year 1975. In that view of the matter, the only course now open to the court is to direct the 3rd respondent competent authority to verify the records and see whether there was revocation of the detention of the first petitioner under the provisions of the COFEPOSA Act. Needless to say that once it is found that there was revocation of detention, the whole proceedings initiated under the Act shall be recalled and consequently Exts.P35 and P36 will stand quashed. The 3[rd] respondent shall pass appropriate orders after giving notice to the petitioners within a period of four months from the receipt of a copy of this judgment. The interim orders passed by this Court will continue till such time. It is also made clear that if the competent authority finds that there was no revocation, the petitioners shall be bound by Ext.P35 as modified by Ext.P36. The Writ petition is disposed of as above”. (emphasis supplied) 3. Thereafter, the 2[nd] respondent herein, the Competent Authority, directed the petitioners to file copy of WPC 26046/06 **-:5:-** the revocation order with respect to late Abdul Khader within 30 days from the date of receipt of the letter. The petitioners have filed detailed objection to the above notice. Though thereafter several communications were issued from the 2[nd] respondent and clarifications were given by the petitioners, the issue has not been finally settled. It is the case of the petitioners that though this Court has specifically directed the 2[nd] respondent to hear the matter, the hearing was done by one Mr.G. Natesh, Inspecting officer for and on behalf of the Competent Authority. That was on 7-12-2005. On 9-1-2006, another official namely, Mr. S.Ravi I.R.S heard the matter. It is the further case of the petitioners that another letter dated 101-2006 was issued to them. According to the petitioners, the statements contained in the above letter is not fully correct though the Competent Authority has admitted that the detention was revoked after a period of 18 months but before the maximum period of detention of 24 months and according to the petitioners, the Competent Authority has WPC 26046/06 **-:6:-** admitted the revocation before the expiry of the statutory period of detention. But the 2[nd] respondent has held that in order to get exemption, the revocation should fall within the purview of provisos (i) to (iv) of S.2(2)(b). So according to the 2[nd] respondent, the revocation is a “Revocation Simpliciter” and hence the continuation of the proceedings despite the revocation is well founded and in accordance with law. So the present grievance of the petitioners is that though this Court as per Ext.P2 judgment directed the Competent Authority- the 2[nd] respondent, to recall the proceedings, the Competent Authority proceeded to determine whether the detention of late Abdul Khader was actually revoked or not after analysing the provisions of COFEPOSA and SAFEMA and thus the 2[nd] respondent has passed Ext.P9 order. It is the above final order of the 2[nd] respondent that is being challenged in this writ petition. 4. Denying all the averments and allegations contained in the writ petition, a detailed counter affidavit WPC 26046/06 **-:7:-** has been filed on behalf of respondents 1 and 2. According to the respondents, in compliance with the direction and observation contained in the Ext.P2 judgment, the matter has been disposed of which resulted in Ext.P9 order. According to the respondents, they have elaborately considered the matter and scrutinized the issues under two separate items. According to the respondents, the detenu was released only on the expiry of the proclamation of Emergency and not otherwise. According to the stand taken by the respondents, the detention was not revoked before the expiry of the period, on the basis of review under subsection 3 of Section 12A or on the basis of the report of the Advisory Board under Section 8 read with subsection 6 of Section 12A of COFEPOSA. Therefore, it is reiterated by the respondents that the detenu was not covered by any of the exclusions provided in Section 2 of the SAFEM(FOP)A and hence there was no revocation of the detention order so as to get the benefit of exemption from the purview of SAFEM (FOP)A. It is also the case of the respondents that WPC 26046/06 ## **-:8:-** the petitioners herein have failed to establish that the detention was revoked so as to render the provisions of SAFEM(FOP) Act, inapplicable. 5. We have heard the learned counsel for the petitioner and also the Assistant Solicitor General. 6. On a careful consideration of the facts and circumstances involved in the case, especially, on a perusal of the materials available on record and the contentions of the parties, the following facts emerge out which are beyond dispute: (i) Late B.Abdul Khader, the husband of the first petitioner was kept under detention as per the provisions of COFEPOSA with effect from 18-8-75. Ext.P1 is the order issued under Section 3 of COFEPOSA. (ii) As per Section 9 read with S.10 of COFEPOSA, the period of detention was 24 months from the date of detention. (iii) In the light of the above statutory provision, the period of detention as per Ext.P1 order would have expired only on 17-877. (iv) The detention of late B. ABDUL KHADER was released from jail with effect from 23-3-77, admittedly, before the expiry of the detention period. 7. Since the copy of Ext.P1 order was served, the WPC 26046/06 **-:9:-** petitioners could produce a copy of the same along with this proceedings. As the detenu was released before the expiry of the actual period of detention, the detenu, who was only interested at that time for his release, probably, was not eagre to get copy of the order by which he was released. 8. Going by Ext.P9 order and the counter affidavit, it is crystal clear that the respondents are of the view that the detention was not revoked in such a way, so as to exclude under clause (b) of subsection 2 of Section 2 of SAFEM (FOP)A. In support of the above contention, they placed reliance on the decision of the Apex Court in **Attorney General for India v. Amratlal Prajivandas & Others (AIR 1994 S.C. 2179)** . From Ext.P9 order, it can be seen that the authority who passed Ext.P9 order denied the demand of the petitioners without assigning cogent reasons but purely depends on surmises and conjectures. It is also clear that instead of arriving into a probable, independent and correct finding on the issue, they went to WPC 26046/06 ## **-:10:-** interpret Ext.P2 judgment so as to suit the situation for justifying Ext.P9 order. Though in Ext.P2 judgment, this Court has observed that if once it is found that there was revocation of detention, the whole proceedings initiated under the Act shall be recalled and consequently, the impugned orders will stand quashed. It is also crystal clear from Ext.P2 judgment that there was a positive direction to the 3[rd] respondent, the Competent Authority, to verify the records and see whether there was revocation of the detention of the first petitioner under the provisions of the COFEPOSA Act. In spite of such direction, a perusal of Ext.P9 would reveal that the Competent Authority has not verified such records, and there is no attempt to find out as to whether the revocation of detention, renders inapplication of the provisions of SAFEM(FOP) Act, by virtue of Sec.2. 9. The question to be decided is whether the release of late B.Abdul Khader was on the basis of revocation of his detention order before the expiry of actual detention period WPC 26046/06 ## **-:11:-** under the provisions, viz., Sec.12A(3) or under Section 8 read with Sec.12A(6) of COFEPOSA Act or it was a mere order of release. As per Ext.P2 judgment, this Court has observed: “Needless to say that once it is found that there was revocation of detention **,** the whole proceedings initiated under the Act shall be recalled and consequently Exts.P35 and P36 will stand quashed” **.** Exts.P35 and P36 are the documents produced in that writ petition. Ext.P35 is the order passed by the Competent Authority forfeiting three items of properties. Ext.P36 is the appellate order. But Ext.P9 seems to be not in terms of the observation and direction contained in Ext.P2 judgment. This Court as per Ext.P2 judgment, directed the 3[rd] respondent, Competent Authority to verify the records and see whether there was revocation of the detention of the first petitioner under the provisions of the COFEPOSA Act. It is also pertinent to note the clarification made by this Court as per Ext.P2 judgment. This court has clarified thus: WPC 26046/06 ## **-:12:-** “It is also made clear that if the competent authority finds that there was no revocation, the petitioners shall be bound by Ext.P35 as modified by Ext.P36.” **10.** Going by Ext.P9 order, it appears to us that the Competent Authority miserably failed to follow the directions and observations contained in Ext.P2 judgment and acted in accordance with letter and spirit of the judgment of this Court. The petitioners' right to property cannot be denied in an arbitrary and illegal manner. Of course, as per the provisions of the SAFEM(FOP)A, the authorities concerned has got ample power for forfeiting properties. But such powers cannot be exercised against the citizens according to the whims and fancies of the authorities concerned and in violation of the principles of natural justice. As pointed out earlier, the petitioners had produced Ext.P1 detention order issued under section 3 of COFEPOSA. It is on the strength of the above order, notice dated 8-11-76 under section 6 of the SAFEM(FOP)A was issued and finally, the order dated 21-9-94. It is also a fact WPC 26046/06 ## **-:13:-** that late Abdul Khader was released before the actual period of his original detention. If it is a revocation as stated above, the authorities have no jurisdiction to invoke Section 6 of the Act and to pass Ext.P35 mentioned in the earlier order. Since by such order, the petitioners are denied their right to property which were in their absolute ownership, possession and enjoyment, it is incumbent upon the Competent Authority to strictly follow the legal mandate. 11. Section 2(1) of SAFEMA(FOP)A mandate that the provisions of the above Act shall apply only to the persons specified in sub-section(2). Sub-section(2) of Section 2 declared the “persons” referred to in sub-section(1) of Section 2. Clause (a) to Section 2(2) is not relevant here since that clause deals with the persons those who are convicted under the Sea Customs Act, 1878, Customs Act, 1962, Foreign Exchange Regulation Act,1973 etc. In the present case, clause (b) of Section 2(2) is relevant which runs: WPC 26046/06 **-:14:-** “2. **Application-** (1) The provisions of this Act 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) xx xx xx (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): ## **Provided that -** (i) such order of detention being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) such order of detention being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub-section (3) of section 9 or on the report of the Advisory Board under section 8, read with sub-section (2) of section 9 of the said Act; or WPC 26046/06 ## **-:15:-** (iii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; or (iv) such order of detention has not been set aside by a Court of competent . jurisdiction” On a perusal of the above provisions, it is crystal clear that unless and until the conditions specified in provisos (i) to (iv) of clause(b) of Section 2(2) of SAFEM(FOP)A are satisfied, the provisions of the said Act has no application at all. Thus, on a bare reading of Section 2 itself reveals that an unshift burden is cast on the authorities concerned to satisfy and convince that the conditions stipulated under provisos (i) to (iv) of clause (b) of Section 2(2), are attracted in the case of persons against whom the proceedings are taken. It was under the above premises, WPC 26046/06 ## **-:16:-** this Court, as per Ext.P2 judgment, directed the competent authority to verify the records and see whether there was revocation of the detention of the Ist petitioner under the provisions of the COFEPOSA Act. Going by Ext.P9 order, it can be seen that no materials relied or cited by the competent authority to arrive on legal conclusion as to whether the detenu in the present case will come within “ **persons** ” mentioned in Sec.2 of the Act. On the other hand, as evidenced by paragraph 10 of Ext.P9 order, the competent authority requested the petitioners' counsel to produce any order or correspondence which the detenu might have been served with when he was released on 23-3-77. The above observation itself is sufficient to hold that the Competent Authority has not complied with the direction of this Court and also not taken any pain to find out materials from the records for his satisfaction of the conditions mentioned above. 12. In the light of the above legal and factual position of the matter, we are of the opinion that the finding arrived WPC 26046/06 ## **-:17:-** on by the Competent Authority which contained in paragraphs 22, 23 and 24 of the impugned order is absolutely baseless and without the backing of any materials. In the absence of any contra evidence and materials, we are unable to approve Ext.P9 based upon surmises and conjectures as done by the Competent Authority. When the competent authority failed to verify the records and came into a positive conclusion as to whether the provisions of SAFEM(FOP) Act applicable in the case of the detenu, late B.Abdul Khader by virtue of provisos (i) to (iv) to Section 2(2)(b), especially, in the light of the fact that the detenu was released before the expiry of the actual period of detention, we are of the opinion that the petitioners are entitled to get the benefit of doubt, since the valuable right of the petitioners over the property cannot be denied arbitrarily and hence Ext.P9 is vitiated. 13. In the result, Ext.P9 order dated 27-1-2006 passed by the competent authority, the 2[nd] respondent herein, is quashed and we direct him to forthwith release WPC 26046/06 ## **-:18:-** the property which are forfeited under the orders passed by the competent authority dated 21-9-1994 as well as the Appellate Tribunal for Forfeited Property, to the petitioners. Accordingly, this writ petition is allowed. There will be no order as to costs. ## **C.N.RAMACHANDRAN NAIR JUDGE** **V.K.MOHANAN, JUDGE** kvm/- WPC 26046/06 ## **-:19:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: