IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 23337 of 2000(C)
1. A.SAINABHA BEEVI
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.M.K.CHANDRA MOHANDAS
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/05/2010
O R D E R
S. Siri Jagan, J.
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O.P. No. 23337 of 2000
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Dated this, the 27th day of May, 2010.
J U D G M E N T
This original petition was filed by a widow and son of one
Mohammed Haneefa, who was detained under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA) and who died while in custody. Subsequent to the filing
of the original petition, the 2nd the petitioner also died and his widow
has come on record as his legal heir and 3rd petitioner. The matter
arises under the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act (SAFEMA). Pursuant to a detention
order under the COFEPOSA, the said Haneefa was taken into custody
on 14-2-1976. While in custody, Haneefa died on 14-2-1977. On 1-6-
1979, Ext. P1 notice was issued to the widow and son of Haneefa
under Section 6(1) of the SAFEMA, directing the petitioners to show
cause why the property mentioned therein should not be forfeited
under the provisions of the SAFEMA. Pursuant thereto, Ext. P2 order
was passed by the competent authority under the SAFEMA directing
forfeiture of the property to the Government. Petitioners filed an
appeal before the appellate authority, who, by Ext. P3 order,
remanded the matter for fresh consideration of the competent
authority on the ground that the competent authority had passed the
original order without seeing the detention order. The petitioners
approached this Court again challenging the whole proceedings
themselves. A learned Single Judge dismissed that original petition.
The matter was taken in appeal before the Division Bench. The
Division Bench, by Ext. P4 judgment, disposed of the appeal, leaving
it open to the petitioners to take all their contentions in the
proceedings before the competent authority, and if necessary before
the appellate authority. Subsequently, by Ext. P5 order, the
competent authority again directed forfeiture of the property. The
O.P.. No. 23337/2000. -: 2 :-
appellate authority, by Ext. P6 order, confirmed Ext. P5 order of the
competent authority. The petitioners are now challenging Exts.P1, P5
and P6.
2. Inter alia, the petitioners contend that Ext. P1 itself is bad for
non-compliance with Section 6(1) of the SAFEMA insofar as Ext. P1
does not contain the reasons for coming to the belief that such
properties are illegally acquired properties. According to the
petitioners, Ext. P1 is a mechanical order in a printed form, which
cannot satisfy the mandatory requirement of Section 6(1). Since,
I am inclined to allow this original petition on that ground, I am not
going into the other contentions raised by the petitioners in the
original petition.
3. The petitioners rely on a decision of the Supreme Court in
Abdulla v. Competent Authority, 2007(1) KLT 956 (SC), wherein
the Supreme Court has reiterated the requirements of Section 6.
4. A counter affidavit has been filed by the 2nd respondent
seeking to controvert the allegations in the original petition.
5. I have considered the rival contentions in detail.
6. The scope of the requirement of Section 6(1) has been
elaborately explained by the Supreme Court in Fatima Mohd.
Amina (dead) through Lrs. v. Union of India & Anr. (2003) 7
SCC 436. Reiterating that law, in Abdulla’s case (supra), the
Supreme Court again held thus in paragraphs 7 to 9:
“7. Learned counsel submitted that it has expressly stated
in S.6(1) that the reason to believe of the competent authority
must be recorded in writing. In the counter affidavit it has also
been stated in paragraph 8 that the reasons in the notice under
Section 6(1) were recorded in writing. In our opinion this is not
sufficient. Whenever the statute required reasons to be recorded
in writing, then in our opinion, it is incumbent on the respondents
to produce the said reasons before the Court so that the same canO.P.. No. 23337/2000. -: 3 :-
be scrutinized in order to verify whether they are relevant and
germane or not. This can be done either by annexing the copy of
the reasons along with the counter affidavit or by quoting the
reasons somewhere in the counter affidavit. Alternatively, if the
notice itself contains the reason of belief, that notice can be
annexed to the counter affidavit or quoted in it. However, all that
has not been done in this case.
8. It must be stated that an order of confiscation is a very
stringent order and hence a provision for confiscation has to be
construed strictly, and the statute must be strictly complied with,
otherwise the order becomes illegal.
9. In our opinion, the facts of the case are covered by the
decision of this Court in Fatima Mohd. Amina (dead) through Lrs.
v. Union of India & Anr. (supra). In the present case the contents
of the notice, even if taken on face value, do not disclose any
sufficient reason warranting the impugned action against the
appellant as, in our opinion, the condition precedent for exercising
the power under the Act did not exist. Hence, the impugned
orders cannot be sustained.”
Therefore, the respondents have to satisfy me that at the time of
issuing Ext. P1 notice, the competent authority has recorded in
writing the reasons for coming to the belief that the properties are ill-
acquired properties using the ill-gotten money of the detenu under the
COFEPOSA. As rightly pointed out by the counsel for the petitioners,
Ext. P1 is totally a mechanical order in a printed form, which is bereft
of any reason whatsoever for coming to the belief that the property
described in the schedule, held by the petitioners is illegally acquired
property within the meaning of clause (c) of sub section (1) of Section
3 of the SAFEMA. Of course, still the respondents could satisfy this
Court about the reasons for coming to the belief, either by producing
copy of the proceedings or by stating reasons in the counter
affidavit. But the counter affidavit also does not disclose any reasons
whatsoever for coming to that belief. As such, the ratio of the
decision of the Supreme Court in Abdulla’s case squarely applies to
this case insofar as the respondents have not produced the reasons
O.P.. No. 23337/2000. -: 4 :-
for coming to the belief before this Court so that the same can be
scrutinized in order to verify whether they are relevant and germane
or not. As such, the original petition is liable to be allowed on that
ground.
Accordingly, the original petition is allowed and Exts.P1, P5 and
P6 are quashed.
Sd/- S. Siri Jagan, Judge.
Tds/
[TRUE COPY]
P.S TO JUDGE.