IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WA.No. 1062 of 2009 --------------------- AGAINST THE JUDGEMENT IN OP.7728/2001 Dated 11/03/2009 .................... APPELLANT/PETITIONER: --------------------------- K.A.IBRAHIMKUTTY, S/O.ABDULLA, VALLUR VILLAGE,PERUMBA, P.O. KANDOTH, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT/RESPONDENTS: --------------------------------- 1. THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY 4TH FLOOR, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI. 2. THE COMPETENT AUTHORITY, SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY) AT, 1976,UTSAV, NO.64/1,G.N.CHETTY ROAD, T.NAGAR, CHENNAI-600017. BY SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & Kurian Joseph, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1062 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this, the 25th day of May, 2009 JUDGMENT Kurian Joseph, J. Appellant is the petitioner in O.P. No. 7728 of 2001 filed challenging Ext.P19 order passed by the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. The said order was passed pursuant to the direction issued in Ext.P18 judgment in O.P.No.31748 of 1999 filed by the petitioner. In the said writ petition, petitioner challenged the order of the Appellate Tribunal dismissing the appeal filed against the order passed by the competent Authority ordering seizure of three items of property. The seizure order was passed on 12.3.1999. Appeal was dismissed on 16.11.1999. Though the order of the Tribunal was upheld by the Court, a direction was issued to see whether the petitioner is entitled to any benefits under Ext.P17 guidelines dated 23.6.1994. The Competent Authority rejected the request WA No.1062/09 -:2:- of the petitioner to consider the case under Ext.P17 guidelines. 2. The learned Single Judge declined to exercise the discretionary jurisdiction to interfere with Ext.P19. In order to understand and appreciate the contentions taken by the learned counsel for the appellant, it may be necessary to refer to the short facts. 3. The appellant was detained under the COFEPOSA during 1976, it is submitted. According to the appellant the detention was on the ground of possession of four watches of foreign origin. Thereafter, proceedings under the Act for forfeiture of the property was initiated, culminating in Ext.P1 order dated 12.03.99, whereby the competent authority in exercise of its power under Section 7(1) of the Act, passed an order forfeiting three items of his property. The petitioner had filed an appeal. The appellate authority dismissed the appeal on the ground of delay. Petitioner took up the matter in OP No. 31748/99. The main challenge was against the order passed by the appellate authority (Ext.P16 therein). In Ext.P18 judgment, the order passed by the appellate Tribunal was WA No.1062/09 -:3:- upheld. Thus the order of forfeiture dated 12.03.99 has become final. However, referring to another contention advanced by the counsel appearing for the petitioner before this Court in OP No.31748/99 regarding the application of Ext.P17 guidelines, it was directed that the Competent Authority would consider the case of the petitioner as to “......whether the petitioner will be entitled to get any benefit .......”. Ext.P17 guidelines essentially dealt with cases dealing with small cases of forfeiture of property where the value is less than one lakh. That guidelines is dated 23.06.1994. Paragraph 4 of Ext.P17 guidelines reads as follows: “These instructions are in the nature of guidelines only and are being issued with a view to enable the CAs and all the officers working with them to concentrate more on bringing to book economic offenders with substantial proportion instead of spending their time and energy in handling small cases.” 4. Apparently, on the understanding that it was not a small case below one lakh (having regard to the value of three items of property sought to be forfeited in 1999), the Competent Authority, at that time, had ignored Ext.P17 guidelines and had proceeded WA No.1062/09 -:4:- against the petitioner in the matter of forfeiture. Petitioner did not have any demur at the time of the proceedings for forfeiture or thereafter in appeal regarding the application of Ext.P17 guidelines. The petitioner cannot have also, since it is made clear in the order itself that the same is only guidelines and issued only to help the Competent Authority to concentrate better on cases involving larger amounts. Be that as it may, even as per Ext.P18 judgment in OP No. 31748/99 itself, the order passed by the Competent Authority dated 12.03.99 had become final in view of the dismissal of the appeal by the appellate Tribunal. It appears the factual position as analyzed by us was not available before the learned Single Judge. As rightly noted by the learned Single Judge in the judgment under appeal, there is no provision under the Act to exempt any person in terms of the value of the property. However, for the better and more effective steps to be taken by the Competent Authority as a time saving measure, Ext.P17 guidelines was issued. 5. Be that as it may, the fact remains that as on the date of Ext.P18 judgment dated 14.03.2000, the order of forfeiture dated WA No.1062/09 -:5:- 12.03.99 had become final. That order which had become final cannot be reopened collaterally in terms of Ext.P17 guidelines, since the Competent Authority does not have any power under the Act to reopen the order which had become final. If at all the petitioner could have made any attempt, it could have been when the proceedings for forfeiture had been pending and when Ex.P17 guidelines were in operation. In that view of the matter, though for different reasons, we do not find any merit in the writ appeal. Ext.P1 order of forfeiture passed on 12.03.99 has become final in view of the order dated 16.11.99 of the appellate Tribunal. The finality thus attained to that order cannot in any way collaterally be attacked in the light of the guidelines issued by the Competent Authority for dealing with cases involving smaller amounts. The guidelines do not wash away the culpable conduct of the petitioner leading to the forfeiture. The Competent Authority, as already observed by us above, having regard to the value of the property involved in the case, intended to ignore the guidelines and proceeded against the petitioner and that proceedings have become final also. Thus for WA No.1062/09 -:6:- different reasons also we do not find any merit in the appeal. Hence, the Writ Appeal is dismissed. S.R. Bannurmath, Chief Justice. Kurian Joseph, Judge. ttb