VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1252 OF 2004 Union of India Petitioner Vs. Mr. Prabodh G. Rawal & Anr. Respondents Mr. R. F. Lambay, for the Petitioner. Mrs. R. M. Gadhavi, APP for the Respondent. CORAM : BILAL NAZKI, & A. A. KUMBHAKONI, J. DATE : AUGUST 14, 2008. PC :- 1. We have heard the learned counsel for the petitioner. Mrs. R. M. Gadhavi, APP waives service for the respondent. 2. The petitioner represented through the Competent Authority constituted under section 5 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and an action was initiated against the respondent No.1, under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Properties) Act, 1976 (hereinafter referred to as the "SAFEMA"). A - 2 - show-cause notice was given under section 6 of the SAFEMA, and forfeiture order under section 7 was passed. Thereafter notice was given under section 19 and an order of delivery of property was passed, against which an appeal was filed by the respondent No.1 before the Tribunal. The Tribunal decided the appeal by order dated 31st August, 1999, upholding the order of the competent authority. This appeal filed by the respondent No.1 was decided on merits. 3. The respondent No.1 had not appeared before the Tribunal on the date fixed, therefore, he filed a review petition on two grounds. Firstly, he could not attend the Court on the date fixed before the Tribunal for some reasons, and secondly, the order of detention of the appellant had already been revoked by the Govt. of India on the advise of the Advisory Board. 4. The Tribunal reivewed its order, observing that in terms of section 2(2) of the SAFEMA, the order of delivery of the property under section 19 could not be continued. In this connection sub-section 2(b) of section 2, and section 19 of SAFEMA read as under- "Section Section Section 2 (2)(b) : 2 (2)(b) : 2 (2)(b) : every person in respect of whom an order of detention has been made - 3 - under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): . Provided that (i) (i) (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of detention being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) (ii) (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 (iii) (iii) (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 - 4 - the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; or (iv) (iv) (iv) such order of detention, has not been set aside by a Court of competent jurisdiction." "19. "19. "19. Power to take possession.-(1) Power to take possession.-(1) Power to take possession.-(1) where any property has been declared to be forfeited to the Central Government under this Act, or where the person affected has failed to pay the fine due under sub-section (1) of section 9 within the time allowed therefor under sub- section (3) of that section, the competent authority may order the person affected as well as any other person who may be in possession of the property to surrender or deliver possession thereof to the competent authority or to any person duly authorised by it in this behalf within thirty days of the service of the order. (2) (2) (2) If any person refuses or fails to comply with an order made under sub-section (1), the competent authority may take possession of the property and may for that purpose use such force as may be necessary. (3) (3) (3) Notwithstanding anything contained in - 5 - sub-section (2), the competent authority may, for the purpose of taking possession of any property referred to in sub-section (1), requisition the service of any police officer to assist the competent authority and it shall be the duty of such officer to comply with such requisition." 4. It is conceded that in the present case the detention of respondent No.1 is revoked by the Govt. of India on the advise of the Advisory Board, by its order dated 26th January, 1999. In these circumstances, we do not find any merits in this writ petition, which is accordingly dismissed. Sd/- [ BILAL NAZKI, J.] Sd/- [ A. A. KUMBHAKONI, J.]