IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 OP.No. 4125 of 2001(N) --------------------------------- PETITIONER(S): ------------------------ KURUNGATTIL MOHAMMED KUTTY, SON OF ALAVI HAJI, KARUPPATTIL HOUSE, KOTTUMALA P.O., MATTATHUR, VIA, OTHUKKUNGAL, MALAPPURAM DISTRICT. BY ADVS. SMT.PREETHY KARUNAKARAN MR.R.RAJESH KORMATH MR.ANISH S.AMBADY SMT.BIJIMOL JOSE RESPONDENT(S): -------------------------- 1. THE COMPETENT AUTHORITY, SMUGGLERS AND FOREING EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY) ACT 1976, 'UTSAV', NO.64/1, G.N. CHETTY ROAD, TSS.NAGAR, CHENNAI 600 017. 2. THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, 4TH FLOOR, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI 110 003. ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 MR.P.S.SREEDHARAN PILLAI, SCGSC FOR R1 & R2 MR.JOHN VARGHESE, ASSISTANT SG FOR R.1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.6825/2001 IN OP. NO.4125/2001 DISMISSED 25.05.2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EXPLANATION (REPLY) DT. 18.2.91 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P2:- COPY OF THE LETTER DT. 13.6.91 (ADDITIONAL REPLY) FILED ON BEHALF OF THE PETITIONER BEFORE THE IST RESPONDENT. P3:- COPY OF THE ORDER DT. 27.2.98 PASSED BY THE SIT RESPONDENT. P4:- COPY OF THE MEMORANDUM OF APPEAL DT. 13.4.98 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE AFFIDAVIT DT. 1.4.98 SWORN TO BY THE PATERNAL UNCLE OF THE PETITIONER AND PRODUCED BEFORE THE 2ND RESPONDENT. P6:- COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P5 DT. 1.4.98. P7:- COPY OF THE AFFIDAVIT DT. 1.4.98 SWORN TO BY THE FATHER OF THE PETITIONER AND PRODUCED BEFORE THE 2ND RESPONDENT. P8:- COPY OF THE ENGLISH TRANSLATION OF EXT.P7 DT. 1.4.98. P9:- COPY OF THE ADDITIONAL GROUNDS OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE GUIDELINES DT. 23.6.94 ISSUED BY THE GOVERNMENT OF INDIA AND ADDRESSED TO ALL COMPETENT AUTHORITIES. P11:- COPY OF THE AFFIDAVIT AND PETITION DT. 25.7.2000 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P4 APPEAL. P12:- COPY OF THE ORDER DT. 18.8.2000 PASSED BY THE 2ND RESPONDENT. P13:- COPY OF THE ORDER DT. 17.11.2000 PASSED BY THE 2ND RESPONDENT. P14:- COPY OF THE ORDER DT. 2.1.01 PASSED BY THE IST RESPONDENT. TRUE COPY P.A. TO JUDGE TSS ANTONY DOMINIC, J. ================ OP NO. 4125 OF 2001 (N) ===================== Dated this the 25th day of May, 2009 J U D G M E N T The challenge in this original petition is against Exts.P3, P13 and P14 orders. 2. Facts of the case are that according to the respondents proceedings under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act were initiated against the petitioner and an order of detention was issued against him by the Government of Maharashtra sometime in September, 1984. It is stated that although the petitioner was not detained pursuant to the order of detention, notice under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as the Act for short) was issued. It would appear that the petitioner filed Exts.P1 and P2 replies disputing the applicability of the Act and unsustainability of the proceedings initiated. However rejecting the contentions, the 1st respondent issued Ext.P3 order forfeiting 40 cents of land in Sy.No.83/7 of Oorakam Village along with a tiled house with land in Sy.No.84/1 under Section 7(1) of the Act. OP No.4125/01 :2 : 3. Petitioner filed Ext.P4 appeal before the Appellate authority accompanied by Exts.P5 to P8 affidavits of his uncle and father explaining the source of purchase of the property forfeited. He also raised additional grounds by filing Ext.P9 relying on Ext.P10 guidelines issued by the Government of India directing the competent authorities to deal with small cases of forfeiture of property where the value of the property involved is less than Rs.1 lakh in the following manner. “(a) Cases where proceedings are yet to be initiated and cases where the proceedings are already initiated: The proceedings under Section 6(1) of the SAFEM (FOP) Act, 1970 need not be initiated and if already initiated, may be dropped in the cases of (i) a person referred to in clause (a) or clauses (b) of sub-section (2) of Sec. 2 of the Act (hereinafter referred to as the 'principal person'); (ii) each of the relatives and associates of the principal person, as have been referred to in clauses (c) and (d) respectively of sub-section (2) of section 2(2), if the aggregate value of the properties held by the aforesaid persons (that is, the sum total of the values of the properties held by all the persons referred to above) in respect of which proceedings under the Act have been or can be initiated, does not exceed Rs.1,00,000/-. Before such non-initiation/ dropping, whether the value of property is less than Rs.1,00,000/- should have been identified by through investigations. (b) Cases where the final orders are issued by Cas: In the cases where the value of property involved exceeds Rs.1,00,000/- and the Show Cause Notices are issued; the evidences furnished by the aforesaid person(s) to prove the sources of income, are accepted by CAs and the ultimate value of property to be forfeited comes to less than OP No.4125/01 :3 : Rs.one lakh as per the order of CAs issued under the Act, in such cases further action under section (19) for taking possession of the property may be dropped. 4. 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. He also filed Ext.P11 petition for permitting him to urge additional grounds. The appeal was heard by the Appellate Authority and by Ext.P13, the appeal was rejected. The contention that since he had not undergone detention pursuant to the order of detention passed under the COFEPOSA Act, his property is not liable to be forfeited under the Act was overruled. The fact that the property was purchased in his name by his relative way back in 1972 was also overruled and on facts, I do not think any sufficient material is available to interfere with such findings. 5. However, dealing with the claim of the petitioner for the benefit of Ext.P10 guideline, the Appellate Authority has held in Ext.P13 as follows: It was next contended for the appellant, based on the additional grounds that the guidelines dated the 23rd June, 1994 issued by the Central Government to the competent authority should be applied and the proceedings should be dropped, as the value of the property is less than Rs one lakh. These guidelines have no force of law and cannot be enforced. OP No.4125/01 :4 : 6. On consideration of the material on record, I am not in a position to accept the way in which the Appellate Authority has dealt with the contentions of the petitioner. True, Ext.P10 guidelines cannot have the force of law. However, fact remains that this was issued by the Government of India and the competent authorities and the Appellate Authority are functionaries under the Government of India. If a guideline has been issued by Government of India, its subordinate authorities are bound by such guidelines. If the supporting authorities are allowed to be brushed aside and ignore such binding guidelines, that will cause a grave threat to the hierarchical system of Government. If the view taken in the order is accepted, it may lead to a situation where one competent authority will accept the guidelines and other may not. There has to be uniformity and that can be achieved only if all authorities accept and implement the guidelines issued by the Government. 7. Therefore, the view taken by the Appellate Authority in para 7 of Ext.P13 extracted above cannot be accepted. It is seen that Ext.P3 order was passed by the competent authority on 27th of February, 1998, while Ext.P10 guidelines was issued by the Government of India as early as on 23rd of June, 1994. If on the OP No.4125/01 :5 : date of Ext.P3, Ext.P10 guideline were in force, there was no reason why the Competent authority should not have extended the benefit of the said order to the petitioner, provided he is otherwise eligible for the same. 8. Since Ext.P10 guidelines has not been considered either by the Competent Authority and though urged, has been ignored by the Appellate Authority, I am inclined to set aside Exts.P3 and P13 for that reason. Ext.P14 being consequential, also has to be set aside. 9. Accordingly, setting aside Exts.P3, P13 and P14, the original petition is disposed of directing the 1st respondent to reconsider the proceedings with notice to the petitioner and decide the matter in accordance with law, taking into account Ext.P10 guideline also. Original petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp