IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.162 of 1984 (O&M) Date of decision: 16 .2.2010 Smt.Rita Rani -----Petitioner Vs. The Union of India and others -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr.D.S.Patwalia, Advocate for the petitioner. Mr. Ashwani Bansal, Advocate for the respondents. --- Adarsh Kumar Goel,J. 1. This petition seeks quashing of order passed by the appellate authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). 2. The petitioner is daughter-in-law of Parkash Chand who was prosecuted under the Customs Act, 1962 (for short, ‘the 1962 Act’). He was convicted in the year 1969 and granted probation under the Probation of Offenders Act, 1958 (for short, ‘the 1958 Act’). He was again prosecuted in the year 1979 and was awarded sentence of fine. The competent authority under the SAFEMA issued notice requiring the petitioner to disclose the source of money declared by her under the Voluntary Disclosure CWP No.162 of 1984 (O&M) Scheme in the year 1975 and thereafter, issued notice under section 7(1) of the Act why her property be not forfeited. Thereafter, order dated 5.8.1983 forfeiting the property was passed against which appeal was dismissed by the appellate authority. 3. Contention raised in the petition is that the order of forfeiture was illegal as the case did not fall under section 2(2)(iii) of SAFEMA under which proceedings could be taken only if there were atleast two convictions. In the present case, though there are two orders of conviction in one case, benefit of probation having been given, the said conviction could not be taken into account in view of Section 12 of the 1958 Act. 4. Learned counsel for the respondent opposed the submission. According to him, Section 24 of the SAFEMA had overriding effect over Section 12 of the 1958 Act. In any case, section 12 of the 1958 Act did not debar proceedings under the SAFEMA by ignoring conviction in case of grant of probation and did not exclude the case of the petitioner from purview of Section 2(2)(iii) of the SAFEMA. He relied upon judgment of the Hon’ble Supreme Court in Harichand v. Director of School Education, AIR 1998 SC 788 to the following effect:- “7. In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its 2 CWP No.162 of 1984 (O&M) punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from Government service.” 5. Question is whether grant of probation under the 1958 Act excludes applicability of section 2(2)(iii) of SAFEMA. 6. In our view, grant of probation under the 1958 Act does not exclude applicability of section 2(2)(iii) of SAFEMA which is as under:- “2. Application: (I) The provisions of this Act shall apply only to persons specified in sub- section (2). 2) The persons referred to in sub-section (I) are the following namely:- a) every person – i) xx xx xxx xxx ii) xx xx xxx xxxx iii) who having been convicted under the Sea Customs Act, 1878 (8 of 1978) or the Customs 3 CWP No.162 of 1984 (O&M) Act, 1962 (52 of 1962), has been convicted subsequently under either of the Acts; or xx xx xxx xxxx xx” 7. Apart from the judgment in Harichand (supra), reference may be made to judgment of the Hon’ble Supreme Court in Union of India and others, Appellants v. Bakshi Ram, (1990) 2 SCC 426, wherein it was observed:- “10. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of S. 3 or 4 of the Act does not deal with conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. See Art. 311(2)(b) of the Constitution: and Tulsiram Patel case, 1985 Supp (2) SCR 131 at 282: (AIR 1985 SC 1416 at Pp. 1485-86): 11. Section 12 of the Act does not preclude the department from taking action for misconduct 4 CWP No.162 of 1984 (O&M) leading to the offence or to his conviction thereon as per law. The Section was not intended to exhonerate the person from departmental punishment. The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of S. 12. On this aspect, the High Courts speak with one voice. The Madras High Court in R. Kumaraswami Aiyer v. The Commissioner, Municipal Council, Tiruvannamalair, 1957 Cri LJ 255 and Embru (P) v. Chairman Madras Port Trust, (1963) 1, Lab LJ 49 (Mad) the Andlira Pradesh High Court in A. Satyanarayana Murthy v. Zonal Manager, L.I.C., AIR 1969 Andh Pra 371, the Madhya Pradesh High Court in Prem Kumar v. Union of India, 1971 Lab IC 823; The Punjab and Haryana High Court in Om Prakash v. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala, (1971) 1 Serv LR 648 : (AIR 1973 Punj and Har 1 ) (FB). The Delhi High Court in Director of Postal Services v. Daya Nand, 1972 Serv LR 325: 1972 Lab IC 736 have expressed the same view. This view of the High Courts in the aforesaid cases has been approved by this Court in T. R. Challappan's case, (1975) 2 Serv LR 587 (AIR 1975 SC 2216). 5 CWP No.162 of 1984 (O&M) 12. In Trikha Ram v. V. K. Seth, 1987 Supp SCC 39: (AIR 1988 SC 285) this Court after referring to S. 12 has altered the punishment of dismissal of the petitioner therein into "removal from service", so that it may help him to secure future employment in other establishment. 13. Section 12 is thus clear and it only directs that the offender "shall not suffer disqualification, if any, attaching to a conviction of an offence under such law". Such law in the context is other law providng for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of S. 12 stands removed. That in effect is the scope and effect of S. 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. Apparently, such a view has no support by the terms of S. 12 and the order of the High Court cannot, therefore, be sustained.” 6 CWP No.162 of 1984 (O&M) Same view was taken in Punjab Water Supply Sewerage Board and another v. Ram Sajivan and another, (2007) 9 SCC 86. 8. Accordingly, we do not find any ground to interfere with the impugned order. The petition is dismissed. (Adarsh Kumar Goel) Judge February 16 , 2010 (Alok Singh) ‘gs’ Judge 7