IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 OP.No. 23337 of 2000(C) ---------------------------------- PETITIONERS: --------------------- 1. A. SAINABA BEEVI, W/O. LATE P.M. MOHAMMED HANEEFA, SHABNAM MANZIL, NEELAMPARAMBU, VENNALA (P.O), ERNAKULAM. 2. P.M. SAINUDEEN, SON OF LATE P.M. MOHAMMED HANEEFA, RESIDING AT NITHIN, CONTONMENT NORTH, KOLLAM. *ADDL. P.3. IMPLEADED: 3. ASHA DHULARI, W/O. LATE P.M. SAINUDHEEN, AGED 49 YEARS, RESIDING AT “NITHIN” CHINNAKKADA NAGAR, CONTONMENT – NORTH, KOLLAM DISTRICT. *IMPLEADED AS 3RD PETITIONER AS PER ORDER DT. 08/03/2010 IN I.A. 2803/10. BY ADV. SRI.M.K.CHANDRA MOHANDAS. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE COMPETENT AUTHORITY UNDER THE SMUGGLERS AND FOREIGN EXCHANGE MANIPULATIONS (FOREFEITURE OF PROPERTY) ACT, 64/1, G.N. CHETTY ROAD, T. NAGAR, CHENNAI – 17. O.P. NO. 23337/2000-C: 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRTARIAT, THIRUVANANTHAPURAM. 4. THE COMMISSIONER AND SECRETARY TO GOVERNMENT OF KERALA, HOME (S.S.A) DEPARTMENT, THIRUVANANTHAPURAM. 5. THE SUPERINTENDENT OF POLICE, KOLLAM. 6. THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. R1 & R2 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA, R3 TO R6 BY GOVERNMENT PLEADER SRI. M.A. ASIF. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 23337/2000-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE ISSUED TO THE P.2. NO. OCA/MDS/1091/79 DT. 01/06/1979 BY THE R.2. EXT.P.2: COPY OF THE ORDER PASSED BY THE R.2. NO. OCA/MDS/1991/79 DT. 25/11/1993. EXT.P.3; COPY OF THE ORDER PASSED BY THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, NEW DELHI (NO.F.P.A. NO. 3/MAD/94 DT. 24/11/1994. EXT.P.4: COPY OF THE JUDGMENT IN W.A. NO. 1560 1995-C PASSED BY THIS HONOURABLE COURT DATED 08/01/1996. EXT.P.5: COPY OF THE ORDER PASSED BY THE R.2. NO. F. OCA/MDS/1990 & 1991/79 DTD. 30/08/1996. EXT.P.6: COPY OF THE ORDER PASSED BY THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, NEW DELHI NO. FPA NO. 92/MDS/96 AND FPA NO. 93/MDS/96, DATED 18/07/2000. EXT.P.7: COPY OF THE NOTICE DTD. 15/03/88 IN 2007 (1) KLT 956 (SC). EXT.P.8.A: COPY OF THE DETENTION ORDER DTD. 14/02/1976. EXT.P.8.B: COPY OF THE DECLARATION DTD. 14/02/1976 IN PURSUANCE TO ABOVE DETENTION ORDER. EXT.P.8.C: COPY OF THE COVERING LETTER DTD. 21/12/1994 THROUGH WHICH P8(A) & P8(B) WERE SENT TO THE R.2. BY THE R.3. EXT.P.9: COPY OF THE ORDER BY THE ASSISTANT COLLECTOR, CENTRAL EXCISE, TRIVANDRUM, C.NO.VIII/48/78/76/141 DTD. 01/01/1981 RELEASING THE GOODS WHICH HAD BEEN SEIZED FROM THE DECEASED. RESPONDENTS' EXHIBITS: EXT.R1.A: B.O. NO. 2004/99 (PLG. COM.3776/99), TRIVANDRUM DATED 08/09/1999. EXT.R1.B: NO.1701/99 (PLG.COM.3776/99) TRIVANDRUM DTD. 31/07/1999. //TRUE COPY// P.A. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 23337 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 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 can O.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.