Union of India Vs Prabodh G.Rawal and Anr.

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VPH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION No. 1252 OF 2004

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Union of IndiaPetitioner

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Vs.

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Mr. Prabodh G. Rawal & Anr.Respondents

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Mr. R. F. Lambay, for the Petitioner.

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Mrs. R. M. Gadhavi, APP for the Respondent.

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CORAM : BILAL NAZKI, &
A. A. KUMBHAKONI, J.

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DATE : AUGUST 14, 2008.

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PC :-

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1.We have heard the learned counsel for the
petitioner. Mrs. R. M. Gadhavi, APP waives service
for the respondent.

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2.The petitioner representedthrough the

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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

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show-cause notice was given under section 6 of the

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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.

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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.

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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-

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"Section 2 (2)(b) : every person in respect
of whom an order of detention has been made

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under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974
(52 of 1974):

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Provided that

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(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

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(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

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(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

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the Advisory Board under section 8, read with
sub-section (6) of section 12A, of that Act;
or

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(iv) such order of detention, has not been set
aside by a Court of competent jurisdiction."

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"19. 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.

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(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.

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(3) Notwithstanding anything contained in

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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."

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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.

Union of India v. Prabodh G.Rawal and Anr.

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Union of India v. Prabodh G.Rawal and Anr.

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