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2016 DIGILAW 706 (CAL)

MADHABI RANI KAR v. UNION OF INDIA

2016-09-06

DEBANGSU BASAK

body2016
JUDGMENT : 1. The petitioner has assailed an order passed by the appellate authority under the provisions of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 2. Learned Advocate for the petitioner has submitted that, the competent authority as well as the appellate authority had erred in not appreciating that, the provisions of the Act of 1976 are not attracted in view of the fact that, the petitioner was never convicted in respect of any offence enumerated under the Act of 1976. He has referred to Section 2(2)(b) of the Act of 1976 and has submitted that, the petitioner has not been convicted under any of the Act enumerated therein. Therefore, the competent authority could not have assumed jurisdiction over the matter. Learned Advocate for the petitioner has also submitted that, the second proviso to Section 2(2)(b) of the Act of 1976 has happened so as to denude the jurisdiction of the competent authority under the Act of 1976. He refers to the averments made in the writ petition as also the averments in the affidavit-in-opposition in support of such contention. 3. Learned Advocate for the respondents has submitted that, Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 requires a detention and not conviction as the words used in the Section would demonstrate. 4. I have considered the rival contentions of the parties and the materials made available on record. 5. The petitioner has assailed an order passed by the appellate authority under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. The order is well reasoned. The only ground of challenge is the lack of jurisdiction of the competent authority as well as of the appellate authority to be proved under the Act of 1976. 6. Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is as follows:- “2(2) ... The order is well reasoned. The only ground of challenge is the lack of jurisdiction of the competent authority as well as of the appellate authority to be proved under the Act of 1976. 6. Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is as follows:- “2(2) ... (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): Provided that – (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 the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (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) 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 the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; or (iv) such order of detention has not been set aside by a Court of competent jurisdiction;” 7. Section 2 sub-section (1) of the Act of 1976 stipulates that the provisions of the Act of 1976 are applicable only to the persons specified in sub-section (2). Sub-section (2) of the Act of 1976, inter alia, stipulates that a person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 would come within the purview of the Act of 1976. 8. It is an admitted position that the petitioner was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 8. It is an admitted position that the petitioner was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Therefore, there is no substance in the argument that, the provisions of the Act of 1976 are not attracted and that, the authorities under the Act of 1976 had no jurisdiction over the subject matter. 9. So far as the contention of the competent authority being denuded of jurisdiction in terms of Section 2(2)(b) of the Act of 1976 is concerned, I find that the petitioner had suffered an order of detention and that none of the situation contemplated under such proviso has happened. 10. In such circumstances, I find no reason to interfere in the present writ petition. 11. WP No. 293 of 2000 is dismissed. No order as to costs.