TMI Blog2017 (2) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed - decided in favor of appellant. - MP-104/DLI/2016 in FPA-ND-38/DLI/2016 - - - Dated:- 13-10-2016 - Manmohan Singh, Chairman, Shri G.C. Mishra and B.K. Bansal, Members Shri R.K. Tiwari, Advocate, for the Appellant. Shri Manoj Dargar Maheshwari, Advocate, for the Respondent. JUDGMENT [Judgment per : Justice Manmohan Singh, Chairman]. - FPA-ND-38/DLI/2016 : By filing of the present appeal, Sh. Rajesh Gulati - the appellant has challenged the impugned order dated 17th March, 2016 passed by the Competent Authority. 2. The brief facts are available as per record that :- Prior to his detention under the Preventive order dated 28-9-2001, the appellant has been arrested on 5th July, 2001 by the Customs officers at the Indira Gandhi International Airport, New Delhi on the allegation that he had smuggled 40 mobile telephones. The mobile phones were found hidden in a microwave oven. The microwave oven as well as the mobile telephones were seized and the collective value of the seized goods has been stated by the respondents to be ₹ 5,16,000/-. At the time of his arrest, the appellant handed over his passport to the customs authorities. In the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by the Customs Department wherein the appellant and Shri Deepak Dhembla were jointly asked to show cause why the seized goods should not be confiscated and penalty should not be imposed on them under Section 112 of the Customs Act. 4. The appellant submitted his reply to the show cause notice issued by the Customs Department. Sh. Deepak Dhembla did not file any reply and the matter was adjudicated by Additional Commissioner of Customs who after appraisal of the evidences confiscated the seized goods and gave an option to the appellant to redeem the seized goods on payment of redemption fine of ₹ 3 lakhs and imposed a penalty of ₹ 2 lakhs on the appellant on the ground that although Sh. Deepak Dhembla was involved in the alleged smuggling of mobile phones in India, but it was with the active involvement of the appellant. 5. The appellant filed an appeal against the order dated 30th January, 2004 before the Joint Secretary, Government of India. The Joint Secretary vide order dated 29th September, 2006 reduced the penalty to ₹ 50,000/- in view of the facts and circumstances of the case, stating that the appellant deserved a lenient view. 6. Proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inue his activities is based on no material but was a piece of pure speculation on the part of the detain authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issue raised by the appellant. The appeal is accordingly allowed and the decision of the High Court is set aside. The impugned order of detention is quashed and the appellant is directed to be released forthwith. 7. As per respondent the appellant had been involved, in a well-organized manner, in activities prejudicial to law and was deriving illegal income therefrom, reasons to believe were recorded in writing within the meaning of Section 6 of the Act, that the Bright, title and interest in the properties mentioned above are illegal within the meaning of Section 3(1)(c) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 and were acquired by the appellant in his name or in the name of his family members/relatives out of illegal income. 8. It is also the case of the respondent that Sh. Deepak Dhembla along with Sh. Rajesh Gulati was indulged in activities prejudicial to law, evasion of duty and derived il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al payment was made at the time of purchase by cheque. 13. The appellant has submitted the photocopies of General Power of Attorney dated 25th March, 1996, Agreement to Sell dated 25th March, 1996 and Will dated 25th March, 1996 executed by Mrs. Nirmal Bindra in favour of Mrs. Sumita Gulati, wife of the appellant. Copies of the said documents would show that these are the registered documents. 14. At the time of issuance of notice on 11th July, 2016, the Interim Order was passed in favour of the appellant. 15. After filing of the appeal, Mrs. Sumita Gulati has also filed a miscellaneous application with the prayer that the impugned order dated 17th March, 2016 be set aside and till the appeal is finally disposed of, the operation of the said order be stayed. She as well as the appellant have given an undertaking not to sell, part with or create third party interest in the said property till the disposal of the appeal. 16. In the miscellaneous application filed by Mrs. Sumita Gulati, the specific statement has been made that the said property was purchased by her in 1996 on payment of ₹ 3,15,000/-. The payment was made by way of five demand drafts, the details of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts are almost identical. The husband of the appellant Smt. Kamla Bai was the accused in the matter. After having discussed the provisions of the Act as well as the judgment of the Supreme Court in Paras 3 and 4 therein, the Hon ble High Court speaking through Hon ble Mr. Badar Durrez Ahmed, J. has observed that once the statute itself gives an opportunity of being heard, that opportunity cannot be whittled or taken away. Paras 3 and 4 of the said judgment read as under :- 3. The respondents and in particular the Competent Authority under SAFEMA issued a show cause notice dated 20-9-2001 under Section 6(1) of SAFEMA to the said Sh. Popat Lal. Thereafter, an order dated 22-7-2002 was passed by the Competent Authority under Section 7(1) and 7(3) of SAFEMA forfeiting the said property to the Central Government. In the said order dated 22-7-2002 which is impugned herein, it is clearly indicated as under :- A perusal of the copy of the registered deeds filed by the advocates along with the letter dated 20-11-2001 shows that a plot was purchased for ₹ 25,000/- in Ramdevji Ki Gali, Takhatgarh, Distt. Pali (Rajasthan) in the name of Kamlabai from Sh. Naina Rai son of Chog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traceable to the convict/detenue are not sought to be forfeited nor are they within the purview of SAFEMA. This has been clearly held by the Supreme Court in the case of Attorney General of India, etc. v. Amaratlal Prajivandas and others, etc. It is for the purposes of ascertaining whether the property was actually one which belonged to the said Sh. Popat Lal and whether it was merely held by the petitioner on his behalf, that the provisions of Sections 6 and 7 have been enacted. It is, therefore, necessary to examine these provisions. Sections 6 and 7 of SAFEMA are set out hereinbelow :- 6. Notice of forfeiture. - (1) If, having regard to the value of the properties held by any person to whom this act applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, any other information or material available to it as a result of action taken under section 18 or otherwise, the competent authority has reason to believe (the reasons for such belief to be recorded in writing) that all or any of such properties are illegally acquired properties, it may serve a notice upon such person (hereinafter referred to as the person affe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the person to whom the Act applies, in this case Sh. Popat Lal. Under Section 6(2), a notice is also required to be served upon such other person who holds the property in question on behalf of the person, to whom the Act applies. This clearly means that notice under Section 6 ought to have been issued both to Sh. Popat Lal as well as to the petitioner in whose name the property stood. Learned counsel for the respondent argued that no notice was necessary in respect of the petitioner inasmuch as their stand was that the property in question belonged to Sh. Popat Lal and that throughout he had admitted the same. This, however, is not acceptable in view of the fact that it is quite possible that the property may be admitted by the detenue to belong to him when, in fact, it did not. There are many instances under which a person may claim that the property belongs to him when in point of fact it does not actually do so. It is for this reason that specific statutory provisions have been made and incorporated under Section 6(2) whereunder a copy of the notice is specifically to be served to the person who allegedly holds the property of the detenue on the latter s behalf. Admittedly, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the suggestion that let the matter be remanded back to the Competent Authority for reconsideration. The same is not possible in the present case, as admittedly, the notice was not served upon the applicant which was mandated under Section 6(2) of SAFEM (FOP) Act, 1976. 21. It is well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See Nazir Ahmed v. King Emperor, AIR 1936 PC 253, Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 and State of Uttar Pradesh v. Singhara Singh and Others, AIR 1963 SC 358). 22. As already mentioned, the appellant is concerned only with regard to the property at Serial No. (iv), namely, 238, Dhruv Apartments, Plot No. 4, IP Extension, Delhi-110092 and the applicant is also concerned with the said property only. 23. Under these circumstances, we are of the considered view that the impugned order dated 17th March, 2016 is not sustainable as far as the said property of the applicant is concerned, as the same is passed contrary to the provisions of Section 6(2) of the SAFEM (FOP) Act, 1976 and the same is according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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