GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE

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GOVERNMENT OF INDIAMINISTRY OF
FINANCEDEPARTMENT OF REVENUE
COMPETENT AUTHORITYSAFEM (FOP) NDPS ACT SOUTH
ZONE CHENNAI
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Why forfeiture ?

• To hit out at the heart of an offence
• To hit where it hurts more-- financially

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Philosophy

• The avowed object behind is
• No person has a right to the profits of crime
  money-but such money is that of the State.

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Purpose

• Forfeiture acts as
• A deterrent as well as punishment against
  smuggling and drug offences
• To deprive the offenders and their relatives
  and associates of their ill-gotten wealth
• Cripple the smugglers from enjoying the ill
  gotten wealth
• A tool to support community drug enforcement

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Basis of forfeiture

• Criminal ingredients such as
• Preventive detention such as PITNDPS / COFEPOSA
• Conviction under Customs Act, FERA and NDPS are
  the basis for this civil procedure

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Development of forfeiture law

• Enemy property Act, 1968
• SAFEM(FOP) Act, 1976
• NDPS Act, 1985
• MONEY LAUNDERING Act, 2004

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Forfeiture Of Properties Under SAFEM(FOP)Act
NDPS Act
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Basis of forfeiture

• Criminal ingredients such as
• Preventive detention such as PITNDPS /
  COFEPOSA
• Conviction under Customs Act, FERA and NDPS
• are the basis for this civil procedure

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How administered?

• The Competent Authority administers
• The Smugglers and Foreign Exchange Manipulators
  (Forfeiture of Property) Act, 1976 or
  SAFEM(FOP) Act-in short
• Chapter VA of the Narcotics Drugs and
  Psychotropic Substances Act, 1985 or NDPS
  Act-in short.
• He is also called the Administrator under the
  NDPS Act

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Organisation

• The Competent Authority and Administrator is
• An officer of the rank of Joint Secretary to
  the Government on deputation
• Appointed u/s 5 of the SAFEM(FOP)Act
• Appointed u/s 68D of the NDPS Act.

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Jurisdiction

• There are 5 Competent Authorities in the country
  located at
• Chennai
• Lucknow
• Delhi
• Mumbai
• Kolkata.
• They are either from Income Tax or Central
  Excise and Customs Department.

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South Zone

• Tamil Nadu
• Kerala
• Karnataka
• Andhra Pradesh
• Pondicherry (UT)
• Lakshadweep (UT)

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South Zone

• Shri S. Ravi,
• Competent Authority and Administrator,
• SAFEM(FOP)A NDPS Act
• Address
• UTSAV, No.64/1, G.N. Chetty Road, T. Nagar,
  Chennai - 600 017. Fax [phone] Phone
  044 2815 4636, 2815 0896, 2815 2826

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West Zone

• Maharashtra
• Gujarat
• Madhya Pradesh
• Goa
• Chattisgarh
• Daman Diu (UT)
• Dadra Nagar Haveli (UT)

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West Zone

• Shri S. Ravi, (Addl.Charge)
• Competent Authority and Administrator,
• SAFEM(FOP)A NDPS Act
• Address
• Mittal Court, C Wing, 3rd Floor Nariman
  Point, Mumbai - 400 021. Fax 022 - 2288
  2771 Phone 022 - 2204 9009, 2204 3756

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East Zone

• West Bengal
• Orissa
• Assam
• Manipur
• Meghalaya
• Mizoram
• Nagaland
• Tripura
• Arunachala Pradesh
• Sikkim
• Andaman Nicobar Islands (UT)

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East Zone

• Competent Authority and Administrator,
• SAFEM(FOP)A NDPS Act,
• Address
• 20 B, Abdul Hamid Street, (4th Floor), Kolkata
  - 700 069. Fax [phone] Phone [phone]
  4203, 2248 5353, 2248 4207.

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North Zone

• Jammu and Kashmir
• Rajasthan
• Punjab
• Haryana
• Himachal Pradesh
• Chandigarh (UT)
• New Delhi (UT)

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North Zone

• Smt. Archana Ranjan
• Competent Authority and Administrator,
• SAFEM(FOP)A NDPS Act,
• Address
• B, Wing, 9th Floor, Loknayak Bhavan,
• New Delhi - 110 003. Fax [phone]
  6379 Phone [phone].

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Lucknow

• Uttar Pradesh
• Uttaranchal
• Jharkhand
• Bihar

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Lucknow

• Competent Authority and Administrator,
• SAFEM(FOP)A NDPS Act,
• Address
• 20 B, Abdul Hamid Street, (4th
  Floor), Kolkatta - 700 069. Fax [phone]
  4447 Phone [phone].

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Jurisdiction

• The area of jurisdiction of the Competent
  Authorities shall be on the basis of the
  address/residence of the person affected. If
  there is more than one address/place of
  residence, the Competent Authority in whose
  jurisdiction the investigating agency is located
  shall have the jurisdiction

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Person Defined u/s 68-A of NDPS Act

• Conviction of an offence punishable with
  imprisonment for 10 years or more
• Person who has been convicted of a similar
  offence by a Competent Court outside India.
• Person against whom an arrest warrant has been
  issued for an offence punishable with an
  imprisonment for 10 years or more.

Arrest? Detention? Conviction?
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Person Defined u/s 2 of SAFEM (FOP) Act
convicted

• Customs Act Value gt Rs.1 Lakh
• FERA Value gt Rs.1 Lakh
• Subsequent convictions under Customs Act
  FERA. No value limit.

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Person Defined u/s 2 OF SAFEM(FOP) Act

• Detention order under COFEPOSA
• Made is good enough
• No proceedings if the detention is set aside by
  the Advisory Board or any Competent court

COFEPOSA/ PITNDPS detenue
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Definitions

• Person Affected PA
• Any person caught by the mischief of section 2 of
  SAFEM(FOP)A is called so. relatives and
  associates included
• A person who is liable to be convicted for an
  offence punishable under NDPS Act with
  imprisonment for a term of 10 years or more.
• Illegally acquired Property
• Any property acquired by the Person Affected by
  any activity prohibited by any law enacted by
  parliament or in contravention of any law enacted
  by parliament
• Under NDPS Act the illegally acquired property is
  defined as any property acquired in contravention
  of the NDPS Act.

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Illegally Acquired Property

• SAFEM(FOP)A Any property acquired by the person
  affected by any activity prohibited by any law
  enacted by parliament or in contravention of any
  law enacted by parliament. If the property is
  acquired without violation of any law of the
  land, evidence to be produced by person affected.
• NDPS Any property acquired in contravention of
  the NDPS Act.

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Who are covered?
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Special Features

• The Competent Authority has the powers of the
  civil court under the Code of Civil Procedure
• Therefore, no civil court shall have jurisdiction
  in respect of which the CA is empowered
• No injunction shall be granted by any court.

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Special Features

• Burden of proof is always on the Person
  Affected in terms of Section 8 of the
  SAFEM(FOP)A and Section 68J of NDPS Act.
• Findings under other laws not conclusive
• If any property is transferred by any mode
  after the issue of a notice under the
  SAFEM(FOP)A or the NDPS Act, such transfer shall
  be deemed to be null and void under the
  SAFEM(FOP)A and NDPS Act.

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Fine in LIEU of Forfeiture

• After the Competent Authority decided that any
  property stands forfeited to the Central
  Government and it is a case where the source of
  only a part, being less than one half of the
  income, earnings or assets which the property was
  acquired has not been proved, option to pay a
  fine equal to 120 of the value of such part can
  be given under Section 9 of the SAFEM (FOP) Act.
• Under NDPS Act the fine will be equal to the
  market value of such part which has not been
  proved to be legally acquired.

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3 Fs

• For effective implementation
• Finding
• Freezing
• Forfeiture of criminally derived assets is
  called for.

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Seizure or Freezing

• The investigating officer designated under
  Section 53 of the NDPS Act is empowered u/s
  68F(1) to seize/freeze assets, if he has reason
  to believe that the property might be
  transferred, concealed or disposed of. This is
  essentially a provisional attachment.
• He should intimate the Competent Authority within
  48 hours.
• The Competent Authority to confirm the seizure or
  freezing order within 30 days u/s 68F(2).
• However, notice for forfeiture of the property
  can be issued only after the person is convicted.
  
• No such provision for seizing or freezing of
  assets is provided under SAFEM(FOP)A.

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Procedure for forfeiture

• Commencement of proceedings
• A notice under Section 6 of SAFEM(FOP)A and
  Section 68H of NDPS Act, is issued to the Person
  Affected calling upon him to show as to why the
  properties mentioned in the notice should not be
  forfeited to the Government.
• 30 days time is given to the Person Affected to
  reply to the notice.
• After considering the reply or oral submissions
  by the Person Affected, an order forfeiting or
  dropping the proceedings property is passed by
  the Competent Authority under Section 7 of
  SAFEM(FOP)A or section 68-I of the NDPS Act.

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Information to Competent Authority

• All officers of Central Government or
• State Government or
• Local Authority
• are required to furnish information in relation
  to Person Affected which will be relevant for the
  purposes of the SAFEM(FOP)A or NDPS Act.

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Information to Competent Authority

• Officers of the Customs Department/Central
  Excise Department
• Directorate of Revenue Intelligence
• Income Tax
• Enforcement Directorate
• Narcotics Intelligence Bureau
• Narcotics Control Bureau
• Officers of Police
• Such other officers of Central / State
  Government as specified
• Are required to assist the Competent Authority
  for identifying illegally acquired property and
  maintenance of the forfeited property as well
  as disposal of the property forfeited.

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Time limit

• The SAFEM(FOP)A has no time limit either for
  initiating or concluding forfeiture as far as
  illegally acquired property is concerned.
• Property acquired even at a distant past can be
  forfeited if there is no evidence to show that
  the property was acquired legally.
• But under NDPS Act, any property acquired before
  a period of 6 years from the date a warrant of
  arrest has been made against the Person Affected
  under the NDPS Act cannot be forfeited.

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Appeal

• One tier appeal is provided
• Appeal lies with Appellate Tribunal for Forfeited
  Property (ATFP)
• The ATFP consist of 3 members- A Judge of the
  High Court, acts as a Chairman of the ATFP and a
  member each from the CBDT and CBEC act as
  members of the Tribunal.
• 45 days time period is allowed for the Person
  Affected to file an appeal against an order
  passed by the Competent Authority under Section 7
  of the SAFEM(FOP)A or Section 68F (2) or 68 I of
  the NDPS Act.
• ATFP has been empowered to condone a delay of 15
  days only, if it is satisfied that the appellant
  was prevented from filing the appeal for
  sufficient cause.

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Powers to take possession

• The Competent Authority or
• Any person duly authorised by the Competent
  Authority
• May take possession of any forfeited property
  u/s 19 of the SAFEM(FOP)A or Section 68 U of the
  NDPS Act within 30 days of the service of the
  forfeiture order issued