UNDER NDPS ACT
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SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY) ACT and NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT
FORFEITURE UNDER SAFEMA AND NDPS ACT
Introduction • The SAFEM(FOP)A or SAFEMA provides for forfeiture of assets of smugglers and foreign exchange manipulators. It was introduced in 1976 as a sequel to the COFEPOSA of 1974. • Similar law exists for forfeiting properties of drug traffickers (the NDPS Act) and properties out of money laundering (the PMLA). • If right to property is sacrosanct, then why such laws to deprive private property of individuals?
• Preamble to COFEPOSA and SAFEMA. • Smuggling activities and FERA violations • have deleterious effect on economy • adversely affect the security of the state
• Forfeiture of property is considered as a tool in the fight against threats to peace, prosperity and security (the UNCTOC 2000)
Philosophy of Forfeiture • Why forfeiture? • It hits at the heart of the offence. • It hits where it hurts more – financially.
• The principle is “No person has a right to the profits of crime, but such money is that of the State.” • Evolution of law from “deprivation of liberty to deprivation of property”.
• An imprisoned member of a criminal syndicate is usually replaced and criminal activities continue. • Forfeiture • Is preventive, as economic profit is the rationale • Deprives the ill-gotten wealth of offenders and associates • Prevents infiltration of illegal profits and corruption into the legal economy • Takes away tools and instruments to commit future crimes • Has a crippling effect – takes away the capital • Provides evidence • Provides intelligence input to target the top management • Supports and supplements enforcement
• The objective is to make crime not profitable. • Forfeiture can cripple the criminal operations by taking out the capital. • Enforcement provides disincentive and forfeiture removes the incentive. • Forfeiture is to tell – ‘crime does not pay’.
Forfeiture proceedings under NDPS Act
Forfeiture – the framework • “Illegally acquired properties” of specified “persons” are liable for forfeiture under SAFEMA (and also under NDPS Act) by the Competent Authority. • Such forfeiture action is immediate if the person is detained under COFEPOSA. • If COFEPOSA is not invoked, all such properties can still be forfeited after a conviction is obtained under the Customs Act or the FERA.
• Identification of properties is the sine qua non • Investigating officers are in the best position to do financial investigation. • SAFEMA has role for enforcement authorities and for Competent Authority. • Need to be aware of the powers and responsibilities you have under SAFEMA. • We need to work together to be more effective in achieving the goals of government.
• We have a common purpose or objective • We have a joint statutory responsibility under SAFEMA and also under Chapter V-A of NDPS Act. • Mutual cooperation among implementing agencies is essential to effectively combat the offences.
Administration of Forfeiture • The Competent Authority administers the forfeiture provisions under the SAFEMA and also Chapter V-A of the NDPS Act, 1985 • He is also called the “Administrator” under the NDPS Act for administering the forfeited properties. • The Competent Authority and Administrator is of the level of Joint Secretary to Government and is appointed under the relevant Act.
Competent Authority – Zonal Offices COMPETENT AUTHORITY
South Zone • • • • • •
Tamil Nadu Kerala Karnataka Andhra Pradesh Pondicherry Lakshadweep
SOUTH ZONE Competent Authority and Administrator [SAFEM(FOP)A & NDPS Act], ‘UTSAV’, No.64/1, G.N. Chetty Road, T. Nagar, CHENNAI 600 017. Fax : 044 2815 4636 Phone: 044 2815 4636, 2815 0896, 2815 2826
Jurisdiction • The jurisdiction of the Competent Authorities is 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.
Forfeiture – when? SAFEMA [Sec 2]
• Preventive detention under COFEPOSA • Conviction under Customs Act or FERA NDPS Act [Sec 68A] • Preventive detention under PITNDPS Act • Conviction under NDPS Act
Two Routes to Forfeiture Arrest Preventive Detention
‘PERSON’ UNDER SAFEMA – Sec 2
‘PERSON’ UNDER NDPS ACT - Sec 68A • Person convicted of an offence under NDPS Act, 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.
• Person against whom a detention order under PITNDPS Act has been made. • Relative or associate of such person • Present holder of the property of convict or detenue • Proceedings valid even if the person convicted or detained is absconding. • No proceedings if the detention is set aside by the Advisory Board or any competent court.
ASSOCIATES/ TRUSTS/ OTHER PERSON
Salient 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.
• Burden of proof is always on the Person Affected in terms of Section 68J of NDPS Act. • Findings under other laws not conclusive [68W]. • If any property is transferred by any mode after the issue of a notice under the NDPS Act, such transfer shall be deemed to be null and void under the NDPS Act [68M].
FINE IN LIEU OF FORFEITURE • Under NDPS Act a fine equal to the market value of such part which has not been proved to be legally acquired is permissible [68K], in lieu of forfeiture.
SEIZURE OR FREEZING • The investigating officer under Section 53 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. • Reasonable evidence/belief is enough. Burden of proof is on the person affected as per Section 68J. • 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.
For quick forfeiture • Invoke PITNDPS Act • On arrest, go for freezing of properties of PA / relatives / associates.
Procedure for forfeiture Commencement of proceedings • A notice under Section 68H of NDPS Act, is issued to the Person Affected to show cause why the properties mentioned should not be forfeited. • 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 the property [or dropping the proceedings] is passed by the Competent Authority under Section 68-I. Act.
• Death of PA does not result in abatement of proceedings - estate can be proceeded against. • PA absconding - proceedings would continue
INFORMATION TO COMPETENT AUTHORITY • All officers of Central Government or • State Government or • Local Authority are required to furnish information [68-S] in relation to Person Affected which will be relevant for the purposes of the NDPS Act.
ASSISTANCE TO COMPETENT AUTHORITY • • • • • • • •
Customs Department/Central Excise Department Directorate of Revenue Intelligence Income Tax Enforcement Directorate Narcotics Intelligence Bureau Narcotics Control Bureau Officers of Police Other officers of Central / State Government as specified
are required to assist the Competent Authority [68-T] for identifying illegally acquired property and maintenance of the forfeited property as well as disposal of the property forfeited.
Time limit • Under NDPS Act, any property acquired before a period of 6 years from the date of arrest or a warrant or authorisation of arrest has been issued or from the date of order of detention against the Person cannot be forfeited. • However no time limit is prescribed for concluding forfeiture as far as illegally acquired property is concerned.
Appeal • One tier appeal is provided • Appeal lies with Appellate Tribunal for Forfeited Property (ATFP) • 45 days time period is allowed for the Person Affected to file an appeal against an order passed by the Competent Authority under 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.
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 68 U of the NDPS Act within 30 days of the service of the forfeiture order issued.
Safeguards • Holder of the property, before issue of notice for forfeiture, if he was a transferee in good faith for adequate consideration is excluded. • Vexatious action u/s 58 of NDPS is punishable.
Increased Effectiveness • Increased inter-agency co-operation. • Catch not just peripheral persons but go after the network. • Exchange information promptly. • Reach out to all the illegally acquired assets.
Summary of the functions of the Competent Authority • The function of the Competent authority has a multiagency dimension. • Action for forfeiture is initiated on information from DRI, Customs, or NCB/NIB authorities. • After forfeiture with the help of the sponsoring agency or the district revenue authorities maintenance/ disposal of the forfeited property is undertaken.
Parting on the subject Request to this august body • Notify liable cases to the Competent Authority • PITNDPS detentions • Conviction under Drug Laws violations
• Go for freezing of assets on arrest • Identify the properties of the detenue • Relatives and associates and also their properties and inform