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GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE

GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE. COMPETENT AUTHORITY SAFEM (FOP) & NDPS ACT SOUTH ZONE CHENNAI. Why forfeiture ?. To hit out at the heart of an offence To hit where it hurts more-- financially. Philosophy. The avowed object behind is

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GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE

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  1. GOVERNMENT OF INDIAMINISTRY OF FINANCEDEPARTMENT OF REVENUE COMPETENT AUTHORITYSAFEM (FOP) & NDPS ACT SOUTH ZONE CHENNAI

  2. Why forfeiture ? • To hit out at the heart of an offence • To hit where it hurts more-- financially

  3. 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.”

  4. 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

  5. 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

  6. Development of forfeiture law • Enemy property Act, 1968 • SAFEM(FOP) Act, 1976 • NDPS Act, 1985 • MONEY LAUNDERING Act, 2004

  7. Forfeiture Of Properties Under SAFEM(FOP)Act &NDPS Act

  8. 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

  9. 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

  10. 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.

  11. 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.

  12. South Zone • Tamil Nadu • Kerala • Karnataka • Andhra Pradesh • Pondicherry (UT) • Lakshadweep (UT)

  13. 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 : 044 2815 4636 Phone: 044 2815 4636, 2815 0896, 2815 2826

  14. West Zone • Maharashtra • Gujarat • Madhya Pradesh • Goa • Chattisgarh • Daman & Diu (UT) • Dadra Nagar Haveli (UT)

  15. 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

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

  17. East Zone Competent Authority and Administrator, SAFEM(FOP)A & NDPS Act, Address: • 20 B, Abdul Hamid Street, (4th Floor), Kolkata - 700 069. Fax : 033 2248 4447 Phone: 033 2248 4203, 2248 5353, 2248 4207.

  18. North Zone • Jammu and Kashmir • Rajasthan • Punjab • Haryana • Himachal Pradesh • Chandigarh (UT) • New Delhi (UT)

  19. 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 : 022 2461 6379 Phone: 022 2461 6379, 2461 6288, 2465 5807.

  20. Lucknow • Uttar Pradesh • Uttaranchal • Jharkhand • Bihar

  21. Lucknow Competent Authority and Administrator, SAFEM(FOP)A & NDPS Act, Address: • 20 B, Abdul Hamid Street, (4th Floor), Kolkatta - 700 069. Fax : 033 2248 4447 Phone: 033 2248 4203, 2248 5353, 2248 4207.

  22. Jurisdiction • The area of jurisdiction of the Competent Authorities shall be on the basis of theaddress/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

  23. Person Defined u/s 68-A of NDPS Act • Conviction of an offence punishablewith 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 punishablewith an imprisonment for 10 years or more. Arrest? Detention? Conviction?

  24. Person Defined u/s 2 of SAFEM (FOP) Act convicted • Customs Act Value > Rs.1 Lakh • FERA Value > Rs.1 Lakh • Subsequent convictions under Customs Act & FERA. No value limit.

  25. 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

  26. 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.

  27. 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.

  28. PARENTS PARENTS BROTHER / SISTER PERSON AFFECTED SPOUSE ` BROTHER / SISTER SPOUSE SPOUSE SON / DAUGHTER SPOUSE CHILDREN CHILDREN TRUSTS ASSOCIATES ANY OTHER PERSON Who are covered?

  29. 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.

  30. 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.

  31. 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.

  32. 3 Fs For effective implementation • Finding • Freezing • Forfeiture of criminally derived assets is called for.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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

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