Criminal Defense of Fine in lieu of Forfeiture in Gold Smuggling Cases | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |
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“Imposition of fine cannot always be allowed against forfeiture of goods under the Customs Act of 1962 or the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 respectively. Having said that, the best customs lawyer advice is to ensure the application to be filed before the Customs Officer or before the Court having the competent jurisdiction and to request for non-forfeiture of goods and imposition of fine.”
Section 2 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 is applicable to those persons who have been convicted under Customs Act (CA), 1962 or the convicted person under Customs Act (CA), 1962 has been convicted again under Customs Act (CA), 1962 and against whom an order of detention is passed under the COFEPSA. The said act is also applicable to every associate and relative of the convicted person under Customs Act (CA), 1962, or against whom a detention order has been passed under the COFEPSA. Section 4 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 put a break on holding property that is illegally acquired property. ‘Illegally acquired property’ as per section 2(c) of the said act includes those properties, whether movable or immovable, which are acquired from income, earnings, or assets derived through smuggling.
A property emanates through smuggling, whether after or before the commencement of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, are called ‘Illegally acquired property’.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 is legislated to detain a suspect or convict to prevent him from repeating the offence smuggling whereas the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 is legislated to forfeit the illegally acquired property by the only means mentioned under section 3 of the said Act. The Customs Act (CA), 1962 provide penal provision for offences such as gold smuggling.
Fine in lieu of Forfeiture: Best Criminal Lawyer Advice
Section 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 states that the person affected by the order of forfeiture under section 3(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA) shall be given the option to pay fine in lieu of forfeiture. But Section 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 shall be invoked only if an illegally acquired property is less than one-half of the entire property and such property has not been proved to the satisfaction of the competent authority
The Hon’ble Supreme Court in the case of Aamenabai Tayebaly v. Competent Authority [Civil Appeal No. 11836/1995] has held that section 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 does not apply to the property which is not purchased from tainted money.
The Competent Authority, Smugglers Foreign Exchange Manipulators v. M.H. Hameed Another [WA No 730/2009], herein the Hon’ble Kerala High Court held that the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 does not concern with all the illegal property acquired by whatever means. The notice under section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 is issued only against those who illegally acquired property which is acquired through the only means mentioned under section 3(1) of the said act. Therefore, in the present case, unexplained investment by the accused to the tune of Rs. 25,260/- was noticed. Thereafter, his illegally acquired property was forfeited by the concerned authority but he is was given the option to pay the said amount in lieu of forfeiture as per section 9 of the said act.
Chandra Kumar Jain (Dead) By Legal Representatives v. Union Of India and Others [Crl App No 1501/2007], herein the Hon’ble Supreme Court had held that the identification of the persons against whom Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 could be invoked is only the first step under the scheme of the said act. When such a person is identified in a given case, the competent authority must be satisfied that the properties held by such a person are illegally acquired properties of such person having regard to the known sources of assets, income or earnings, or any other material or information available to the competent authority. Only then, proceedings could be initiated for forfeiture of such properties by issuing a notice under Section 62 of the said act. Upon receipt of the said notice, it is opened to the recipient of the notice to place all the relevant material before the competent authority to establish that the property which is the main subject of the notice is not acquired illegally. Such a course of action is open to the notice notwithstanding the fact that he is a person to whom the Act is applicable.
The aforementioned ground is the best criminal defense which would help the accused to save a lot of time, money and reputation.
Authored By: Adv. Anant Sharma & Satwik Sharma