Presentation Transcript

1. SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS(FORFEITURE OF PROPERTY) ACTandNARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT
2. FORFEITURE UNDER SAFEMA AND NDPS ACT
3. Introduction The SAFEM(FOP)Aor 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?
4. 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)
5. 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”.
6. 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
7. 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’.
8. Offence Criminal prosecution Forfeiture proceedings under NDPS Act Conviction Assets forfeited
9. 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.
10. 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.
11. 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.
12. 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.
13. Competent Authority – Zonal Offices
14. South Zone Tamil Nadu Kerala Karnataka Andhra Pradesh Pondicherry Lakshadweep
15. 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
16. 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.
17. 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
18. Two Routes to Forfeiture Arrest Preventive Detention Prosecution Conviction FORFEITURE
19. ‘PERSON’ UNDER SAFEMA – Sec 2
20. ‘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.
21. 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 Proceedingsvalid 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.
22. CHILDREN SPOUSE PARENTS PARENTS BROTHER /SISTER SPOUSE PERSON SPOUSE BROTHER /SISTER CHILDREN CHILDREN ASSOCIATES/ TRUSTS/ OTHER PERSON SPOUSE
23. 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.
24. 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].
25. 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.
26. 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.
27. For quick forfeiture Invoke PITNDPS Act On arrest, go for freezing of properties of PA / relatives / associates.
28. 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.
29. Death of PA does not result in abatement of proceedings - estate can be proceeded against. PA absconding - proceedings would continue
30. 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.
31. 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.
32. 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. Howeverno time limit is prescribed for concluding forfeiture as far as illegally acquired property is concerned.
33. 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.
34. 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.
35. 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.
36. 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.
37. Summary of the functions of the Competent Authority The function of the Competent authority has a multi-agency 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.
38. 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