9911796707
TMI Blog1994 (11) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... hort, "the Act"), by issuing notice on February 21, 1978, on the ground that appellants' father, Daya Shankar Kapoor, was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, "the COFEPOSA"), by means of a detention order dated July 1, 1975. Accordingly, the sons of Daya Shankar Kapoor were treated as persons covered by section 2(2)(c) of the Act and the properties held by them in their name liable to forfeiture. It is to be noted that the properties which were the subject-matter of the forfeiture proceedings and with reference to which the impugned order under section 7 of the Act was passed on February 14, 1980, in the case of two appellants, namely, Kamal Narain Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. He placed emphatic reliance in support of this contention on the Constitution Bench judgment of the apex court in the case of Attorney-General for India v. Amratlal Prajivandas, [1995] 83 Comp Cas 804 ; AIR 1994 SC 2179 ; [1994] 3 JT 583. He quoted extensively from paragraph 51 of the aforesaid judgment to make his point that it was not the intention that properties owned or held by the relatives or associates of the detenu or convict, even though illegally acquired, were to be forfeited in the absence of any nexus being traced to the said detenu or convict. Learned counsel further argued that it has been held in the aforesaid judgment that (at page 613) : " It would thus be clear that the connecting link or the nexus, as it may be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, as already noted, against Daya ShankarHindu undivided family. Pursuant to our directions, copies of the order passed under section 7 as well as order under section 19(1) of the SAFEMA in the case of Daya Shankar-Hindu undivided family have also been filed. We note on a perusal of this order that the only property which was the subject-matter of forfeiture proceedings against Daya Shankar-Hindu undivided family was the house property No. 14/36, Shakti Nagar, Delhi, and certain other assets. Even in respect of these properties, the final order boiled down to the house in Shakti Nagar, and the cost of acquisition was taken to be Rs. 1,07,800, as stated by the noticee, Daya Shankar-Hindu undivided family. According to the final order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were being proceeded against as being in the name of these three sons were the illegally acquired properties of Kamal Narain or Prem Shankar or Uma Shankar ; namely, the three appellants. In face of this, the position as comes out on record, from the papers filed by the office of the Competent Authority, is that there was not even a hint, much less an allegation, while proceedings were initiated against Daya Shankar-Hindu undivided family that besides the properties and assets which were enumerated in the notice to the said Daya ShankarHindu undivided family ; there were other properties held benami in the name of his three sons, and had been acquired by him from illegal sources. There is no doubt a reference to some life insurance polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of proceedings under the Act on account of their being relatives of the detenu or convict, when the apprehension raised in the petitions, before the court were dispelled by the following observation (at page 614) : " There is no basis for the apprehension that independently acquired properties of such relatives and associates will also be forfeited, even if they are in no way connected with the convict/detenu. " Although it was observed in the said judgment that the burden would still be on the relatives or associates to prove that the properties in their name were not the illegally acquired properties of the convict/detenu, that onus, in our opinion, stands discharged in the present case by the appellants by showing that while p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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