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TMI Blog2017 (8) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was involved in the alleged illegal activities of the detenu/AP-1 in any manner whatsoever. The period of stay of the detenu at the appellant”s premises is also from November, 2004 to April, 2005 whereas the alleged illegal activity of AP-1 was of a later period viz. October, 2005. It is also observed that the impugned order is totally silent as to under which clause of the definition of associate, the appellants case is covered. We therefore find that the finding of the lower authority that the appellant would be covered within the term “associate” as defined in the Act is unsustainable. We find that the appellant cannot be considered as the wife of the detenu/AP-1 and hence not covered under the term “relative” as defined in the Act. She is also not covered within the definition of the term “associate” of detenu/AP-1 as defined under the Act. Consequently, she does not qualify as a person covered by the provisions of SAFEMA and accordingly the provisions of SAFEMA are not applicable to her. In conclusion, we find that the impugned order is unsustainable in law. - MP-42/BOM/2010 (Stay) & FPA-20/BOM/2010 - - - Dated:- 12-6-2017 - Justice Manmohan Singh Chairman, Shri Kau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3(1)(c ) of the SAFEMA and should not be forfeited under the provisions of the said Act Central Government free from all encumbrances. S. No. Details of Property Holder 1. Flat No. C-203, Om Shivdham CHS, Opp. Nityanad Society, Mahul Road, R.C. Marg, Chembur, Mumbai-400074. AP-2 (present appellant) 2. Flat No. 1604, Satyam Tower, 90 Feet Road, W.E. Highway, Kandivli (East), Mumbai-400101. AP-2 (present appellant) 3. Policy No. 262573731 sum assured of ₹ 5,65,000/- taken from LIC of India, Branch 891, Vinod Silk Mills Compound, Chakrawarti Ashok Road, Kandivli (E) Mumbai-400101. AP-2 (Present appellant) 3. AP-2/ the present appellant in response to the show cause notice vide letter dated 17.06.2008 submitted that she was neither the wife nor associate of the detenu. Further, vide letter dated 20.06.2008, she submitted that she had no connection with the detenu and that she was the legally wedded wife of Late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely Flat No. 1604, Satyam Tower, 90 Feet Road, W.E. Highway, Kandivli (East), Mumbai was ordered to be released to the appellants therein namely Pushpendra Singh A. Gour and others who claimed to have purchased the property from AP-2 in the year 2000 which was way before the issue of detention order to AP-1 in 2006 and issue of show cause notice to the appellant. 5. The appellant has filed the present appeal in relation to the remaining two properties mentioned at serial no. 1 and 3 above and raised various grounds as mentioned therein. 6. During the hearing of the appeal before the Tribunal, the learned counsel appearing on behalf of the appellant contested the impugned order mainly on the following grounds. (i) Neither the show cause notice issued under Section 6(1) of SAFEMA nor the reasons recorded for issue of such show cause notice nor the impugned order brought out the nexus of the forfeited properties to the alleged illegal activities of the AP-1. Relying on the ratio of the Hon ble Supreme Court decision in the case of P.P. Abdulla v. Competent Authority, reported in (2007) 2 SCC 510, Fatima Mohd. Amin v. Union of India, reported in (2003) 7 SCC 436 and that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative appearing for the respondent during the hearing. 8. We have considered the rival contentions, the pleadings of both the sides in the case and also the arguments made during the hearing of the appeal. We first take up the contention of the appellant that in the facts and circumstances of the case, the appellant was neither the wife of the AP-1 nor she could be considered as an associate of AP-1 and therefore she was not covered as an affected person under SAFEMA and the show cause notice under Section 6 of the Act as well as the impugned order were un-sustainable. 9. We fist discuss the question whether the appellant could be considered to be the wife/ spouse of AP-1 thereby bringing her within the definition of relative of AP-1 and hence within the preview of the SAFEMA. 9.1 The first limb of the argument put forth by the appellant in this regard is that certain crucial factors emerging from the grounds of detention issued against the AP-1 which were contrary to/at variance with the grounds as mentioned by the Competent Authority in the show cause notice and reasons to believe for issuing the show cause notice were not considered. The following statements/con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his parents and lawfully wedded wife and four daughters lived at Flat No. 101, behind State Bank of Bikaner Jaipur, Opp. Collector Office, Kalyan Nagar, Jalore, Rajasthan and that his native place is Agarwal Colony, behind Hanuman Temple, Bakra Road, Jalore, Rajasthan. 9.3 It was submitted that ignoring all these crucial and undisputed facts the Show Cause Notice dated 17.04.2008 has been issued by the then Competent Authority. 10. The appellant has also cited certain decisions in support of her contention that she could not be considered as the wife/spouse of AP-1. These decisions could will be considered at the appropriate place in this order. 11. While no specific arguments have been made on behalf of the respondent during the hearing of the appeal, on this issue in the impugned order apart from the fact that AP-1 had stayed with AP- 2/appellant at her subject house, reliance has mainly been placed on the statement of AP-1 dated 25.01.2006 wherein he, inter-alia, stated that he had married Smt. Suman Rana (in the year 1994) and they have two children and after marriage he assumed the name Sanjay Srinath Rana, certain documentary evidence such as applications made by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the investigating agency DRI in bail proceedings before the court of learned Additional CMM, Mumbai were sought to be filed. Vide the Tribunal s order dated 14.07.2014, the said application was partly dismissed and only copies of the court order dated 29th November, 2009 passed by the Ld ACMM and the order of the Hon ble High Court of Judicature at Bombay in Criminal Writ Petition No. 3233 of 2010 were permitted to be filed and the other documents were refused. Thus, the appellant s argument with regard to the submission made by the investigating agency before the Ld. ACMM for issue of proclamation regarding AP-1 as referred in Para-9.2 above cannot be taken in to consideration. We however, find that the order dated 29.11.2005 dealing with bail application of AP-1 which was taken on record vide the Tribunal s order 14.07.2014, in para 4 thereof records the submission of the learned Prosecutor of DRI that the wife of AP-1 and four daughters were residing at the address at Jalore, Rajasthan as declared by AP-1 though the accused hardly visited the native place for 20 to 30 days in a year. It is therefore clear that AP-1 s family including his wife and daughters were residing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he generic meaning of the word spouse would prevail. The generic meaning of spouse is the party to marriage, either husband or wife. Further, in the absence of definition of marriage in the Act, the common law meaning of marriage would apply and by which merely spending weekends together or one night would not make it the relationship of husband and wife. In this context, the judgment of the Hon ble Supreme Court in the case of D.Velusamy Vs D.Pachaiammal, AIR 2011- SCC 479, MANU/SC/0872/2010 has been referred by the appellant. Relevant extracts from Paras-33 to Para-35 of the judgment are reproduced hereunder 33. In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married: (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (see 'Common Law Marriage' in Wikipedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Supreme Court in the case of S.Bala Subranmanyam vs. Suruttayan, AIR 1994 SCC 133 to contend that the presumption of legal marriage as husband and wife was available only where the man and woman live together for a long time (years) as husband and wife and then alone could the presumption arise in law of legality of marriage extending between the two. As per the ratio of this decision merely because the AP-1 had stayed with the appellant for a period of six months, presumption of legal marriage between the two would not arise. 14.3. In view of the discussion above, we agree with the contention of the appellant that the appellant/AP-2 could not be considered as the spouse/wife of AP-1 so as to bring her within the purview of relative of AP-1 in terms of Section 2(2)(c) of the Act read with Explanation-2 thereto. It is pertinent to note that this aspect has also not been contested by the learned representative of the respondent during the hearing. 15. We next take up the finding in the impugned order that the appellant was covered within the definition of associate of the AP- 1/detenu on the ground that she assisted AP-1 to assume the name of Sanjay Srin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lse identity of another person or in the obtaining his passport in the assumed name. Considering the overall facts and circumstances we are inclined to accept the contention of the appellant that using of the appellant s documents by AP-1to obtain his passport and ration card in a different name was on account of misuse of said documents by AP-1 rather than an instance of the appellant managing the affairs of AP-1. Moreover, activity of the type alleged on part of the appellant would not be sufficient to bring her within the scope of an individual managing the affairs of detenu/such person which is of a much wider scope and coverage. 16.1 There is also no evidence whatsoever that may indicate that the appellant was involved in the alleged illegal activities of the detenu/AP-1 in any manner whatsoever. The period of stay of the detenu at the appellant s premises is also from November, 2004 to April, 2005 whereas the alleged illegal activity of AP-1 was of a later period viz. October, 2005. It is also observed that the impugned order is totally silent as to under which clause of the definition of associate, the appellants case is covered. We therefore find that the finding of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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