9911796707
TMI Blog2007 (8) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of COFEPOSA. He challenged the order of detention. However, he was unsuccessful. He filed a habeas corpus petition before the Division Bench which was also dismissed. He was, however released in 1977. While he was in custody he was served with a notice dated March 4, 1977 appearing at page 285 of the Paper Book under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as SAFEMA ). Since he was in custody his wife by a letter dated March 11,1977 replied to the said show cause notice appearing at pages 287-289 of the Paper Book wherein details of properties belonging to the elder brother of the respondent No. 1 was given. The wife contended that the elder brother should be proceeded with for the identical offence and in case he was proceeded with the truth would come out. Significant to note, the charges were not denied as such. After his release respondent No. 1 by letter dated April 11, 1977 appearing at pages 190-291 of the Peper Book wrote to the authority reiterating what had been contended by his wife in the earlier reply. He applied for inspection of the documents being the report of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashed and/ or set aside and/or declared illegal and void. (e) A writ and/or order and/or direction, in the nature of certiorari or any other appropriate writ or order or direction calling upon for record and proceeding pertaining to your petitioner and the impugned orders passed by the Competent Authority being annexure E and the order passed by the appellate Tribunal for forfeited property being annexure F' be quashed and/or set aside. (f) A writ and/or order and/or direction in the nature of certiorari commanding respondents to certify records and transmit the records to render conscionable justice to your petitioner and the letter being annexure H and prohibitory order being annexure J collectively be quashed or set aside. (g) A Writ or in the nature of certiorari and/or any other appropriate writ order and/or direction calling for records relating to SEFTH (FOP) Act and the said Act being Annexure G to the petition be quashed and/or set aside. (h) A writ and/or order and/or direction in the nature of prohibition prohibiting the concerned respondent and/or each of them from proceeding in any manner whatsoever with the properties of your petitioner mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, the learned single Judge independently considered the order of detention and ultimately observed as such as would appear from the judgment. 7. After holding that the order of detention was lawful His Lordship, however, was of the opinion that since the notice under Section 6(1) of SAFEMA was not accompanied by the reasonings the same was bad and all orders consequential to issuance of the said show cause notice were also liable to be quashed. His Lordship quashed the show cause notice and all other consequential orders. 8. Being aggrieved by and dissatisfied with the judgment and order of the learned single Judge Union of India preferred the instant appeal. Significant to note, the respondent No. 1 did not file any appeal or cross-objection against the first part of the judgment rejecting his challenge to the order of detention. 9. Mr. Kalyan Bandyopadhyay, learned senior counsel appearing in support of the appeal contended that although the notice under Section 6(1) was issued as far back in 1976-77 no step was taken by the authority until the reasons were supplied to him and he was given appropriate opportunity to deal with the allegations brought against him. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eited to the Central Government under this Act. 13. On a plain reading of the section it appears that before issuance of any notice to show cause the authority was not only to satisfy itself that the properties were illegally acquired by the persons to whom the said Act applied but also to record such reason in writing. The respondent No. 1 was detained under Section 3(1) of the COFEPOSA. Hence, the provisions of SAFEMA applies in his case. The authorities recorded reasons establishing nexus with the properties mentioned in the schedule and thereafter issued a notice. Hence, the notice could not be said to be bad in our view. The provisions under Section 6 does not specifically provide for supply for reasons along with the notice. However, applying the principles of natural justice as and when the respondent No. 1 asked for preliminary report on the basis of which the authority formed their opinion the authority supplied him the reasonings. Such belated supply, in our view, would not be itself vitiate the entire proceeding. 14. The matter may be looked into from another angle. In 1976 he was under detention. His wife replied to the said notice without complaining of non-suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder so passed by the competent authority and merged in the order of the appellate authority we find that nexus was established. As per the Income Tax return the respondent No. 1 was having l/3rd share in M/s. Bhattacharjee Company. The authorities discussed in detail the relevant tax return submitted by the respondent No. 1. The respondent No. 1 also declared before the Income Tax authority that he was having income only from M/s. Bhattacharjee Company, Such income on the basis of the tax return could not permit acquisition of properties mentioned in the said notice. The opportunity was given to explain the source. The respondent No. 1 could establish the source in respect of item Nos. 1 and 4 which was allowed by the appellate authority and the order of forfeiture was cancelled in respect of item Nos. 1 and 4. For the remaining items the respondent No. 1 could not give any plausible explanation as to the source. 18. On perusal of the writ petition it appears to us that there was no independent or specific challenge to the show cause notice. In any event, the respondent No. 1 approached at the stage when his appeal was partly allowed. No grievance was made contemporaneously ..... 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