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TMI Blog2024 (8) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... Detenue and the property in question - HELD THAT:- As per plain reading of Section 6 of the Act we do not find that the Competent Authority should have issued Show Cause Notice after showing link or nexus with the income of Detenue and property sought to be forfeited. If the argument is accepted, we would be virtually rewriting the provision, which is not permissible. The second issue raised by the Appellant is accordingly rejected. Violation of Principles of Natural Justice - principles of nature justice have not been followed because proceeding remain pending before many officers but decided by one posted on the date of hearing - HELD THAT:- In the instant case the final hearing was made by the Competent Authority on 23rd May, 2005 said to be for few minutes without any proof has resulted in pronouncement of order. It was by the same Authority. The written arguments itself show that the Appellant remain present on the date of hearing though said to be only of 10 to 15 minutes. It is however a fact that the order has been passed by the same Authority. Thus, arguments in reference to the principle of natural justice is not made out and therefore rejected summarily. Property in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On a challenge to the order, this Tribunal vide its order dated 19th September, 2002 dismissed the Appeal. Aggrieved by the order of this Tribunal the Appellant preferred a Writ Petition before Bombay High Court which quashed the order of this Tribunal on 06th April, 2005. The matter was remanded back to the Tribunal for rehearing. It is stated that after rehearing of the Appeal pursuant to the order of the Bombay High Court, this Tribunal dismissed the Appeal vide its order dated 03.01.2011. The order aforesaid has been challenged before the Bombay High Court where parties were directed to maintain the status quo and Writ Petition is still pending. 2nd Show Cause Notice The Appellants have referred to second Show Cause Notice dated 05th February, 2001 followed by an order on 12th August, 2003 forfeiting the property of the Appellant said to be tenant therein. The Appellant preferred an Appeal before this Tribunal against the order of Forfeiture of the property. The order dated 12th August 2003 was passed for all properties by the competent authority except the property bearing no. Aqdas Mahal, MotliBhai Street, Agripada, Mumbai-11 and Flat No. 601, Bagh-e-Rehmat, (Rajput Villa) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of the aforesaid and judgment of the Apex Court in the case of Amina Ahmed Dossa Ors. v/s. State of Maharashtra reported in 2001 (2) SCC 675, the impugned order deserves to be set aside. It is further submitted that even properties attached under TADA are under challenge at the instance of Appellant and his relatives in the Criminal Writ Petition filed in the year 2001 itself and the Bombay High Court vide its order dated 17th April, 2001 admitted the appeal and is pending for hearing. The Writ Petition was filed in reference to the judgment of the Apex Court in the case of Amina Ahmed Dossa (Supra). The Appellant and his relatives have also filed Declaratory Suits before the High Court of Bombay which were later on transferred to Bombay City Civil Court and the same are pending for hearing and final disposal. We have considered the common issues raised by the Appellant and find that the judgment of the Apex Court in the case of Amina Ahmed Dossa (supra) was in reference to Section 8 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short TADA Act) and Section 82 of the Code of Criminal Procedure, 1973. The Appeal before the Apex Court was under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government under this Act. (2) Where a notice under sub-section (1) to any specifies any property as being held on behalf of such person by any other person. A copy of the notice shall also be served upon such other person. Section 7 Forfeiture of property in certain cases. (1) The competent authority may, after considering the explanation, if any, to the show- cause notice issued under section 6, and the materials available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties. (2) Where the competent authority is satisfied that some of the properties referred to in the show cause notice are illegally acquired properties but is not able to identify specifically such properties then, it shall be lawful for the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch trial ends in conviction, the properties so attached shall stand forfeited to Government free from all encumbrances. (3) (a) If upon a report in writing made by a police officer or an officer referred to in sub-section (1) of Section 7, any Designated Court has reason to believe that any person, who has committed an offence punishable under this Act or any rule made thereunder, has absconded or is concealing himself so that he may not be apprehended, such court may, notwithstanding anything contained in Section 82 of the Code, publish a written proclamation requiring him to appear at a specified place and at a specified time not less than fifteen days but not more than thirty days from the date of publication of such proclamation. (b) The Designated Court issuing a proclamation under Clause (a) may, at any time, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person, and thereupon the provisions of Sections 83 to 85 of the Code shall apply to such attachment as if such attachment were made under that Code. (c) If, within six months from the date of the attachment, any person, whose property is, or has been, at the disposal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. According to the Appellant no link or nexus to the income of Detenue with the property has been given thus on the strength of the judgment of the Apex Court (Supra), the impugned order deserves to be set aside. We have considered the submissions of the aforesaid and to appreciate the arguments we have gone through the judgment in the case of Aslam Mohammed Merchants v/s. Competent Authority Ors.(Supra). We have already quoted Section 6 to 8 of SAFEMA. Section 6 of the Act does not mandate or cast burden on the Competent Authority to show link or nexus of the property with the income of the Detenue or the accused rather if it has reason to believe, that properties had been acquired illegally, a notice is to be served on the person. It is to call upon to disclose the sources of his income, earning or assets out of which he has acquired such property. The evidence or the material for it has to be submitted by the person. Thus mandate of Section 6 is on the person to prove that properties have been acquired by lawful means. The burden of proof has been casted on the person who is served with the Show Cause Notice. Any interpretation contrary to it would make the provisions redundant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an intent to transfer the ownership and title. In fact, it is immaterial how such relative or associate holds the properties of convict/detenu whether as a benami or as a mere name-lender or as a bona fide transferee for value or in any other manner. He cannot claim those properties and must surrender them to the State under the Act. Since he is a relative or associate, as defined by the Act, he cannot put forward any defence once it is proved that that property was acquired by the detenu whether in his own name or in the name of his relatives and associates. It is to counteract the several devices that are or may be adopted by persons mentioned in clauses (a) and (b) of Section 2(2) that their relatives and associates mentioned in clauses (c) and (d) of the said sub- section are also brought within the purview of the Act. The fact of their holding or possessing the properties of convict/detenu furnishes the link between the convict/detenu and his relatives and associates. Only the properties of the convict/detenu are sought to be forfeited, wherever they are. The idea is to reach his properties in who soever's name they are kept or by whosoever they are held. The independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, for reasons to be recorded in writing, considers that any properties of such convict/detenu are held on his behalf by any other person, such other person. It would thus be clear that the connecting link or the nexus, as it may be called, is the holding of property or assets of the convict/detenu or traceable to such detenu/convict. Section 4 is equally relevant in this context. It declares that ―as from the commencement of this Act, it shall not be lawful for any person to whom this Act applies to hold any illegally acquired property either by himself or through any other person on his behalf . All such property is liable to be forfeited. The language of this section is indicative of the ambit of the Act. Clauses (c) and (d) in Section 2(2) and the Explanations (2) and (3) occurring therein shall have to be construed and understood in the light of the overall scheme and purpose of the enactment. The idea is to forfeit the illegally acquired properties of the convict/detenu irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu, the burden of disproving which, as mentioned above, is upon the relative/associate. In this view of the matter, the apprehension and contention of the petitioners in this behalf must be held to be based upon a mistaken premise. The bringing in of the relatives and associates or of the persons mentioned in clause (e) of Section 2(2) is thus neither discriminatory nor incompetent apart from the protection of Article 31-B. In that regard we may further refer to the other judgment of the Apex Court in the case of the Kesar Devi v/s. Union of India reported in 2003 (7) SCC 427. The judgment aforesaid has been referred by the Apex Court in the case of Aslam Mohammed Merchants v/s. Competent Authority Ors. (Supra) wherein the Apex Court did not agree with the view taken in the case of Kesar Devi (Supra). The relevant paras of the said judgment is quoted here under: - 10. The condition precedent for issuing a notice by the Competent Authority under Section 6 (1) (of SAFEMA) is that he should have reason to believe that all or any of such properties are illegally acquired properties and the reasons for such belief have to be recorded in writing. The language of the Section does not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 12. The judgment of a court is not to be interpreted like a statute where c every word, as far as possible, has to be given a literal meaning and no word is to be ignored. The observations made have to be understood in the context of the facts and contentions raised. As mentioned earlier, Explanation (2) appended to clause (c) of sub-section (2) of Section 2 gives a very long list of relations. The combined effect of clauses (iii) and (vii) of the Explanation is that a convict or detenu's wife's sister's lineal descendant whether male or d female and howsoever low is also included even though the relationship is quite remote. In those cases where the relationship is a very remote one, the competent authority may have to indicate some link or nexus while recording reasons for belief that the property is an illegally acquired property. But cases where relationship is close and direct like spouse, son or daughter or parents stand on an altogether different footing. Here no link or nexus has to be e indicated in the reasons for belief between the convict or detenu and the property, as such an inference can easily be drawn. 13. We are, therefore, clearly of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction between the provision of SAFEMA NDPS defining illegality acquired property. It is held to be materially different. The judgment in case of Bishwanath Bhattacharya v/s. Union of India Ors.in Civil Appeal No. 772-773/2014 dated 21.01.2014 is again on the subject and the relevant para of the said judgment is also quoted here under:- 38. The Act does not provide for the confiscation of the properties ..The conviction or the preventive detention contemplated under Section 2 is not the basis or cause of the confiscation but the factual basis for a rebuttable presumption to enable the State to initiate proceedings to examine whether the properties held by such persons are illegally acquired properties. It is notorious that people carrying on activities such as smuggling to make money are very clandestine in their activity. Direct proof is difficult if not impossible. The nature of the activity and the harm it does to the community provide a sufficiently rational basis for the legislature to make such an assumption. More particularly, Section 6 specifically stipulates the parameters which should guide the competent authority in forming an opinion, they are; the value of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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