JUDGMENT:

S.B. Sinha, J.

1. Validity of the proviso appended to Section 68C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is in question in this appeal which arises out of a judgment and order dated 27.11.2002 passed by a Division Bench of the High Court of Judicature at Bombay.

2. The basic fact of the matter is not in dispute.

3. Appellant herein is wife of one Iqbal Mohammed Memon. An order of detention was passed against him under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PINDPS Act) by the State of Marharashtra. Allegedly, both the appellant and her husband left India in or about the year 1991. Appellant has not yet come back to India. Her husband admittedly had not been taken incustody pursuant to the order of detention. Admittedly again, Appellant has several properties in her name. A proceeding was initiated against her in terms of Chapter V-A of the Act, wherefor, she was served with a show cause notice dated 9.5.1995 asking her to furnish the proof and/or source of income and/or the channels from which the assets being Flat Nos.501 and 502A along with stilt parking No.19 in Milton Apartments at Juhu Tara Road, Santacruz (W) had been acquired as also to show cause why the said properties should not be held to be "illegally acquired properties" and

forfeited by the Central Government under the Act.

4. An appeal thereagainst was preferred before the Appellate Tribunal. By an order dated 10.2.1999, the properties were directed to be confiscated. A writ petition was filed by her before the Bombay High Court which was marked as Writ Petition No.1867 of 1999. The said writ petition was dismissed by a judgment and order dated 15.12.1999 insofar as the order of confiscation of flat No.501 and 502 and stilt parking in Milton Apartments were concerned. However, in regard to the confiscation of three bank accounts, the matter was remitted to the Appellate Tribunal for its decision.

5. Proviso appended to Section 68-C prior to its amendment stood as follows :

"Provided that no property shall be forfeited under this Chapter, if such property was acquired by a person to whom this Act applies before a period of six years from the date on which he was charged for an offence relating to illicit traffic."

Section 68-C, after the amendment, reads as under :

"Section 68C - Prohibition of holding illegally acquired property (1) As from the commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any illegally acquired property either by himself or through any other person on his behalf.

(2) Where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Chapter:

Provided that no property shall be forfeited under this Chapter if such property was acquired, by a person to whom this Act applies, before a period of six years from the date he was arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act or from the date the order or detention was issued, as the case may be."

Indisputably, the Act was amended by Act No.9 of 2001 with effect from 2.10.2001.

6. An application purported to be for rectification having regard to the said amendment, was filed by the appellant before the Appellate Tribunal, inter alia, praying therein for setting aside its order dated 15.2.1999 as also the order of the competent authority dated 20.10.1997.

7. In the said purported application for rectification, the appellant raised the following contentions :

1. That prior to coming into force of the said Act, the Competent Authority had no jurisdiction to initiate any proceeding under the said Act against a citizen of India who had been residing out of the country.

2. That the proviso, as it stood prior to a