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2008 Supreme(Bom) 1423
IN THE HIGH COURT OF JUDICATURE TA BOMBAY
BILAL NAZKI AND A.A.KUMBHAKONI, JJ.
Smt. Neeta Nitin Bhanushali — Appellant
Versus
State of Maharashtra — Respondents
CRIMINAL WRIT PETITION NO.881 OF 2000
Decided on: 30/09/2008
Mr. Niteen Pradhan with Ms. S.D. Khot, Advocates for petitioner.
Mr. J.E. Satpute, Adv. For Union of India.
Mr. D.S. Mhaispurkar, APP for State.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 68-H, 68-I and 68-J-Forfeiture of property-Burden of proof.-The show cause notice was issued under Section 68-H without there being any "reason to believe" for the competent authority that the properties in issue were illegally acquired as contemplated by the provisions of said Chapter V-A, of the said Act. Therefore we hold that both, the competent authority and the Tribunal have erred in view of the facts of this case in holding that the properties in issue have been illegally acquired by the petitioner, as contemplated by the provisions of the said Act. In Court’s view, in absence of any material worth named before the competent authority which could have been considered as the basis for issuance of notice under Section 68-H of the said Act, the burden, as contemplated by Section 68-J of the said Act, could not have been cast on the petitioners and the impugned actions could not have been taken against the petitioners for having failed to discharge such burden which was wrongly cast on the petitioner.
A.A.KUMBHAKONI, J.
The petitioner is a lady who, at the time of filing of this writ petition in the year 2000, was 35 years old. The petitioner married one Nitin Khimji Bhanushali (hereinafter referred to as “the husband of the petitioner” for the sake of brevity) in the year 1981 and three children are born out of this wedlock.
2. The present petition pertains to following immovable properties viz.:
I. Flat No.801, Building No.6, JK Wing, Neelam Coop. Housing Society Gavanpada in the name of Mrs.Neeta Nitin Bhanusali, admeasuring 1685 sq.ft. In area;
II. Flat No.703, `A' Wing, Bldg. No.3, Neelam CHS Gavanpada, Mulund (E), Mumbai admeasuring 888.79 sq.ft. In the name of Neeta N. Bhanushali;
III. Flat No.601, Bldg No.8, `D' Wing, Neelam Nagar Coop. Society Gavanpada, Mulind (E), Mumbai admeasuring 550 sq.ft. In the possession of Smt.Neeta N. Bhanusali;
IV. Shop No.7, known as Pooja Dairy in Bldg. No.7, Neelam Nagar, Gavanpada, admeasuring about 400 sq.ft. In the name of Neeta N. Bhanusali;
V. Shop No.2, known as Shivanand Dairy in Shrinivas Bldg; M.G.Road, Chatkopar (E), admeasuring about 400 sq.ft.
These three residential flats and two shops are hereinafter referred to as “the properties in issue” for the sake of brevity. Even according to the Respondents in terms of the relevant documents of title/tenancy the Petitioner is the owner/holder of the properties in issue.
3. The present petition arises out of an action taken by the respondents for forfeiture of the properties in issue u/s 68I of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “ the said Act” for the sake of brevity). An appeal filed by the petitioner ultimately before the Appellate Tribunal for Forfeited Properties (hereinafter referred to as “t he said Tribunal” for the sake of brevity) challenging the impugned action of forfeiture came to be dismissed on 1st March 2000 and thereby the order of the Competent Authority issued for confiscation of the properties in issue has been confirmed. Hence, this petition.
4. The relevant chronology of dates for better understanding of the matter is set out hereunder :
11.1.1994 : On receipt of secret information a trap was arranged and one Dr.Imtiyaz and his associates were arrested at a place which was used as a Laboratory for manufacturing of Heroin.
During the course of interrogation, Dr.Intiyaz disclosed that the husband of the Petitioner was his partner in the business of exporting Mandrex Tablets to South Africa;
13.1.1994 : At the instance of Dr.Imtiyaz, 482 kgs. Of Mandrex Tablets were seized;
19.3.1994 : The husband of the Petitioner was arrested. During the course of interrogation the husband of the Petitioner disclosed that one Ram Singh from Ahamedabad had supplied 'Methaqualone' to him and that he was working for Iqbal Mirchi, the main dealer in Narcotic Drugs, who was also a member of international gang. The husband of the petitioner further disclosed that Iqbal Mirchi is based in foreign countries and conducts the business through his counter parts in South Africa and in other countries;
2.9.1994 : A detention order issued by the detaining authority of the Government of Maharashtra against aforesaid Mr. Iqbal Mohamed Memon @ Iqbal Mirchi vide order No. SLP.3.(A)/TND/0194/60 under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985(PITNDPS Act). The said order of detention has remained unexecuted as the person against whom it is issued viz. Iqbal Mirchi, is absconding;
28.1.1997 : The husband of the petitioner escaped from custody;
5.2.1997 : The statement of petitioner came to be recorded by the Police wherein she is alleged to have stated that her husband had acquired certain properties in her name from the income earned by him in the illegal business of Narcotic Drugs undertaken by him in association with Iqbal Mirchi;
26.2.1997 : An order came to be issued by the Inspector of Police, Narcotic Cell, CID, Mumba
