RAJIV SHAKDHER, J.

1. This writ petition has been preferred by the State Bank of India (in short SBI) to assail the order dated 02.05.2005 passed by the Appellate Tribunal for Forfeited Property (hereinafter referred to as the Appellate Tribunal), which in turn confirmed the order of the competent authority dated 22.11.1999. The net effect of the impugned orders is that the two sets of margin money amounting to Rs.36,90,000/- and Rs.36,80,000/- paid by respondent nos.6 and 7 (the total sum amounting to Rs. 73,70,000/-) stand forfeited on the premise that the said sums of money were the illegally acquired property of respondent nos.4 and 5.

1.1 Respondent no.4, is one, Mr.Mahesh Kanti Lal Javeri. The said respondent is the husband of respondent no.5, one, Ms. Anjana Mahesh Javeri. Respondent nos.4 and 5 were at the relevant point in time partners in two partnership firms referred to above, i.e., respondent nos.6 and 7.

1.2 SBI, had been remitted the aforementioned amounts by respondent nos.6 and 7 to purchase, and thereafter, import gold for their use in terms of the Gold/Silver Jewellery Export Promotion and Replenishment Scheme (in short the Scheme). This Scheme was framed by the Government of India pursuant to its Export Import Policy for the period April, 1992 to March, 1997, which is formulated in exercise of powers conferred upon it under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (in short FTDR Act).

1.3 Under the Scheme, SBI was to act as a facilitator and a canalizing agent for purchase and import of gold/silver. The Scheme enabled replenishment gold/silver, against export of gold/silver jewellery and articles. It is in the context of this Scheme that respondent nos.6 and 7 i.e., the partnership firms remitted the aforementioned amounts to SBI.

1.4 Since, respondent no.4 was convicted by the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay (now Mumbai), on 17.12.1987, followed by his detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA), pursuant to an order dated 03.06.1991, proceedings under the provisions of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (In short SAFEMA), were commenced against the said respondent.

1.5 It is in this background that steps were taken by the authorities administering the provisions of SAFEMA to forfeit the illegally acquired properties of the convict / detenue respondent no.4 and his wife.

1.6 Based on the premise, that the aforementioned sums lying with SBI was an illegally acquired property of respondent nos.4 and 5 that notices were issued for the first time on 21.06.1995 by the Enforcement Directorate under the provisions of Foreign Exchange Regulation Act, 1973 (in short FERA). Pertinently, SBI had made purchases and imported the gold as per the mandate of its clients i.e., respondent nos.6 and 7 between 23.05.1995 and 21.06.1995. It is important to note, and in that respect there appears to be no dispute, that the Scheme required that the person, who was interested in purchasing and thereafter, importing the gold was required to pay 20% of the amount in the form of earnest money based on the value communicated by SBI which,as indicated above, was the canalizing agency under the Scheme. The two sets of amounts, to which reference is made hereinabove, i.e., Rs.36,90,000/- and Rs.36,80,000/- (i.e., a total sum of Rs. 73.70,000) were these amounts i.e., earnest money, which was made available to SBI for purchase of gold.

1.7 Under the Scheme, SBI was required to purchase the gold on receipt of mandate from an eligible exporter (in this case respondent nos.6 and 7) within two (2) business working days of receipt of the earnest money. On making a purchase as per the mandate of the exporter, (once again in this case, respondent nos.6 and 7) a certificate was issued, which indicated the quantity and the price of th