The Appellate Authority must reconsider the forfeiture of properties under SAFEMA, ensuring the petitioners can present evidence of legal acquisition.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This petition has been filed under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the order passed by respondent no.1 - Competent Authority herein under Sections 7 and 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) dated 14.12.1999 and subsequent order of the Appellate Tribunal dated 20.07.2001, confirming the order of the competent authority.

2. Originally petition was filed by Smt. Zulekhaben Fakirmahammad Haji Hasan, who was the wife of Fakirmahammad Haji Hasan Subhania (Detenue), who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (For short “COFEPOSA”). Pending the proceedings of this petition, Smt. Zulekhaben passed away. The petitioners no.1.1 to 1.7 are the legal heirs of Smt. Zulekhaben.

3. Facts and circumstances giving rise to file this petition stated to be as under:

3.1 Fakirmahammad Haji Hasan who happened to be father of the petitioners was detained under the provisions of COFEPOSA by the Government of India, Ministry of Finance vide its order dated 29.12.1988.

3.2 Original petitioner Smt. Zulekhaben – wife of detenue falls under the purview of relative as defined under Section 2(2)(c) of SAFEMA.

3.3 Notice of forfeiture under Section 6(1) of SAFEMA: On the basis of detention order, a notice under Section 6 of SAFEMA was issued and served upon Smt. Zulekhaben – wife of detenue on 19.09.1998, proposing forfeiture of two vessels namely (i) MSVAL- Amir Kirmani (vessel) and (ii) MSV-AL-Sultane Hind (vessel). The base of the notice was that, the properties held by Smt. Zulekhaben were illegally acquired properties within the meaning of clause (c) of Section 1 of SAFEMA. Thus, notice was issued to provide the source of income, earnings or assets, out of which the said properties had been acquired and other evidence on whatever relevant to the noticee and further informed that, why the aforesaid two vessels should not be declared to be illegally acquired properties and forfeited to the Central Government.

3.4 Reply of notice: In response to the notice, late Smt. Zulekhaben had submitted a detailed reply in the month of June, 1999. In the reply, it was submitted that, the detention order has been withdrawn by the Government on 12.12.1989 and since the order of detention is revoked and never executed, the provision of SAFEMA is not applicable. Alternatively and without prejudice to the submissions, she made a submission that, the criminal proceedings under the Customs Act, 1962 initiated against her husband has been terminated by the Competent Court as her husband Fakir Mahammad was acquitted and therefore, there is no evidence to suggest that, her husband was engaged in smuggling activity and on this count, the proceedings of forfeiture is not tenable. So far as source of income is concerned, it was submitted as under:

(i) She got married in the year of 1996 and out of the said wedlock the couple blessed with 6 children. The husband Fakir Mahammad was in business of sailing and used to travel abroad on and often. He came into contact with French woman and fell in love with her and thereafter, he neglected and deserted her and children and there was a serious matrimonial dispute arose between husband and wife. She filed Special Civil Suit No.1 of 1984 before the Civil Court at Jamnagar claiming various reliefs under the Muslim Law. In the said suit, the compromise arrived between the parties. It was agreed by the husband to part with the movable and immovable properties as a “Bibi Maher”, payable under Muslim Law. The following properties were being given to Smt. Zulekhaben by way of consent decree i.e. vessel “MSV-AL Kirmani”, one Ambassador car, one motorbike and cash amount of Rs.5 lakh were given to Smt. Zulekhaben and so far as immovable property is concerned, the house propert