The burden of proving that the property is not illegally acquired, the option of paying a fine in lieu of forfeiture, and the principles of res judicata are crucial legal principles established in the judgment.

Kurian Joseph, J.

This is a classic example of an ingenious litigant engaging in litigious acrobatics, successfully delaying the implementation of an order dated 21.03.91 passed under Section 7 read with Section 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as SAFEMA). Before dealing with the contentions taken by the writ petitioner it is necessary to refer to the almost three decades long exercises undertaken by the petitioner which shock the judicial conscience as well.

2. The petitioner is the brother-in-law of one Mr.M.Abubacker. He was a detenu under the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act). The detention order was not pursued by

the detenu and thus he was detained for the full term. The said Abubacker was proceeded against under the provisions of SAFEMA in respect of certain items of property, which stood in his name. Accordingly, the competent authority under the SAFEMA passed an order dated 20.02.1991, where it was found that there was unexplained investment to the tune of Rs.25,260/-in his name. However, option was also given to him to pay the said amount in lieu of forfeiture Section 9 of the Act. Accordingly, Abubacker exercised his option and paid the fine and thus redeemed the 8 cents of land in Survey No.1631 and 1562 in Madathuvilakam Village, Pattom, Thiruvananthapuram and 5 cents of land with two storied terraced building in Survey No.2934/G1 at vanchiyoor Village, palayam, Thiruvanathapuram. There was also a business enterprise of purchase and sale of Sewing Machines etc. under the name of M/s. Rasiya Enterprises, Palayam, Thiruvananthapuram. It may be noted at this juncture that the property of the writ petitioner is not an item included in the proceeding dated 20.02.91 against Abubacker. The letter permitting Abubacker to redeem his property referred to in the order dated 21.03.91 is marked as Ext.P4 in the writ petition. It is the contention of the writ petitioner that since Abubacker has been thus relieved of the consequences of his offensive conduct, there cannot be any proceedings against the petitioner. There are other contentions as well which we shall advert to later.

3. While so, the petitioner herein was issued notice under Section 6(1) of the SAFEMA, dated 25.03.81 directing the petitioner to explain why his 11 cents of land with a building known as Savera Tourist Home situated in Survey No.1212/16, Door No.TC 2560 in Vanchiyoor Village, Thiruvananthapuram should not be declared as illegally acquired properties and forfeited to the Central Government, and Savings Bank account No.8202 with Syndicate Bank, Thiruvananthapuram, shall not be proceeded against. The petitioner was also issued a notice for hearing For about six years there was no meaningful response from the petitioner. In the meanwhile the old Savera Tourist Home was reconstructed and thereafter it was known as Raaz Tourist Home. Hence, a supplementary notice under Section 6(1) dated 13.03.92, furnishing details of the items of property, was issued to the petitioner. The competent authority thereafter duly passed an order dated 30.12.92 under Section 7 of SAFEMA forfeiting the above mentioned items of property. Link between the petitioner and the COFEPOSA detenu Abubacker is that he is the brother of the wife of the convict/detenu and that the detenu had purchased the property in the name of the petitioner and had made investments for the construction. Even from the reply of the writ petitioner before the competent authority it is revealed that there was a loan transaction between the petitioner with one Mr.R.S. Nair who had availed the loan from the COFEPOSA detenu. The petitioner was also informed that he was free to file an appeal under Section 12(4) of SAFEMA before the Appellate Authority. Instead, petitioner filed a writ petition as OP No. 1520 of 1993 challenging the