Section 9 of the Smugglers and Foreign Exchange Manipulators Act allows for compounding forfeiture of property if the source of acquisition is partially proven, affirming petitioner's entitlement to such option.

ORDER :

Dr. ANITA SUMANTH, J.

The detenu, one Abdul Razak @ Asmath Pasha is the husband of the petitioner herein. The detenu was proceeded against under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 and an order of forfeiture of property at Door No.2/10, Wuthukattan Street, Periamet, Chennai (‘property’/’property in question’), under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short ‘SAFEMA’/’Act’ ).

2. The property originally stood in the name of four persons, the parents of the detenu held 25% each, the detenu held 25% and the balance of 25% stood in the name of the petitioner. The share of the parents of the detenu ultimately came to be settled in favour of the daughters of the petitioner.

3. A copy of the notice under Section 6(1) issued to the detenu had been issued to the petitioner as well, under Section 6(2) of the Act. A show cause notice was issued to the petitioner calling upon her to show cause why her share of the property not be forfeited as illegally acquired property. In addition, the petitioner also received notice dated 22.09.1998, under Section 6(1) of the Act in the capacity of ‘person affected’.

4. A detailed note has been furnished, tracing the trajectory that the shares of the detenu and his parents have taken. On the demise of the detenu’s mother, her 1/4^th share devolved on her husband and detenu at 6.25% and 19.75% respectively. The shares of the detenu and his father thus increased to 31.25% and 44.75% respectively. Out of his share of 31.25%, the detenu’s father settled 6.25% inherited from his wife in favour of his grand-daughter, Asfia, and his original 25% share in favour of another grand-daughter, Ameena Bee @ Yasmeen.

5. The forfeiture of the shares of the detenu’s parents was ultimately set aside, the Appellate Authority, vide order dated 10.08.2001, accepting the source for the acquisition of their shares. Their grand- children derive their title from the grandparents. Hence, with the acceptance of their appeals, the shares of the detenu’s parents stands accepted by the authorities. This Court, vide an order dated 30.09.2011, in Abdul Razack alias Asmath Pasha V. Competent Authority (2012) 1 MLJ 177 has set aside the forfeiture in the case of the detenu as well. What remains under forfeiture is the 25% share of the petitioner alone.

6. Mr.B.Kumar, learned Senior Counsel for Mr.Samir Shar, takes us through the orders of the Appellate Tribunal for Forfeited Property (Tribunal) dated 10.08.2001 in the case of the grand-children, and this Court, in the case of the detenu.

7. A Division Bench of this Court, in Abdul Razack alias Asmath Pasha [Foot Note Supra (1)], considered the challenge of the detenu to the order of forfeiture of his share of the property. They noted the findings of the Appellate Tribunal in the cases of the detenu’s children, that the sale deeds dated 12.10.1950 and 27.11.1953 amply proved the financial independence of the detenu’s father. The following findings of the Tribunal have been noted by the Bench:

We have therefore admitted the additional documents and carefully examined them. The sale deed dated 12.10.1950 and another sale deed dated 27.1.1953, certified copies of which were taken on record, during last hearing are ample proof of financial independence of grand-father Hajee Sheik Ahmed. The certified copy of the settlement deed No. 4133/1959, which settles two properties (property at 2/10 Wuthukattan Street, Periamet, Chennai-3-Ameenabee and at 2/10 Wuthukattam Street, Periamet, Chennai)- Fathimabee on the grand-mother Maqbul Jan, in lieu of mehr, is also ample proof of her financial independence. We do not agree within the learned C.A.'s findings that their shares in the property, totally valued at Rs. 40,000/-did not emanate from their own earnings, but were illegal earnings of their son Abdul Razak. We also do not think old cases such as this should be kept alive