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TMI Blog2016 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... the act). After recording the reasons for belief, a notice under section 6(1) of the act was issued and after giving sufficient opportunities and considering the written submissions of the 1st respondent, the competent authority/the petitioner herein passed an order dated 30.9.2005 under section 7(1) of the act for forfeiture of the properties. As against the same, the 1st respondent preferred an appeal before the 2nd respondent in FPA NO.33/MDS/2005, which was allowed by the impugned order dated 30.7.2010, setting aside the order of forfeiture passed by the petitioner. Hence, contending that the impugned order is contrary to law, weight of evidence and all probabilities of the case, this writ petition has been filed. 3. This court heard the learned counsel on either side. 4. The learned Assistant Solicitor General for the petitioner has assailed the impugned order on the following grounds:- a. The main object of the act is to forfeit the illegally acquired properties of the convict and his/her relatives, if source of acquisition of the same cannot be proved to be out of legal sources. b. Since as per section 6(1) of the act, the competent authority was of the belief that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally acquired property must be of the convict and that the properties in question do not fall within the meaning of illegally acquired property, as only illegally acquired property of the detenu/convict as defined under section 2(2)(a) and 2(2)(b) of the Act shall be forfeited, even though it is purchased in the name of relative, associate or held in the names of benamies. It was also contended that unless competent authority has declared the property to be illegally obtained, the statutory authority cannot initiate proceedings. The learned senior counsel contended that the writ petition against the highest fact finding authority, namely the tribunal is not maintainable and since the order of the Tribunal being an order considering all the aspects, the same does not warrant any interference. The learned senior counsel also placed reliance upon the Judgment reported in 2008 (14) SCC 186 (Aslam Merchant Vs. Competent Authority). 7. This court considered the rival submissions on either side and also perused the materials placed on record, including the relevant provisions of the act. 8. The points for determination can be narrowed down as under:- a. Whether the Tribunal was right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of her own to acquire the three properties. In such circumstances, no other inference was possible except that it was done so with the money provided by her husband." 11. The above judgement has been rendered by the apex court holding that the judgement of the constitutional bench in 1994 (5) SCC 54 does not explicitly lay down that it must be established that a link between the convict and the source must be established. However, the apex court in the subsequent judgement reported in 2008 (14) SCC 186, while dealing with similar provisions under the NDPS Act has held as follows: "27. It is, therefore, evident that the property which is sought to be forfeited must be the one which has a direct nexus with the income etc. derived by way of contravention of any of the provisions of the Act or any property acquired therefrom. What is meant by identification of such property having regard to the definition of `identifying' is, that the property was derived from or used in the illicit traffic. 34. Analysis of the aforementioned provisions clearly establish that a link must be found between the property sought to be forfeited and the income or assets or properties which were illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal order, the rule of evidence as envisaged under Section 68-I read with Section 68-J of the Act must be applied. A person affected would be called upon to discharge his burden provided a link or nexus is traced between the holder of the property proceeded against and an illegal activity of the detenu. Such a formation of belief is essential. 12. In the above judgement, the apex court has not only disagreed with the findings in Kesar Devil's case, but also followed the ratio laid down in 2003 (7) SCC 436 by a quorum of three-Judge bench following 1994 (5) SCC 54 and in the judgement reported in 2007 Crl. L.J 1449 to hold that to initiate proceedings for forfeiture of properties, a link must be established between the properties and to the convict. It has been contended that the judgement in Aslam Mohammed Merchant's case is under the NDPS Act and therefore has no application. This court is unable to accept the contention. Upon perusal of the relevant provisions under the NDPS Act, It is evident that section 68 is parimateria to section 3 and 68B to Section 2 ( c) of the SAFEM Act. Also, the apex court in the Judgement referred supra, has followed the ratio laid down under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope of enactments are different and the findings are not binding on the petitioner. Whereas, upon perusal of the statement of reasons along with the notice dated 10.01.1992, the entire proceedings have been initiated on the basis of income tax returns. Therefore, this court is of the view that the returns and the explanations must have been considered. The notice itself, proceeds on the basis that many properties are agricultural lands. There is also a reference to revenue records. The income tax authorities have also accepted the agricultural income. The conduct and the findings only reflect the non suiting of the legal norms by the authority. It is also not in dispute that the remittances from Malaysia was made through proper banking channel and the properties were purchased from agricultural income and remittances. Indisputably the properties are individual properties without any nexus to the convict/detenu. The object of the act is to ensure that the properties purchased out of smuggling activities or by illegal means in violation of the provision of the SAFEM Act cannot be permitted to be enjoyed by the convict/detenu or a relative holding the property as benami. The forfeitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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