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TMI Blog2017 (1) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the competent authority i.e. the 1st Respondent dated 28.7.1995, by which an house property at No.31A, Khanpalayam 3rd Street, Madurai and the deposit of Rs. 10,000/- standing to her credit in the books of M/s.Tirumalai Adagu Kadai, Madurai 1, were forfeited under Section 7(1) of the SAFEMA. 4 After the dismissal of the appeal, a Miscellaneous Petition was filed for restoring the main appeal and also allow the petitioner to file documents as well as to receive additional evidence. The application to restore the main appeal was dismissed by order dated 16.2.2000 and the Miscellaneous Petitions to receive documents were also dismissed on 3.5.2000. Before the dismissal, notice was given to the 1st Respondent on the applications and comments were received from them. As against the order of dismissal passed by the first respondent Tribunal, the writ petition came to be filed. The writ petition was admitted on 29.3.2001. Pending the writ petition, in W.M.P.No. 84/50 of 2001, an order of interim stay for a period of 8 weeks was granted. Subsequently, on 12.6.2001 it was extended by two weeks. On 6.8.2001, the interim stay granted was extended until further orders. When the matter c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai South. The properties which came to the share of the petitioner was 3 acres and 11 cents. At the time of her marriage, she was also given jewellery as marriage gift in the year 1957. Therefore, it cannot be said that the petitioner was having illegal properties acquired through illegal means obtained by her son. She had also stated that her son was a major and Section 2(2) (c ) of the SAFEMA will not attract her. She had already purchased the property in the year 1981. Her son was not even remotely connected to any illegal activities. Her two sons had left her for good and were not traceable at that time. The only property that was left to her is the house property which absolutely belongs to her. 9 It is seen from the records that the 5th petitioner (T.Murugadoss), S/o. Late Seshammal, the original petitioner, was detained under the COFEPOSA on 11.10.1988. According to the Department of Revenue, Govt. of India, their investigation revealed that she was in possession of certain properties which were believed and reasons were recorded in writing that they were obtained by illegal sources. A forfeiture notice was issued under section 6(1) of the SAFEMA to the original petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, the counsel for the original petitioner sought time to produce the original documents with reference to the sale of jewellery for the purpose of purchasing the property. The Tribunal refused to grant any adjournment and also held that sufficient opportunity has been granted by the competent authority and therefore, they dismissed the appeal. A Miscellaneous Application being M.P. No.58/2000 for receiving documents was also consequently dismissed. 12 As against the dismissal, the petitioner preferred a writ petition before this Court in W.P.No. 11540 of 2000. This Court, by order dated 11.7.2000, allowed the writ petition and directed the Tribunal to pass a fresh order after granting opportunity. In para 4 of the order, it was held as follows:- A perusal of the earlier order of the second respondent dated 16.2.2000 makes it clear that the 2nd respondent dismissed the appeal only on the ground that the petitioner did not furnish the original documents before the competent authority, on the other hand, the petitioner was able to furnish only photocopies of the same. But, in the eye of law, I am of the considered opinion that photocopies have got secondary value of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original petitioner. It was clearly observed as follows:- I am of the considered opinion that photocopies have got secondary value of evidence if the photocopies of the documents are objected to by the first respondent, still the respondent could pass appropriate orders in the light of such objection. 16 In the present case, the original petitioner had produced the original receipts to substantiate her claim and the Tribunal itself, in paragraph nos. 11 and 12, had observed as follows:- In support of the said contention, the applicant produced the original receipts evidencing the sale of gold jewellery and silver items. We have perused the original receipts along with the English translation of the receipts. 17 Since the Tribunal draws its power from the SAFEMA, its constitution and the scope of the appellate power as well as the procedures under sections 12(5), 12(7) and 15 may be usefully reproduced: Section 12 (5) : On receipt of an appeal under sub-section (4), the Appellate Tribunal may, after giving an opportunity to the appellant to be heard if he so desires, and after making such further enquiry as it deems fit, confirm, modify or set aside the order appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally acquired properties of the convict/detenu irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such relatives or associates which they may have acquired illegally but only to reach the properties of the convict/detenu or properties traceable to him, wherever they are, ignoring all the transactions with respect to those properties. By way of illustration, take a case where a convict/detenu purchases a property in the name of his relative or associate it does not matter whether he intends such a person to be a mere name lender or whether he really intends that such person shall be the real owner and/or possessor thereof or gifts away or otherwise transfers his properties in favour of any of his relatives or associates, or purports to sell them to any of his relatives or associates in all such cases, all the said transactions will be ignored and the properties forfeited unless the convict/detenu or his relative/associate, as the case may be, establishes that such property or properties are not "illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person to whom notice has been issued. The statutory provisions do not show that the competent authority, in addition to recording reasons for his belief, has to further mention any nexus or link between the convict or detenu [as described in sub-section (2) of Section 2] and the property which is sought to be forfeited in the sense that money or consideration for the same was provided by such convict or detenu. 21 It has also been held that the pre-requisite for forfeiture of a property is that the detention order passed under the COFEPOSA must be valid in law. In other words, if a detention of a detenu is quashed by any court for any reason, then, the proceedings initiated under section 6 and order passed under section 7 must fail. It was held in Union of India & Ors Vs Manoharlal Narang [(1987) 2 SCC 241] as follows:- It cannot be disputed that provisions of SAFEMA cannot be invoked in cases where there is no valid order of detention. We agree with the High Court that the order of detention is bad on the ground discussed above. Consequently we hold that the High Court was justified in quashing the notice issued under Section 6 and the proceeding initiated under Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was detained under the COFEPOSA and the properties came to be owned by the original petitioner through illegal means. 25 Though by virtue of the provisions of the Act, the burden of proof was on the person owning the property to establish the source, the original order passed for forfeiture by the 1st Respondent merely proceeded that despite opportunity, no materials are forthcoming. In para 5, it was held as under: It would be relevant to mention here that the person affecteds husband was a gold and silver merchant and the jewellery, claimed to have been sold, was declared under the god control Act 1968 to the Superintendent of Central Excise, Madurai. It was therefore, incumbent on them under the said Act to have declared the sale of the declared jewellery articles. Not only that the person affected has not furnished any documentary evidence with regard to the sale of the said jewellery, she has also not produced any evidence to indicate any declaration made to the gold control authorities in this regard. No credence therefore, can be given to the plea that the investment for the purchase of the house property was made out of the sale proceeds of the jewellery items. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce the receipts before the Competent Authority in spite of obtaining several adjournments. Later, only photocopies of the receipts were filed before the Tribunal. After the orders of the High Court, the appellant filed the original receipts at the appellate stage. The Competent Authority observed that the appellant could not have sold any jewellery or silver articles after the issuance of the earlier notice under Sec.6(1) dated 8.9.79, pursuant to which the previous proceedings were initiated in her capacity as the wife of Thiagarajan Chettiar who was obtained, in view of Section 11 of the Act, and hence, the alleged sale of jewellery and silver was disbelieved. We are not prepared to place any reliance on the receipts for the sale of jewellery and silver for the reasons mentioned above, as well as the reason given by the Competent Authority. That apart, the appellant has not adduced any evidence to show that the amount realised by the alleged sale of jewellery and silver was invested in the purchase of the house property. We, therefore, hold that the house property was made through the illegal sources of the detenu. 28 When these records were not available before the Compete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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