TMI Blog2017 (1) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. The burden no doubt is on the person who is in possession of the property to explain their sources. But, once an explanation is forthcoming, then, naturally it is for the competent authority to prove the contrary. This Court is not satisfied with the order of the Appellate Authority. As can be seen from Section 15, the Appellate Authority has ample power to call for any records from anyone and if they were not satisfied with the receipts produced by the petitioner, they could have summoned such of those documents from necessary quarters or examined witnesses in that behalf. This is especially when a property of a person is sought to be confiscated. This Court is satisfied that the original petitioner had discharged her obligation of proving her source of wealth in purchasing the property and in these two decades of litigation, she had also passed away. This is not a matter where a further remand is necessary. Further, the very same properties were under orders of forfeiture in connection with the detention of the original petitioners another son and that was released by the very same Tribunal. Again, the Tribunal, instead of relying upon the full order of that Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When the matter came up for hearing on 8.3.2002, as it was informed that the original petitioner had died on 4.9.2001, the writ petition stood abated. Thereafter, applications were filed in W.P.M.P.No. 11950 to 11953 of 2002 for impleading the legal heirs and also to set aside the abatement and to condone the delay in filing the said application. Those petitions were allowed on 22.10.2003. 5 Once again, when the writ petition came up for hearing on 19.9.2008, the matter was dismissed for want of prosecution. Again, the petitioners 2 to 7 filed an application to condone the delay for setting aside the dismissal in W.P.M.P.No.458 of 2011 which was ordered and thereafter, on 19.8.2011, the application in W.P.M.P. No. 511/2011 to set aside the dismissal of the writ petition was also allowed. 6 On notice from this Court, on behalf of the 1st respondent, a counter affidavit dated 19.7.2001 was filed. The case of the original petitioner was that the property which was sought to be forfeited (Block no.41, T.S.No.835 of an extent of 970 sq.ft) was owned by her w.e.f. 29.10.1981. It was purchased for a sale consideration of ₹ 47,000/- and registered as document no. 5975 / 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SAFEMA to the original petitioner proposing to forfeit the two properties. Initially, the notice sent came back undelivered and it was served through an Income Tax Inspector on 18.6.1992. As there was no response, a reminder was sent on 18.9.1992 asking her to submit her explanation. That notice also came back as not claimed. A hearing was fixed on 25.11.1994. The original petitioner was represented by a counsel who objected to the proposed forfeiture. 10 It was contended before the authorities that a similar forfeiture notice under section 7(1) made against T.Gnaneswaran, another son of the original petitioner (presently the 3rd petitioner) dated 30.1.1992, was set aside by the 2nd Respondent Tribunal on 6.5.1992. This was on the ground that the detention order made against the said Gnaneswaran (presently 3rd petitioner) was set aside by this Court and therefore, no proceeding can be initiated in respect of the said properties. It was also stated that the original petitioner had financial capacity to purchase the property in question and also took time to submit documentary proof. Therefore, the further hearing was held on 4.1.1995. An adjournment letter was sent and the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocopies have got secondary value of evidence. Even though the second respondent could have insisted for production of the original documents, nothing prevented the second respondent to consider the photocopies of the documents and to dispose of the case on merits in the light of the photocopies. On the other hand, 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. Without doing so, the second respondent dismissed the appeal merely on the ground that the petitioner did not produce the original documents before the competent authority or at the appeal stage. 13 On remand from this Court, the Tribunal received comments from the 1st Respondent both on the appeal as well as the Miscellaneous Petition for receiving documents. Thereafter, the 2nd Respondent Tribunal by a fresh order dated 9.1.2001, once again dismissed the appeal. It disbelieved the explanation offered by the original petitioner regarding the sale of the jewellery on the ground that it was not acceptable as the same was not produced before the competent authority and they were in full agreement with the compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry as it deems fit, confirm, modify or set aside the order appealed against. Section 12(7): the Appellate Tribunal may regulate its own procedure. Section 15 : Competent authority and Appellate Tribunal to have powers of civilcourt. Competent authority and Appellate Tribunal to have powers of civil court. The competent authority- and the Appellate Tribunal shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person an examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for examination of witnesses or documents; (f) any other matter which may be prescribed. 18 In P.P.Abdulla and another v. Competent Authority and others [(2007) 2 SCC 510], the Supreme Court went into the issue relating to confiscation of the properties of smuggler under the SAFEMA. It was held that Section 6(1) of the SAFEMA will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relative/associate, as the case may be, establishes that such property or properties are not illegally acquired properties within the meaning of Section 3(c). In this view of the matter, there is no basis for the apprehension that the independently acquired properties of such relatives and associates will also be forfeited even if they are in no way connected with the convict/detenu. So far as the holders (not being relatives and associates) mentioned in Section 2(2)(e) are concerned, they are dealt with on a separate footing. If such person proves that he is a transferee in good faith for consideration, his property even though purchased from a convict/detenu is not liable to be forfeited. It is equally necessary to reiterate that the burden of establishing that the properties mentioned in the show-cause notice issued under Section 6, and which are held on that date by a relative or an associate of the convict/detenu, are not the illegally acquired properties of the convict/detenu, lies upon such relative/associate. He must establish that the said property has not been acquired with the monies or assets provided by the detenu/convict or that they in fact did not or do not belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court was justified in quashing the notice issued under Section 6 and the proceeding initiated under Section 7 of the SAFEMA. 22 The original petitioners son (the 3rd Petitioner T.Gnaneswaran) was detained under the COFEPOSA and under section 7(1) of SAFEMA dated 30.1.1992, the same properties were forfeited. The detention of the said Gnaneswaran was set aside by this Court and thereafter, the said order was set aside by the Appellate Tribunal for forfeited property (2nd Respondent) in appeal on 6.5.1992. But, in this case, when the same properties were once again brought in for forfeiture on the ground of detention of T.Murugadoss (5th petitioner), the Tribunal, in its earlier order dated 28.7.1995, held that the said order will have no bearing on the present proceedings. In the present impugned order, the Tribunal also curiously held as follows:- The earlier order of the Competent Authority dated 31.1.92 was set aside by the Tribunal by order dtd. 6.5.92 in FPA No.12/MDS/92 on the ground that the earlier order of detention of the other son of the appellant, namely T.Gnaneswaran was set aside by the High Court. The order did not touch upon the merits of the case. The pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea that the investment for the purchase of the house property was made out of the sale proceeds of the jewellery items. Accordingly, it is held that the house property under consideration had been purchased out of the illegal sources and hence liable for forfeiture under the Act. 26 When the matter went before the Tribunal for the first time, the Tribunal refused to allow production of documents as it was not produced before the 1st Respondent. This led to the intervention by this Court which also held that photocopies of the documents can be accepted subject to objection by the department. In their written remarks, the 1st Respondent with reference to the declaration of the jewellery by the father, offered the following remarks: The particulars of gold owned as on 30-6-1969 by the husband of the appellant indicating the details of jewellery owned by him. The appellant and their children totaling 997.25 grams are available in the declaration filed before the Excise Department. The details of the jewellery received as stridhana by the appellant totaling 993.85 grams has also been produced. The above declaration is dated 30-6-1969 whereas the forfeited property was acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the house property was made through the illegal sources of the detenu. 28 When these records were not available before the Competent Authority and when a specific direction was given to the Tribunal to look into the documents produced before the Tribunal, it was unfortunate that the tribunal should agree with the conclusions of the Competent Authority and also hold that the original petitioner had not adduced any evidence. It must be understood that the Act is very draconian and it has to be interpreted strictly. When the burden of proof had shifted to the person owing to the property and that person has shown some acceptable evidence, it would not be open to the authorities to forfeit the properties on some ipse dixit. There is no rule that a person cannot sell her jewellery on small bits and that she cannot sell those jewellery to different shops within one month. Such a finding based on a suspicion cannot replace the documentary evidence produced by the petitioner. 29 In the present case, the original petitioner is not a person of no means. Her father owned properties and wrote a will. Later, it was cancelled and the family members had a registered deed of partit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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