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2023 DIGILAW 1113 (GUJ)

Induben C Sheth v. State Of Gujarat

2023-10-17

A.Y.KOGJE, RAJENDRA M.SAREEN

body2023
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 227 of the Constitution of India is filed primarily against an order dated 15.11.1990 (Annexure-H) passed by the appellate Tribunal for forfeiture property, New Delhi in P.A.No.01/AHD/90. The proceedings before the appellate Tribunal was an appeal against the order dated 21.12.1988 by the competent authority The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) passed in CA/AHD/2(c)/I-21/83-84. 2. These proceedings were initiated under Section 6 of the SAFEMA Act, wherein the petitioner was issued notice under Section 6 of based on order of detention dated 18.10.1982 in Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA”) against one Rekhaben Chimanlal Sheth, who is the younger sister of the present petitioner. 3. The petition was filed in the year 1991 and thereafter, had chequred history which would be relevant to be mentioned herein. 4. In the petition, the prayers were also made challenging the order of detention dated 18.10.1982 against Rekhaben Chimanlal Sheth. The prayer was also made for declaring the provisions of the Constitution (40th Amendment) Act, 1976, the Constitution (42nd Amendment) Act, 1976 as illegal and unconstitutional. 4.1. The prayer was also made to revoke the order of detention dated 18.10.1982 against the sister of the petitioner and also to declare the provisions of The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property Act), 1976 as unconstitutional and beyond the competence of the Legislative power of Parliament. 4.2. And consequential prayer for issuance of writ under Article 226 of the Constitution of India to quash and set aside the notice under Section 6 (Annexure-F) of the SAFEMA Act. 5. Obviously, the interim prayers at the relevant time were also made, wherein time and again various orders has been passed from time to time, the Court may reproduce the relevant orders from the old record of the proceedings. Amongst the first order passed by this Court on 21.9.1991, this Court has passed an order which would read as under, which was in handwritten form and part of the record which is reproduced as under:- “Rule. To be heard with Spc. C.A.No.5684/2015. Let the notice of rule be issued to the Attorney General. Amongst the first order passed by this Court on 21.9.1991, this Court has passed an order which would read as under, which was in handwritten form and part of the record which is reproduced as under:- “Rule. To be heard with Spc. C.A.No.5684/2015. Let the notice of rule be issued to the Attorney General. There will be an ad- interim order, restraining respondent No.3 from taking possession of the foretasted property on condition that the petitioner will pay compensation that may be fixed by the Competent Authority after giving an opportunity to the petitioner, till 9th September. The petitioner has also to file an undertaking to pay the compensation amount as fixed and he should also undertake in this aforesaid affidavit of undertaking that he will not deal with the property in any manner and/or dispose of the same without permission of the Court. Such affidavit of undertaking has to be filed within three weeks from today. In default, ad- interim order will stand vacated. Notice as to interim relief returnable on 09th September, 1991. 6. Thereafter, on 21.11.1991 ad-interim relief was confirmed by an order which reads as under:- “Ad-interim relief is confirmed”. 7. Thereafter, the matter came to be adjourned from time to time and on 06.12.2013, by a common oral judgment passed in group of five petitions, which included the present petition, the petition came to be dismissed for default, rule was discharged and interim relief, if any, stood vacated. 8. Thereafter, it appears that the aforesaid order was not within the knowledge of the petitioner however, in view of public advertisement issued in the newspaper on 03.01.2017 by the competent authority and Administrator under SAFEMA, the petitioner got knowledge about the status of her petition and therefore, filed Misc. Civil Application No.65 of 2017 praying for recall of the order of dismissed for default and restoring the file on the record of the Court. This Court by an order dated 20.01.2017, allowed the aforesaid application and restored the present petition to the file. The Court has assigned reasons as under:- “9. This Court is of the considered view that the dismissed for default order is required to be recalled. This Court by an order dated 20.01.2017, allowed the aforesaid application and restored the present petition to the file. The Court has assigned reasons as under:- “9. This Court is of the considered view that the dismissed for default order is required to be recalled. However, when the matter was circulated, the Court was of the opinion that as there is a sizable time elapsed from the date of dismissal order and the filing of the restoration application, let there be a notice to other side that they may also be given an opportunity to appear and make their submission. Accordingly, this Court issued notice on 16th January 2017, which was made returnable on 20th January 2017 i.e. today, looking to the fact that the property's bid were to be received on or before 20th January 2017 i.e. toady. Therefore, short notice was required to be issued and it is stated hereinabove, Shri P.Y.Divyeshwar appears for other respondent and Shri Soni, appears for the respondent nos.1 and 2 have no much concern to express in this matter and has submitted as above. 10. The averments and contentions made in this application seeking restoration have remained un-controverted and facts remained to be noted that the delay caused in filing the application has not been controverted nor the same is being challenged in any manner and when the counsel has submitted that the basis for the issuance of show-cause notice, which was subject matter of challenge in the main matter itself is no more existing, the dismissal for default would counter productive to the end of justice. 11. In view therefore, this Court is of the considered view that the order dated 6th December 2023 qua this S.C.A. i.e. S.C.A.No.5705 of 1991 is required to be recalled and is hereby recalled and the said S.C.A.No.5705 of 1991 is restored to the file and to the extent this application is allowed. Rule made absolute to the aforesaid extent. However, there shall be no order as to costs.” 9. Thereafter, again the matter had been adjourned from time to time and yet another relevant order is of 04.09.2019, wherein to enable the petitioner to supply another set of relevant documents which were torn or become illegible. Upon such inquiry, file appears to have been reconstructed by supplying complete new set which is kept alongwith original file any rather illegible condition. 10. Upon such inquiry, file appears to have been reconstructed by supplying complete new set which is kept alongwith original file any rather illegible condition. 10. Insofar as the prayer clause challenging the constitutionality and the legislative powers of the Parliament to enact SAFEMA, the same need not to be stretch any further in view of the decision of the Apex Court consisting of 9 Judges Bench in case of Attorney General of India vs. Amratlal Prajivandas and others, reported in, (1994) 5 SCC 54 where amongst the many questions answered by the Bench, one specific question was framed as “whether Parliament was competent to enact COFEPOSA and SAFEMA?” 11. The prayer to declare the provisions of Constitution (40th Amendment) Act, 1976, the Constitution (42nd Amendment) Act, 1976 as illegal and unconstitutional is also not required to be examined as the same is not argued and therefore, be considered that the challenge to the constitutionality of 40th amendment and 42nd amendment is not pressed even otherwise the pleading do not substantiate such challenge. 12. The petitioner has therefore, argued the present case on the ground that the proceedings under the provisions of SAFEMA would not be maintainable in view of the fact that the foundational order of detention under COFEPOSA is non existent as having been revoked and the fresh order of detention cannot be based on the same facts as the first order of detention. 12.1. The second ground is challenge to the order of detention itself on the ground that the detention order was based only on the ground on which the first detention order was passed and later on revoked and therefore, no fresh grounds. The documents relied upon by the detaining authority in the detention order have not been supplied including retracted statements on which the detaining authority has relied upon and referred to in the ground of detention. 12.2. The challenge is also made on the ground that SAFEMA proceedings particularly the notice under Section 6 is not in consonance with the requirement of Section 6 as it does not mention the reason to believe that the property in question is a illegally acquired property. Also that the authority has failed to draw the nexus between the property in question with the ill-gotten money of the detenue. 12.3. Also that the authority has failed to draw the nexus between the property in question with the ill-gotten money of the detenue. 12.3. Learned advocate for the petitioner has submitted that the first order of detention was passed on 21.07.1982 against the detenue-sister of the petitioner and that order was revoked on 18.10.1982 and thereafter, though on the very same day, another detention order passed against the sister of the petitioner. The same cannot be sustained as a valid detention as the second detention order cannot be based upon the very facts of the first detention which came to be revoked. He has drawn attention of this Court to such orders in chronology at Annexure-A, Annexure-C and Annexure-D to the petition. 12.4. Learned advocate for the petitioner has taken this Court to the notice under Section 6(1) of the SAFEMA at Annexure-F and submitted that the requirement of Section 6(1) of SAFEMA is recording in writing a reason to believe that the property which is the subject matter of the notice is ‘illegally acquired property’. It is submitted that alongwith the notice placed at Annexure-F, there are no other documents annexed which would constitute the reason to believe. 12.5. Learned advocate submitted that to maintain proceedings under Section 6(1) of the SAFEMA, it is necessary for the authority to establish the nexus between the ill-gotten money of detenue-sister of the petitioner and the property of the petitioner. It is argued that even as per the record of the competent authority that the subject property of the petitioner which was purchased in the year 1977 and considering that the date of birth of the detenue-sister of the petitioner in the year 1977, the detenue-sister had not even attained majority and therefore, there is no question of any nexus being established. He has therefore, relied upon the decision of Attorney General of India vs. Amratlal Prajivandas (supra), particularly relying upon para-44 and submitted that the competent authority is duty bound to establish such nexus/link. Learned advocate submitted that the competent authority well as the appellate authority had committed an error in disregarding the vital factual aspect rendering the entire proceedings vitiated. 13. Learned Standing Counsel Mr. Learned advocate submitted that the competent authority well as the appellate authority had committed an error in disregarding the vital factual aspect rendering the entire proceedings vitiated. 13. Learned Standing Counsel Mr. Harsheel D. Shukla appearing on behalf of respondent No.3 has submitted that the ground of the proceedings under SAFEMA are based on revoked order of detention under COFEPOSA is not available to the petitioner as the petitioner has failed to bring on record that the order of detention of the sister of the petitioner was successfully challenged before any forum. Though the petitioner has argued that the matter was pending before the Apex Court and that the petitioner was enlarged on parole, still the petitioner has failed to bring on record any such orders despite long time has passed in between. Learned Standing Counsel has drawn attention of this Court to the order of detenue which was passed twice and ultimately the order by the petitioner was released from detention, if the period of detention from the first order of detention is considered, then the sister of the petitioner has completed the maximum period of detention and therefore, such order cannot be treated as an order which is revoked. It is submitted that the revocation of the order can only be provided under the provisions of COFEPOSA, particularly under Section 3 of the Act, whereas the order which the petitioner relies to treat the detention as having been revoked vide order dated 11.08.1983, the said order is not an order of revocation under Section 11 of the COFEPOSA. Learned Standing Counsel has submitted that the petitioner is the sister of the detenue and the order of detention in the year of 1982 which stood concluded cannot be challenged by the petitioner, who is facing the proceedings under SAFEMA and therefore, the petitioner has relied upon the decision of Apex Court in case of Attorney General of India vs. Amratlal Prajivandas (supra). 14. 14. Learned Standing Counsel further submitted that the argument of the petitioner regarding passing of fresh order on the same ground cannot be accepted as the detention order was already a subject matter of challenge by the detenue herself and the outcome of the same has not been placed on record by the petitioner and therefor, the petitioner cannot take advantage by arguing that the second order of detention was based on the same grounds as the first order of detention. Learned Standing Counsel has argued that the argument of the petitioner that the proceedings initiated under Section 6 of the SAFEMA by issuing notice is not in consonance with the provisions of Section 6 of the Act. It is argued by the petitioner that the notice under Section 6 of the Act does not contend any reason which led the detaining authority to believe as to whether the grounds exist. Learned Standing Counsel has therefore, relied upon the original record to indicate that the show-cause notice was accompanied with the reasons in writing which the petitioner has not placed on record and therefore, the petitioner cannot get advantage of such ground. Learned Standing Counsel has submitted that the argument of the petitioner regarding drawing of nexus between the ill-gotten money and the subject property is not required to be attracted, but it is for the noticee to repeal by placing on record the evidence to indicate that there is no such nexus. It is therefore, relied upon Section 8 of the SAFEMA Act and submitted that if the arguments are to be accepted then, Section 8 of the Act would be redundant. Learned Standing Counsel has drawn attention of this Court to an communication dated 19.12.2014 in vernacular that the property is surrendered by the petitioner and therefore, the same is in custody of the Department. He has also placed on record a communication dated 12.01.2017 raising objection to the auction of the subject property. 15. Learned advocate for the petitioner in rejoinder has argued that the challenge by the detenue to the order of detention was a subject matter of challenge before this Court as well as before the Apex Court and pleading to that effect is made in the petition, which is not controverted by the Department and therefore, contention is required to be accepted. In rejoinder, it is further argued that the Department has placed before the Court the original record to argue that the Court may not rely upon the same as the Department has not placed anything on record by way of an affidavit and therefore, the Court may accept the contention of the petitioner that the notice under Section 6 of the Act was not accompanied by the reasons in writing. 16. Heard learned advocates for the parties and perused the documents placed on record. The proceedings before the Court are arising out of the proceedings initiated against the petitioner by invoking provisions of SAFEMA based on detention proceedings against the sister of the petitioner dated 21.07.1982. As per the notice issued under Section 6 of the Act against the petitioner, the subject property under SAFEMA is Flat No.10 Purshottam Building, opposite Balvatika, Kankaria, Ahmedabad. The chronology of events began with an order of detention dated 21.07.1982 passed against the sister of the petitioner. Alongwith the order of detention, the grounds of detention were also supplied. 16.1. It appears that on 18.10.1982, the order of detention dated 21.07.1982 is revoked by the State Government and on the same day i.e. on 18.10.1982, another order of detention against the very detenue-sister of the petitioner came to be passed. On 18.10.1983, an order came to be passed by the authority under Section 10 of the COFEPOSA indicating that the order of detention dated 18.10.1982 shall not remain in force beyond 16.08.1983 and therefore, the detenue was ordered to be released from detention on 16.08.1983. Though the petitioner has claimed in this petition by pleading that the order of detention was challenged before the Supreme Court, wherein the Supreme Court had fully heard the matter as the State could not file reply on the relevant date, the detenue was released on parole. In the pleadings, however, no date of the order of the Apex Court is mentioned nor any specific number by which the detenue had challenged the order of detention before the Apex Court is coming out on record. Though this fact is not denied by the Department by filing an affidavit in reply however, it is primarily the duty of the petitioner that when the petitioner contend anything pertaining to the record of the Court then the petitioner must produced it on record. Though this fact is not denied by the Department by filing an affidavit in reply however, it is primarily the duty of the petitioner that when the petitioner contend anything pertaining to the record of the Court then the petitioner must produced it on record. In the present case, the petitioner has not placed on record any document in the from of petition before the Apex Court or the number by which the detenue-sister of the petitioner had challenged her detention nor placed any order passed by the Apex Court purportedly releasing the sister of the petitioner on parole pending the detention order. The Court therefore, is unable to accept the contention of the petitioner that the order of detention against the sister of the petitioner should be treated to have been revoked and therefore, the SAFEMA proceedings cannot be based upon such order of detention. 17. On the question of maintaining challenge to order of detention under COFEPOSA at the time of challenging the proceedings under SAFEMA, the Court consider the decision of the Apex Court in Union of India v/s.Mohanlal Likumal Punjabi and others, reported in (2004) 3 SCC 628 , where the Apex Court has held such challenge maintainable, but the same was on the ground that there was a previous challenge to order of detention by the detenue himself, such challenge was rendered infructuous on account of revoking of the detention order and therefore, the High Court had no scope to examine the validity of detention order. Hence, the Apex Court remanded the matter back to the High Court in facts of present case as indicated hereinabove. The petitioner herself is not a detenue, the detenue has challenged the order of detention. If the petitioner has to raise such contention, then it is the duty of the petitioner to plea complete facts on the record. Here the petitioner has left so much of ‘grea area’ regarding the final outcome to the challenge to ‘detention order’ by detenue and therefore, Court may not presume that the challenge to ‘detention order’ was not examined or that the challenge was sustained. 17.1. Here the petitioner has left so much of ‘grea area’ regarding the final outcome to the challenge to ‘detention order’ by detenue and therefore, Court may not presume that the challenge to ‘detention order’ was not examined or that the challenge was sustained. 17.1. The Court may usefully refer to a decision of this Court, on the issue of subsequent challenge to the detention order at the time of SAFEMA proceedings, in case of Kantilal Damodardas Shah C/o. Rajkamal Provisions Stores v/s. Union of India and others, reported in 2001 (3) GLR 2415 , wherein in para-22 the Court held as under:- “22. The detenu could not have reagitated the questions concluded in Special Criminal Application No. 51 of 1975 by the decisions of the Division Bench and the Full Bench under which his challenge against the detention order on narrower grounds had failed since it was held that the detention order could be sustained on ground No. 2 in view of the retroactive effect of Section 5- A of the Act. The learned single Judge was, therefore, right in rejecting the petitions on the ground that they were barred by the principle of res judicata. Though the said detention order was challenged in the present petitions, these petitions were not for a writ of habeas corpus since the detenu was released long ago on 23rd March, 1977 and his detention was sought to be challenged again because of the impending S.A.F.E.M.A. proceedings. 18. The case of the petitioner that on the ground of an order dated 11.08.1983, where the State itself had declared that the the order of detention shall not remain in force beyond 16.08.1983 and therefore, the State itself had revoked the order of detention and hence, SAFEMA proceedings based on such order of detention which the State itself had revoked cannot be permitted to be undertaken. In this regard, it will be appropriate to once again mention the chronology that the detenue-sister of the petitioner was initially detained by an order dated 21.07.1982. Alongwith the order of detention, grounds of detention were also supplied (see Annexure-A and Annexure-B). In this regard, it will be appropriate to once again mention the chronology that the detenue-sister of the petitioner was initially detained by an order dated 21.07.1982. Alongwith the order of detention, grounds of detention were also supplied (see Annexure-A and Annexure-B). Thereafter, the order dated 18.10.1982 is passed, where in exercise of powers under Section 11(1)(a) of COFEPOSA, the State Government had revoked the order of detention passed by the Government under Section 3(1) of the Act and again on 18.10.1982 once again in exercise of powers under Section 3(1) of COFEPOSA, the detention order was passed. Thereafter, on 11.08.1983, in accordance with the provisions under Section 10 of the Act of the COFEPOSA, it was declared that the detention order dated 18.10.1982 against the detenue-sister of the petitioner shall not remain in force beyond 16.08.1983. Section 10 of the COFEPOSA provides for the maximum period of detention. According to Section, maximum period for which any person may be detained pursuant to any detention order shall be one year from the date of detention. Reference is made to Section 9 in this section however, to which the present case is not really concerned. Reference is also made to Clause-(f) in this very section which is pertaining to the confirmation by the Advisory Board however, no such ground is taken that the order of detention was not confirmed by the Advisory Board and therefore, in the facts of the present case, considering the date of detention to be of 21.07.1982 and the last order indicating that the detention in respect of the detnue-sister of the petitioner shall not remain in force beyond 16.08.1983, therefore, considering the date of detention, the Court is of the view that the detenue-sister of the petitioner has faced the maximum period of detention till 16.08.1983. The picture is blurred as to the actual date of detention as none of the parties have been able to satisfy the Court as to the actual date of detention as throughout the pleading, the reference is only made to the order of detention. 18.1. The language of Section 10 of the SAFEMA refers to the maximum period to be considered from the date of detention and not the date of order of detention. 18.1. The language of Section 10 of the SAFEMA refers to the maximum period to be considered from the date of detention and not the date of order of detention. Hence, in the opinion of the Court, the argument of the petitioner that the detention of the detenue-sister of the petitioner was revoked by the State Government under the order dated 16.08.1983 is also not accepted. 19. On the question of whether it is open for the petitioner to challenge the order of detention. The argument of petitioner that at this stage, the petitioner is competent to challenge the order of detention of the sister of the petitioner on the grounds that the detention order does not satisfy the tests of valid detention. For this purpose, the petitioner has relied upon the pleadings by submitting that the detention order was not supported by the proper grounds and was not supported by relevant documents which were legible and various other grounds. This argument was resisted by the Department on the ground that it is too late in a day now to challenge the order of detention which has lived its life. The Court is also not accepting this argument as even from the pleadings, the order of detention was challenged by the detenue before this Court and before the Apex Court and apparently, these proceedings have been concluded. The manner in which these proceedings are concluded are required to be brought on record and when the petitioner is relying upon such proceedings, it was the duty of the petitioner to place on record all the details regarding such proceedings and the ultimate outcome. To maintain the judicial propriety, in absence of anything on record, and failure on the part of the petitioner to place on record such relevant facts, the Court is not inclined to re-open the challenge to the order of detention after a period of approximately 10 years and particularly, when the detention has lived its life. To maintain the judicial propriety, in absence of anything on record, and failure on the part of the petitioner to place on record such relevant facts, the Court is not inclined to re-open the challenge to the order of detention after a period of approximately 10 years and particularly, when the detention has lived its life. It is also pertinent to observe that the order of detention is of July 1982 based on which, the SAFEMA proceedings were initiated against the petitioner by notice under Section 6 of the Act on 10.10.1985 still the challenge to the order of detention of the sister of the petitioner was filed in the year 1991 i.e. after almost period of six years of the knowledge of the petitioner about the order of detention. This delay has not been explained by the petitioner. 20. Reliance is placed on the decision of Apex Court in case of Competent Authority, Ahmedabad v/s. Amritlal Chandmal Jain and others, reported in 1998 (5) SCC 615 for two purposes, firstly that challenge to detention order at the time of SAFEMA proceedings is maintainable. Secondly, to submit that the case of the petitioner is also covered in the same judgment. Taking the second point first, it is the submission of learned advocate that in para-3 quoting an order dated 10.07.1985 a sentence was used “insofar as these cases are concerned...”, the case of the detenue sister was covered under “these cases”. The Court is not inclined to accept these arguments to conclude that the detention order of the detenue sister should be treated as “interfered with by the Court’ particularly when it is the say of the petitioner that the detenue sister had challenged the order of detention by a separate proceedings altogether. The facts in case of Amritlal Chandmal Jain (Supra) is also at variance. In Amritlal Chandmal Jain (Supra), the Supreme Court said that once the detenue is released during the pendency of his writ of habeas corpus by the detaining authority, it cannot be said that the petition is infructuous, and when Court refuses or itself does not go into the merits of controversy in a writ of habeas corpus when the detenue is released, the detenue on that account cannot be made to suffer by holding that he did not not challenge successfully the detention order. Such are not the facts of the present case. Such are not the facts of the present case. The facts of the present case are that the detenue sister of the petitioner did challenge the order of detention and pending challenge she was released on parole due to lack of reply from the Department. With this fact the Court cannot presume that the detenue sister of petitioner had successfully challenged or that the challenge was abandoned by the detenue sister. In absence of clear contention with substantial record, it would be risky to rule out the possibility that the challenge to detention order by detenue may have been unsuccessful. 21. The Court will therefore, now examine the proceedings initiated under SAFEMA, the show-cause notice under Section 6 of the Act and the challenge the made by the petitioner on merits. 22. The main ground of challenge to the SAFEMA proceedings is that Section 6 notice is not in consonance with the Section 6 of SAFEMA nor does it fulfill the requirement of Section 6 which obliges the competent authority to record reasons in writing on which the competent authority based its belief that the property in question is illegally acquired property. Such argument is advanced on the basis of show-cause notice placed on record at Annexure-F page-58 dated 10.10.1985 and submitting that alongwith this notice at Annexure-F, no reasons which are recorded in writing are supplied to the petitioner. The matter is of the year 1981 and as mentioned in preceding paras, is having chequered history, the Court has relied upon the original file placed before this Court by the Department. In the original file, alongwith the notice under Section 6, separate documents indicating the reasons to believe that the property in question is illegally acquired property are present. The Court has therefore, no reason to believe that the same are existing on file justifying the satisfaction of the competent authority. Sub-Section 2(b) of the SAFEMA which provides for application to every person in respect of whom an order of detention has been passed under the COFEPOSA. 22.1. Sub-Clause 2(c) provides for application of this Act to every person who is a relative of person referred to in Clause (a) or Clause-(b) of Section 2(2). It is an admitted position that the petitioner is sister of the detenue under COFEPOSA and will therefore be covered under Section 2(2)(C). 22.1. Sub-Clause 2(c) provides for application of this Act to every person who is a relative of person referred to in Clause (a) or Clause-(b) of Section 2(2). It is an admitted position that the petitioner is sister of the detenue under COFEPOSA and will therefore be covered under Section 2(2)(C). Therefore, the notice under Section 6 of the Act cannot be said to be issued to a person to which the Act does not apply. Section 6 of SAFEMA is the Notice for Forfeiture which notice can be issued with regard to any properties held by any person to whom this Act applies. Again in view of the relation between the detenue and the present petitioner, the State had authority to issue the notice of forfeiture to the petitioner. 23. The petitioner has relied upon decisions of this Court in case of Dhaniben M. Tandel v/s. Union of India and others, reported in 1997(1) GLH 545 to submit that the Court may not look into the original file of the department. This submission is made particularly to deflect the stand of department that reasons are recorded in writing to believe ‘illegally acquired property’. However, the judgment does not hold it as a bar. The observation made in para 6 are while considering the specific facts of the case and the proceedings as the case progressed before the Court. This Court has assigned reasons for looking into the original department files considering the case to be at most 40 years old and that the exercise of looking into the file (original) of department did give clarity on the facts which would benefit the petitioner as well. 24. The Court may now examine the order of the competent authority dated 21.12.1988 which was passed under Section 7 of the SAFEMA pursuant to the notice under Section 6 of the Act to the petitioner in connection with the subject property. The basic fact would indicate the acquired of the subject property by which the amount of Rs.30,051/- in installments from the period between December 1977 to June 1978 to the organizer of the society. 24.1. The basic fact would indicate the acquired of the subject property by which the amount of Rs.30,051/- in installments from the period between December 1977 to June 1978 to the organizer of the society. 24.1. The competent authority had reason to believe that the petitioner had no ostensible source of income for the purchase of the above property and therefore, invoked the presumption that the property was acquired from the funds and sources provided by the detenue, thereby bringing it in the definition of illegally acquired property. 25. Section 3(1)(c) defines ‘illegally acquired property’. According to the Department, subject property is covered under Section 3(1) (c)(iv) which applies any property acquired by such person for consideration or by any means wholly traceable to any property referred in Sub-Clauses (I) to (iii). The petitioner is sought to explain the purchase of the property by submitting that the majority of the transaction was a transaction by cheque and part of the payment was made in cash, which was received from the relatives of the petitioner. This explanation did not appeal to the competent authority and therefore, the competent authority proceeded to ordered seizure of the property under Section 7 of the Act. 26. A very important contention was raised by the petitioner that the competent authority ought to have taken into consideration the fact that the detenue-sister of the petitioner was a minor and her date of birth being 28.10.1962, she could not be said to have indulged in any smuggling activity attributing the provisions of COFEPOSA in the year 1977. The Court has once again reverted back to the original file of the Department, where the date of birth of Rekhaben is 28.10.1962. Considering the same, the said Rekhaben had attained the majority only in the year 1980. The fact has remained uncontroverted that the payment for the purchase of flat made in installment is between December 1977 to June 1978, both in cash and cheque as is prescribed by the competent authority in para-4 of its order under Section 7. Considering the same, the said Rekhaben had attained the majority only in the year 1980. The fact has remained uncontroverted that the payment for the purchase of flat made in installment is between December 1977 to June 1978, both in cash and cheque as is prescribed by the competent authority in para-4 of its order under Section 7. The earliest cause of action against the detenue-sister of the petitioner was when a notice came to be issued in the year 1982 on the basis of raid conducted in the same year, nothing has come on record with regard to the conclusion of the detaining authority that the detenue-sister of the petitioner had indulged in a nefarious activity in the year 1977 to 1978 and the proceeds of such nefarious activity has been provided to the petitioner for purchase of the subject property. 27. The earliest cause of action against the detenue-sister of the petitioner in the grounds of detention recorded by the detaining authority on 21.10.1982 based on search carried out detenue sister on 15.04.1982. 27.1. Therefore, two facts are very relevant that the cause of action to invoke COFEPOSA against the detenue arose on 15.04.1982 and the date of birth of the detenue-sister being 28.10.1962, the age of the detenue-sister in the year 1977 being 15 years. Obviously between 1977 and 1978, the detenue was minor. 28. At this stage, it would be appropriate to refer to the decision of the Apex Court in case of Attorney General of India vs. Amratlal Prajivandas and others (supra), wherein nine Judges bench had formulated several questions. One of them being question No.5 which would read as under:- “whether the application of SAFEMA to the relatives and associates of detentue is violative of Articles 14, 19 and 21?. Whether the inclusion of the said Act in the Ninth Schedule cures such violation, if any? 29. While answering this question, in para-44 of the judgment, it is held as under:- “44 It is contended by the counsel for the petitioners that extending the provisions of SAFEMA to the relatives, associates and other 'holders' is again a case of overreaching or of over-breadth, as it may be called a case of excessive regulation. 29. While answering this question, in para-44 of the judgment, it is held as under:- “44 It is contended by the counsel for the petitioners that extending the provisions of SAFEMA to the relatives, associates and other 'holders' is again a case of overreaching or of over-breadth, as it may be called a case of excessive regulation. It is submitted that the relatives or associates of a person falling under clause (a) or clause (b) of Section 2(2) of SAFEMA may have acquired properties of their own, may be by illegal means but there is no reason why those properties be forfeited under SAFEMA just because they are related to or are associates of the detenu or convict, as the case may be. It is pointed out that the definition of 'relative' in Explanation (2) and of ,associates' in Explanation (3) are so wide as to bring in a person even distantly related or associated with the convict/detenu, within the net of SAFEMA, and once he comes within the net, all his illegally acquired properties can be forfeited under the Act. In our opinion, the said contention is based upon a misconception. SAFEMA is directed towards forfeiture of "illegally acquired properties" of a person falling under clause (a) or clause (b) of Section (2). The relatives and associates are brought in only for the purpose of ensuring that the illegally acquired properties of the convict or detenu, acquired or kept in their names, do not escape the net of the Act. It is a well-known fact that persons indulging in illegal activities screen the properties acquired from such illegal activity in the names of their relatives and associates. Sometimes they transfer such properties to them, may be, with an intent to transfer the ownership and title. In fact, it is immaterial how such relative or associate holds the properties of convict/detenu whether as a benami or as a mere name-lender or as a bona fide transferee for value or in any other manner. He cannot claim those properties and must surrender them to the State under the Act. Since he is a relative or associate, as defined by the Act, he cannot put forward any defence once it is proved that that property was acquired by the detenu whether in his own name or in the name of his relatives and associates. He cannot claim those properties and must surrender them to the State under the Act. Since he is a relative or associate, as defined by the Act, he cannot put forward any defence once it is proved that that property was acquired by the detenu whether in his own name or in the name of his relatives and associates. It is to counteract the several devices that are or may be adopted by persons mentioned in clauses (a) and (b) of Section 2(2) that their relatives and associates mentioned in clauses (c) and (d) of the said sub- section are also brought within the purview of the Act. The fact of their holding or possessing the properties of convict/detenu furnishes the link between the convict/detenu and his relatives and associates. Only the properties of the convict/detenu are sought to be forfeited, wherever they are. The idea is to reach his properties in whosoever's name they are kept or by whosoever they are held. The independent properties of relatives and friends, which are not traceable to the convict/detenu, are not sought to be forfeited nor are they within the purview of SAFEMA . We may proceed to explain what we say. Clause (c) speaks of a relative of a person referred to in clause (a) or clause (b) (which speak of a convict or a detenu). Similarly, clause (d) speaks of associates of such convict or detenu. If we look to Explanation (3) which specifies who the associates referred to in clause (d) are,, the matter becomes clearer. Clause (c) speaks of a relative of a person referred to in clause (a) or clause (b) (which speak of a convict or a detenu). Similarly, clause (d) speaks of associates of such convict or detenu. If we look to Explanation (3) which specifies who the associates referred to in clause (d) are,, the matter becomes clearer. 'Associates' means (i) any individual who had been or is residing in the residential premises (including outhouses) of such person such person' refers to the convict or detenu, as the case may be, referred to in clause (a) or clause (b)]; (ii) any individual who had been or is managing the affairs or keeping the accounts of such convict/detenu; (iii) any association of persons, body of individuals, partnership firm or private company of which such convict/detenu had been or is a member, partner or director; (iv) any individual who had been or is a member, partner or director of an association of persons, body of individuals, partnership firm or private company referred to in clause (iii) at any time when such person had been or is a member, partner or director of such association of persons, body of individuals, partnership firm or private company;. (v) any person who had been or is managing the affairs or keeping the accounts of any association of persons, body of individuals, partnership firm or private company referred to in clause (iii); (vi) the trustee of any trust where (a) the trust has been created by such convict/detenu; or (b) the value of the assets contributed by such convict/detenu to the trust amounts, on the date of contribution not less than 20% of the value of the assets of the trust on that date; and (vii) where the competent authority, for reasons to be recorded in writing, considers that any properties of such convict/detenu are held on his behalf by any other person, such other person. It would thus be clear that the connecting link or the nexus, as it may be called, is the holding of property or assets of the convict/detenu or traceable to such detenu/convict. Section 4 is equally relevant in this context. It would thus be clear that the connecting link or the nexus, as it may be called, is the holding of property or assets of the convict/detenu or traceable to such detenu/convict. Section 4 is equally relevant in this context. It declares that "as from the commencement of this Act, it shall not be lawful for any person to whom this Act applies to hold That this was the object of the Act is evident from para 4 of the preamble which states: "And whereas such persons have in many cases been holding the properties acquired by them through such gains in the names of their relatives, associates and confidants." We are not saying that the preamble can be utilised for restricting the scope of the Act, we are only referring to it to ascertain the object of the enactment and to reassure ourselves that the construction placed by us accords with the said object any illegally acquired property either by himself or through any other person on his behalf". All such property is liable to be forfeited. The language of this section is indicative of the ambit of the Act. Clauses (c) and (d) in Section 2(2) and the Explanations (2) and (3) occurring therein shall have to be construed and understood in the light of the overall scheme and purpose of the enactment. The idea is to forfeit the illegally 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. 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 "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 to such detenu/convict. We do not think that Parliament ever intended to say that the properties of all the relatives and associates, may be illegally acquired, will be forfeited just because they happen to be the relatives or associates of the convict/detenu. We do not think that Parliament ever intended to say that the properties of all the relatives and associates, may be illegally acquired, will be forfeited just because they happen to be the relatives or associates of the convict/detenu. There ought to be the connecting link between those properties and the convict/detenu, the burden of disproving which, as mentioned above, is upon the relative/associate. In this view of the matter, the apprehension and contention of the petitioners in this behalf must be held to be based upon a mistaken premise. The bringing in of the relatives and associates or of the persons mentioned in clause (e) of Section 2(2) is thus neither discriminatory nor incompetent apart from the protection of Article 31-B.” 30. While giving such aforesaid reasons, the Apex Court concluded question No.5 as under:- “(5) The application of SAFEMA to the relatives and associates in clauses (c) and (d) of Section 2(2). is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the case may be, wherever they are, howsoever they are held and by whomsoever they are held. They are not conceived with a view to forfeit the independent properties of such relatives and associates as explained in this judgment. The position of 'holders' dealt with by clause (e) of Section 2(2) is different as explained in the body of the judgment.” 31. In this connection, the argument advanced by the Department by invoking Section 8 which provides for the burden of proof in any proceedings under this Act that the property specified under Section 6 is not ‘illegally acquired property’ shall be on the person affected. Referring back to the answer given by the Apex Court to question No.5, the Apex Court has held that there ought to be the connecting link between the properties and the convict-detenue and the summation of such provisions that the application of SAFEMA, the provisions are not conceived with a view to forfeit of an independent property of such a relative and therefore, shifting of burden to invoke Section 8 will necessarily have to be preceded by a connecting link. In the present case, the facts would indicate that the property in question was acquired in the year 1977-1978 by the petitioner, whereas the first cause of action against the sister-detenue arose in the year 1982 when the first time raid was carried out at the residential house of the sister-detenue. This will have to be considered in light of the admitted fact that in the year 1977-1978, detenue-sister of the petitioner was still minor and therefore, there is complete disconnect between the property acquired by the petitioner with the detention proceedings against the detenue-sister of the petitioner. This singular aspect having been missed by the competent authority, as also by appellate authority by taking hyper technical view by invoking the definite clause of relatives, in the opinion of the Court, an error is committed by the competent authority as well as the appellate Tribunal. 32. Though a valiant attempt was made on behalf of the Department when learned advocate for the Department argued that the nexus/link is not required to be established as the same is not what has been held by the 9 Judges Bench of the Apex Court in Attorney General of India vs. Amratlal Prajivandas (supra) and in this connection he has relied upon two decisions of the Apex Court, where the Apex Court has, according to the learned advocate, explained the issue of nexus/link in the case of Fatima Mohd. Amin (Smt.) (Dead) v/.s Union of India Another, reported in (2003) 7 SCC 436 and in case of Kesar Devi (Smt.) vs. Union of India and Others, reported in (2003) 7 SCC 427 . However, later decision of the Apex Court in case of Aslam Mohamamd Merchant v/s. Competent Authority and others, reported in (2008) (10) SCALE 383, where the Apex Court has considered the decision of the Apex Court in 9 Judges Bench in case of Attorney General of India vs. Amratlal Prajivandas (supra), but has also taken into consideration the aforesaid two judgments and has conclusively held in para-32 as under:- “32. We, with utmost respect to the learned Judges express our inability to agree to the said observations. The necessity of establishing link or nexus in our opinion is writ large on the face of the statutory provision as would appear from the definition of ‘illegally acquired property’ as also that of ‘property’. We, with utmost respect to the learned Judges express our inability to agree to the said observations. The necessity of establishing link or nexus in our opinion is writ large on the face of the statutory provision as would appear from the definition of ‘illegally acquired property’ as also that of ‘property’. The purport and object for which the Act was enacted point out to the same effect.” 33. Over and above, language of definition of ‘illegally acquired property’ itself refers to such nexus when the legislation has used the words “out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force’ and therefore, the requirement of the nexus is engraved in the very definition of the ‘illegally acquired property’ under Section 2(c). The Court has taken into consideration the documents which were placed on record by the counsel for the department which were in the form of photo scan copy, but with the consent of the petitioner’s advocate, the same has been taken into consideration. This document does indicate the petitioner having handed over the possession of the subject property, however, the Court has also taken into consideration the orders passed from time to time by this Court regarding maintaining the property in as it is condition which reportedly is maintained even by the department. 34. For the forgoing reasons, the Court is inclined to allow the present petition by quashing and setting aside the order dated 21.12.1998 bearing No.CA/AHD/2(c)/I-21/83-84 passed by the Office of the Competent Authority, Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 as well as order dated 15.11.1990 bearing No.P.A.No.1/AHD/90 passed by the Appellate Tribunal for Forfeiture Property, New Delhi. Hence, the petition is hereby allowed. 35. At this stage, learned Standing Counsel for the respondent-Department makes request for stay of the order. Considering time lapse in between, the Court deems it fit to stay the operation of the present order for a period of six weeks. 36. The original file in sealed cover which was placed for perusal of the Court to return back to the learned advocate for the Department.