JUDGMENT : (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. This petition has been filed under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the order passed by respondent no.1 - Competent Authority herein under Sections 7 and 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) dated 14.12.1999 and subsequent order of the Appellate Tribunal dated 20.07.2001, confirming the order of the competent authority. 2. Originally petition was filed by Smt. Zulekhaben Fakirmahammad Haji Hasan, who was the wife of Fakirmahammad Haji Hasan Subhania (Detenue), who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (For short “COFEPOSA”). Pending the proceedings of this petition, Smt. Zulekhaben passed away. The petitioners no.1.1 to 1.7 are the legal heirs of Smt. Zulekhaben. 3. Facts and circumstances giving rise to file this petition stated to be as under: 3.1 Fakirmahammad Haji Hasan who happened to be father of the petitioners was detained under the provisions of COFEPOSA by the Government of India, Ministry of Finance vide its order dated 29.12.1988. 3.2 Original petitioner Smt. Zulekhaben – wife of detenue falls under the purview of relative as defined under Section 2(2)(c) of SAFEMA. 3.3 Notice of forfeiture under Section 6(1) of SAFEMA: On the basis of detention order, a notice under Section 6 of SAFEMA was issued and served upon Smt. Zulekhaben – wife of detenue on 19.09.1998, proposing forfeiture of two vessels namely (i) MSVAL- Amir Kirmani (vessel) and (ii) MSV-AL-Sultane Hind (vessel). The base of the notice was that, the properties held by Smt. Zulekhaben were illegally acquired properties within the meaning of clause (c) of Section 1 of SAFEMA. Thus, notice was issued to provide the source of income, earnings or assets, out of which the said properties had been acquired and other evidence on whatever relevant to the noticee and further informed that, why the aforesaid two vessels should not be declared to be illegally acquired properties and forfeited to the Central Government. 3.4 Reply of notice: In response to the notice, late Smt. Zulekhaben had submitted a detailed reply in the month of June, 1999. 3.4 Reply of notice: In response to the notice, late Smt. Zulekhaben had submitted a detailed reply in the month of June, 1999. In the reply, it was submitted that, the detention order has been withdrawn by the Government on 12.12.1989 and since the order of detention is revoked and never executed, the provision of SAFEMA is not applicable. Alternatively and without prejudice to the submissions, she made a submission that, the criminal proceedings under the Customs Act, 1962 initiated against her husband has been terminated by the Competent Court as her husband Fakir Mahammad was acquitted and therefore, there is no evidence to suggest that, her husband was engaged in smuggling activity and on this count, the proceedings of forfeiture is not tenable. So far as source of income is concerned, it was submitted as under: (i) She got married in the year of 1996 and out of the said wedlock the couple blessed with 6 children. The husband Fakir Mahammad was in business of sailing and used to travel abroad on and often. He came into contact with French woman and fell in love with her and thereafter, he neglected and deserted her and children and there was a serious matrimonial dispute arose between husband and wife. She filed Special Civil Suit No.1 of 1984 before the Civil Court at Jamnagar claiming various reliefs under the Muslim Law. In the said suit, the compromise arrived between the parties. It was agreed by the husband to part with the movable and immovable properties as a “Bibi Maher”, payable under Muslim Law. The following properties were being given to Smt. Zulekhaben by way of consent decree i.e. vessel “MSV-AL Kirmani”, one Ambassador car, one motorbike and cash amount of Rs.5 lakh were given to Smt. Zulekhaben and so far as immovable property is concerned, the house property situated at Jam Khambhaliya admeasuring 923.03 square meters was being given to her. Accordingly, learned Civil Court drew the consent decree dated 13.02.1984. In the aforesaid background facts, it was submitted to the reply of show cause notice that the vessel as referred was given to her as “Bibi Maher” and the second vessel, she has purchased the same out of the amount of Rs.5 lakh received in Maher and therefore, since then, she become owner of both the vessels. In the aforesaid background facts, it was submitted to the reply of show cause notice that the vessel as referred was given to her as “Bibi Maher” and the second vessel, she has purchased the same out of the amount of Rs.5 lakh received in Maher and therefore, since then, she become owner of both the vessels. It was in this background facts submitted that, the provision of SAFEMA cannot be applied in relation to those two assets and the same cannot be regarded as “illegally acquired property” within the meaning of Section 3(1)(c) of SAFEMA and where the said assets acquired prior to the date of detention order, it cannot be said that, these vessels are tainted by any illegality. 3.5 Order of forfeiture under Section 7 of SAFEMA dated 14.12.1999: The respondent-competent authority after giving of opportunity of being heard to the parties, by its reasoned order dated 14.12.1999, declared the properties i.e. two vessels as illegally acquired properties and recorded that the properties stand forfeited to the Government free from all encumbrances. 3.6 Order of Appellate Tribunal dated 20.07.2001: Smt. Zulekhaben being aggrieved and dissatisfied with the order of forfeiture, filed an appeal to the Appellate Tribunal being FPA No.4 of Bombay 2000. The Appellate Tribunal while dismissing the appeal, held that, the appellant had filed a collusive suit for the purpose of defeating the provisions of the Act and failed to produce material evidence before the Competent Authority explaining the legal sources through which two vessels were acquired and she cannot be termed as “transferee” in good faith as the decree was obtained through collusive suit. 4. Being aggrieved with the order of the Competent Authority and Appellate Authority, the present writ application invoking extra ordinary jurisdiction of this Court has been preferred by Smt. Zulekhaben – wife of detenue and after her sad demise, the legal heirs – present petitioners are continued with the petition. 5. Mr. K. V. Shelat, learned counsel appearing on behalf of the petitioners, has made following submissions during the course of hearing: (1) He has first submitted that, valid detention order sine-qua-none or requirement of law for exercising of powers under Section 6(1) of the SAFEMA. In the facts of the present case, the detention order is revoked before the expiry of its time. In that view of the matter, the provisions of SAFEMA will not be applicable. (2) Mr. In the facts of the present case, the detention order is revoked before the expiry of its time. In that view of the matter, the provisions of SAFEMA will not be applicable. (2) Mr. Shelat, learned advocate has invited our attention to Section 6(1) of the Act, to submit that, the reason to believe of the competent authority must be recorded in writing, that the two vessels are illegally acquired properties. In the process to record the reasons of the belief, a link must be found between the properties sought to be forfeited and the income or assets of the properties which were illegally acquired by the wife of the detenue. This being the position of law, it was submitted that, the properties which were subject matter of forfeiture were acquired by Smt. Zulekhaben much prior to the detention order and the said properties were given by the detenue to the petitioner as a ‘Bibi Mahel’. The detenue was in relationship with one French lady and deserted the company of the wife, as a result of which, she filed a suit claiming her rights as per Muslim Law. The Civil Court, in the suit filed by Zulekhaben being 1 of 1984, on the basis of compromise, decreed the suit and declared Zulekhaben as an owner of two vessels and other properties. The said decree has not been challenged and attained the finality. It is therefore submitted that, even before notice under Section 6(1) of the SAFEMA and the order of detention, the petitioner Zulekhaben became the absolute owner. The said facts were brought to the notice of the authority by submitting detailed reply to the notice of forfeiture but the competent authority without considering the same and in violation of the mandatory provisions of the SAFEMA passed an order of forfeiture and the Appellate Authority before whom, it was challenged, has erred in holding that, the collusive suit was filed for the purpose of defeating the provisions of the Act. (3) The third submission raised is that the detenue was discharged and/or acquitted by the competent court for the alleged offence registered against him under the provisions of the Customs Act and on that ground also, the competent authority was not authorized or there was no valid ground for them to issue detention order and initiation of the forfeiture proceedings under the SAFEMA. 6. 6. In view of the aforesaid contentions, learned counsel Mr. K. V. Shelat relied on the judgments of the Supreme Court (Fatima Mohd. Amin Vs. Union of India, (2003) 7 SCC 436 , Aslam Mohammad Merchant Vs. Competent Authority (2008) 14 SCC 186 , Lallubhai Jogibhai and other Vs. The Union of India 1992 Cr.L.J. 2355 Guj. High Court, Karimaben K. Bagad Vs. State of Gujarat, AIR 1998 SC 2938 , Ayesaben Nur Mohammad Vs. Competent Authority, (2005) 2 GLR 1082 ), to contend that, the notice issued under Section 6(1) even if taken at their face value, do not disclose any reasons warranting action against the wife of the detenue and the reasons, the authority has not considered the issue that there was no link or nexus for the properties sought to be forfeited and illegally acquired property by the detenue and therefore, the notice itself is not legal or valid and subsequent proceedings thereon being initiated in contravention of the mandatory provisions of the SAFEMA. Thus, therefore, it was prayed that, the competent authority as well as the Appellate Authority have not considered the aforesaid aspect in its true prospective and in mechanical manner, the orders were passed, forfeiting two vessels of the Smt. Zulekhaben. 7. Lastly, Mr. Shelat, learned counsel has submitted that, the jurisdiction having not been properly exercised by the Competent Authority as well as the Appellate Authority and therefore, case is made out, warranting interference by exercising extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 8. On the other hand Mr. Harsheel D Shukla, learned Standing Counsel, opposing the contentions, has submitted that the authority before issuance of the notice had formed his reasons to believe and same was recorded and independently served upon Smt. Zulekhaben, which has been placed at page-31 (Annexure D) of this writ application and therefore, the contention that reasons were not recorded in writing, is meritless. That, the order of detention dated 29.08.1988, came to be revoked on 12.12.1989, whereas, notice for forfeiture under Section 6(1) issued on 19.09.1989, which proves that, at the time of initiation of the proceedings, the order of detention was not revoked. That, the order of detention dated 29.08.1988, came to be revoked on 12.12.1989, whereas, notice for forfeiture under Section 6(1) issued on 19.09.1989, which proves that, at the time of initiation of the proceedings, the order of detention was not revoked. In that view of the matter, it was submitted that, at relevant time, when proceedings were initiated, the valid detention order was in existence and subsequent revocation of it, would not bar for initiation of further proceedings. That, Smt. Zulekhaben, wife of the detenue had set up a case in her reply to the show cause notice that, in view of the consent decree of the Civil Court, she derived said two vessels and since then, she occupies the two vessels as a lawful owner and therefore, the said properties cannot be regarded as ‘illegally acquired property’ within the meaning of Section 3(1)(c) of the Act. It is in this context, it was submitted that, Smt. Zulekhaben failed to produce the original or certified copy of the decree before the Competent Authority nor produced any evidence to this effect despite repeated notices issued by the authority. Thus, before passing the order of forfeiture of two vessels, Smt. Zulekhaben failed to substantiate the contention raised in the reply by her that, two vessels which are subject matter of the proceedings, is legally acquired property and legally burden is on the petitioner to establish that the properties are not illegally acquired property. 9. In these circumstances, Mr. Shukla, learned Standing Counsel has submitted that, the petitioners have not made out a case for exercising inherent powers vest with this Court under Article 226 of the Constitution of India and thus, the petition may not be entertained. 10. We have heard the learned counsel for the respective parties at length and gone through the factum of notice, order of forfeiture and Appellate Tribunal. To our mind, the burden is on the petitioners to establish and prove that the properties are not illegal properties and same has been acquired through legal means either by the detenue or his relatives or persons who hold the properties. It is not in dispute that, the husband of Smt. Zulekhaben was in business of sailing and against whom the detention order came to be passed on 29.12.1988 under the COFEPOSA. The said order was revoked by the Union Ministry on 12.12.1989. It is not in dispute that, the husband of Smt. Zulekhaben was in business of sailing and against whom the detention order came to be passed on 29.12.1988 under the COFEPOSA. The said order was revoked by the Union Ministry on 12.12.1989. Before the order could revoke, the Competent Authority under the SAFEMA issued a notice under Section 6(1) for forfeiture of two vessels namely ‘MSV Al Amir Kirmani and MSV Al Sultane Hind’. In the reply of the notice, Smt. Zulekhaben, raised the preliminary objections to the effect that: (i) Where the detention order is revoked, the provisions of SAFEMA are not attracted. (ii) The two vessels being given by her husband in discharge of his matrimonial obligation and by decree of the Civil Suit, she became the owner of the properties and out of cash amount of Rs.5,00,000/- given by her husband, she purchased one of the vessels, therefore, the properties cannot be termed as illegal properties under the SAFEMA. 11. In the aforesaid admitted facts, now we shall examine the validity and propriety of the forfeiture proceedings and order of the Appellate Authority. The formation of belief i.e. reason to believe dated 19.09.1989, being placed at page-33 of this writ application. Wherein, it was recorded that, Smt. Zulekhaben, has no ostensible source of income or no assessed to income tax, so that she can either invest or purchase the vessels. It was further recorded that, the husband Fakir Mohammad involved in smuggling activities and detained under the COFEPOSA and therefore, the authority has reason to believe that, the investment by Zulekhaben in the vessels was made from the funds of the detenue and other properties are illegal properties. Thereafter, the notice under Section 6(1) on the basis of subjective satisfaction of the authority was being issued and served. The authority before whom the reply was tendered, did not satisfy with the explanation and came to conclusion that the petitioner failed to discharge their burden to establish that properties are not illegally acquired properties. In the Appeal against the order of forfeiture, the observations of the Appellate Tribunal is relevant to decide the issue raised in this petition. In our mind, para-9 of the order is relevant to refer herein and same reads as under: “Para-9. .. In the Appeal against the order of forfeiture, the observations of the Appellate Tribunal is relevant to decide the issue raised in this petition. In our mind, para-9 of the order is relevant to refer herein and same reads as under: “Para-9. .. In support of her last contention that, the appellant is a bonafide transferee, as provided by clause-a of Section 3(1)(c) of the Act. The counsel placed before us a typed copy of the decree said to have been passed by the Court of Civil Judge, at Jamnagar, in Special Civil Suit No. 1 of 1984, the copy is neither the original nor a certified copy of the judgment. This document was not produced before the Competent Authority nor was any evidence produced, inspite of repeated notices issued by the Competent Authority to produce the documentary evidence relating to the source of acquisition of the vessels. Even though, this document was not on record before the Competent Authority and was not accompanied by a petition for admission of the additional document. We have gone through it in the interest of justice. We are unable to place any reliance on the documents for the reason that, the suit even if taken to be proved, was a collusive suit.” 12. In the aforesaid circumstances, we are of the considered opinion that, the Appellate Authority on the important aspect failed to consider the decree of Civil Court passed in favour of Smt. Zulekhaben. The reason behind is that, the petitioners failed to produce the true copies of the civil court proceedings including the decree. Thus, therefore, on factual aspect, whatever defense tendered by the petitioners have not been properly dealt with by the Appellate Authority. If the proper material would have been tendered by the petitioners before the Appellate Authority, they could consider it in its proper prospective. In the circumstances, we are of the view that, let the matter be remanded to the Appellate Authority to decide it afresh on all issues. In that view of the matter, the order of the Appellate Tribunal dated 20.07.2001, Annexure – H, page-70 to this writ application, (FPA/No.4/Bom/2000), is set aside. In the circumstances, we are of the view that, let the matter be remanded to the Appellate Authority to decide it afresh on all issues. In that view of the matter, the order of the Appellate Tribunal dated 20.07.2001, Annexure – H, page-70 to this writ application, (FPA/No.4/Bom/2000), is set aside. The Appellate Authority shall decide the appeal afresh after giving an opportunity to the petitioners to produce the true copies of the decree and other case papers and decide the same within 3 months from the date of this order, in accordance with law, without being influenced by the reasons and findings of the previous order i.e. 20.07.2001. 13. We clarified that, we have not examined the merits of the case and the Appellate Authority without being influence of the observations made hereinabove shall decide the same on its own merits. 14. In the result, present petition is allowed in part and disposed of in aforesaid terms. Rule is made absolute to aforesaid extent. Interim relief, if any, stands vacated.