ADARSH KUMAR GOEL, J. - (1.) This appeal has been preferred against Order dated 11th July, 2007 of the High Court of Judicature at Bombay in Criminal Writ Petition No. 1088 of 1995.
(2.) The question for consideration is whether tenancy of a property, ownership of which is acquired by a person to whom the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) applies, will be treated as "illegally 2 acquired property" within the meaning of Section 3(1)(c) of SAFEMA and can be subjected to forfeiture under the provisions thereof.
(3.) Facts giving rise to the issue may be briefly stated. Vide order dated 19th January, 1974 one Krishna Budha Gawde was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the Government of Maharashtra. As his detention was confirmed by the Advisory Board, he was covered by Section 2(b) of SAFEMA1 as the 2. Application.- (1) The provisions of this Act shall apply only to the persons specified in sub-section (2). (2) The persons referred to in sub-section (1) are the following, namely:- XXX XXX XXX (b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): XXX XXX XXX (c) every person who is a relative of a person referred to in clause (a) or clause (b); (d) every associate of a person referred to in clause (a) or clause (b); (e) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously held by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, anyone who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration. XXX XXX XXX Explanation 2.-For the purposes of clause (c), "relative", in relation to a person, means- (i) spouse of the person; (ii) brother or sister of the person; (iii) brother or sister of the spouse of the person; (iv) any lineal ascendant or descendant of the person; (v) any lineal ascendant or descendant of the spouse of the person; (vi) spouse of a person referred to in clause (ii), clause (iii) clause (iv) or clause (v); person to whom the said Act applied. Once it was so, the property illegally acquired by him (as defined in Section 3(1)(c)2 of the Act (vii) any lineal descendant of a person referred to in clause (ii) or clause (iii). Explanation 3.-For the purposes of clause (d), "associate", in relation to a person, means- (i) any individual who had been or is residing in the residential premises (including outhouses) of such person; (ii) any individual who had been or is managing the affairs or keeping the accounts of such person; (iii) any association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies Act, 1956 (1 of 1956), of which such person 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, body, partnership firm or private company; (v) any person who had been or is managing the affairs, or keeping the accounts, of an 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 person; or (b) the value of the assets contributed by such person (including the value of the assets, if any, contributed by him earlier) to the trust amounts, on the date on which the contribution is made, to not less than twenty per cent. of the value of the assets of the trust on that date; (vii) where the competent authority, for reasons to be recorded in writing, considers that any properties of such person are held on his behalf by any other person, such other person. Explanation 4.- For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention) which occurred or took place before the commencement of this Act. 3. Definitions.- (1) In this Act, unless the context otherwise requires,- XXX XXX XXX (c) "illegally acquired property", in relation to any person to whom this Act applies, means- (i) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly 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 relating to any matter in respect of which Parliament has power to make laws; or (ii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earning or assets in respect of which any such law has been contravened; or (iii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source of which cannot be proved and which cannot be shown to be attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; or 4 was liable to be forfeited. Accordingly, notice of forfeiture was issued under Section 6 of the Act in respect of several properties including the property which is subject matter of present proceeding viz. T-40, Juhu Koliwada, H.B. Gawde Road (also known as Azad Road), I Santacruz (West), Mumbai - 400 049. Vide order dated 29th August, 1977, the competent authority passed an order under Section 7 of the Act holding the property in question to be liable to be forfeited. This order was confirmed by the Appellate Tribunal for Forfeited Property on 2nd April, 1997 in respect of the said property. ;