K.Narayan, J. - (1.) Through this petition the petitioner has desired that the order dated 30th April, 1977 made by the Competent Authority and dated 17th May, 1978, made by the Appellate Tribunal evidenced by Annexures 8 and 9 be quashed. The facts material for the purpose of the present petition are that the petitioner was arrested on 5-3-1976 and after the same was served with the order dated 1-1-1976 directing his detention under Clauses 1 and 2 of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as COFEPOSA). Alongwlth the above order, a declaration was also served on him under Section 12 (A) of the said Act. The petitioner remained under detention till the emergency was revoked. Before release another notice was issued by the Competent Authority, desiring Sri Kundan Dass, the petitioner here to show cause why the proceedings under Section 6 (1) of the Smugglers and Foreign Exchange Manipulators, (Forfeiture of Property) Act, 1976 be not taken and his house be not forfeited. The petitioner filed objections to the same, which were considered by the Competent Authority and the matter was disposed of in two parts; in the first order, dated April 15, 1977, regarding an observation in respect of the objections of the petitioner that the Act was not applicable to him and in the second part regarding finding of fact. In nutshell, the Competent Authority directed forfeiture of the house. The petitioner preferred an appeal against the order dated April 15, 1977 and the said appeal was dismissed on 17-5-1978.
(2.) The Union of India and other authorities, subordinate to it i. e. respondent Nos. 2 and 3 have not controverted the facts alleged in the affidavit of the petitioner. The State of W. P. has filed counter affidavit and from these two the undisputed facts come out in the form that the petitioner had been dealing with in the clothes was an income tax payer and had acquired this property through various transactions spread over a period of years.
(3.) The main ground of attack put forward on behalf of the petitioner has been the availability of Section 2 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 for use against him. In order to properly appreciate this argument, a reference to the Act as a whole will be of use. The Act unlike the other Acts of Parliament has not been made applicable to all under Section 2 of the Act, the provisions thereof are to apply only to the persons specified in sub-section (2). It will be worth while to quote this section as a whole in order to appreciate it properly. "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 : (a) every person - (i) who has been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of an offence in relation to goods of a value exceeding one lakh of rupees; or (ii) who has been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount or value involved in which exceeds one lakh of rupees; or (iii) who having been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), has been convicted subsequently under either of those Acts: or (iv) who having been convicted under the Foreign Exchange Regulation Act, 1947, (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), has been convicted subsequently under either of those Acts; (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) Provided that- (i) Such order of detention, being an order to which the provisions of Section 9 or Section 12-A of the said Act do not apply, has not been revoked on the report of the Advisory Board under Section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or (ii) such order of detention, being an order to which the provisions of Section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of the review under subsection (3) of Section 9, or on the report of the Advisory Board under Section 8, read with sub-section ~2) of Section 9 of the said Act; or (iii) Such order of detention, being an order to which the provisions of Section 12-A of the said Act apply, has not been revoked before the expiry of the time for or on the basis of, the first review under subsection (3) of that section, or on the basis of the report of the Advisory Board under Section 8, read with sub-section (6) of Section 12-A, of that Act; or (iv) such order of detention has not been set aside by a Court of competent jurisdiction; (c) every person who is a relative of a person referred to in clause (a) or clause (b); (d) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously field by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration. Explanation I - For the purpose of sub-clause (i) of clause (a), the value of any goods in relation to which a person has been convicted of an offence shall be the whole sale price of the goods in the ordinary course of trade in India as on the date of the commission of the offence. Explanation 2. -For the purpose 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); (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 out houses) 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 within the meaning of the Companies 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.;