1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.881 OF 2000 Smt.Neeta Nitin Bhanushali, 801, `J' Wing, 6th Building, Neelam Nagar, B.V.Phadke Gavanpada Road, Mulund (E), Mumbai 400 081. Petitioner versus 1. State of Maharashtra through Secretary, Home (Police) Department, Mantralaya, Mumbai. 2. The Inspector of Police Mr.Bhagwan P. Rade, Narcotics Cell, Crime Branch, CID, Azad Maidan, Mumbai. 3.. Mr.A.R.Mehta, Competent Authority, SAFEMA/NDPS, Mittal Court, Nariman Point, Mumba-21. 4. The Registrar, The Appellate Tribunal for Forfeited Property, ` B' Wing, 4th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003. 5. Union of India, Law & Judiciary Department, Room No.242, 2nd Floor, Income Tax Bldg; New Marine Lines, Mumbai-20. Respondents 2 Mr.Niteen Pradhan with Ms.S.D.Khot, Advocates for petitioner. Mr.J.E.Satpute, Adv. For Union of India. Mr.D.S.Mhaispurkar, APP for State. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGEMENT : 30-07-2008 DATE OF PRONOUNCING THE JUDGEMENT : 30-09-2008 JUDGEMENT : (PER : A.A.KUMBHAKONI, J.) :- 1. The petitioner is a lady who, at the time of filing of this writ petition in the year 2000, was 35 years old. The petitioner married one Nitin Khimji Bhanushali (hereinafter referred to as “t he husband of the petitioner” for the sake of brevity) in the year 1981 and three children are born out of this wedlock. 2. The present petition pertains to following immovable properties viz.:- I. Flat No.801, Building No.6, J-K Wing, Neelam Co-op. Housing Society Gavanpada in the name of Mrs.Neeta 3 Nitin Bhanusali, admeasuring 1685 sq.ft. In area; II. Flat No.703, `A' Wing, Bldg. No.3, Neelam CHS Gavanpada, Mulund (E), Mumbai admeasuring 888.79 sq.ft. In the name of Neeta N. Bhanushali; III. Flat No.601, Bldg No.8, `D' Wing, Neelam Nagar Co-op. Society Gavanpada, Mulind (E), Mumbai admeasuring 550 sq.ft. In the possession of Smt.Neeta N. Bhanusali; IV. Shop No.7, known as Pooja Dairy in Bldg. No.7, Neelam Nagar, Gavanpada, admeasuring about 400 sq.ft. In the name of Neeta N. Bhanusali; V. Shop No.2, known as Shivanand Dairy in Shrinivas Bldg; M.G.Road, Chatkopar (E), admeasuring about 400 sq.ft. These three residential flats and two shops are hereinafter referred to as “t he properties in issue” for the sake of brevity. Even according to the Respondents in terms of the relevant documents of title/tenancy the Petitioner is the owner/holder of the properties in issue. 3. The present petition arises out of an action taken by 4 the respondents for forfeiture of the properties in issue u/s 68-I of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the said Act” for the sake of brevity). An appeal filed by the petitioner ultimately before the Appellate Tribunal for Forfeited Properties (hereinafter referred to as “t he said Tribunal” for the sake of brevity) challenging the impugned action of forfeiture came to be dismissed on 1st March 2000 and thereby the order of the Competent Authority issued for confiscation of the properties in issue has been confirmed. Hence, this petition. 4. The relevant chronology of dates for better understanding of the matter is set out hereunder :- 11.1.1994 : On receipt of secret information a trap was arranged and one Dr.Imtiyaz and his associates were arrested at a place which was used as a Laboratory for manufacturing of Heroin. During the course of interrogation, Dr.Intiyaz disclosed that the husband of the Petitioner was his partner in the business of exporting Mandrex Tablets to South Africa; 13.1.1994 : At the instance of Dr.Imtiyaz, 482 kgs. Of Mandrex Tablets were seized; 19.3.1994 : The husband of the Petitioner was arrested. 5 During the course of interrogation the husband of the Petitioner disclosed that one Ram Singh from Ahamedabad had supplied 'Methaqualone' to him and that he was working for Iqbal Mirchi, the main dealer in Narcotic Drugs, who was also a member of international gang. The husband of the petitioner further disclosed that Iqbal Mirchi is based in foreign countries and conducts the business through his counter parts in South Africa and in other countries; 2.9.1994 : A detention order issued by the detaining authority of the Government of Maharashtra against aforesaid Mr. Iqbal Mohamed Memon @ Iqbal Mirchi vide order No. SLP.3.(A)/TND/0194/60 under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985(PITNDPS Act). The said order of detention has remained un-executed as the person against whom it is issued viz. Iqbal Mirchi, is absconding; 28.1.1997 : The husband of the petitioner escaped from custody; 5.2.1997 : The statement of petitioner came to be recorded by the Police wherein she is alleged to have stated that her husband had acquired certain properties in her name from the income earned by him in the illegal business of Narcotic Drugs undertaken by him in association with Iqbal Mirchi; 26.2.1997 : An order came to be issued by the Inspector of Police, Narcotic Cell, CID, Mumbai under sections 68-E and 68-F(1) of the said Act. By this order the properties in issue were frozen as on 26th February 1997; 21.3.1997 : The Deputy Commissioner of Police, Narcotic Cell, CID, Mumbai sought for confirmation of the aforesaid action of freezing of the properties in issue from the Competent Authority under the said Act; 20.3.1997 : The Competent Authority under the said Act 6 not only confirmed the order of freezing the properties in issue in exercise of its power u/s 68-F(2) of the said Act but also by the same document issued a show cause notice u/s 68-H of the said Act calling upon the said Iqbal Mirchi and the husband of the petitioner as to why the properties in issue which were subject matter of the freezing order dated 26th February 1997 should not be held as illegally acquired properties and consequently be forfeited to the Central Government as provided by Section 68-I of the said Act. 11.12.1997 : This High Court disposed off Criminal Writ Petition No.909 of 1997 filed by the petitioner challenging the freezing order dated 26th February 1997 and confirmed the order dated 29th March 1997 by directing the petitioner to appear before the said Tribunal; 12.2.1998 : The Tribunal dismissed the appeal of the petitioner and directed her to co-operate with the competent authority in the case involving the issue of forfeiture; 16.11.1998 : Another Writ Petition No.479 of 1998 filed by the petitioner for the same matter was dismissed as untenable. 14.10.1999 : The Competent Authority u/s 68-D of the said Act declared the properties in issue to be illegally acquired properties and ordered the same to be forfeited to the Central Government u/s 68-I of the said Act; ---- The husband of the petitioner filed FPA No.ND- 11/Bom/99 with the said Tribunal impugning the aforesaid order passed by the Competent Authority dated 14th October 1999 u/s 68-I of the said Act; ---- The petitioner filed FPA No.ND-12/Bom/99 with the said Tribunal impugning the aforesaid order passed by the Competent Authority dated 14th October 1999 u/s 68-I of the said Act; 7 1.3.2000 : The said Tribunal dismissed both the appeals and thereby confirmed the order of the Competent Authority forfeiting the properties in issue; 5. The aforesaid incident of 11th January 1994 resulted into registration of an offence under C.R.No.7 of 1994. Though the offence was registered under one Crime Register, being CR No.7 of 1994, it gave rise to three separate cases being tried by a Court under the said Act. These cases were as under :- Special Case No. Name of parties against whom filed 72 of 1994 Husband of petitioner (accused no.7) 121 of 1994 Husband of petitioner and five others 150 of 1994 Husband of petitioner and Iqbal Mirchi Though the husband of the petitioner was accused no.7 in the aforesaid Case No.72 of 1994, his case was separated and was separately thereafter numbered, as aforesaid being Special Case No.150 of 1994, as at the time of the trial of the Case No 72 of 1994 the husband of the petitioner was not traceable. The evidence in Case No.72 of 1994 was recorded and the accused therein were acquitted. It appears that thereafter the husband of the petitioner was arrested and hence the 8 aforesaid Special case not 150 of 1994 also started. Thereafter, by consent of the Advocate of the husband of the petitioner, the evidence in that case was considered as evidence in the aforesaid Special Case No.150 of 1994. In addition thereto the some evidence was recorded separately in Special Case No.150 of 1994 and it appears that the husband of the petitioner was convicted. However, ultimately, in Criminal Appeal No.284 of 2000, this Court by its judgement and order dated 13th August 2004 was pleased to set aside the conviction of the husband of petitioner, by allowing his appeal. The husband of the petitioner was acquitted of all the charges and was ordered to be set at liberty forthwith, if not required in any other case. 6. We have given the aforesaid chronology as also the subsequent developments of acquittal of the husband of the petitioner from offence registered against him in CR No.7 of 1994 principally because it is this CR which is used as the sole bridge for connecting the husband of the petitioner with Iqbal Mirchi and the Respondents are using this bridge to reach the 9 Petitioner for as the basis of the impugned action taken in respect of the properties in issue. 7. The relevant portion of the very first order freezing the property in issue dated 26th February1997 reads thus :- “... ... WHEREAS Mr.Iqbal Mohamed Memon @ Iqbal Mirchi is an accused in Narcotics Cell C.R.No.7/94, under section 8(c) r/w 22, 29 N.D.P.S. Act, and WHEREAS a detention order has been passed by the Detaining Authority Govt. of Maharashtra against the said Mr.Iqbal Mohamed Memon @ Iqbal Mirchi vide order No.SPL.3(A)/PND/0194/60,dated 02.,09.1994, and WHEREAS, Mr.Nitin Khimji Bhanushali, aged 35 years resident of Flat No.801, Bldg. No.6, Neelam Nagar Co-op. Housing Society, Gavanpada, Mulund (East), Mumbai-400 081 and Flat No.60, Bldg. No.8, `D' Wing, Neelam Nagar Co-op. Housing Society, Gavanpada, B.V.Phadke Marg, Mulund (East), Mumbai-400 081, is an co- accused and associate of Mr.Iqbal Mohamed Memon @ Iqbal Mirchi in C.R.No.7/94 and ... ...” (emphasis supplied) It is further pertinent to note that this order of freezing the properties in issue has not been served on the petitioner and the 10 learned counsel appearing for the respondents was not able to contradict this assertion of the petitioner. 8. As the aforesaid chronology of events indicates, the Deputy Commissioner of Police, Narcotic Cell, CID, Mumbai sought for confirmation of the aforesaid freezing order, from the Competent Authority under the said Act, vide his communication dated 21st March 1997. The relevant portion thereof reads thus :- “... ...Sir, This is a proposal for confirmation of freezing order issued in connection with properties illegally acquired by the accused Nitin Khimji Bhanushali and his relatives i.e. wife Mrs. Neeta N. Bhanushali, occ : House- hold, Res : Flat No.801, Building No.6, Neelam Nagar Co-op. Housing Society, Gavanpada, Mulund (E), Mumbai 81. Mr.Nitin Bhanushali was arrested in this Cell C.R.No.7/94, u/sec.8(c) r/w 22, 29 N.D.P.S. Act-1985. In this case one Iqbal Mohamed Memon @ Iqbal Mirchi is also an accused and he is wanted in this case. He is also accused in C.R.No.38/93 of this Cell. A Detention Order has been passed by the Detaining Authority, Government of Mahrashtra gainst Iqbal Mohd. Memon vide No. SLP.3(A)/PND/0194/60, dated 2.9.1994. 11 He is the associate of Nitin Khimji Bhanushali in C.R.No.7/94 . ... ...” (emphasis supplied) Thus, it appears that the confirmation of the freezing order was sought for not only against the husband of the petitioner but also against the petitioner, she being relative (wife) of the accused in CR No.7 of 1994 wherein the aforesaid Iqbal Mirchi was also a co-accused. It is further pertinent to note that the aforesaid request for confirmation was made also because there was a detention order issued against said Iqbal Mirchi as an accused in CR No.38 of 1993 with which, admittedly, the husband of the petitioner had no concern at all. Only because the aforesaid detention order could not be executed and Iqbal Mirchi remained “w anted accused” as such in CR No. 38 of 1993, the action was proposed not only against the husband of the petitioner but also against the petitioner. 9. It appears that for the first time the name of the petitioner featured in this communication which ultimately 12 culminated into passing of the impugned order. However, it is worthwhile to note that admittedly even a copy of this communication has not been served on the petitioner. The learned counsel appearing for the respondents was not able to controvert this assertion of the petitioner. More shocking is the last paragraph of this communication which reads thus :- “This freezing order has been served on the concerned persons except Mr.Nitin Khimji Bhanishali” (emphasis supplied) Thus, it is abundantly clear that the freezing order in respect of the property in question not only was not served on the petitioner but also was not served even on the husband of the petitioner. Thus, till this stage, it is apparent that the action was being taken against the petitioner with respect to the properties in issue held by her, not just without giving any opportunity of being heard to her but also without even serving the orders so issued on the petitioner or even on her husband. 10. The other portion, which is also relevant for our consideration in regard to the properties in issue, as to how the 13 petitioner is concerned with the same, can be found in the following portion of the aforesaid communication dated 21st March 1997 : “... ... ......................... ........ 1. Flat No.801, J.K.Terrace Flat, Bldg. No.6, Neelam Nagar Co-op. Hsg. Society, Gavanpada, Mumbai. This flat is admeasuring 1685 sq.ft. and was purchased by Nitin Bhanushali from Acme Builder on the name of his wife in the year 1993 for Rs.2,14,163/-. His wife is a housewife and she has no source of income. The agreement copy in respect of the said flat is obtained. The statement of Shri C.K.Mohandas P. Govind Nair, the secretary of the said society has been recorded in which he stated that as per society record, the flat is in the name of Mrs.Neeta Nitin Bhanushali. 2. Flat No.703, `A' Wing, Building No.7, Neelam Nagar Co-op. Hsg. Society, Gavanpada, Mulund (E), Mumbai. This flat is admeasuring 588.79 sq.ft. The said flat is stand in the name of Mrs.Neeta N. Bhanushali and same was acquired in the year 1991. The said flat is lying vacant. The statement of Shri R.Subramanian K.S. Rajgopal hs been recorded in which he stated that the said flat is stands in the name of Mrs.Neeta N.Bhanushali. 3. Shop No.7, Ground floor known as Pooja Dairy in Bldg. No.7, Neelam Nagar Co- 14 op. Hsg. Society, Gavanpada, Mulund (E), Mumbai 81. This shop is admeasuring about 400 sq.ft. And stands in the name of Mrs.Neeta N. Bhanushali. The said shop is acquired by Nitin Bhanushali in the year 1992 on his wife's name. The said shop is closed since 1994. As per the society record the shop is in the name of Mrs.Neeta Nitin Bhanushali. 4. Flat No.601, `D' Wing Building No.8, Neelam Nagar Co-op. Hsg. Society, Gavanpada, Mulund (E), Mumbai-81 is admeasuring 550 sq.ft. As per the society record and agreement copy, the said flat stands in the name of one A.P.Jadhav. The statement of Shri Govindram K. Ghanshyam has been recorded in which he stated that as per the society record the said flat belongs to A.P.Jadhav. Mr.Nitin Bhanushali and his family members were staying in the flat. Before ¾ months Mrs.Neeta Nitin Bhanushali vacated the said flat and went to stay in Building No.6, Flat No.801, J.K.Terrace Flat.” On enquiries it is revealed that the maintainance and other charges pertaining to the flat was received from Nitin Khimji Bhanushali. The agreement copy of the said flat is not available with the society. 5. Shop no.2, ground floor, known as Shivanand Dairy in Shivniwas Bldg; Rajawadi, M.G.Road, Ghatkopar (E), Mumbai. The said shop is in the name of Mrs.Neeta Nitin Bhanushali. One Mr.Gulabrai Jhamromal Kurani is owner of the Shivniwas Bldg. His statement has been recorded. He stated that he has transferred 15 the said shop premises in the name of Mrs.Neeta Nitin Bhanushali in the year 1993. Mr.Nitin Bhanushali approached him with earlier tenant Mr.Somabhai for transferring the said shop in the name of Mrs.Neeta Bhanushali. He has produced the rent receipt copy in the name of Mrs.Neeta Bhanushali for the month of July 1993. ... ... ...” (emphasis by us) Thereafter, the order of confirmation of action of freezing the properties in issue vide order dated 30th March 1997 came to be passed by the Competent Authority under the said Act. The last portion of this very same order reads thus :- “... ... Therefore, I, A.K.Mehta in exercise of powers conferred in me under section 68-F(2) of the said Act, hereby confirm the said freezing order dated 26.02.1997 made by the aforesaid Inspector of Police,Narcotics Cell, C.B., C.I.D. Mumbai. I further call upon Shri Iqbal Mirchi and you to show cause notice under sec.68-H of NDPS Act, 1985 within 30 days of receipt of this notice, as to why the properties mentioned in the schedule to the freezing order dtd.26.02.1997 should not be held as illegally acquired properties and consequentially forfeitted to the Central Govt. free from all encumbrances as provided in section 68-I of the NDPS Act. 16 (A.K.Mehta) Competent Authority SAFEMA/NDPS, Mumbai.” Copy to : 1. The Dy.Commissioner of Police, Narcotics Cell, C.B; C.I.D; Mumbai for information. “2 Ms.Neeta Nitin Bhanushali Ms.Pooja Nitin Bhanushali They are directed not to deal with or transfer the properties mentioned in the freezing order till further orders from this office. This may please be treated as a show cause noticel to you both as some properties appear to be in your names. You can also defend yourselves in case you have own source of acquiring those properties.” 11. Thus, it appears that the aforesaid order dated 20th March 1997 is a composite document, a part of which is confirmation order whereby the freezing order dated 26th February 1997 passed in regard to the properties in question has been confirmed, and by the remaining part thereof, show cause notice has been issued u/s 68-H of the said Act, calling upon the persons in respect of whom that order has been issued, to show 17 cause as to why the properties in issue be not forfeited u/s 68-I of the said Act. It is pertinent to note that there are only two persons named in this order against whom the order and obviously, therefore, the show cause notice, appears to have been issued. One of them is the husband of the petitioner and the other one is Iqbal Mirchi. Thus, it is absolutely clear that the order is not issued against the petitioner. However, we hasen to add that a copy of this order is marked to the petitioner and her daughter Ms.Pooja Nitin Bhanushali, as is clear from the endorsements made below the aforesaid order. 12. In this show cause notice-cum-order, a copy of which has been addressed to the petitioner, the ground for issuing such a show cause notice to the petitioner is stated as under :- “... ... ... I, A.K.Mehta being the Competent Authority under Section 68-D of the said Act, on the basis of the relevant information available to me which includes your own statements in which you have admitted that you were associated with Iqbal Mirchi in Narcotics trafficking and also the statement of your wife Mrs.Neeta Nitin Bhanushali wherein she has admitted that the properties mentioned in the annexure to the freezing 18 order (made by Shri Rade, Inspector of Police, C.B; C.I.D.; on 26.02.1997) were acquired by you in her name from income earned in the illegal business of Narcotics drugs in association of Shri Iqbal Memon and after carefully examining and considering the relevant information available to me. I have reason to believe that the properties described in the scheduled to the freezing order dated 26.02.1997 which are held by you either in your name or in the name of your wife, are illegally acquired properties traceable to the illegal activities of Iqbal Mirchi, within the meaning of provisions of Sec.68-B(g) and Section 68-C of the NDPSA. ... ... ...” A perusal of this portion, which is the only portion in the show cause notice set out as the basis for issuing such a show cause notice, shows that the same has been issued on the basis of some “r elevant information” available to the competent authority which includes the statements of the persons whose names are set out therein i.e. the husband of the petitioner and Iqbal Mirchi. It also refers to the statement of the petitioner wherein she has allegedly admitted that the properties mentioned therein were acquired by the husband of the petitioner in her name from the income earned in the illegal business of narcotic drugs in 19 association with Iqbal Mirchi. On this basis the show cause notice says that the competent authority has reason to believe that the properties in issue, which are held by the petitioner, are illegally acquired properties traceable to the illegal activities of Iqbal Mirchi. Thus, the show cause notice appears to have been issued on the basis of :- I. “relevant information” available to the competent authority; II. statement of the husband of the petitioner that he was associate of Iqbal Mirchi in Narcotic trafficking; III. the statement of the petitioner that the properties in issue were acquired by her husband in her name from the income earned in the illegal business of Narcotic trafficking in association of Iqbal Mirchi. 13. The competent authority has given only aforesaid three grounds as “reason to believe” that the properties in issue were held in the name of petitioner are illegally acquired properties as contemplated by provisions of Section 68-B(g) and 68-C of the said Act. 20 14. At this juncture itself it is pertinent to note that in this show cause notice the competent authority has not disclosed what is “t he relevant information available” to the competent authority which is shown as the first ground in support of the “r eason to believe” for the competent authority to issue show cause notice. The learned counsel appearing on behalf of the respondents drew our attention to two affidavits filed on behalf of the respondents in support of the impugned action. In none of these two grounds there is even a whisper about such “relevant information available” to the competent authority. On record, we are unable to find any such “relevant information” which was then available to the competent authority on the basis of which the competent authority could have reason to believe that the properties in issue are illegally acquired, as contemplated by the aforesaid provisions of the said Act. In such circumstances, we are, therefore, constrained to hold that there was no relevant information available with the competent authority at the time of issuance of this show cause 21 notice on the basis of which the competent authority could have had reason to believe that the properties in issue are illegally acquired as contemplated by the aforesaid provisions of the said Act. 15. The second ground given in the show cause notice are that the husband of the petitioner made a statement admitting his association with Iqbal Mirchi in Narcotic trafficking. Firstly, copy of such a statement is not produced on record of this petition nor is it annexed to the affidavit-in- replies filed on behalf of the respondents. We are, therefore, unable to appreciate even this second ground given in the show cause notice. Assuming that such a statement was made by the