IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 OP.No. 11811 of 1999(F) ----------------------- PETITIONER(S): --------------- 1. N.A.SIDDIQUE, S/O.MOIDUNNY, VARNAT HOUSE, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR. 2. N.S.NAZEER, -DO- 3. SUHARA, W/O.MOIDUNNY, -DO- 4. N.A.THAHIRA, D/O.MOIDUNNY, IYYATTHU MAHAR, DRUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR. 5. N.A.NIZAR, S/O.MOIDUNNY, VARNAT HOUSE, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR DIST. 6. NASEEMA, D/O.MOIDUNNY, VALCHA HOUSE, ORUMANAYUR P.O. CHOWGHAT TALUK, THRISSUR DISTRICT. 7. N.A.SAMITHA, D/O.MOIDUNNY, SIRAJ MANZIL, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR DISTRICT. 8. N.A.NISHAD, S/O.MOIDUNNY, VARNAT HOUSE, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR DISTRICT. 9. N.A.SHABHANU, D/O.MOIDUNNY, VARNAT HOUSE, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR DISTRICT. 10. N.A.SAMAD, S/O.MOIDUNNY, VARNAT HOUSE, ORUMANAYUR P.O., CHOWGHAT TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY THE COMPETENT AUTHORITY, SAFEMA & NDPS ACT, CHENNAI-17. 2. THE DISTRICT COLLECTOR, THRISSUR, KERALA. G.P. SHRI.M.R.SABU. ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC FOR R1 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.11811/99. APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORIGINAL ORDER DATED 4.6.77. P2. COPY OF THE SHOW CAUSE NOTICE DTD.24.4.78. P3. COPY OF THE SALE DEED DTD. 13.5.61. P4. COPY OF THE ORDER DTD.26.9.95 BY R1. P5. COPY OF THE ORDER TD.25.8.98 BY R1. P6. COPY OF THE ORDER DTD.17.11.98. P7. COPY OF THE ORDER DTD.12.4.99 BY R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.11811 of 1999 ================== Dated this the 29th day of October, 2008 J U D G M E N T The petitioners are legal heirs of late N.K.Moidunny. The said Moidunny suffered detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Thus he became a “person affected” as defined under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, (“SAFEMA Act” for short). In respect of certain movable and immovable properties belonging to him, proceedings were initiated under the SAFEMA Act. Notice was issued to him on 24.2.1978 under Section 6(1) of the Act. Sri.Moidunni did not file any reply to the notices, although several subsequent notices also were issued to him. Instead he filed W.P.No. 1835/1978 before the High Court Judicature of Madras and obtained a stay of proceedings under the Act. That writ petition was finally disposed of by the High Court on 18.7.1994 allowing the competent authority under the Act to continue and complete the proceedings in accordance with law. An opportunity was also given to the “person affected” to file objections before 18.8.1994. Pursuant to the said direction, again notice for o.p.11811/99 2 personal hearing was issued to the person affected on 22.11.1994. The said notice was returned with the postal endorsement, “expired”. Thereafter, the petitioners were issued with notice as legal heirs of the person affected. The petitioners appeared through advocate and participated in the personal hearing. They raised several contentions. The petitioners' main contention was that due to efflux of time they were not in a position to furnish material to explain the source of income of late Moidunny for acquiring the subject properties. After considering the arguments of the counsel for the petitioners, ultimately, the competent authority passed Ext.P4 order directing forfeiture of nine items of properties mentioned in the said order. The petitioners filed an appeal before the appellate authority, who, by Ext.P6 order, dismissed the appeal. After Ext.P6 order, the competent authority, by Ext.P7 order, directed the petitioners to surrender/deliver possession of the properties mentioned in Ext.P4 order. The petitioners are challenging the above said orders in this original petition. 2. According to the petitioners, the properties mentioned in the schedule to the order, were acquired by late Moidunny even before the offence alleged by the enforcement department o.p.11811/99 3 and therefore, there is no link or nexus between the said properties and the offfences alleged against Moidunny. Therefore, according to them, the properties are not liable to be forfeited under the SAFEMA Act. They would also cite lack of notice to the legal heirs as a ground affecting validity of the proceedings. They challenged the validity of the proceedings under the COFEPOSA Act. They further contend that SAFEMA Act contemplates notice only to the person affected and not to the legal heirs. They would also challenge the finding that the properties ordered to be forfeited have been acquired with the ill-gotten money of late Moidunny. 3. The respondents, with the help of the counter affidavit filed would controvert the contentions raised by the petitioners. 4. I have considered the rival contentions in detail. 5. In so far as late Moidunny has suffered detention under the COFEPOSA Act, undoubtedly he becomes a “person affected” as defined in the SAFEMA Act. Notices were issued to late Moidunny. He did not respond to the same. First notice was issued 24.2.1978 and he died only on 15.4.1994. During those 16 years the said Moidunny had ample opportunity to produce proof to the effect that the properties in question were purchased o.p.11811/99 4 not with his ill-gotten gains, but from money acquired through legal sources. The said Moidunny did not choose to do so till his death. The legal heirs have been given notice after the death of the said Moidunny. They appeared and contested through an advocate. They raised various contentions also. All of them were specifically considered by the competent authority. Their main contention was that because of efflux of time they are not in a position to produce material to prove the source of income for acquiring the properties in question. I do not think that such a contention is sustainable in view of the very strict and mandatory provisions of the SAFEMA Act. Under Section 8 of the Act in any proceedings under this Act, the burden of proving that any property specified in the notice served under section 6 is not illegally acquired property, shall be on the person affected. No material whatsoever has been produced by the legal heirs in support of any of their contentions. They have no case that the delay is attributable to the respondents. From the facts, it is clear that there was no delay on the part of the respondents. In such circumstances, the legal heirs cannot, on the ground of efflux of time, claim exemption from forfeiture of the properties in question. The contention that the legal heirs cannot be proceeded o.p.11811/99 5 against has no relevance since the proceedings are not against the legal heirs at all, but against the properties of a person affected. The legal heirs had been given opportunity to redeem properties by discharging the burden cast upon the person affected, who is no more, if they are so able to. It is upto them to prove to the effect that the properties in question have been acquired through legal means. Having not discharged that burden, I am unable to countenance the contentions of the petitioners against the impugned orders. I do not find any merit in the contention that there is no nexus between the illegal activities of Moidunny and the properties. The date of his detention is not the relevant criterion to decide the issue. The “person affected” has to prove that the properties were acquired with funds obtained through legal sources. Therefore, I do not find any merit in the original petition and accordingly the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.11811/99 6 S.SIRI JAGAN, J. ================ O.P.No.11811 of 1999-F ================ J U D G M E N T 29th October, 2008