Case: Aslam Mohd. Merchant Vs. Competent Authority

2. One Iqbal Mohammed Memon alias Iqbal Mirchi ("Mirchi", for short) is related to the appellants. Appellant No. 2 is his first wife, Appellant No.3 is second wife, Appellant No. 4, Abdul Kadar Mohd. Merchant, is one of his brothers, Appellant No. 5, Shir Firoz Mohd. Memen, is his second brother whereas Petitioner No. 6, Aslam Mohd. Merchant, is his third brother. Appellant No.7, Nazma Aslam Merchant, is his brothers wife, Appellant No.8, Zaibunnisa Memon, is his sister and Appellant No. 9, Arij Mohd. Merchant, is the brother-in-law of the said Iqbal Mohammed Memon. An order of preventive detention was passed against him for his alleged involvement in illicit trafficking under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the "PITNDPS") on or about 29.9.1994. The same, however, could not be served on him as he had left India. A pre execution writ petition filed on his behalf was dismissed. The said order of detention is still operative.The said Iqbal Mirchi is, thus, a ‘person within the meaning of Section 68A(C) of the Act. Appellants being his relatives in terms of Section 68H of the Act were issued with notices directing them to show cause as to why the properties mentioned therein should not be forfeited being ‘illegally acquired properties. Causes were shown pursuant thereto. Opportunities of hearing were also afforded. Whereas some of the properties belonging to the appellants were directed to be forfeited, some were released. The Appellate Tribunal on appeals having been preferred there against by the appellants by a common order dated 26.7.2002 affirmed the said findings. Some more properties, however, were directed to be released opining that they did not come within the purview of the definition of ‘illegally acquired properties.Writ Petitions preferred there against by the appellants have been dismissed by the High Court by reason of the impugned judgment, holding that the proceedings were validly initiated against them.

Reasoning: 41. Submission of Mr. Singh that the appellants have not been able to discharge the burden of proof which was on them from the impugned orders, it would appear that they have utterly failed to prove their own independent income; they being close relative of the detune as in terms of the statutory requirements , it was for them to show that they had sufficient income from those properties.Had the show cause notice been valid, Mr. B.B. Singh, might have been right, but if the proceedings themselves were not initiated validly, the competent authority did not derive any jurisdiction to enter into the merit of the matter. Legality and/or validity of the notice had been questioned at several stages of the proceedings. Despite their asking, no reason was disclosed by the authority to the appellants. They had asked for additional reasons, if any, which were not reflected in the show cause notices. None was disclosed.It is also relevant to notice that the High Court opined that there had been a proper application of mind on the part of the Competent Authority and Appellate Tribunal as they had released some items of properties. Application of mind on the part of the Competent Authority and the Appellate Tribunal at the subsequent stage was not in question; what was in question was non application of mind on the part of the authority prior to issuance of the