MOHMEDBHAI BILIMORA Vs. COMPETENT AUTHORITY

JUDGEMENT

(1.) THE petitioner abovenamed has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction quashing and setting aside the impugned notice dated 24-10-1977 produced at Annexure 'a', the impugned order dated 28-2-1983 passed by the Competent Authority produced at Annexure 'c' as also the order dated 7-3-1984 passed by the appellate authority produced at Annexure 'd' to the petition. The petitioner has also prayed for a direction to the respondent-authority to place on record the order of detention dated 25th February, 1975 together with the grounds of detention passed against his brother-Umerbhai Ibrahim Bilimora.

(2.) THE facts leading to the institution of the present petition, briefly stated are that the present petitioner is the brother of one Umerbhai Ibrahimbhai who came to be detained under the provisions of Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("cofeposa" for short) by the Secretary to the Government of Gujarat (Food and Civil Supplies Department) Sachivalay, Gandhinagar by order dated 25-2-1975 during emergency. A notice of forfeiture of the property of the petitioner's brother was also issued. However, after the emergency the petitioner's brother was released and his properties were also not forfeited. The case against the present petitioner's brother was that he was involved in following two cases " (i) Seizure of certain articles from truck bearing no. CTC 3293 on the 17th of February, 1972 which constituted the subject matter of two proceedings; (a)Criminal Case no. 334 of 1974 and (b) Departmental Proceeding no. VIII/10-92/collr. /72 and (ii) Seizure of certain articles said to be smuggled goods from a truck bearing registration no. CTD 5341 on 21st June, 1973 which constituted the subject matter of a departmental proceeding no. VIII/10-162/collr/73. Out of these cases, the present petitioner's brother was found to have transported smuggled goods, namely, Synthetic Fabrics of Japanese and German make valued at Rs. 7,45,467/- vide truck no. CTD 5341 which were seized by the customs officials on 21-6-1973. On the basis of a notice dated 5-12-1973, after holding necessary inquiry it was found that the present petitioner's brother and present petitioner's brother's wife were involved, and therefore, by an order dated 12-6-1973, the Collector of Central Excise and Customs imposed fine of Rs. 5000/- on the wife of the petitioner's brother and a personal penalty of Rs. 35,000/- on the petitioner's brother. The petitioner's brother then preferred an appeal before the Board of Central Excise and Customs which is pending. However, the Competent Authority passed the aforesaid order of detention dated 25-2-1975 against the petitioner's brother against which the petitioner's brother Umerbhai Ibrahimbhai Bilimora preferred Special Civil Application no. 75 of 1975 before this Court which came to be dismissed with a liberty to file fresh application after the ban on account of emergency is lifted.

(3.) THE case against the present petitioner-Mohammedbhai Ibrahimbhai is that he being the brother of Umerbhai Ibrahimbhai Bilimora who was detained under COFEPOSA, his case falls under Explanation2 to sub-section (2) of Section 2 of the Smugglers and Foregin Exchange Manipulators (Forfeiture of Property) Act,1976, ("safema" for short) and therefore, on 24-10-1977 a notice under Section 6 (1) of the SAFEMA bearing np. CA/bom/ahd/2 (c)/m-20-77-78 was issued to the present petitioner calling upon him to indicate the sources of income, the earnings or assets out of which or by means of which the present petitioner has acquired the following properties: house property being House no. 3272/2, "amina Manzil" situated at Badekha Chakla, Surat. Capital and 50% share in the firm of M/s. Ruhana Trading Company, Bhaga Talav, Sindi Wad, Surat. It was alleged in the said notice that the present petitioner had no ostensible sources of income and in view of the active involvement of his brother in smuggling activities there is a reasonable presumption that the property has been acquired out of the illegally acquired income and is, therefore, liable to be forfeited under SAFEMA. It was also alleged in the notice that the present petitioner's share interest in the firm is also illegally acquired asset as there is no evidence to show how the investment in the firm was initially made which is also liable to be forfeited under the Act.