KUNDAN DAS Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(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 Sec. 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 Sec. 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 The petitioner remained under detention till the emergency was revoked.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 Sec. 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 Sec. 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 Sec. 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 Sec. as a whole in order to appreciate it properly.