Mahendrabhai Chunibhai Patel V. Union of India

SCA/16554/2010

AI Insights

The case involves Mahendrabhai Chunibhai Patel, the petitioner, who challenged the forfeiture of his properties under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The petitioner had previously been convicted under the Foreign Exchange Regulations Act, 1947 (FERA), and following this, the competent authority issued a show-cause notice for the forfeiture of properties. The appellate tribunal upheld the forfeiture, which led to the filing of this petition. The High Court examined whether there was a direct nexus between the illegal activities and the properties, the delay in initiating proceedings, and the legal standing of the properties as per the income tax assessments and other evidences provided by the petitioner.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 802991 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 10-10-2018
• Assessment Year: misc
• Other Referred Cases: Aslam Mohd. Merchant V/s. Competent Authority and another, Fatima Mohd. Amin V/s. Union of India, P. P. Abdullah and another V/s. Competent Authority and others, Attorney General of India V/s. Amrutlal Pranjivandas, Abbas Mulla & Fazle Mulla in FPA Nos. 27 and 28 of 1999, Mithu Bawa Padhiyar, State of Assam Vs. Krishna Rao
• Laws Referred To: Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, Foreign Exchange Regulations Act, 1947, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: HARSHIL SHUKLA
• Assessee Lawyers: DILIP KANOJIYA
• Keywords: Appellate Tribunal; Conviction; Conviction; FERA; Foreign currency; Forfeiture of property; SAFEMA; Show cause notice; Illegal acquisition
• Section: 12; 4(1); 7; 8; 6(1); 2(2)(a)(ii)

Judgement Text

"C/SCA/16554/2010 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 16554 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G. SHAH ====================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ====================================================== MAHENDRABHAI CHUNIBHAI PATEL Versus UNION OF INDIA ====================================================== Appearance: MR DILIP L KANOJIYA(3691) for the PETITIONER(s) No. 1,2,3,4 MR HARSHEEL D SHUKLA(6158) for the RESPONDENT(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 10/10/2018 CAV JUDGMENT 1. Heard learned senior counsel Mr.S.N.Sanjanwala with learned advocate Mr.Dilip Kanojiya for the Page 1 of 33 C/SCA/16554/2010 CAV JUDGMENT petitioners and learned advocate Mr.Harshil Shukla for respondents. Perused the record. 2. The petitioners herein have challenged the judgment and order dated 12.11.2010 by the Appellate Tribunal for Forfeited Property at New Delhi(Camp: Ahmedabad) in FPA No.07/BOM/2009. So far as it is against the present petitioners, copy of such impugned judgment is at Annexure – A whereby, the Appellate Authority has; though set aside the order dated 03.04.2009 by the competent authority under Section 7 of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (herein after referred to as “SAFEMA” in short) several agricultural land details of which are disclosed in paragraph 26 of such judgment; the Appellate Authority has confirmed the order of forfeiture of 3 properties as under: (I) Residential bunglow bearing house No.357 (which is according to APs 394) on land survey No.1177 and 1178. (II) Residential house bearing No.387 (which is accroding to APs 357) Page 2 of 33 C/SCA/16554/2010 CAV JUDGMENT (III) Godown bearing No.314,358/1 to 358/8 (according to APs House Nos.356/1 to 356/8) 3. Petitioners have challenged such order dated 03.04.2009 by competent authority also, so as to quash and set aside the same with other and further reliefs that may be deemed fit and proper by the Court. Such petition is preferred under Article 14, 19, 226 and 300(A)of the Constitution of India in the matter of provisions under SAFEMA. 4. The basic factual details till filing of such petition needs to be summarized in brief as under: 4.1 Petitioner No. 1 herein was found with some foreign currencies while returning from England and during investigation about the transaction, the competent authority has found that there are several other irregularities committed by the petitioner No.1 in transferring his fund between England and India. And therefore, he was charged for the offences under Foreign Exchange Regulations Act, 1947 (hereinafter referred to as “FERA”). However, it is undisputed fact that in fact petitioner has instead of Page 3 of 33 C/SCA/16554/2010 CAV JUDGMENT contesting the criminal charges against him for the alleged offences under FERA, thinks it proper to plead guilty before the Criminal Court considering health and inconvenience in attending Court pending such trial. Therefore, he was convicted by the Judicial Magistrate First class, Borsad by its judgment and order dated 26.09.1983. Thereafter as late as in the year of 2001 i.e after a long gap of delay of 18 years, the competent authority has issued show cause notice under Section 6(1) of SAFEMA, contending that since petitioner has been convicted under FERA, he falls within the provisions of Section 2(2)(a)(ii) of SAFEMA. It is further contended that pursuant to Section 4(1), petitioner is not entitled to held illegally acquire property either by himself or other person on his behalf and that such properties are liable to be forfeited to the Central Government in accordance with the provisions of SAFEMA. Whereas, for petitioners No.2 to 4, being relatives of convicted petitioner No.1, they fall within the definition of 2(2)(c) of the SAFEMA. Therefore, all the agricultural and residential properties held by present petitioners were listed in Page 4 of 33 C/SCA/16554/2010 CAV JUDGMENT such notice so as to forfeit it, based upon the investigation carried out in the year of 1981, contending that in such raid, Assistant Director of Enforcement recovered 41 pounds and 31 dollars which were kept by the petitioner for more than 3 months and that petitioner No.1 has open the account in Barclay Bank at London without any permission of Reserve Bank Of India and during a period from January­1981 to April­1981, the petitioner No.1 had paid Rs.3,48,230/­ to different persons in India against which 14,785 pounds were credited in his account at Barclay Bank at London. It is further alleged that petitioner No.1 had taken 4555 dollars from his sister namely Smt.Pramilaben at London and he made fixed deposit of Rs.36,000/­ on 06.11.1980 in Bhadran Mercantile Bank in the joint name of Smt.Pramileben and Neel Rameshbhai without permission of Reserve Bank Of India. It is also alleged that in the year 1981, petitioner No.1 has received Rs.10,000/­ from shri Rambhai Khodabhai Patel of Dharmaj on behalf of Shri Babubhai J. Amin of London without valid permission of Reserve Bank Of India. 4.2 However, it is undisputed fact that since Page 5 of 33 C/SCA/16554/2010 CAV JUDGMENT petitioner No.1 has admitted such irregularities as he was under impression that managing fund may not result into any offence, the competent Court being JMFC has awarded sentence of confining the petitioner till rising of the Court only i.e he was not sent to jail. No doubt that such conviction can also be considered as conviction without any classification or differentiating it with other conviction for more time. The fact remains that award of conviction of TRC goes to show that probably alleged offences committed by the accused is not so grave and not affecting the public life. In the given case it is purely irregularity of financial rules and does not touch morality or any kind of criminal modus operandi of person who has otherwise admitted his faults. However, considering the nature of offences, the JMFC has also imposed the fine of Rs.5000/­ for contravening the various provisions of FERA with condition that non­payment would result into simple imprisonment for a period of 5 months. However, petitioner No.1 has paid such fine. 4.3 Therefore, relying upon such factual details as disclosed in petition after a long gap of Page 6 of 33 C/SCA/16554/2010 CAV JUDGMENT 18 years, competent authority has come forward by issuing such show­cause notice dated 28.09.2001 under reference calling upon the petitioners to show cause that why different agricultural and residential properties, details of which is disclosed in paragraph 8 of such notice, shall not be forfeited under SAFEMA. 4.4 On receipt of such show­cause notice, petitioners have filed their detailed reply and pleaded before the competent authority so as to convince them that there is no reason to forfeit the properties as proposed because there is no mens rea in dealing with the different aims as disclosed in show­cause notice but, it was mainly because of requirements of petitioner No.1 for certain fund in foreign currencies for treatment purpose and requirement of relatives to utilize their fund exchanged amongst them on different occasions in life, so as to avoid carrying hard cash while traveling, to avoid commission of transferring the fund through agency or agent; thereby, broadly speaking, there was neither intention to commit any offence nor even any irregularity but all the Page 7 of 33 C/SCA/16554/2010 CAV JUDGMENT transactions were done in good faith. However, competent authority was not convinced and came to the conclusion that petitioner No.1 has repeatedly committed offences under SAFEMA and therefore, order dated 03.04.2009 was passed under Section 7 of the SAFEMA to forfeit the properties under reference considering that all such properties are acquired by the petitioner from the fund, illegally managed by him and that though some of the properties are in the name of petitioners No.2 to 4, for being relatives of the petitioner No.1, they are also holding said properties from such fund of the petitioner No.1 only. Being aggrieved by such decision, the petitioners have preferred the appeal before appellate authority which was also dismissed by the impugned award. 5. Being aggrieved and dissatisfied by such orders, the present petition is filed on following amongst other grounds that was submitted during the oral argument, which will be dealt with while considering rival submissions. • Impugned judgment is contrary to the following Page 8 of 33 C/SCA/16554/2010 CAV JUDGMENT judgment of Supreme Court of India wherein it is held that nexus between the properties and alleged offences is to be disclosed in the show­ cause notice itself and if such nexus is not established within, there is no question of entering into the merits of the dispute. However, though following judgments were cited before appellate tribunal, the tribunal is failed to appreciate the ratio laid down by Supreme Court of India in all such decisions namely: (I) Aslam Mohd. Merchant V/s. Competent Authority and another, (2008) 14 SCC 186. (II) Fatima Mohd. Amin V/s. Union of India, (2003) 3 SCC 436. (III) P. P. Abdullah and another V/s. Competent Authority and others, (2007) 2 SCC 510. • In absence of nexus being disclosed and established in show­cause notice, burden could not be shifted as per Section 8 of SAFEMA and show cause notice is liable to struck down. Page 9 of 33 C/SCA/16554/2010 CAV JUDGMENT • All above judgments were rendered after the decision in the case of Attorney General of India V/s. Amrutlal Pranjivandas, reported in 1994 (5) SCC 54 and therefore, it cannot be said that pursuant to the decisions in the case of Attorney General Of India (supra) above three decisions can not be relied upon. • Even Devision Bench of Appellate Tribunal has followed above three decisions in the case of Abbas Mulla & Fazle Mulla in FPA Nos. 27 and 28 of 1999. The petitioner has produced the copy of such judgment of Devision Bench at Annexure – B wherein, the Appellate Tribunal has categorically held that since show­cause notice failed to discharge the burden, it is not sustainable. Therefore, allowed the appeal quashing show­cause notice itself. Such judgment is in detail and discussing all relevant statutory provisions as well as citation under reference. When above judgment dated 17.06.2009 was challenged by the respondents herein before this Court in SCA 13354 of 2009, this Court by Page 10 of 33 C/SCA/16554/2010 CAV JUDGMENT its reasoned judgment dated 09.01.1980 dismissed such Special Civil Application. Thereby, confirming the judgment of the appellate authority dated 17.06.2009 holding that in absence of nexus being proved in show­cause notice, burden cannot be shifted upon the convicted person and notice held as illegal and thereby quashed and set aside the same. The present case falls within the ambit of such previous decisions and therefore, there cannot be different view on same issue by different Courts only because of change in preceding officer as it is done by the Appellate Authority in FPA No.07/BOM/2009, preferred by the present petitioners, in the form of impugned judgment wherein Appellate Authority has failed to appreciate that such issue has been decided by its previous by Appellate Authority in its judgment and order dated 17.06.2009 in FPA No.27 and 28 of 1999. • There are no reasons recorded in writing in show­cause notice so also in impugned judgment explaining that how above referred judgments are Page 11 of 33 C/SCA/16554/2010 CAV JUDGMENT irrelevant. And therefore, in absence of relevant material being produced, action cannot be taken on show­cause notice. • There is no basis to connect activities of the petitioners with the acquisition of property. • The judgment of Aslam Mohd. Merchant (supra) is under Narcotic Drugs and Psychotropic Substances Act, 1985 and not under SAFEMA. The Appellate authority has submitted that though it was a binding decision to the Appellate Tribunal and does not want to rely upon such judgment, it should have referred the matter to larger Bench of the Tribunal instead of dismissing it. • Petitioners have lead ample evidence before the appellate tribunal and supplied paper books of relevant documents to show that all the properties were legally acquired and lawfully accounted in the income­tax returns and reflected in the books of accounts. • The Competent Authority and Appellate tribunal has ignored all such evidence contending that Page 12 of 33 C/SCA/16554/2010 CAV JUDGMENT decisions by income­tax is not binding to them under SAFEMA. • It is pertinent to note that the explanation given by the petitioners were accepted by the Appellate Authority so far as agricultural land is concerned, but did not accept it so far as residential properties are concerned without any reason for such different decision. • Appellate Authority has failed to consider that proceedings under SAFEMA were initiated after a long and unreasonable delay of 18 years. • Decision in the case of Mithu Bawa Padhiyar reported in 2003 (1) GLR 128 has been wrongly distinguished by simply saying that it can be distinguished in facts, though the said judgment is based on law point and confirming that show­ cause notice can not be issued after unreasonable delay. • Even Supreme Court has held that doctrine of reasonable time has to be applied even in the case of SAFEMA proceedings. Page 13 of 33 C/SCA/16554/2010 CAV JUDGMENT • Though Tribunal has relied upon such principle, in some other case, the appellate tribunal has failed to rely upon such decision. • Reliance on decision of Attorney General Of India (supra) is misconceived and misplaced since Supreme Court has in Paragraph 44 of such judgment categorically held that it is not intention of the legislative to forfeit the properties of the relatives and associates without their being any nexus. • The Tribunal has erred in relying upon and referring to some income­tax cases to held that delay does not bar the proceedings and doctrine of reasonable time would not apply in proceedings under SAFEMA. • The Tribunal has erred in relying upon the provisions of Section 8 of the Act regarding shifting the burden upon the petitioners though in view of the decision by Tribunal itself, burden would not shift if nexus has not been established in the show­cause notice. Page 14 of 33 C/SCA/16554/2010 CAV JUDGMENT • Appellate Tribunal has erred in distinguishing three judgments listed herein above. • The show­cause notice was not properly served upon all the petitioners and impugned order was passed without appreciating documentary evidence and submissions made by the petitioners. • The Tribunal has wrongly invoked doctrine of no prejudice, though it is settled legal position that if there is breach of principle of natural justice or a statutory provisions, the question of prejudice does not arise and it is to be believed that such irregularity in proceedings has certainly affected the right of concern persons. Petitioner has relied upon the decision in the case of East India Co. Vs. Official liquidator and Raj Ratna Mills Ltd. Reported in 2011 GLR 457. • The Tribunal has erred in considering that even if appropriate survey number is not disclosed in show­cause notice or wrong survey numbers are disclosed and even if there is mis­description, Page 15 of 33 C/SCA/16554/2010 CAV JUDGMENT show­cause notice cannot be vitiated and that, even show­cause notice is issued against dead person, Competent Authority is free to proceed further as per such show­cause notice. It is undisputed fact that there is an issue regarding service of notice on dead person, misappropriate service on affected person and error in description of properties. It is surprising that even thereafter both competent Authority and appellate tribunal has came to the conclusion, that irrespective of all such issues, they are entitled to forfeit the properties of the petitioners. • Competent authority and appellate tribunal has failed to appreciate the documents produced by the petitioner to show that residential properties were acquired by legal means and disclosing legal source of money, details of these are explained from page 22 to 50 of each of the property separately. Therefore, all those details are not reproduced so as to avoid bulkiness of this order. However, I have perused all the details which certainly clarifies the Page 16 of 33 C/SCA/16554/2010 CAV JUDGMENT stand of the petitioner so as to confirm that all the properties are legally acquired by them. • Shelter of Section 12 is also misplaced because there is no evidence to confirm the identity and description so as to prove the nexus with the alleged offences committed by the petitioner No.1. 6. Petitioners have also annexed all other relevant documents with their petition including impugned orders and copy of show­cause notice as well as judgments in FPA 27 and 28 of 1999. So also copy of SCA 13354 of 2009 with its annexures to show so that their case is squarely covered with decision in such other appeals by the same authority, contending that only because of change of Preceding Officer, there is different treatments to them, and hence this petition. 7. Respondent No.2 has filed affidavit­in­reply dated 07.03.2018 only when matter was taken up for hearing by this Court contending that such affidavit­ in­reply was filed on 07.03.2018 but copy was not found on record. Respondents shall inter alia Page 17 of 33 C/SCA/16554/2010 CAV JUDGMENT contended in defense; in addition to repeatation of factual details which are well described herein above and which may be the basis of show­cause notice, • that there is no substance in the submissions made by the petitioners that properties mentioned in the show­cause notice is only held by petitioner No. 1 as a part owner only and there are share of other relatives. • Judgment of Aslam Mohd. Merchant (supra) is under NDPS Act and definition of “illegally acquired property“ is different in NDPS Act and SAFEMA. It is well discussed and defined by the Supreme Court in the case of Attorney General of India (supra). • Few lines from different judgments have been quoted in support of their submissions contending that there is specific allegation in show­cause notice that properties under reference are illegally acquired properties. • So far as agricultural land is concerned, it was acquired by succession when petitioner No.1 was Page 18 of 33 C/SCA/16554/2010 CAV JUDGMENT minor and partial partition of HUF and therefore, those properties were not proved to be illegally acquired properties but it does not mean that whether the same properties are legally acquired and all the properties are also acquired by legal means and legal income. • Some of the documents are simply photocopy in Gujarati language indicating that petitioners have taken official support from others. However, there is no supporting evidence. Unfortunately, respondents have failed to realize that if they want to object such finding from 3rd parties, they should have call upon the petitioners or such 3rd parties to prove their case, but simply endorsing impugned order that such evidence is not reliable evidence to consider legal earning is not only improper but unjust, arbitrary and against the settled principle of law. 7.1 It was contended with reference to residential bungalow that date of valuation, period of construction etc. are different and therefore, Page 19 of 33 C/SCA/16554/2010 CAV JUDGMENT investment in properties subsequent to the year 1984 is not relevant. However, on the contrary advance version makes it clear that in fact because of such factual position, it cannot be said that property which was developed by passage of long time could not be valuated so as to consider its total valuation as investment on day one. Surprisingly, it is also contended that even if some firms are doing some legal business, it cannot be considered that they are earning profit over a year, sufficient enough to construct bunglow after the expenses of firm and house hold need. Unfortunately, respondents have failed to realize that requirements of different group of people for their livelihood may be different and therefore, if somebody is having legal income with savings, it cannot be ignored. 7.2 So far as godown is concerned, it is not for keeping stock but it was for storing agricultural produces and for agricultural use and cattle shed. 7.3 Though there was a delay of more than decades in issuance of show­cause notice, it is contended that there was no intention to cause delay Page 20 of 33 C/SCA/16554/2010 CAV JUDGMENT and therefore, it should be ignored. 7.4 The facts of Mithu Bawa Padhiyar (supra) is reproduced contending that benefits of such case cannot be extended to present case in their favour. Facts remains that the law point would apply equally to all cases so far as nexus burden and delay are concerned. 7.5 Reference was made to the case of State of Assam Vs. Krishna Rao AIR 1973 SC 28 submitting that there should be high degree of probabilities for considering rebuttal of prima facie evidence. More emphasize was placed upon filing against petitioner No.1 and his admission of irregularity before the Criminal Court. 7.6 So far as not serving of notice to all is concerned, the stand is taken in defense that if there was death of the person, it was not reported to them (department). 8. It is really difficult to understand and realize that when no proceedings were initiated for 18 years during which there was death of somebody, how and why Page 21 of 33 C/SCA/16554/2010 CAV JUDGMENT the private party would disclose the factual details regarding death to the Competent Authority when no issues are pending before it. It is clear that competent authority has not inquired at the time of issuance of notice that who are owing and occupying the property in question. It is undisputed fact that notice is issued to dead person also. It is also contended that assessment by income­tax and wealth department are not binding to the Competent Authority in view of Section 21 of the Act. However, it cannot be ignored that when properties under reference are disclosed to income­tax department and requisite due has been paid, it becomes prima facie evidence in favour of the petitioners to show that they acquired property by legal means or income and nature of transaction by which they acquired property. Thereby, if respondent wants to deviate from such factual details then certainly burden of proof rest upon them at least to prove by prima facie evidence that the acquisition of property was by illegal means or income. 9. Paragraph No.21 and 25 of the impugned order has been reproduced and relied upon it for submissions to Page 22 of 33 C/SCA/16554/2010 CAV JUDGMENT reject the petition. However, when impugned judgments are under challenge and scrutiny by this court, I do not see any reason to rely upon such discussion in impugned judgment. 10. Based upon factual details emerging from record, this court has, after hearing both the sides to some extent on 23.04.2018, passed following order:­ “1. Heard learned advocate Mr. S.N. Sanjanwala with learned advocate Mr. Dilip L. Kanojia for the petitioner and learned advocate Mr. Harshil Shukla for the respondent. 2. During the course of arguments, there was reference of conviction of the petitioner by Judicial Magistrate First Class, Borsad vide his order dated 26.09.1983, however, probably such conviction order is not available on record. Whether such conviction order is relevant for scrutiny of the order under SAFEMA may not be dealt with at this stage, but when proceedings under SAFEMA initiated based upon such conviction, it would be appropriate to direct either of the side to produce a copy of such conviction order on record more particularly, when Affidavit­ in­reply filed by the respondent No.2 has disclosed certain facts about such Criminal Case in paragraph No.2.2 of his affidavit. Thereby, when one of the litigant has relied upon few facts of such Criminal Case copy of such judgment needs to be placed on record. 3. Similarly, it is contended by the same deponent in paragraph No.3 of affidavit in Page 23 of 33 C/SCA/16554/2010 CAV JUDGMENT reply (page No.155) that they are in receipt of such judgment only on 13.04.1988, in view of such discloser, it would be appropriate for the respondent No.2 to disclose on record a copy of such letter dated 13.04.1988. 4. Similarly, it is the case of the petitioner that properties were purchased/constructed in particular year and that petitioner has failed to bring such contention regarding purchase and construction of property in particular year. In view of such discloser, the deponent shall disclose on oath that as per any enactment, how many years the Indian citizen is bound to maintain the books of account or keep the books of account? 5. The deponent shall also disclose on record that for considering the valuation of the property under reference, whether the Revenue Record was called for to verify the origin of the property and thereafter, whether he has considered the inflation while considering the valuation of the property or not? 6. The deponent shall also explain on oath what does he mean by stating that “The photocopies of the documents, that too in Gujarati, indicate that AP­1, AP­2 and AP­3 has withdrawn the amount from M/s. Patel Trading Co., Ganesh Trading Co., from which amount was said to have withdrawn, one of such firm was a proprietary concerned of M/s. Falubhai Govindbhai Patel Children Trust.”, more particularly, what does he mean by stating that since the documents are in Gujarati, whether they are admissible in evidence or not? 7. Respondents shall file an affidavit supported by the documentary evidence. Stand over to 08.05.2018.” Page 24 of 33 C/SCA/16554/2010 CAV JUDGMENT 11. Pursuant to above direction, the respondent No.2 has filed affidavit­in­reply dated 19.06.2018 as if they are complying with the above direction naturally. However, details by reproducing other paragraphs of different orders can explain their understanding upon several documents produced by the petitioner to prove that they have acquired property by legal means. Respondent authority also reproduced Section 21 and 24 of the Act in such affidavit­in­ reply. 11.1 The litigants should realize that reproduction of statute and paragraphs of judgment in pleading is to be avoided, except making its reference, because so far as discussion of facts in such reproduction is concerned, it is available in public documents and it can not be the statement of deponent on oath; But perusal of such affidavit makes it clear that respondent authority failed to clarify the position about their statements in earlier affidavit regarding documents in vernacular language. Though it is contended that it is duty of the affected parties to produce evidence translated in Page 25 of 33 C/SCA/16554/2010 CAV JUDGMENT English and that too in original. There is contradiction in such contention inasmuch as if original documents are in vernacular language, translation cannot be done and if original document is to be produced when they are in vernacular language, petitioner has already produced the statement of accounts in vernacular language but in that case respondents are objecting that it is not original. Thereby, it seems that respondents want to find faults with the petitioners at any cost without understanding the factual details. In short, this additional affidavit­in­reply is nothing but reproduction of statements by the respondents. However, now for the first time respondents have came forward with the copy of the judgments of the Criminal Court convicting the petitioner No.1. wherein, on the contrary, now there is disclosure by the competent criminal court that it is categorically disclosed by the petitioner No.1 that he is having heart problem and there was no one in his family except his aged mother and that offences for which he was charged was of technical in nature and there was no mens rea on his part. He has to get his father Page 26 of 33 C/SCA/16554/2010 CAV JUDGMENT operated in foreign country therefore, he is in need of transferring money. Because of absence of knowledge about following particular rules to transfer money in other country, he has opened account in bank out side the country and after death of his father, he has closed such account and he has produced doctor’s certificate to prove his ailment and he has categorically stated to the court that since doctor has advised him to take rest for 3 months, he would like to admit offences because doctor has categorically certified to him that, if he is convicted, because of his heart problem if he does not get proper treatment and rest in the prison, it would be fatal for him and therefore, he has chosen to admit his fault under rules relating to foreign currencies. It is also submitted that as action was bonafide as per section 56(5) and therefore, when his action is not otherwise affecting any one in any manner, he has seek benefit of Section 56(5) of the Act. However, trial court, when petitioner has admitted his guilt, sentenced him till rising of the court and imposed penalty as aforesaid, which resulted into present situation. Thereby, Page 27 of 33 C/SCA/16554/2010 CAV JUDGMENT practically, court has extended benefit of Section 56(5), thus it is considered that offence under the act has not cause substantial harm to the general public or to any individual and thereby there is no reason for continuing the present proceedings that too which was initiated after 18 years. Now, respondents have come forward with statement of accounts as well as its translation but disclosed that such translation is in English. 11.2 Whereas, income­tax assessment order dated 30.01.1991 on the contrary makes it clear that income­tax department has not solely relied upon the disclosure by the petitioner but taken care of factual details and after scrutiny of relevant documents, came to the conclusion that petitioners are liable to pay more income tax and therefore, order was passed to that effect. Therefore, it cannot be said that order of income­tax department is not proper and cannot be relied upon. 11.3 I have considered relevant submissions and perused paper book submitted by petitioners, which was presented before the competent authority and Page 28 of 33 C/SCA/16554/2010 CAV JUDGMENT appellate authority. Scrutiny of relevant documents make it clear that petitioners have source of income and there is no reason to dispute the source of income. Thus, there is prima facie evidence available before the competent authority and appellate authority, there is no reason to discard such evidence so as to conclude that it is not confirming the legal source of income of the petitioner. The discussion of all such documents are irrelevant at this stage for simple reason that even on legal assessment, fact remains that there is no nexus pleaded or proved in the show­cause notice and that show cause notice is issued after 18 years and that only because petitioner No.1 has admitted his irregularity, it cannot be said that all his income are illegally acquired and thereby all the properties are acquired from the illegal income and therefore, they may be forfeited under SAFEMA. 11.4 The decision in the case of Union of India Vs. Ismail Mulla Fazle Abbas, dated 31.03.2016 is conclusive on several issues since it is not over ruled so also decision of Supreme Court of India in the case of Aslam Mohd. Merchant (supra), Fatima Page 29 of 33 C/SCA/16554/2010 CAV JUDGMENT Mohd. Amin (supra) and P. P. Abdullah (supra) read with paragraph 44 of Attorney General of India (supra) make it clear that impugned notice and order of forfeiting the properties of the petitioners cannot sustain in the eyes of law when issue is squarely covered in above judgments, more particularly, in the judgment of Ismail Mulla Fazle Abbas(supra). There is no need to reproduce all those details again and again in every next judgments. 11.5 Whereas respondents have simply reproduced the contents of impugned order, however, when impugned orders are under scrutiny of this Court, and when impugned order is referring order in First appeal No. 27 and 28/BOM/1999 by the appellate authority under SAFEMA which was endorsed by this Court in Ismail Mulla Fazle Abbas (supra). It becomes clear and certain that there is no substance either in the show­cause notice or in order of forfeiting properties of the petitioners and impugned orders are bad in law and needs to be quashed and set aside. Therefore, relying upon the above factual details: (i) when there is no nexus in between the Page 30 of 33 C/SCA/16554/2010 CAV JUDGMENT alleged irregularity which is termed as illegality only because it was admitted by the petitioner with the properties under reference; (ii) When there is no proper disclosure about nexus between the alleged illegal activity, income arrived from it and the properties under reference; (iii) When competent authority has initiated the proceedings only after 18 years of original conviction and more than 20 years of original acquisition, there is no in­ordinance delay which would not permit the authority to proceed further arbitrarily; (iv) When petitioners have produced the evidence to prove that their income is legal, the competent authority has appreciated such evidence without calling either petitioner or persons from whom petitioner has received the money. The decision of the competent authority based upon the production of papers do not prove the case of the petitioner, has certainly resulted into not only material irregularity but Page 31 of 33 C/SCA/16554/2010 CAV JUDGMENT grave injustice to the petitioners; (v) the competent authority and tribunal has misread and misunderstand the concept and legal dictum so also effect of the judgments under reference so as to confirm that though competent authority has power under the statute to Act in certain manner, their exercise of power should always subject to broader principle of natural justice, fairness, equality and reasonable opportunity to be offered to the other side. Thereby, in absence of all such requisite conditions, if impugned order is passed in violation of principle of natural justice and arbitrarily that too almost after 2 decades, there is no option for this Court but to quash and set aside such orders. It cannot be ignored that when fact of acquisition of properties was known to the competent authority they were keen to forfeit those properties, which also confirms the intention and attitude of the competent authority in disturbing the citizens for not valid reason but, only because of statutory power with them. Page 32 of 33 C/SCA/16554/2010 CAV JUDGMENT 12. In view of the above facts and circumstances, the petition is allowed and thereby impugned order dated 03.04.2009 of competent authority and 12.11.2010 by appellate authority in First Appeal No. 27 and 28/BOM/1999 are here by quashed and set aside. (S.G. SHAH, J) N.V.MEWADA Page 33 of 33 "