SMT. KESAR DEVI versus UNION OF INDIA AND ORS.

Citation: [2003] SUPP. 2 S.C.R. 1 · Decided: 31-07-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Dismissed

Judgment (excerpt)

-, 
SMT. KESAR DEVI 
v. 
UNION OF INDIA AND ORS. 
JULY 31, 2003 
[S. RAJENDRA BABU AND G.P. MATHUR, JJ.] 
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) 
Act, 1976-Sections 6(1), 7(1) and 8-Conservation of Foreign Exchange and 
1 
A 
B 
Prevention of Smuggling Activities Act, 1974-Section 3(1): 
C 
Detention order-Forfeiture of property-Detention order not challenged 
during detention period or unsuccessfully challenged-Forfeiture order under 
SAFEMA-Not open to challenge the detention order while challenging the 
forfeiture order. 
Notice for forfeiture-Issuance of-Condition precedent-Held: 
Competent authority should have reason to believe that such properties are 
illegally acquired properties and the reasons/or such belief have to be recorded 
D 
in writing-Further the burden of proof is on the person affected-However, 
authority not required to show existence of any link or nexus between the 
properties sought to be forfeited and alleged illegally acquired money of the E 
detenu. 
Appellant's husband was found dealing with smuggled goods. 
Detention order was passed against him under Conservation of Foreign 
Ex£hange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). 
Thereaf~er, proceedings were initiated under Smugglers and Foreign F 
Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) for 
forfeiture of property. Competent Authority issued notice to the appellant 
under Section 6(1) with regard to one property and her husband (detenu) 
with regard to others. Detenu replied that the properties did not belong 
to him but his wife. Thereafter notice was issued to the appellant with the G 
copy of notice given to the detenu, calling upon her to produce the evidence 
with regard to the ownership of the properties forfeited. Competent 
Authority then passed forfeiture order with regard to all the properties. 
Aggrieved appellant filed an appeal. Appellate Tribunal allowed the appeal 
qua two properties and set aside the forfeiture order. It however, dismissed 
1 
H 
2 
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R. 
A the appeal with regard to the other property and upheld the forfeiture 
order. Appellant then filed writ petition assailing the detention order on 
the ground that when challenge is made regarding forfeiture of the 
property under SAFEMA, the Court is competent to examine the orders 
passed urider COFEPOSA Act; that the detention order passed under 
B 
COFEPOSA Act was bad in law; and that the grounds of detention were 
not communicated. It was also contended that reasons for belief had not 
been recorded as provided under Section 6(1) of the Act; and the finding 
/ 
~ 
of the authorities that the appellant had failed to establish that she had 
i 
purchased the property from her own income is not correct. Single Judge 
of High Court dismissed the writ petition. Division Bench of the High 
c Court also dismissed the special appeal. Hence the present appeal. 
Appellant contended that the notice issued under Section 6(1) of 
SAFEMA does not show as to how any link or nexus is established between 
the properties sought to be forfeited and the alleged illegally acquired 
money of the detenu; and that unless the notice itself showed the link or 
D nexus between the illegally acquired money of the detenu and the property 
,. 
sought to be forfeited, no order for forfeiture under Section 7 could be 
passed. 
Dismissing the appeal, the Court 
E 
HELD : 1. It cannot be accepted that it is open to a person to assail 
the validity of a detention order passed under Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) 
while challenging the proceedings initiated under Smugglers and foreign 
Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). 
F 
(7-A, B) 
Attorney General for India v. Amratlal Prajivandas, 11994) 5 SCC 54, 
followed. 
,,, 
Union of India v. Haji Mastan Mirza, (1984) 2 SCC 427, referred to. 
G 
2.1. The condition precedent for issuing a notice by the competent 
authority under Section 6(1) is that he should have reason to believe that 
all or any of such properties are illegally acquired properties and the 
reasons for such belief have to be recorded in writing. The language of 
the Section does not show that there is any requirement of mentioning any 
H link or nexus between the convict or detenu and the property ostensibly 
., 
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KESAR DEVI v.U.0.1. 
3 
standing in the name of the person to whom the 

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