Criminal Writ Petition No. 868 of 2011. Case: Smt. Yamini S. Bhagwanji Vs Union of India and Ors. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 868 of 2011 |
| Counsel | For Petitioner: B. Sheshgopalan i/by, Girish R. Agrawal, Adv. and For Respondents: S. K. Shinde, P.A. Pol, P.P. |
| Judges | B. H. Marlapalle, J. and U. D. Salvi , J. |
| Issue | Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (13 of 1976) - Sections 4, 6, 7, 21 |
| Citation | 2012 CriLJ 529 |
| Judgement Date | July 27, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
B. H. Marlapalle, J.
-
Rule. By consent, Rule is made returnable forthwith.
-
In this petition, filed under Article 226 of the Constitution, the petitioner seeks to challenge the order of forfeiture passed by the Competent Authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short "SAFEMA") on 7-12-2007 thereunder forfeiting three immovable properties and further duly confirmed by the Appellate Tribunal for Forfeited Property, New Delhi by its order dated 11-1-2011 in Appeal No. FPA2/BOM/2008 filed under Section 12(4) of the said Act.
-
The petitioner was married to Dr. Ashok Sharma on 14-12-1985 and she begotten two children from the said marriage, son - Kunal Sharma and daughter - Roochi Sharma. However, petitioner obtained a divorce from Dr. Ashok Sharma and married to one Shri Surendra Bhagwanji of Bahrain on 22-2-1999. Consequently, she shifted to Bahrain. When she was at the Mumbai International Airport on 4-10-2000, foreign currency equivalent to Indian Rs. 70.54 lakhs was recovered and seized from her by the Customs Department and proceedings under the said Act were initiated against her. These proceedings attained finality when the revision application filed by her came to be decided by the Government of India as per the order dated 29-10-2004. The absolute confiscation of foreign currency seized from the petitioner was converted into confiscation on payment of redemption fine of Rs. 10 lakhs and penalty of Rs. 4 lakhs under the said order dated 29-10-2004. The balance amount of Rs. 61,60,992/- was refunded to the petitioner by the Customs Department vide Remand Order No. AIR-Cus/39R/18/05.
-
In the meanwhile, a detention order dated 25-5-2001 was issued against the petitioner (hereinafter referred to as Affected Person or AP) and consequently a show-cause notice was served on her and her father on 13-3-2002 proposing forfeiture of the following properties under SAFEMA:-
(i) Flat No. B-17, B-Wing of Sai Milap CHS Ltd.Sai Baba Complex, Ciba Geigy Road, Goregaon (E), Mumbai 400 063.
(ii) Flat No. 1105, 11th Floor, Building No. B-29,Silver Arch, Shastri Nagar, Deluxe Phase,Off J.P. Road, Vill Oshiwara, Andheri (W), Mumbai - 400 053.
(iii) Flat No. 1106, 11th Floor, Building No. B-29,Silver Arch, Shastri Nagar, Deluxe Phase,Off J.P. Road, Vill Oshiwara, Andheri (W), Mumbai - 400 053.
(iv) Saving Bank Account(NRE) No. 01192084184,In State Bank of India, Kandivali (W), Mumbai - 62.
(v) Saving Bank Accounts (NRE) No. 5-897400-113, City Bank, Mumbai.
(vi) An amount of Rs. 61,60,992/- (Amount of Sale proceeds of seized currency refunded by the Customs Department after adjusting Redemption fine and penalty).
As the detention order was revoked on 28-12-2005, the show-cause notice dated 13-3-2002 came to be withdrawn.
-
In CC No. 37/CW/2004 the petitioner- accused came to be convicted for the offence under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act, 1962 and she was sentenced to suffer SI for 14 days and to pay a fine of Rs. 50,000/- in default to suffer further SI for six months. She was given set off under Section 428 of Cr.P.C. This order of conviction and sentence passed by the learned Chief Metropolitan Magistrate, Mumbai was the basis to undertake fresh proceedings for forfeiture of the illegally acquired property and the provisions of Section 2(2)(a)(i) became applicable to her.
-
The initial enquiries regarding the above stated immovable properties and Mila Co-op. Hsg. Society Ltd. informed that Flat No. B-17 was standing in the name of Smt. Yamini Ashok Sharma. However, the petitioner's father by his letter received on 6-5-2002 stated that the marriage between petitioner and Dr. Ashok Sharma was dissolved by a decree of divorce dated 4-4-1998 and Flat No. B-17 of Sai Mila CHS Ltd., Goregaon (E) was purchased by Dr. Ashok Sharma, the former husband of the AP in July, 1987 and the entire consideration amount was paid by Dr. Sharma from his income deposited after returning to India from Libya where he was employed for seven years. It was further stated that after the divorce, the AP had handed over the said flat to Shri Kailash Viyala, her brother. The agreement dated 10-10-1987 revealed that the AP had agreed to purchase the said flat being constructed by M/s. Express National Builders on ownership basis for a consideration of Rs. 1,60,500/- and only an amount of Rs. 35,000/- was paid on the day of the agreement through two different cheques issued from State Bank of India, Kandivali (W) and Karnataka Bank Limited, Kandivali (W).
So far as the second immovable property is concerned, i.e. Flat No. 1106, 11th Floor, Building No. 29, Silver Arch, M/s. Ajmera Housing Corporation (for short M/s. Ajmera) vide its letter dated 20-4-2002 informed that as per the agreement dated 12-7-2000 said flat was purchased by Mrs. Yamini Surender Bhagwanji from Shri Bajaran R. Gupta. An amount of Rs. 47,000/- was paid to M/s. Ajmera and Rs. 5,17,000/- was paid to Shri Gupta. M/s. Ajmera had allotted the said flat consisting of 940 sq.ft. (Super Built Up) to Bajarang R. Gupta for consideration of Rs. 5,64,000/- and he had paid an amount of Rs. 5,17,000/- till 12-7-2000. It was further stated that Shri Gupta had agreed to sell the said flat to the AP for total consideration of Rs. 22,09,000/- vide the agreement dated 12-7-2000 and the AP had paid an amount of Rs. 3,31,400/- by a cheque drawn on Bahrain International Exchange and agreed to pay the balance amount of Rs. 18,30,600/- after obtaining the loan from financial institution. By a subsequent letter dated 6-5-2002 M/s. Ajmera informed the AP to take possession of Flat No. 1106 by making the balance payment of Rs. 86,140/-. By its letter dated 20-4-2002, M/s. Ajmera informed the details about Flat No. 1105 of the very same building and on 11th Floor and admeasuing 610 sq.ft. (Super Built Up). It was stated that the said flat was purchased by one Mrs. Pushpadevi B. Gupta for a total consideration of Rs. 3,66,000/- and she had paid an amount of Rs. 3,20,000/-. However, vide the agreement dated 12-7-2002 the said Mrs. Gupta sold the said flat to AP for a total consideration of Rs. 14,33,500/-. The AP had paid an amount of Rs. 2,15,000/- to Mrs. Gupta by a cheque drawn on India International Exchange and Rs. 46,000/- to M/s. Ajmera. She had agreed to pay balance amount of Rs. 11,72,500/- after getting loan from financial institution. She was advised by letter dated 6-5-2002 to take possession of Flat No. 1105 on making the balance payment of Rs. 57,910/-. Thus the AP had claimed to have availed a loan of Rs. 33.12 lakhs to aquire both the flats in Building No. 29 of Silver Arch. During the enquiry, it was also revealed that as on 30-9-2003 the AP had an outstanding loan amount of Rs. 49,34,264/- to be paid to the HDFC and till 17-1-2006 a total amount of Rs. 40,08,285/- was repaid against the said loan amount. Saving Bank Accounts (NRE) No. 01192/084184 with the State Bank of India, Kandivali, indicated that a total amount of Rs. 5,39,900/- was credited, out of which an amount of Rs. 3,24,000/-was transferred from Bahrain and the balance amount as on 1-2-2006 in the said account was only Rs. 4840/-. Whereas Saving Bank Accounts (NRE) No. 5-897400-113 with City Bank, Mumbai indicated that an amount of Rs. 4,98,200/- was credited on 26-5-2005 and the balance as on 16-2-2006 was only Rs. 17,063.31/-.
-
A fresh show-cause notice dated 29-11-2006 was issued under Section 6(1) of SAFEMA to the AP by the Competent Authority and she reply to the same on 20-2-2007. Personal hearing was granted to the AP and she reiterated her written submissions. The impugned order dated 7-12-2007 came to be passed forfeiting the following three immovable properties on the ground that they were illegally acquired properties in terms of Section 3(1)(c) of the SAFEMA:
(i) Flat No. B-17, B-Wing of Sai Milap CHS Ltd.Sai Baba Complex, Ciba Geigy Road, Goregaon (E), Mumbai 400 063.
(ii) Flat No. 1105, 11th Floor, Building No. B-29 Silver Arch, Shastri Nagar, Deluxe Phase,Off J.P. Road...
To continue reading
Request your trial