Allowed

FPA-20/BOM/2010 of Suman S.Rana v/s The Deputy Director Directorate of Enforcement, Mumbai

ATFP12 Jun 2017FPA-20/BOM/2010

Case brief

AI extract

What is this about?

The Appellate Tribunal held that the appellant was neither the wife nor an associate of the detained person under the SAFEMA. Consequently, she did not qualify as an affected person, and the order forfeiting her properties was set aside.

What did the court decide?

Impugned order forfeiting properties set aside; consequential relief granted to appellant.

FPA-20/BOM/2010 of Suman S.Rana v/s The Deputy… — Pension and Retirement Benefits | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI

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(Under Section 12 of SAFEMA, 1976 as Amended by Finance Act, 2016)

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Date of Decision 12^th June, 2017.

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MP-42/BOM/2010 (Stay) & FPA-20/BOM/2010 Suman S.Rana … Appellant Versus The Deputy Director Directorate of Enforcement, Mumbai … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellants	: Shri B. Seshagopalan, Advocate
For the respondent	: Shri Stanly Joseph, Inspecting Officer
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI KAUSHAL SRIVASTAVA	: MEMBER
SHRI ANAND KISHORE	: MEMBER

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JUDGMENT

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The present appeal is filed against the order dated 08.07.2010 passed by the Competent Authority, Mumbai under section 7 of the SAFEMA, 1976 forfeiting the properties as indicated therein and belonging to the appellant Smt. Suman S. Rana. The relevant brief facts of the case are as under:

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Mr. Suresh Kumar Jain @ Sanjay Srinath Rana (hereinafter referred to as Affected Person No. 1 or AP-1) was ordered to be detained vide order No. PSA-1206/2/SPL-3(A) dated 21.08.2006 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 (hereinafter referred to as COFEPOSA) and till date the said detention order has neither been revoked nor quashed by any court of FPA-20/BOM/2010 Page 1 of 16

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competent jurisdiction, therefore, AP-1 is a person covered under Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as „SAFEMA‟). Mrs. Suman S. Rana (hereinafter referred to as Affected Person No. 2 or AP-2) is the wife of AP-1, therefore, AP-2 is also covered under Section 2(2)(c) of SAFEMA as relative. It was further noticed that AP-2 was staying with AP-1 and providing all the necessary help and assistance to AP-1 in his illegal activities, therefore, she is also covered under the definition of „associate‟ as provided under Section 2(2) (d) of the Act and hence provisions of SAFEMA are applicable to both the APs.

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On the basis of the report received from the investigating agency and material / evidences gathered during the course of enquiry conducted by the respondent‟s office, the properties as described herein below which were found to be in the name of AP-2 and on having reasons to believe that the said properties were acquired wholly or partly out of or by means of income, earning or assets derived or money earned by the AP-1 from illegal activities, a show cause notice under Section 6 of the SAFEMA was issued on 17.04.2008 calling upon the APs to explain the sources of income and earnings, out of which and by means of which the properties as detailed below were acquired and to explain as to why the said properties should not be declared as illegally acquired properties as defined under Section 3(1)(c ) of the SAFEMA and should not be forfeited under the provisions of the said Act Central Government free from all encumbrances.

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S.No.	Details of Property	Holder
1.	Flat No. C-203, Om Shivdham CHS,	AP-2
	Opp. Nityanad Society, Mahul Road, R.C. Marg, Chembur, Mumbai-400074.	(present appellant)
2.	Flat No. 1604, Satyam Tower,	AP-2
	90 Feet Road, W.E. Highway,	(present appellant)

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Page 2 of 16

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FPA-20/BOM/2010

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Kandivli (East), Mumbai-400101.

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Policy No. 262573731 sum assured of AP-2 Rs. 5,65,000/- taken from LIC of India, (Present appellant) Branch 891, Vinod Silk Mills Compound, Chakrawarti Ashok Road, Kandivli (E) Mumbai-400101.

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AP-2/ the present appellant in response to the show cause notice vide letter dated 17.06.2008 submitted that she was neither the wife nor associate of the detenu. Further, vide letter dated 20.06.2008, she submitted that she had no connection with the detenu and that she was the legally wedded wife of Late Sanjay Rana, married on 31.01.1990 at Village Devki, Agara, UP, who had passed away in 1999 and submitted the copy of his death certificate The appellant was in a licensed profession known as Mujra Dance in the Cogress buildings, which was/is to generate income in cash which she used to deposit in her bank account. During the course of her licensed profession, she came across various customers and one such customer is Suresh Kumar U. Jain, the detenu.

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3.1 Vide letter dated 14.08.2008, AP-2 made the following submissions and referred to the judgment of Aslam Merchant decided by the Hon‟ble Supreme Court, and Rajnikant Belekar decided by the Hon‟ble High Court of Mumbai and Minu Shaikh decided by the Hon‟ble ATFP.

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(a) That the property which is sought to be forfeited has to have a direct nexus with the illegal income of the detenu.

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(b) That the property mentioned at S.No. 2 of the notice, i.e. „Flat No. 1604, Satyam Tower, 90 Feet Road, W.E. Highway, Kandivli (East), Mumbai – 400101‟ had already been sold by her.

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(c) That she had no financial link or nexus with the detenu, other than the fact that he was one of her paying guest and that as her husband was alive she cannot marry legally.

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Page 3 of 16

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FPA-20/BOM/2010

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(d) That she purchased the property mentioned as S. No. 1 of the Show Cause Notice vide Sale Agreement dated 1.11.1996 for total consideration of Rs. 6,25,000/- and the payments were made from the gift of Rs. 3,00,000/- received from her grandfather and Rs. 4,05,000/- earned by her from singing on various functions at Congress House, Lamington Road, Mumbai.

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(e) That the detenu had never given any money as advance for the purchase of the said property.

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(f) That the property mentioned at S. No. 3 of the SCN, i.e., the LIC Policy No. 262573731 for a sum assured of Rs. 5,65,000/premium was paid from her regular income which has been shown in the Income Tax Returns.

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(g) That the detention order was issued on 21.08.2006 and it was not even suggested that the detenue was indulging in any illegal activities with her since 1996.

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In adjudication, the explanation of the appellant was not found to be satisfactory and the mentioned three properties were forfeited to the Central Government under the impugned order. Subsequently, vide the Tribunal‟s order dated 31.03.2011 in appeal No. FPA-18/BOM/2010 the property mentioned at serial no. 2 above namely Flat No. 1604, Satyam Tower, 90 Feet Road, W.E. Highway, Kandivli (East), Mumbai was ordered to be released to the appellants therein namely Pushpendra Singh A. Gour and others who claimed to have purchased the property from AP-2 in the year 2000 which was way before the issue of detention order to AP-1 in 2006 and issue of show cause notice to the appellant.

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The appellant has filed the present appeal in relation to the remaining two properties mentioned at serial no. 1 and 3 above and raised various grounds as mentioned therein.

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During the hearing of the appeal before the Tribunal, the learned counsel appearing on behalf of the appellant contested the impugned order mainly on the following grounds.

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Page 4 of 16

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FPA-20/BOM/2010

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(i) Neither the show cause notice issued under Section 6(1) of SAFEMA nor the reasons recorded for issue of such show cause notice nor the impugned order brought out the nexus of the forfeited properties to the alleged illegal activities of the AP-1. Relying on the ratio of the Hon‟ble Supreme Court decision in the case of P.P. Abdulla v. Competent Authority , reported in (2007) 2 SCC 510, Fatima Mohd. Amin v. Union of India , reported in (2003) 7 SCC 436 and that of Aslam Mohammad Merchant v. Competent Authority , reported in (2008) 14 SCC 186, it was submitted that the show cause notice and the impugned order were not sustainable in law.

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(ii) The basis of the show cause notice and the finding of the learned Competent Authority in the impugned order that the appellant was the wife of the AP-1 was wrong in fact and in law. Further, neither the show cause notice nor „reason to believe‟ for issue of the show cause notice nor the impugned order brought out as to how the appellant would be covered within the definition of the „associate‟ as defined under Section 2(2)(d) of SAFEMA read with the Explanation-3 to the said section. Therefore, the very basis for the present proceedings against the appellant leading to forfeiture of the properties was bad in law and the impugned order was required to be set aside.

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Detailed written submissions on the above points were also filed on behalf of the appellant which will be referred to during the course of the discussion in this order. The source of acquisition of the immovable property in question which was acquired as early as on 01.11.1996 and there being no nexus of the acquisition of the property will be alleged illegal activity of the appellant have also been mentioned in the written submissions.

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Page 5 of 16

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FPA-20/BOM/2010

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In reply to the arguments on behalf of the appellant, the learned Inspecting Officer, office of Competent Authority, Ahmedabad appearing on behalf of the respondent mainly sought to defend the order on the ground that the appellant would be covered within the definition of „associate‟ of AP-1 and specifically clause-(ii) of Explanation-3 under section 2 of the Act whereby “any individual who had been or is managing the affairs or keeping the account of such person” is covered within the meaning of „associate‟ as referred to in clause-(d) of Section 2(2) of SAFEMA. For this purpose, it was argued that the appellant- AP-2 had assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain legal documents like Ration Card and Passport in such assumed name. The fabricated documents have also been utilized by her (viz. the appellant). It was submitted that therefore she would be an „associate‟ of AP-1 for the purposes of the Act.

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7.1 The contention of the appellant that she could not also be considered as the wife of AP-1 was not seriously contested by the learned representative appearing for the respondent during the hearing.

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We have considered the rival contentions, the pleadings of both the sides in the case and also the arguments made during the hearing of the appeal. We first take up the contention of the appellant that in the facts and circumstances of the case, the appellant was neither the wife of the AP-1 nor she could be considered as an „associate‟ of AP-1 and therefore she was not covered as an affected person under SAFEMA and the show cause notice under Section 6 of the Act as well as the impugned order were un-sustainable.

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We fist discuss the question whether the appellant could be considered to be the wife/ spouse of AP-1 thereby bringing her within the definition of „relative‟ of AP-1 and hence within the preview of the SAFEMA.

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FPA-20/BOM/2010

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Page 6 of 16

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9.1 The first limb of the argument put forth by the appellant in this regard is that certain crucial factors emerging from the grounds of detention issued against the AP-1 which were contrary to/at variance with the grounds as mentioned by the Competent Authority in the show cause notice and „reasons to believe‟ for issuing the show cause notice were not considered. The following statements/conclusions in the grounds for issue of the detention order dated 21.04.2006 in respect of AP-1 have been mentioned in this regard.

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Para-19:In his statement dt. 05.11.2005 the said Suresh Kumar Jain (against whom the detention order has been issued) and which is the basis for initiation for SAFEMA proceedings in the case has inter-alia stated that he was residing with his sister in law namely Ms. Suman Rana (the Appellant herein) at C-203, Om Shivdham CHS, Opp Nithyanand Society, Mahul Road, Chembur, Mumbai.

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Para:-20 the premises at C-203, Om Shivdham CHS opp Nityanand Society, Mahul Road, Chembur, Mumbai was searched on 10.02.2005….Further perusal of the documents recovered under Panchanama revealed that he (i.e. Suresh Kumar U. Jain) had obtained passport under the name and identity of Shri Sanjay Srinath Rana. The same was brought to the notice of the RPO, Mumbai and vide letter dated 23.01.2006 who has proposed to revoke the said passport bearing No. B- 2907103 dated 10.10.2000 and accordingly he was asked to appear before the PRO within 15 days from the receipt of the said letter.

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Para 21 . ……. During the period from November 2004 to April 2005 he (Suresh Kumar U. Jain) was staying with her at the said premises ……….

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Para-22. ……he married Suman Rana in the year 1994 and have two children. He knew Suman Rana since the last 10-12 years. He assumed the name of Sanjay Srinath Rana after marriage. He got issued the FPA-20/BOM/2010 Page 7 of 16

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passport No. B 2907103 in the said name ……….and he did not have any passport in the name of Suresh Kumar U. Jain.

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Para-27 Investigations have revealed that he ( Suresh Kumar. U. Jain) had also obtained a passport under a false name and identity. He had given his name as Mr. Sanjay to various persons in order to hide his identity …..He had also confessed that he had used the false name as Mr. Sanjay in order to avoid being identified, if detected in any illegal activity.

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Para-28. …….The fact that he had obtained a passport with fake name and identity also manifests that he had pre planned agenda and has deliberately created a dual identity to avoid detection by investigating agencies.

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9.2 Further, as per the report submitted by the investigating agency viz. DRI, Mumbai, while seeking proclamation to declare the AP-1 as an absconder from the court of Ld. Additional CMM, Mumbai, it was mentioned that the family of AP-1 comprising of his parents and lawfully wedded wife and four daughters lived at Flat No. 101, behind State Bank of Bikaner & Jaipur, Opp. Collector Office, Kalyan Nagar, Jalore, Rajasthan and that his native place is Agarwal Colony, behind Hanuman Temple, Bakra Road, Jalore, Rajasthan.

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9.3 It was submitted that ignoring all these crucial and undisputed facts the Show Cause Notice dated 17.04.2008 has been issued by the then Competent Authority.

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The appellant has also cited certain decisions in support of her contention that she could not be considered as the wife/spouse of AP-1. These decisions could will be considered at the appropriate place in this order.

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Page 8 of 16

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FPA-20/BOM/2010

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While no specific arguments have been made on behalf of the respondent during the hearing of the appeal, on this issue in the impugned order apart from the fact that AP-1 had stayed with AP2/appellant at her subject house, reliance has mainly been placed on the statement of AP-1 dated 25.01.2006 wherein he, inter-alia, stated that he had married Smt. Suman Rana (in the year 1994) and they have two children and after marriage he assumed the name Sanjay Srinath Rana, certain documentary evidence such as applications made by AP-1 and AP2 to the Passport Office, Worli in the year 2000 for issue of passport alongwith copies of Ration Card, Telephone Bill in the name of AP-1, passport of her son Master Nishant which shows father name as Rana Sanjay Srinath and an affidavit submitted by AP-2 about her marriage which was signed by AP-1 as well as AP-2 where they clearly stated that they were married and were husband and wife.

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On consideration of the matter, it is seen that it has been the consistent stand of the appellant through the investigations and the subsequent proceedings of that she was neither the wife nor associate of detenu; that she was married to one Shri Sanjay Rana who passed away in 1999; that she being a professional Mujra Dancer, she came into contact with various customers during the course of such profession and AP-2 was one such person; that AP-2 had stayed with her from November, 2004 to April, 2005; that in the Year 2000 and in connection with the treatment of her son Master Nishant she had taken the help of AP-2 for making her sons and her own passport and had given certain documents relating to her residence to AP-2 but these were also misused by the AP-2 to obtain a passport in the assumed name of her late husband Sanjay Srinath Rana. Regarding the affidavit given by her in connection with the passport application wherein it is stated that AP-1 and AP-2 are husband and wife,

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Page 9 of 16

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FPA-20/BOM/2010

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her explanation is that this happened on account of her being an illiterate person.

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12.1 As far as the statements of AP-1 are concerned, we find that he has given differing statements regarding his relationship with the appellant at different times. As pointed by the appellant, while in the statement dated 05.11.2005, It was stated that he was residing with Ms. Suman Rana, his sister in law, in his subsequent statement dated 22.01.2006 he stated that he had married Suman Rana in the year 1994 and he had two children; that he stayed with Ms. Suman Rana during the period November, 2004 to April 2005; that he assumed the name of Sanjay Srinath Rana after marriage and had got issued a passport in the said name.

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In this regard it is observed that during the course of these proceedings in 2013, the appellant had filed an application to bring on record certain documents as additional evidence. Apart from copies of certain court decisions, certain documents including documents filed by the investigating agency DRI in bail proceedings before the court of learned Additional CMM, Mumbai were sought to be filed. Vide the Tribunal‟s order dated 14.07.2014, the said application was partly dismissed and only copies of the court order dated 29^th November, 2009 passed by the Ld ACMM and the order of the Hon‟ble High Court of Judicature at Bombay in Criminal Writ Petition No. 3233 of 2010 were permitted to be filed and the other documents were refused. Thus, the appellant‟s argument with regard to the submission made by the investigating agency before the Ld. ACMM for issue of proclamation regarding AP-1 as referred in Para-9.2 above cannot be taken in to consideration. We however, find that the order dated 29.11.2005 dealing with bail application of AP-1 which was taken on record vide the Tribunal‟s order 14.07.2014, in para 4 thereof records the submission of the learned Prosecutor of DRI that the wife of AP-1 and four daughters were residing at the address at Jalore, Rajasthan as declared by FPA-20/BOM/2010 Page 10 of 16

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AP-1 though the accused hardly visited the native place for 20 to 30 days in a year. It is therefore clear that AP-1‟s family including his wife and daughters were residing at Jalore, Rajasthan. The present matter regarding status of AP-2 as wife of AP-1 as alleged by the department is required to be considered taking this aspect into account.

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13.1 The appellant, as per her contention, had one child Master Nishant Rana, who was born in 1993; however, at some stage of the proceedings, there is a reference to another child of the appellant, namely Ms Pooja Rana, whose date of birth is 1992. The appellant however, contends that the said child is an adopted child. On the other hand AP-1, in his statement dated 22.01.2006 stated that he had married Suman Rana in 1994 and that he had two children. Considering that AP-1s family comprising of his wife and daughters were found to be staying at Jalore, Rajasthan as also the fact that AP-1 has stated the period of his marriage of AP-1 with AP-2, as 1994, and that the youngest child of AP-2 was born in 1993, the version as stated by AP-1 does not appear to be correct.

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13.2 Weighing the statements of the various persons on record as well as the documentary evidence produced by both sides and the submissions made, we are inclined to agree with the contention of the appellant that though AP-1 was known to AP-2 having come into her contact during the course of her profession as a Mujra Dancer, the relationship does not appear to be one of husband and wife.

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13.3 We find that one point that is clearly established from the deposition of AP-1 and AP-2 and which is also admitted by the department that AP-1 had stayed at the subject premises of AP-2 for the period November, 2004 to April 2005. In other words, AP-1 was not regularly staying with AP-2. The question to be considered is whether such stay, alongwith other circumstances as referred by the Respondent, would make the relationship

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FPA-20/BOM/2010

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Page 11 of 16

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between the two as husband and wife. This aspect is considered herein below.

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It has been submitted on behalf of the appellant that for the purpose of invoking clause (c) of Section (2)(2) of SAFEMA whereby “relative” of a person referred to in clause (a) or clause (b) of the section has been brought within the purview of SAFEMA, the term “relative” has been defined in Explanation-2 below the section. In terms of the said definition and in the context of the present case “relative” in relation to a person means spouse of the person. In the absence of any special definition for “spouse” in the Act, the generic meaning of the word „spouse‟ would prevail. The generic meaning of „spouse‟ is the party to marriage, either husband or wife. Further, in the absence of definition of “marriage” in the Act, the common law meaning of marriage would apply and by which merely spending weekends together or one night would not make it the relationship of husband and wife. In this context, the judgment of the Hon‟ble Supreme Court in the case of D.Velusamy Vs D.Pachaiammal , AIR 2011- SCC 479, MANU/SC/0872/2010 has been referred by the appellant. Relevant extracts from Paras-33 to Para-35 of the judgment are reproduced hereunder

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33. In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married: (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (see 'Common Law Marriage' in Wikipedia on Google) In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.

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34. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage' 07-06-2017 (Page 6 of 7 ) www.manupatra.com Appellate Tribunal for Forfeited Property

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Page 12 of 16

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FPA-20/BOM/2010

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35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'live in relationship'. The Court in the grab of interpretation cannot change the language of the statute. ……….

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According to the ratio of above decision, the wife of the AP-1 living in Rajasthan, who was referred to in the order dated 29.11.2005 of the Ld. ACMM Mumbai (Para 13 above), could only be considered as the spouse/wife of AP-1/detenu and by no stretch of imagination, the appellant herein, with whom the detenu lived for a brief period of six months from October, 2004 to April, 2005, could be considered to be the spouse/wife of AP-1. We find that the ratio of the above decision is squarely applicable to the present case.

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14.1 Another judgment cited by the appellant is that of the Supreme Court in the case of Vijeta Gajra vs. State of NCT Delhi , 2010 ALL MR (CRL) 2656 (SC) in which while interpreting the meaning of „relative‟ of husband for the purposes of proceedings for offences under section 498 A and 406 of the IPC, it was held that this would be limited only to blood relation by marriage. It is observed that the facts of the said case and the issue decided therein are not applicable to the present case.

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14.2 The appellant have also relied on the judgment of the Supreme Court in the case of S.Bala Subranmanyam vs. Suruttayan , AIR 1994 SCC 133 to contend that the presumption of legal marriage as husband and wife was available only where the man and woman live together for a long time (years) as husband and wife and then alone could the presumption arise in law of legality of marriage extending between the two. As per the ratio of this decision merely because the AP-1 had stayed with the appellant for a period of six months, presumption of legal marriage between the two would not arise.

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FPA-20/BOM/2010

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14.3. In view of the discussion above, we agree with the contention of the appellant that the appellant/AP-2 could not be considered as the spouse/wife of AP-1 so as to bring her within the purview of “relative” of AP-1 in terms of Section 2(2)(c) of the Act read with Explanation-2 thereto. It is pertinent to note that this aspect has also not been contested by the learned representative of the respondent during the hearing.

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We next take up the finding in the impugned order that the appellant was covered within the definition of “associate” of the AP1/detenu on the ground that she assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain documents like Ration Card and Passport in the assumed name and that she also use such fabricated documents.

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15.1 The word “associate” is defined in the Explanation-3 under Section

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2 of SAFEMA as follows:

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Explanation 3.—For the purposes of clause (d), "associate", in relation to a person, means—

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(i) any individual who had been or is residing in the residential premises (including out-houses) of such person;

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(ii) any individual who had been or is managing the affairs or keeping the accounts of such person;

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(iii) any association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies Act, 1956(1 of 1956), of which such person had been or is a member, partner or director;

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(iv) any individual who had been or is a member, partner or director of an association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies when such person had been or is a member, partner or director of such association body, partnership firm or private company;

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(v) any person who had been or is managing the affairs, or keeping the accounts, of an association of persons, body of individuals, partnership firm or private company referred to in clause (iii);

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It is contended that that appellant would be covered within Clause (ii) of the said Explanation as she was allegedly managing the affairs of APFPA-20/BOM/2010 Page 14 of 16

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The only activities that have been stated in this regard are that the appellant assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain documents like Ration Card and Passport in the assumed name and that the detenu resided in the residence of the appellant through November, 2004 to April, 2005. We are of the view that the said activities by themselves would not bring the appellant within the purview of the term „associate‟ on the basis that she was managing the affairs of or keeping the accounts of AP-1 The explanation of the appellant in this regard is that certain documents had been given by her to AP-1/detenu to help her in obtaining the passport for her blind son Nishant Rana, which was misused by him to obtain a passport for himself in an assumed name using the same set of documents. It is observed that there is no evidence to establish that the appellant knowingly assisted AP-1/detenu in assuming the false identity of another person or in the obtaining his passport in the assumed name. Considering the overall facts and circumstances we are inclined to accept the contention of the appellant that using of the appellant‟s documents by AP-1to obtain his passport and ration card in a different name was on account of misuse of said documents by AP-1 rather than an instance of the appellant managing the affairs of AP-1. Moreover, activity of the type alleged on part of the appellant would not be sufficient to bring her within the scope of an individual “managing the affairs of detenu/such person” which is of a much wider scope and coverage.

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16.1 There is also no evidence whatsoever that may indicate that the appellant was involved in the alleged illegal activities of the detenu/AP-1 in any manner whatsoever. The period of stay of the detenu at the appellant‟s premises is also from November, 2004 to April, 2005 whereas the alleged illegal activity of AP-1 was of a later period viz. October, 2005. It is also observed that the impugned order is totally silent as to under

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FPA-20/BOM/2010

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Page 15 of 16

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which clause of the definition of associate, the appellants case is covered. We therefore find that the finding of the lower authority that the appellant would be covered within the term “associate” as defined in the Act is unsustainable.

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In view of the discussion above, we find that the appellant cannot be considered as the wife of the detenu/AP-1 and hence not covered under the term “relative” as defined in the Act. She is also not covered within the definition of the term “associate” of detenu/AP-1 as defined under the Act. Consequently, she does not qualify as a person covered by the provisions of SAFEMA and accordingly the provisions of SAFEMA are not applicable to her. In conclusion, we find that the impugned order is unsustainable in law. As the impugned order is liable to be set aside on this ground itself, we do not find it necessary to go into the other grounds and refrain from doing so.

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The impugned order is set aside with consequential relief to the appellant. Miscellaneous application (Stay) in the matter is also disposed of in the above terms.

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No order as to costs.

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(Justice Manmohan Singh) Chairman

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(Kaushal Srivastava)

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Member

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(Anand Kishore) Member

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New Delhi, 12^th June, 2017.