Jharkhand High Court
Nawazzuddin Ansari vs State Of Jharkhand And Ors. on 7 February, 2002
Equivalent citations: 2003(2)BLJR1230, 2003CRILJ2084
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
JUDGMENT Hari Shankar Prasad, J.
1. This writ application under Articles 226 and 227 of the Constitution of India has been filed for issuance of an appropriate order/direction for quashing the order dated 7-9-2002 passed in respondent No. 1 of 2002, whereby the Designated Authority-cum-Commissioner under the Act rejected the representation of the petitioner.
2. Case of the petitioner is that a case bearing Latehar P.S. Case No. 70/2002 under Sections 420/120-B and 379 IRC and Sections 3, 4, 5, 20 and 22 of the Prevention of Terrorism Act (hereinafter referred to as "POTA") was registered. In connection with investigation of this case, the I.O. of the case searched the godown of the petitioner and sealed the same. The petitioner earlier filed a W.P. (Cr.) No. 247/2002, wherein an order was passed on 19-8-2002 whereby petitioner was directed to approach the designated authority for appropriate relief and the petitioner approached the appropriate authority and filed a representation for appropriate relief and the designated authority, after herein all the parties concerned, came to a finding that I.O., who is SDPO, Barwadih, searched the godown under Section 165 Cr. P.C. and his action was in accordance with law and, therefore, no illegality was found in seating the godown in question and, therefore, the representation was rejected. As against the order dated 7-9-2002, passed by the designated authority, the petitioner has preferred this criminal writ petition.
3. Learned Counsel appearing for the petitioner submitted that the order of the designated authority is wholly misconceived as search has not been made under Section 165 Cr. P.C. but search has actually been made under Section 7 of the POTA. For making search and seizure under Section 7 of the POTA, there is a provision that before making search the I.O. has to obtain permission of the DGP, Jharkhand and he has to furnish information of search and seizure within 48 hours to the designated authority but no such procedure has been followed and as a result of such search and seizure the petitioner has been put to a heavy loss as Kendu leaves are stored in the godown, which is perishable articles and as a result of sealing of the godown for quite a long time, the petitioner has sustained a heavy loss. Provision of Section 7 of the Prevention of Terrorism Act is quoted hereinbelow:
"7. Powers of investigating officers and appeal against order of Designated Authority.--(1) If an officer (not below the rank of Superintendent of Police) investigating an offence committed under this Act, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize, such property, make an order of attachment directing the such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority, before whom the properties seized or attached are produced and a copy of such order shall be served on the person concerned.
(2) For the removal of doubts, it is hereby provided that where an organization is declared as a terrorist organization under this Act and the investigating officer has reason to believe that any person has custody of any property which is being used or is intended to be used for the purpose of such terrorist organization, he may, by an order in writing, seize or attach such property.
(3) The Investigating Officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property........"
4. Learned Counsel further pointed out that petitioner is not named in the FIR and, therefore, no search of his premises should have been made and it is quite wrong to say that search of the godown of the petitioner was made under Section 165 Cr. P.C. because Annexure-3 is a document, which shows sealing of the godown of the petitioner by the IO and from perusal of which it will appear that search of the godown of the petitioner was made in connection with investigation of Latehar P.S. Case No. 70/2002 and, therefore, before making search and seizure in this very case under this Act, IO should have obtained permission of the DGP Jharkhand but there is no such permission and, therefore, IO has illegally searched and sealed the godown of the petitioner and, therefore, the learned Counsel for the petitioner prayed for issuing a show-cause against the IO under Section 58 of POTA for exercising powers corruptly and maliciously.
5. On the other hand, Mr. B.S. Lal, learned AAG, pointed out that there is no illegality in the impugned order dated 7-9-2002 because IO has searched the premises under Section 165 Cr. P.C. and further under Section 14 of the Bihar Kendu Leaves (Control of Trade) Act, 1973.
6. Before coming to any conclusion on the rival contentions of the parties, it will be seen whether this writ application is maintainable here or not, Learned Counsel for the petitioner claims that search has been made though illegally under Section 7 of POTA.
7. Any person aggrieved by an order made by Designated Authority may prefer an appeal to the Special Court and the Special Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property. Clause (7) of Section 7 of POTA is quoted hereinbelow :
"Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Special Court and the Special Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property."
8. Section 34 of POTA deals with appeal, Section 34 says notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an inter-locutory order, of a Special Court to the High Court both on facts and on law. Section 34 is quoted hereinbelow :
"34. Appeal.--(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment; sentence or order, not being an inter-locutory order, of a Special Court of the High Court both on facts and on law........."
9. In the instant case, the petitioner had earlier moved this Court by filing W. P. (Cr.) No. 247/2002 under Section 12 of POTA, whereupon an order was passed to approach the Designated Authority and petitioner filed a representation before the Designated Authority, who after hearing the parties, passed order rejecting the representation and against that order of the Designated Authority remedy of the petitioner is to approach the Special Court for appropriate relief and no writ application under Articles 226 and 227 of the Constitution of India shall lie before this Court. Further after an order is passed by Special Court then petitioner shall have a right to prefer an appeal before the High Court where appeal shall be heard by a Division Bench.
10. Considering all facts and circumstances and the provisions of law as discussed hereinabove, in my opinion, this writ application is not maintainable.
11. In the result, this writ application is dismissed as not maintainable. However, liberty is given to the petitioner to move the Special Court, if so advised, and the Special Court is directed to entertain the application if filed by the petitioner and pass appropriate order in accordance with Saw without being prejudicial by this order.