Jammu & Kashmir High Court - Srinagar Bench
Tanveer Gul vs State And Ors. on 8 November, 2017
On Board matter
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Owp no. 771/2011, MP No. 1242/2011
Date of decision: 08.11.2017
Tanveer Gul vs. State and ors.
Coram:
Hon'bleMr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the petitioner(s) : Mr. G.A Lone, adv.
For the respondent(s) : Mr. M.A Rathore, AAG
i) Whether approved for reporting in Law journals etc.: Yes/No
ii) Whether approved for publication in press: Yes/No
1. Petitioner is aggrieved of prohibitory order, passed by respondent no. 4 Superintendent of Police (ABP), Vigilance Organization, Kashmir (hereinafter referred to as VOK) Srinagar issued vide no. SP(ABP)/11-FIR-312-19 dated 01.03.2011 prohibiting the petitioner inter alia that she should not sell or transfer her property viz two storeyed residential house raised over 01 kanal and 14 marlas of land situated at Iqbal Colony Rawalpora, Srinagar and attachment of the said residential house of the petitioner issued in terms of order no. SP(ABP)-FIR-37/2010-10-11-15 dated 22.06.2011, and challenges the same on the grounds detailed out as under:
"a) That the petitioner has purchased the land out of her own funds in the year 2008 as is evident from the extracts of Jamabandi and Girdawari when the owner of the land measuring 14 Marla covered by Survey No. 937 min situate in Mouza Rawalpora Tehsil South, obtained extracts for sale of the land in favour of the petitioner. The petitioner had paid Owp no. 771/2011 Page 1 substantial amount of consideration at the time the bargain was struck with the vendor, Mohammad Shahnawaz. Sheikh, in September, 2008. The petitioner had started construction of the house immediately thereafter in the year 2008 and had completed it in the first quarter of 2009. The sale deed was formally executed on 20-09-2009 though petitioner had by that time constructed the house and occupied it for residential purposes from 1st week of April 2009 as is evident from the electric connection provided to her by the Electric Department through Installation No. 30475 and ID No. 11603. The case has been registered at Police Station Awantipora as FIR No. 174 in the year2010.According to the information available to the petitioner, which information she believes to be authenticated and correct, the amount of award was for the first time drawn from the Bank in the name of Showkat Ahmad Dar in May 2009. The petitioner or her husband are not involved either with the acquisition of the land or the distribution of amount of compensation nor has any part of their land been acquired for the four- lanning National Highway. The petitioner and her husband can, therefore, in no way be involved in the commission of offences punishable under section 5(1)(c), 5(1)(d) read with section 5(2) of Prevention of Corruption Act and Section 1208-B, 409, 468, 471 RPC. The allegation of conspiracy leveled against them is also an afterthought and baseless. The petitioner had completed the residential house and started living in it much before the alleged offences are stated to have been committed by the Collector in association with other officers. The investigating Officer has suppressed the relevant fact with regard to the purchase of land and the construction of the house on Survey No. 937 min with an oblique motive so as to gain publicity and render the petitioner houseless.
In this behalf the Investigating Officer in the impugned order has made a very vague allegation/statement that during investigation, accused Farukh Jehanzeib has been found to have purchased the properties in the year 2009-10 out of the misappropriated funds that has allegedly fallen to his kitty through Showkat Ahmad Dar. No details Owp no. 771/2011 Page 2 of any kind are given with regard to these purchases. However, in Para 12 of the order it has been stated that the accused Farukh Jehanzeib has purchased land measuring 1 Kanal 14 Marla under Survey No. 937 and 931 min in the name of his wife Tanweera Gul and constructed a palatial house over it and the money for the purpose has been found channeled from the misappropriated amount. This statement is also vague with no details provided in regard to the period of purchase, including month or the year in which the land was purchased. The construction of the house finds mention in Para 13 of the order by saying that said house was constructed in the year 2009-The statement made in this behalf is on the face of it false and having been made dishonestly.so as to bring the property under attachment. The purchase of land measuring 14 Marias covered by Survey No. 937 min, on which the house is constructed, has been made in September 2008 and the house was completed by the beginning of first quarter of 2009. The petitioner, as per the official documents, has been residing in the house with her family from April 2009.Thequestion of purchasing the land and construction of the house on the said land in the year2009-10 allegedly from the misappropriated amount does not arise.
b) That the order impugned shows that petitioner is not accused of any embezzlement, dishonesty or conspiracy or the commission of the alleged offences which are being investigated by the Vigilance Organization. Nothing is discernable from the order impugned that the house constructed by the petitioner on the land purchased by her from her own funds was a 'benami transaction'. The petitioner being in conspiracy of an act, which has allegedly taken place much after the purchase of land and construction of the house, for using the misappropriated amount for the aforesaid purchases is, therefore, imaginary and the allegations are made in vacuum without any substance. There is also no logic in connecting the purchase of the land and the construction of the house with an offence which is alleged to have been committed in the year 2009-10.
Owp no. 771/2011 Page 3
c) That the provisions of Section 8(B) of the J&K Prevention of Corruption Act as amended by the Act of 2006 on the face of it shows that a property can be brought under attachment only in regard to which the Investigating Officer (not below the rank of SP of the Vigilance Organization) has reason to believe that such property has been acquired by resorting to such acts of omission and commission which constitute an offence of 'criminal misconduct' as defined under Section 5 of the Act and that such property can be seized and brought under attachment after approval from the Commissioner Vigilance in writing. Even after the approval is obtained the order of attachment or seizure of the property is only tentative and can be executed only after the order is reviewed by the Designated Authority. For understanding the legal position the contours of the Investigating Officer's power under Sub Section (1) of Section 8(B) of Prevention of Corruption Act is reproduced below in so far as relevant:
"8-B. Powers of the investigating officers.-
(1) If an officer (not below the rank of Superintendent of Police) of the Vigilance Organization, investigation an offence committed under this Act, has reason to believe that any property in relation to which an investigation is being conducted has been acquired by resorting to such acts of omission and commission which constitute an offence of 'criminal misconduct' as defined under Section 5, he shall, with the prior approval in writing of the Commission of the Vigilance Organization, make an order seizing such property and, where it is not practicable to seize such property, make an order of attachment directing that 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 Owp no. 771/2011 Page 4 produced and a copy of such order shall be served on the person concerned:"
The plain reading of the provision reveals that the power to seize or attach the property can be effected; firstly, by the Investigating Officer who shall not be below the rank of Superintendent of Vigilance; secondly, that the offence under which the property can be seized or attached has been acquired by resorting to such acts of omission and commission which constitutes offence of 'criminal misconduct' as defined under Section 5 of the Prevention of Corruption Act; thirdly, that during investigation of such offence the Investigating Officer must on reasons believe that the property under reference must be such in relation to which investigation is being conducted; and finally, that before making order of seizure /attachment the Investigating Officer must have prior approval of Vigilance Commissioner. From the language used it is apparent that all the aforesaid features must necessarily exist in order to legitimately authorize the Investigating Officer with authority to exercise the power mentioned therein. It further appears that for arising at the conclusion that there are reasons for the Investigating Officer to believe that the property has been acquired by commission of' criminal misconduct' there must be material existing and disclosed in the order so as to avoid any arbitrariness on the part of the Investigating Officer for depriving a person from his immovable property like that of a residential house which is a fundamental right guaranteed under the Constitution to the State Subjects of the State. On the face of the order no material is disclosed to justify the conclusion that a reasonable belief was entertained by the Investigating Officer about the acquisition of the property by 'criminal misconduct'. The material which has been disclosed to the Investigating Officer by the petitioner when the Prohibitory Order was issued in respect of residential house in question was completely ignored and has been suppressed so as to justify the order by making a wild and bald statement that the house has been built from misappropriated amount which Owp no. 771/2011 Page 5 misappropriation has taken place admittedly after May 2009 when the house was complete for being occupied as a residential area by 1st week of April 2009.
d) That the property which can be brought under attachment should be one about which the investigation is being conducted. The investigation in the present case is conducted with regard to the alleged misappropriation of funds made available to Collector Land Acquisition National Highway, Pulwama, by dishonest and corrupt means. The house of the petitioner is not the subject matter of investigation nor does anything to that extent figure in the FIR. Be that as it may, the provisions of Section 8(8) can be utilized only with regard to the property obtained by acts of omission and commission which constitute 'criminal misconduct' as defined in J&K Prevention of Corruption Act. The 'criminal misconduct' is defined in Section 5 and Section 5 in so far as relevant reads as under:
"5. Criminal misconduct (1) A public servant is said to commit the offence of Criminal misconduct-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the State Ranbir Penal Code, Samvat 1989; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he Owp no. 771/2011 Page 6 is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other persons any valuable thing or pecuniary advantage; or
(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known source of income.
Explanation.- For the purpose of clause (e) the expression "property" includes any interest in property, movable or immovable, and the proceeds of sale thereof and any money or investment which for the time being represents the proceeds of sale...."
Bare perusal of the definition of misconduct shows that the offence is exclusively attributed to a public servant. The property in terms of Section 8(B) which can be brought under the mischief of seizure/attachment should belong to or should be possessed by the public servant. Section 8(B) read with Section 5 of Prevention of Corruption Act, does not bring within its ambit the property of a person who is alleged to be a conspirator. Involved in the commission of offence punishable under section 120(b) of RPC, not to speak of a person who is not even involved in such conspiracy with the public servant. The petitioner submits Owp no. 771/2011 Page 7 that her house has been attached by the Investigating Officer without any authority and power available to him under Section 8(B). The order of attachment is, therefore, without Jurisdiction and void ab initio. The petitioner is not only entitled to release of the property, but is also entitled to compensation for which she will take appropriate legal action after receiving necessary legal advice on that score.
e) That the property having been brought under the- attachment without any authority by abuse of process of law does not come within the four corners of Section 8 (B) and, therefore, the petitioner instead of availing the remedy of appeal has filed this writ petition for safeguarding her fundamental rights guaranteed under Article 19 & 21 of the Constitution of India.
f) That the right to hold and possess the property is a fundamental right in the State. The right cannot be lightly taken away by way of the procedure prescribed under Section 8(B) providing un-channeled and unguided powers to the Investigating Officer to deprive a person from his property. The provision of Section 8(B) and other relevant provisions are, therefore, ultravires to the constitution, liable to be struck down and removed from the statute book. The corruption may be a hated subject, but the right to property is a fundamental right and such a right cannot be taken over or curtailed or infringed on the mere ipsedixit of the Investigating Officer who merely on entertaining a belief that property has been obtained by acts of omission and commission punishable under section 5 of the Prevention of Corruption Act brings it under attachment. The power apart from being unjust is unwarranted and amounts to arbitrariness. The petitioner's residence has been taken away and. she has been rendered homeless. The right to residence is a fundamental right guaranteed under Article 21 of the Constitution of India. The Investigating Officer has passed the impugned order in complete disregard of the petitioner's fundamental and statutory rights and Owp no. 771/2011 Page 8 she has been thrown away on the roadside and her household goods have also been removed from the house. The· order in the circumstances of the case amounts to punishment even before trial or even before any accusation of criminal liability is made or raised against the petitioner.
g) That Section 8 (B) of Prevention of Corruption Act as amended provides deprivation of property without notice to the owner/holder of property irrespective of the fact whether the owner or occupier is an accused or not. By way of attachment contemplated by and under Section 8(B), the owner is denied his right to possess and hold the property even though he may not be an accused in the case or may not be otherwise involved in the alleged commission of offence punishable under Section 5 of the Prevention of Corruption Act. The provision of law is, therefore, unreasonable and unjust, liable to be struck down.
h) That the order impugned, including the Prohibitory Order issued on 01-03-2011 creates fetters upon the rights of the petitioner to deal with the property as a lawful owner. It is her fundamental right to deal with the property in any manner which she chooses, including its sale to third party. The provisio to section 8(B) is also ultravires as that also give an unchanneled and unguided power to Investigating officer to issue a Prohibitory Order directing a lawful owner of the property not to sell or transfer it.
i) That since the provisions of Section 8(B) are not applicable with regard to the property of a private person, particularly when such a person is not an accused in the case and that the order is without jurisdiction, the petitioner is filing this petition for enforcement and protection of her fundamental rights as no other remedy is an efficacious remedy in the circumstances of the case."
Owp no. 771/2011 Page 9
02. On notice respondents 3 and 4 have filed objections wherein the Vigilance Organization has stated that they have received a communication no. Home/229/2010-JSA dated 27.10.2010 from Govt of Jammu and Kashmir, Civil Secretariat, Home Department, Srinagar referring the case FIR no. 174/2010 u/ss 409, 467, 468, 471, 420, 120-B RPC Police Station, Awantipora to State Vigilance Organization (hereinafter referred to as SVO) relating to Rs. 20/- Crores land compensation scam in J&K Bank branch Lethpora, Pulwama for thorough investigation. On this case FIR No. 37/2010 has been registered by Police station VOK under section 5(1) (c), 5(1) (d), 5(2) P.C Act read with section 120-B, 409, 468 and 471 RPC.
03. It is further stated that acquisition of land for four lanning in respect of National Highway-IA in village Lethpora and adjacent villages was required to be made under Land Acquisition Act Svt. 1990 and compensation required to be disbursed amongst concerned claimants in accordance with law by Shri Adil Rashid Naqash, Addl. Deputy Commissioner Pulwama in his capacity as Collector Land Acquisition National Highway Four Lanning.
04. It is stated that during the period 2009-10 the misappropriation of compensation amount of over twenty crores of rupees meant for disbursement among the land owners of four lanning National Highway in village Lethapora and adjacent villages was committed in the J&K Bank branch Lethpora fraudulently through which all the illegal drawls have been dishonestly made by resorting to manipulation of records through dubious means with criminal intent to misappropriate the compensation amount of over twenty crores by the accused officers in active connivance with private persons.
05. It is further stated that through investigation it was revealed that out of the accounts of Collector Land Acquisition Pulwama in J&K Bank Owp no. 771/2011 Page 10 Lethpora, an amount of Rs. 21,23,54,300.00 was transferred to the account of accused Showket Ahmad Dar; Rs. 10,05,000.00 to the account of accused Farukh Jehanzeb; Rs.39,76,100.00 to the account no. 9902/SB (J&K Bank Awantipora) maintained jointly by Ghulam Muhammad Bhat and Mst. Taja R/o Awantipora (maternal uncle and mother of accused Farukh Jahanzeb), and the substantial amount to other private accused totaling to Rs.22,11,89,400.00 to which the accused persons otherwise are not entitled to as per the award(s) of Collector Land Acquisition National Highway four lanning Pulwama.
06. It is further stated that during investigation, it was revealed, that out of Rs.21,23,54,300/-(Rs. Twenty one crore twenty three lacs fifty four thousand and three hundred) was received fraudulently by Showket Ahmad Dar, an amount of Rs. 7/- crores have been transferred by accused Shwokat Ahmad into the account of accused Farukh Jahanzeb during the period 2009- 2010.
07. It is stated that investigation conducted revealed that the accused Farukh Jehanzeb have drawn more than Rs.2,60,00,000/- in cash out of his account of the misappropriation, and accused Showkat Ahmad Dar have withdrawn more than Rs.1,02,00,000/- from his accounts out of the misappropriated amount. It is alleged that the cash withdrawals has been utilized for raising the properties as invested by the accused.
08. It is sated that the investigation conducted has revealed that the following immovable assets were raised by the accused Farukh Jehanzeb from the mis-appropriated Govt funds:
"Shri Farukh Jahanzeb s/o Ghulam Mohi ud din Bhat R/o Awantipora (Private person) I 03 kanals and 16 marlas of land at 03 kanals and 16 marlas of land under Khasra no. 418 Lalgam Tral min.
Owp no. 771/2011 Page 11
II 09 kanals and 8 marlas at Medora i.7 kanals 06 malras under kasra no. 78 min,
tral Tehsil Awnatipora ii.01 kanal 15 marlas udnr kasra no. 82 min,
III.07 Kanals udner Khasra no. 97 min
III 07 kanals of land at Noorpora, Tral iii.07 kanals of land under kasra no. 3643/2168 min,
3586/2169 min and 303.
IV 01 kanal 06 marlas at Shahbad i.1 Kanal under Khasra no. 433 Min,
Payeen Tehsil Awantipora. ii.5 ½ Marlas udner Khasra no. 710/430
iii. ½ marla under Khasra no. 422 min
V Four shops near District Court Bank transaction/possession.
complex pulwama.
VI Two storey residential House A palatial two storey house on one Kanal and 14 marlas of
land at Iqbal Colony Rawalpora in the name of wife.
(I) The investigation conducted so far has revealed that the accused Farukh Jahazeb @ Rinku s/o Ghlam Mohi ud din Bhat R/o Awantipora presently Iqbal Colony Rawalpora, Srinagar has acquried 3 kanals and 16 marals of land under Khasra No., 418 min in his own name at Lalgam Tral through a broker namely Gulzar Ahmad Lone S/o Abdul Gaffar R/o Noorpora Tral during the year 2009-10. The payments were made to the said broker from the account numbers CD-953, CC402 and CE-1101 of accused Farukh Jahanzeb out of the misappropriated amount to the account number CE-1254 and CD-1106 maintained by said broker.
(II) The accused was also found to have purchased 9 kanal 08 marlas of land at Medora Tral under Kasra no. 78/82/97 min throught the same broker Gulzar Ahamd Lone during the year 2009-10. The payments were made to the said broker from the account numbers CD-
953, CC402 and CE-1101 of accused Farukh Jahanzeb out of the misappropriated amount transferred into brokers account number CE-1254 and CD-1106.
III. The accused was also fund to have purchased 7 kanals of land at Noorpora Tral udner Khasra no. 3643/2168 min, 3586/2169 min 303 min out of which 3 kanals and 18 marlas were purchased by the accused from one Latief Ahmad Bhat S/o Assadullah Bhat R/o Awantipora and Mukhtar Ahmad Bhat (brother) in the month of March 2009 for an amount of Rs.22,54,200.00. The payment was channeled from account numbers CD-953, CD-1187, CD-402 and CD-1101 of accused Farukh Jahanzeb out of misappropriated amount to the seller through his account number SB-15431 J&K Bank Awantipora. The accused was also found to have purchased 3 kanals and 2 marals from one Muhammad Yousuf Khan s/o Abdul Majid Khan R/o Padgampora through one Ghulam Hassan Sheikh s/o Abdul Salam R/o Chek Noorpora Tehsil Tral during the corresponding period.
IV. The accused Farukh Jahazeb was also found to have purchased one Kanal and 6 Marlas of land at Shahabad Payeen udner Khasra No. 422,710/43 and 433 Min. for Rs. 4 lacs in the year 2009 from one Ulfat Jan W/o Ali Mohammad Mir R/o Ganger Tral. The money utilized for the purpose of said immovable property (land) has been found channelled to the broker/sellers from the misappropriated amount by the accused Farukh Jahanzeb through his account number CD-953 to the account No. SB-63 J&K Bank Branch Lasjan of the seller Mst. Ulfat Jan.
V. It has also surfaced that the accused Farukh Jahanzeb @ Rinku has purchased four shops (two in ground floor and two in fist floor f shsopping complex) near District court complex Pulwama belonging to Mst Fatima widow of Ghulam Muhammad Kumar under Khasra No. 2268/1551 Min court road Pulwama. The money utilized for the purchase of these shops has been channelled from the misappropriated amount meant for land acquisition foiur Laning N.H.IA Pulwama Investigation so far conducted has revealed that Rs. 3,50,000.00 were found Owp no. 771/2011 Page 12 transferred from the account No. CC-402 to the account No. SB-497 ( Bazar Batamaloo) maintained by one Farooq Ahmad Kumar S/o Ghulam Muhammad Kumar R/O 48- Iqbal Abad Lane no. 01 Srinagar (The Seller).
VI. The investigation conducted so far has also revealed that the accused Farukh Jahanzeb has purchased 1 Kanal 14 Marlas of land at Iqbal Colony Rawalpora in the year 2009- 2010 in the name of his wife Mst. Tanveera Gul for an amount of Rs. 41,65,000.00 from one Shahnawaz Sheikh S/o Abdul Samad Sheikh R/o Ibrahim Colony Hyderpora through the brokers namely Abdul Aziz Ganai S/o Ghulam Muhammad Ganai R/o Mohalla Patticheck Rawalpora and Showkat Javed R/o Barzulla Srinagar. It is apt to mention that the wife of the accused has been recently appointed as teacher. The major portion of the payments for the purchase of said land has been found channelled from the misappropriated amount through the account number CD-953, CD 1187 to the accounts of seller/broker during the period 2009-2010 as per the following details.
S.NO. ACCOUNT NUMBER DATE AMOUNT Recipient
1. CD-953 24-11-2009 1,00,000.00 SB-4762 (02780) Showkat Javed S/o Ghulam R/o Barzulla Bagat, Srinagar.
2. CD-953 24-11-2009 1,00,000.00 -do-
3. CD-953 07-04-2009 1,00,000.00 -do-
4. CD-1187 25-04-2009 5,00,000.00 -do-
5. CD-1187 08-05-2009 4,00,000.00 -do-
6. CD-1187 15-06-2009 5,00,000.00 SB-10009 (0278-Bagat Barzulla) Muhammad Shahnawaz Sheikh S/o Abdul Samad Sheikh R/o Bagat Srinagar.
7. CD-953 30-07-2009 5,00,000.00 CD-806 (JKB Rawalpora) HK Home Solutions, prop. Mohammad Shahanawaz Sheikh S/o Abdul Samad R/o Hyderpora.
8. CD-953 20-11-2009 4,60,000.00 SB-4762-0278 in R/o Showkat Javed S/o Ghulam R/o Bagat Barzulla.
Moreover, the accused Farukh Jahanzeb was found to have constructed a two storey palatial house on the said piece of land at Iqbal colony Rawalpora in the year 2009-2010. The money for the purpose of material and Labour components was also found channelled from the misappropriated amount by the accused through his account numbers CD-1101, CD-1187, CD-953 to the accounts of suppliers of building material is tabulated as under:-
S.NO Account No. Dated Amount paid to Account No. /Name Remarks
1. CD-953 06-11-2009 23600.00 CD- 144-0524 (J&K Bank The person has Natipora) Tahir Enterprises supplied the joinery items for the Prop. Tahir Ahmad Dar S/o construction of the Mushtaq Ahmad R/o house and his father Jawahar Nagar Sgr. has worked on the construction of the house as a lead mason.
Owp no. 771/2011 Page 13
2. CD-953 06-11-2009 12500.00 CD-144-0524 (J&K Bank -do-
Natipora) Tahir Enterprises
Prop. Tahir Ahmad Dar S/o
Mushtaq Ahmad R/o
Jawahar Nagar Sgr.
3. CD-953 07-11-2009 25900.00 SB- 1035-0524 (J&K Bank -do-
Natipora) Tahir Ahmad Dar
S/o Mushtaq Ahmad R/o
Jawahar Nagar. Sgr.
4. CD-953 16-11-2009 40000.00 CD-144-0524 (J&K Bank -do-
Natipora) Tahir Enterprises
Prop. Tahir Ahmad Dar S/o
Mushtaq Ahmad R/o
Jawahar Nagar Sgr.
5. CD-953 23-11-2009 7000.00 CD-144-0524 (J&K Bank -do-
Natipora) Tahir Enterprises
Prop. Tahir Ahmad Dar S/o
Mushtaq Ahmad R/o
Jawahar Nagar Sgr
6. CD-953 23-11-2009 24200.00 CD-144-0524 (J&K Bank -do-
Natipora) Tahir Enterprises
Prop. Tahir Ahmad Dar S/o
Mushtaq Ahmad R/o
Jawahar Nagar Sgr
7. CD-953 21-12-2009 15000.00 SB-1035-0524 (J&K Bank -do-
Natipora) Tahir Ahmad Dar
S/o Mushtaq Ahmad R/o
Jawahar Nagar Sgr.
8. CD-953 22-12-2009 50000.00 CD- 144-0524 (J&K Bank -do-
Natipora) Tahir Enterprises
Prop. Tahir Ahmad Dar S/o
Mushtaq Ahmad R/o
Jawahar Nagar Sgr.
9. CD-953 22-12-2009 15000.00 SB-1035-0524 (J&K -do-
Natipora) Tahir Ahmad Dar
S/o Mushtaq Ahmad R/o
Jawahar Nagar.
10. CD-953 10-02-2010 51000.00 CD-144-0524 (J&K Bank -do-
Natipora), Tahir Joinery,
Naikbagh, Srinagar. Prop.
Tahir Ahmad Dar S/o
Mushtaq Ahmad.
11. CD-953 11-02-2010 63000.00 SB-110479-0322 (J&K -do-
Bank Jawahar Nagar
Srinagar) Nazir Ahmad
Dar S/o Abdul Ahad Dar
R/O Ikhraj Pora Jawahar
Nagar. Srinagar.
12. CD-953 11-02-2010 31000.00 SB- 110479-0322 (J&K -do-
Bank Jawahar Nagar
Srinagar) Nazir Ahmad
Dar S/o Abdul Ahad Dar
R/o Ikhraj Pora Jawahar
Nagar Srinagar.
13. CD-953 13-02-2010 14000.00 SB- 1035-0524 (J&K Bank -do-
Natipora), Tair Joinery
Naikbagh, Srinagar, Prop.
Tahir Ahmad Dar S/o
Owp no. 771/2011 Page 14
Mushtaq Ahmad R/o
Ikhraj Pora Srinagar.
14. CD-953 13-02-2010 34000.00 CD-144-0524, (J&K Bank -do-
Natipora) Tahir Ahmad
Dar S/o Mushtaq Ahmad
R/o Ikhraj Pora Srinagar.
15. CD-953 13-02-2010 15000.00 CD-144-0524, (J&K Bank -do-
Natipora) Tahir Ahmad
Dar S/o Mushtaq Ahmad
R/o Ikhraj Pora Srinagar.
16. CD-953 13-02-2010 7000.00 CD-144-0524, (J&K Bank -do-
Natipora) Tahir Ahmad
Dar S/o Mushtaq Ahmad
R/o Ikhraj Pora Srinagar.
17. CD-1101 06-10-2009 23000.00 CD-144-0524, (J&K Bank -do-
Natipora) Tahir Joinery,
Naikbagh, Srinagar, Prop.
Tahir Ahmad Dar S/o
Mushtaq Ahmad.
18. CD-1101 19-10-2009 40000.00 CD-144-0524, (J&K Bank -do-
Natipora) Tahir Joinery,
Naikbagh, Srinagar, Prop.
Tahir Ahmad Dar S/o
Mushtaq Ahmad.
19. CD-953 21-01-2010 60000.00 CD- 63-0524, Tahir The firm has
Enterprises Prop. Tahir supplied the
Ahmad, Mir S/o Gh. aluminium
Mohammad R/o Sgr. stairs & doors
etc.
20. CD-1187 11-02-2010 46000.00 CD- 63-0524, Tahir -do-
Enterprises Prop. Tahir
Ahmad, Mir S/o Gh.
Mohammad R/o Sgr.
21. CD-1187 03-10-2009 20000.00 Cash withdrawal made The person has
by Mushtaq Ahmad from worked as head
J&K bank Branch mason in the
Rawalpora. constructions of
the impugned
house.
22. CD-953 07-11-2009 14400.00 CC-182-0239 (Rangreth) Has supplied GI
Dar & Sons Prop. Riyaz pipes and other
Ahmad Dar S/o Abdul hardware items
Rahim R/o Budgam to the accused.
9419001705.
23. CD-953 21-12-2009 28000.00 CC-144-0239 (J&K Bank Has supplied
Rangreth) Dar Cement cement to the
Store Prop. Fayaz Ahmad accused.
Dar S/O Ghulam
Mohammad R/o
Budgam, 9419036129,
2300329.
24. CD-953 22-12-2009 40000.00 CD-942-0361 (J&K Bank Has supplied
Rawalpor) Dar& Buidler cement to the
Prop. S/o Mohammad
Owp no. 771/2011 Page 15
Yousuf Dar R/o Parabagh accused.
Rawalpora, Old Airport
Road Sgr. 0194-2300874,
9906492755.
25. CD-953 13-02-2010 8000.00 CC-144-0239 (J&K Bank Has supplied
Rangreth) Dar Cement cement to the
Store Prop. Fayaz Ahmad accused.
Dar S/o Ghulam
Mohammad R/o
Budgam. 9419036129,
2300329.
"
09. It is stated that private accused persons in connivance with Sh. Adil Rashid Naqash the then Additional Deputy Commissioner, Pulwama, illegally and fraudulently defrauded the public exchequer and thus received the huge amount in Crores of rupees to which they were not otherwise entitled. As such the assets discussed in aforementioned para's raised by the private accused person namely Showkat Ahmad Dar and Farukh Jahanzeb, are tainted and liable to be attached.
10. It is stated that the Commissioner of Vigilance was approached vide letter no. SP(ABP)-11-FIR-234 dated 14.02.2011 seeking his approval for prohibiting accused persons from disposing of the above mentioned property as envisaged under section 8(B) of P.C (Amendment) Act. 2006 and the Commissioner of Vigilance vide his letter no. SVO/FIR/37/2010/K-2635 dated 25.02.2011 is stated to have accorded approval in writing for issuing prohibitory orders in respect of property discussed aforesaid.
11. It is stated that a notice was issued to accused persons and after hearing the accused persons and with the approval of Commissioner, the private accused persons property were attached in terms of the impugned order.
12. The respondents have further denied the averments made in the petition as being factually incorrect and legally unsustainable.
Owp no. 771/2011 Page 16
13. Heard learned counsel for the parties, perused the record and considered the matter.
14. Mr. G.A Lone, learned appearing counsel for the petitioner while reiterating the pleadings, support the same with the law has questioned the power of the Superintendent of Police Vigilance Organization with reference to passing of the Prohibitory and Attachment order of the petitioner as being not authorized to do so in terms of Section 8(B) of J&K Prevention of Corruption Act Svt. 2006.
15. Plain reading of provision so quoted makes it abundantly clear that the prohibitory and attachment order relating to the property, subject matter of the investigation can be passed by an officer not below the rank of Superintendent of Police (VOK) under the Act. While strengthening his argument with reference to issue raised he placed on record copy of the final report filed by the Investigating Officer before the Court of Special Judge Anti-
corruption (Additional Sessions Judge), Pulwama in Case FIR no. 37/2010 under section 120-B, 409, 468, 471, 201, 466, 467, 109 RPC and under Section 5(1) (c), 5(i) (d) read with Section 5(2) of Prevention of Corruption Act, which makes reference that the investigation of the case was entrusted to Shri Gulzar Ahmad Bhat, Dy SP (VOK).
16. Mr. Lone further submitted that investigation of the case admittedly was conducted by Deputy Superintendent of Police and not by Superintendent of Police VOK, therefore, Superintendent of Police being not the Investigating Officer as required in terms of Section 8(B) of the P.C Act, Svt. 2006 has no power to pass Prohibitory or attachment order of any property of the petitioner. Mr. Lone submits that petitioner has owned the property on her own source as detailed out in the petition and is not comes under the case registered by police VOK.
Owp no. 771/2011 Page 17
17. Mr. M.A Rathore, AAG learned appearing counsel for the respondents submits that the orders impugned are passed by a competent authority and Superintendent of Police (VOK) having the Supervisory control on the investigation is empowered to pass prohibitory and attachment orders of the property.
18. Mr. Rathore, ld AAG further submits that the Section 8 (B) of J&K Prevention of Corruption Act Svt. 2006 does not require that investigation of the case would be conducted by Superintendent of Police (VOK), therefore, the orders impugned are passed by a competent authority.
19. From the aforesaid submissions of learned counsel for the parties, the question arises for consideration is that :
Whether the provision of "Prevention of Corruption Act" as amended by the aforesaid amendment (Amendment Act of 2006) providing for attachment/seizer of property in terms thereof can be invoked by Superintendent of Police of Vigilance Organization in a case where investigation had been conducted by an officer below the rank of a S.P and whether an order of seizer/attachment would be bad due to existence of these circumstances.
20. Before anything else, the contours of Investigating officer's power under sub section (1) of Section 8(B) may be noticed:
"8-B power of the investigating officer (1) if an officer (not below the rank of Superintendent of Police ) of the Vigilance Organization, investigation an offence committed under this Act, has reason to believe that any property in relation to which an investigation is being conducted has been acquired by resorting to such acts of omission and commission which constitute an offence of criminal misconduct as defined under section 5, he shall, with the prior approval in writing of the Commissioner of the Vigilance Organization, make an order seizing such property and, where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with Owp no. 771/2011 Page 18 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.
Provided that the Investigation Officer may, at any stage of investigation after registration of F.I.R, in respect of any case under the Act where he has reason to believe that such property is likely to be transferred or otherwise dealt with to defeat the prosecution of the case direct, with the prior approval of the Vigilance Commissioner, that such property shall not be transferred or dealt with for such period, not exceeding ninety days, as may be specified in the order except with the prior approval of the Designated Authority."
21. Perusal of the provision reveals that the power to seize or attach property in terms thereof is so couched as to reveal following elements. First, the officer investigating the offences must not be below the rank of a S.P of Vigilance Organization; secondly, that the offence under investigation must be one under "Prevention of Corruption Act"; thirdly, that during investigation of such offence, the Investigation Officer must on reasons believe that the property under reference has been acquired by criminal misconduct; fourthly, that the property under reference must be such in relation to which the investigation is being conducted, and finally, the below making order of seizure/attachment the I.O must have prior approval of Vigilance Commissioner. From language used in said provision it appears that all the aforesaid features must necessarily exist in order to legitimately arm the concerned I.O with authority to exercise the power mentioned therein. While rank of I.O in the instant case is not disputed, the materials on record lack in quantity and substance to suggest existence of other crucial elements such as whether the I.O while making the order of attachment was investigating an offence under the Act and whether on what basis of material/ evidence coming to his notice/knowledge during Owp no. 771/2011 Page 19 course of such investigation he had reasons to believe that property under reference had been acquired by criminal misconduct and whether the said property was subject matter of investigation.
22. Now, as per final report submitted in the court of competent jurisdiction, the investigation has been conducted by Shri Gulzar Ahmad Dar Dy. SP, therefore, the Superintendent of Police had no occasion to investigate the matter and come to a reasoned belief that a particular property regarding which "investigation was being conducted" had been acquired by criminal mis-conduct.
23. It is only Superintendent of Police " investigating the case" who, when he has "reasons to believe" that the property under reference was liable to be attached thereunder, can make such order. The present Superintendent of Police had not investigated the case, how then and wherefrom did he derive reason to believe that the house in question has been acquired by "criminal misconduct" within meaning of S. 5 of the P.C Act. Perusal of the final report reveals that the investigation of the case was conducted/completed by one Dy SP Gulzar Ahmad who had furnished it to the SSP for recommending the same.
24. Sub Section (1) of Section 8(B) provides for investigation by an officer (not below the rank of Superintendent of Police) of the Vigilance Organization. The said provision contains a non obstante clause. It makes investigation only by Police officer of the rank of specified therein to be imperative in character. Investigation of an offence committed under this Act, can be made by police officer not below the rank of Superintendent of Police under Sub section (1) of Section 8(B) of the Act is a statutory one.
The proviso uses a negative expression ex-facie, it is mandatory in character. When the authority of a person to pass attachment order is questioned on the ground he did not fulfill the statutory requirement laid Owp no. 771/2011 Page 20 down therefore in terms of the proviso, the burden undoubtedly, was on prosecution to prove the same. It has not been disputed before me that investigation was conducted by Dy. SP. The investigation officer admittedly being Dy S. P has produced the final report before the Court of Special Judge Anti-Corruption.
The orders impugned are therefore held to be passed against the statute as such bad in law.
The only question raised stands replied and no other point has been raised by Mr. Lone which needs decision.
25. Needless to mention that the impugned orders of challenge have been primafacie found without power, therefore, stayed by this court vide order dated 29.06.2011, resultantly, the property has remained with the petitioner.
26. In view of what has been preceded hereinabove, the question that had arisen is replied that SP VOK had no power to issue prohibitory or attachment orders as having not investigated the matter.
27. In the above background this writ petition is allowed and the orders impugned bearing no. SP (ABP)/11-FIR-312-19 dated 01.03.2011 and no. SP (ABP)-FIR-37/2010-10-11-15 dated 22.06.2011 are quashed. Resultantly, the property attached shall stand released.
28. Disposed of along with all connected MPs.
(Ali Mohammad Magrey) Judge Srinagar 08.11.2017 Syed Ayaz Hussain Secretary Owp no. 771/2011 Page 21 Owp no. 771/2011 Page 22 On Board matter HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMP No. 1/15 Owp no. 771/2011, MP No. 1242/2011 Date of order:03. 11.2017 Tanveer Gul vs. State and ors.
Coram:
Hon'bleMr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the petitioner(s) : Mr. G.A Lone, adv. For the respondent(s) : Mr. M.A Rathore, AAG On the set of facts and the grounds urged coupled with the submissions made at Bar, MP is allowed. Copy of Challan against accused (petitioner) in case FIR No. 37/2010 under section 5(1) (c), 5(1) (d), 5(2) P.C Act read with section 120-B, 409, 468 and 471 RPC, registered by Police station VOK, is taken on record.
MP is disposed of.
Owp no. 771/2011, MP No. 1242/2011 Heard. Judgment is reserved.
(Ali Mohammad Magrey) Judge Srinagar 03.11.2017 Syed Ayaz Hussain Secretary Owp no. 771/2011 Page 23