Jammu & Kashmir High Court
Sr. Superintendent Of Police Vigilance ... vs Gh. Rasool Magray on 4 July, 2007
Equivalent citations: 2007(3)JKJ450
JUDGMENT Bashir A. Kirmani, J.
1. The petitioner-vigilance organization is aggrieved of an order passed by Special Judge Anti-Corruption, as the "Special Court" under Section 8(C) of the amended "Prevention of Corruption Act" whereunder while dis-agreeing with confirmation order of "Designated Authority" regarding attachment of respondent's house he quashed the same, releasing the attached house. The matter arises with following circumstantial back-drop.
2. Ghulam Rasool Magray, the respondent was booked by VOK under FIR 40/2003 Under Section 409, 467 and 120B RPC for having defrauded government while working in Food and Supplies Department at Wardwan Tehsil Kishtwar, by wrongly enhancing the number of people entitled to rations by around twenty two thousand and thereby wrongly procuring thousands of quintals of excessive grains from 1997 to 2002 causing a loss of around 9 corer rupees to State exchequer to his benefit along with others involved. Investigation in the matter was complete, when amendment of 2006 came in the "Prevention of Corruption Act" to incorporate a provision for seizure/attachment of property believed by concerned I.O, not below the rank of SSP, to have been acquired by misconduct by an accused official. After said amendment as per version of concerned SSP the file which had been sent to Government to get sanction for respondent's prosecution, was recalled and taken up for action under the aforesaid amendment which as stated was taken in following terms:
Attachment of property viz two storeyed Residential House at Sarnal K.P. Road Anantnag is terms of Section 8(B) of J&K P.C.(Amendment) Act 2006. in case FIR No. 40/2003 Under Section 5(2) PC Act 2006 r/w 409, 467 and 120B RPC P/S VOK.
1. Whereas, case being FIR No. 40/2003 Under Section 5(2) PC Act 2006 r/w 409, 467 and 120B RPC P/S VOK pertaining to the alleged misappropriation of food grains drawn against artificially inflated population of Marwah/Warwan Block of Tehsil Kishtwar and carriage charges meant for such excess food gains during the period 1997-2002 by the officer/officials of CA &PD department and Revenue department Kishtwar, District Doda stands registered in this organization.
2. Whereas, the investigation of the case was concluded as proved against the accused public servant and Ors. for commission of offences indicated above and the case was forwarded to the sanctioning authority for accord of sanction for launching prosecution against the accused for commission of said offences.
3. Whereas, an amendment making it obligatory on the part of investigation officer investigation the case to attach the property in respect of which investigation of being conducted, if found to have been acquired by the public servant through corrupt practices, came into force subsequently.
4. Whereas, a property viz 2 storeyed residential house at Sarnal K.P. Road Anantnag in respect of which investigation conducted has been found during the course of investigation to have been raised out of ill-gotten money by the accused Shri Gh. Rasool Magray.
5. Whereas, it was appropriate and expedient to call the case dairy file from the Govt. to invoke the provision of J&K Prevention of Corruption (Amendment) Act 2006 in the instant case.
6. Whereas, the investigation conducted has revealed that the accused Shri Gh. Rasool Magray S/o Gh.Mohmmad Magray R/o Nowpachi Marwah, Tehsil Kistiwar has abused his official position and misappropriate the public money in league with others by subverting the supply of food, grains meant for the consumers of Marwah/Warwan block of Tehsil Kistiwar dishonestly and fraudulently after inflating the number of consumers by incorporating fictitious persons and/or repeating the names of already existing consumers also with the aim of misappropriate the carriage charges connected with such food gains meant for fictitious consumers. This has been done by inflating actual consuming population of 37,900 to 59,400 souls in the year 1997 and 1999 by fraudulently adding approximately 21,500 non existent consumers which consequently resulted in excess drawal of 1, 70,600 Quintals of food gains approximately from the Govt. granary and their illegal disposal by the accused and Ors. for misappropriating the major portion, of sale proceeds, falsely showing it as an expenditure incurred towards the carriage charges. An amount of Rs. 9,61 Crores was misappropriated by Shri Magray, accused and Ors., causing corresponding loss to the state exchequer.
7. Whereas, during investigation it was further revealed that with help and out of Rs. 9,61 Crores misappropriate by the accused and others, assets have been raised by the accused Gh. Rasool Magray and one such property has been detected as a two storeyed Residential house at Sarnal K.P. Road Anantang found to have raised by the said accused out of ill-gotten money amassed through corrupt means in this case. The evidence has come on record during investigation that an amount of Rs. 4,00 Lacs was siphoned off from the official Account No. CD-155/4 operated at J&K Bank Branch Lal Chowk Anantnag by way of a cheque No. 0378969 dated 20-04-2002 and illegally and dishonestly used by the accused Shri Magray to pay and clear personal liabilities with the help of this impugned checque an amount of Rs. 4,00 Lacs was transferred to one Shri Nazir Ahmad Lone, proprietor of "Lone Hardware Store" K.P. Road Anantang Separate circumstantial evidence has come on record to establish that Shri Lone was the supplier of certain construction material to the accused in the construction of aforesaid asset and this money was meant to pay for purchase of such construction material. This apart, additional evidence is also available on record to indicate that the asset has been raised out of legitimate money but money obtained through corrupt means making the asset as tainted one.
8. Whereas, separate evidence has come on record that the land on which the construction of above discussed house was raised, has also been acquired by the accused in the name of his father, Shri Gh. Mohammad Magray S/o Habib-Ullah R/o Nowpachi Marwah, Tehsil Kishtiwar.
9. Whereas, the said house of the accused was found to have construction within the period corresponding to the period when misappropriation of public money was committed by Shri Magray.
10. Whereas, the investigation conducted has found that the value of the property proposed to be attached is only a fraction of the amount misappropriated by the accused, Shri Magray, who has been identified as the kingpin and principal accused in the case, where an amount of Rs. 9.61 Crores was found to have been misappropriated.
11. Whereas on the strength of evidence so for collected there is reason to believe that the property discussed above in relation to which an investigation is being conducted has been acquired while resorting to acts of Omission and commission, which constitute an offence of criminal misconduct as defined under Section 5(2) P.C Act 2006.
12. Whereas, the Commissioner of vigilance was approached vide communication No. SSP (ABP)/06-1471 dated 26-06-2006 seeking his approval for attachment of above mentioned property as envisaged Under Section 8(B) of P.C Act (Amendment) Act 2006.
13. Whereas, the Commissioner of vigilance, vide his No. CV-FIR-40/2003-7832 dated 27-06-2006, accorded approval in writing for the attachment of the property discussed above as required under Section 8(B) of P.C (Amendment) Act 2006.
Now, therefore, I.N.D Wani, Sr. Superintendent of police vigilance (ABP) investigation officer of the afore/mentioned case, in terms of powers conferred upon me under Section 8(B)of PC (Amendment) Act 2006, hereby attach the property described above, direction further that such property shall not be transferred by any mode what so ever. However, the accused Shri Gh. Rasool Magray is afforded an opportunity to take/remove, if he chooses so, his personal belongings except permanent features within a period of 07 days.
Dated this 29th day of June 2006.
The action so taken was previously approved by the Commissioner of Vigilance under his order No. CV-FIR-40/2003-K-7832 dt. 27.06.2006 in following terms:
Subject:- Approval for Attachment of property in Case FIR No. 40/2003 P/SVOJ. Under Section 8 (B) of J&K Prevention of Corruption (Amendment) Act, 2006.
1. Whereas, a complaint was received form the administrative department of CA&PD, J&K vide No. Ca&Pd/Contract/Marwah/Wadwan/2003-04 dated 9-12-2003 alleging the misappropriation of food grains drawn against artificially inflated population of Marwah and Wadwan Block of Tehsil Kishtwar and carriage charges meant for such excess food grains during the period 1997 to 2002 by the officers/official of CA&PD Department, Anantnag.
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3. Whereas, the Investigation Officer vide his communication No. SSP(ABP)/00006-1471 dated 26-6-2006, apart from above details, has specifically reported that the investigation conducted has further revealed that with the help and out of Rs. 9.61 Crores which was found to have been misappropriated by Shri Magray and Ors., assets have been raised by accused Sh. Magray. Investigation has led to detection of one such asset viz a two storeyed residential house at Sarnal KP Road, Anantnag as per site plan which was found to have been raised by the accused Shri Gh. Rasool Magray, out of ill gotten money amassed through corrupt means in this case. The evidence has come on record.
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7. Whereas, it has been further reported that the above described property in relation to which the investigation was conducted has been acquired out of the ill gotten money by the accused Shri Magrey, as mentioned above and as such the attachment of such property in terms of Section 8(B) of J&K P.C (Amendment) Act, 2006 has become imperative.
8. Whereas, in view of above, the SSP (ABP), VOK, Investigating Officer has sought approval in writing for attachment of the property described above, as envisaged under Section 8(B) of J&K P.C (Amendment) Act, 2006.
9. Whereas, the entire material collected in the course of investigation as also the communication referred to here in above mentioning the grounds of attachment of the above described property has been considered and a case for attachment of the said property is made out.
10. Whereas, no such attachment of property can be ordered by Investigating Officer without the prior approval of the Commissioner of Vigilance as envisaged under Section 8(B) J&K Prevention of Corruption (Amendment) Act' 2006.
Now therefore, I, Dr. Ashok Bhan, Commissioner of Vigilance, J&K in terms of powers conferred upon me under Section 8(B) of J&K Prevention of Corruption (Amendment) Act, 2006 do hereby accord approval for the attachment of the property, described above in para 3. The accused Shri Magrey shall be afforded an opportunity to take/remove, if he chooses so, his personal belongings except permanent fixtures, from the house, being attached.
Sd/-
Commissioner Vigilance J&K Srinagar.
As required under amended Section 8(B) where-under aforesaid action was taken information thereof was furnished to Designated Authority/Commissioner Secretary of General Administrative department who confirmed the same under his order dated 05.07.2006 in following terms:
File No. GAD(Vig) 22-Admn/2006 Commissioner/Secretary to Government, General Administration Department (Designated Authority under Clause (a) of such Section (1) of Section 2 of J&K Prevention of Corruption Act, Samvat 2006.
Subject: Order of the Designated Authority under Sub section 3 of Section -B of J&K Prevention of Corruption Act, Samvat 2006.
Ref: Sr. Supdt. of Police, Vigilance Organization/Investigating Officer's letter No. SSP(ABP)/2006-FIR-1502 dated 29.06.2006.
Whereas, the Sr. Supdt. of Police, Vigilance Organization (ABP)/Inves-tigating Officer has reported vide his No. SSP(ABP)/2006-FIR-1502 dated 29.06.2006 that in terms of Section 8-B of J&K Prevention of Corruption Act, Samvat 2006, immovable property viz, two storeyed residential house at Sarnal, K.P. Road, Anantnag has been attached by him vide order No. SSP (ABP)/2006-FIR-40/2003-1492-97 dated 29.06.2006 on the grounds that the said property has been acquired by the accused namely Gh. Rasool Magrey S/o Gh. Mohammad Magrey R/o Nowpachi, Marwah, District Doda presently Sarnal, K.P Road, Anantnag through Food and Supplies Department now Consumer Affairs and Public Distribution Department and dealing with supply of food grains to Marwah and Wadwan areas from District Anantnag between 1997-2000;
Whereas, the SSP Vigilance Organization/Investigating officer has reported that the accused Gh. Rasool Magray has misappropriated/embezzled government money in league with others while he was working in the Food and Supplies Department, now Consumer Affairs and Public Distribution Department, in different capacities including as Chief Inspector Supplies Marwah and in-charge carriage of food grains for Marwah and Wadwan areas from District Anantnag. The Investigating Officer has intimated that an amount of about Rs. 9.61 crores has been misappropriated by the accused Gh. Rasool Magray and Ors. between 1997-2002 while dealing with carriage of food grains to Marwah and Wadwan areas;
Whereas, after due application of mind and perusal of records I have come to the conclusion that the accused has not been able to substantiate his claim that the attached property has been acquired/raised by his father out of his (father's) resources;
Whereas, there are sufficient reasons to believe that the attached property has been acquired/raised by the accused out of misappropriated/embezzled government money during his posting in the Food and Supplies/Consumer Affairs and Public Distribution Department as incharge supplies/carriage of food grains to Marwah and Wadwan areas from District Anantnag from 1997-2002;
Whereas, under Sub-section (3) of Section 8-B of J&K Prevention of Corruption Act, Samvat 2006, the undersigned has to confirm or revoke the order of attachment within a period of seven days of the order of attachment issued by the Investigating Officer.
Now, therefore, keeping in view the information/record and documents placed before me by the SSP, Vigilance Organisation/Investigating Officer and the drence by the accused Gh. Rasool Magray, I in my capacity as the Designated Authority hereby confirm the attachment order of the SSP, Vigilance Organization/Investigating Office issued by him vide his order No. SSP(ABP)/2006-FIR-40/2003-1492-97 dated 29.06.2006 and direct the SSP, Vigilance Organization/Investigating Officer to ensure safety and protection of the attached property.
Sd:
Commissioner/Secretary to Government, General Administration Department (Designated Authority under Clause (a) of Sub section (1) of Section 2 of J&K Prevention of Corruption (Amendment) Act, 2006).
The ultimate order passed by Designated Authority as aforesaid was challenged by respondent, before Special Judge Anti-Corruption, Srinagar, the "Special Court" prescribed under amended Section 8(c) of the Act, who after hearing the parties allowed the appeal and under his order dated 04.10.2006 revoked Designated Authority's order confirming the attachment ordered by concerned SSP as quoted above.
3. It is this order that is challenged in this writ petition by Vigilance Organization, on the ground that learned Special Judge mis directed himself both on facts and law and erring in appreciation of the provisions of the amended Act, came to wrong conclusions which renders his judgment bad. In reply, respondent has defended the impugned appellate judgment and maintained that it is well founded in fact and law and projects the correct legal position obtaining in the matter. During course of submissions while petitioner's Counsel besides reiterating the contents of writ petition contended that the amendment in anti-corruption law was brought by Government in pursuance to observations of Hon'ble Apex Court, so it should ordinarily not be defeated on mere technical considerations. The learned Counsel for respondent while quoting from his pleading has also contended that Designated Authority wrongly confirmed the wrong attachment order rightly set aside by appeal Court under impugned order, which in the circumstances is unassailable particularly because SSP's attachment order was illegal and forfeiture of property as provided for under the amended Act invalid; etc.
4. I have heard learned Counsel and considered the matter. Perusal of appellate order in which the proceedings culminated, reveals that while disagreeing with "Designated Authority" confirmatory order regarding attachment in question, the learned Judge essentially relied on two conclusions; first, though without detailed reasoning, that respondents had not been given effective hearing by the "Designated Authority" before confirmation of attachment, and secondly, that "attachment" under the Act would not mean physical deprivation of the holder/owner of the property in question, but would only restrict the power of its sale or transfer. Naturally, therefore, the main thrust of submissions made at bar has been on these two aspects; alongwith other submissions which if necessary may be dealt with distinctly.
5. Before anything else, the contours of I.O's power under Sub-section (1) of Section 8-B may be noticed:
8-B. Powers of the investigation officers.-(1) If an officer (not below the rank of Superintendent of Police) of the Vigilance Organisation, 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, 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.
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, that 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 I.O 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, that before making order of seizure/attachment the I.O must have prior approval of Vigilance Commissioner. From language used in said provisions 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 materials/evidence coming to his notice/knowledge during 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.
6. Now instantly as per concerned I.O's attachment order the case under reference had been registered in 2003, investigation wherein was already complete when the amendment in 'Prevention of Corruption Act" authorizing attachment of property came in, and the file had been submitted to Govt. for requisite sanction to prosecute the respondent. After amendment became operative, it was recalled for exercise of attachment power in terms thereof. Ex-facie therefore, the case against respondent/accused was not under investigation at that time, but was apparently subjected to further proceedings albeit only with the objective of invoking attachment power available under the amendment. This in a way renders the exercise of the power colourable because while under amendment Act in case during course of investigations the I.O comes to a reasoned belief that a particular property regarding which "investigation was being conducted" had been acquired by criminal mis-conduct he can order its attachment, while instantly investigation was admittedly complete with the whole matter before Govt. for accord of sanction to prosecute the respondent; and could as such perhaps not be deemed as "being conducted". It is nobody's case the matter was under re-investigation at the relevant time, which would perhaps mean continuation of the investigation as originally done; because in that case the matter would be at the level of collecting evidence and as such under investigation. On the contrary in his attachment order the I.O, categorically states that after amendment of 2006, "making it obligatory" to attach the ill gotten property, the case diaries were recalled as the attached house was found to be so.
There is absolutely no talk of re-investigation, its need, the sphere, or result due to which, it becomes slightly difficult to say, whether or not, and how at all, was the house under reference subject matter of investigation, which apparently was not "being conducted". Plainly if the process of collecting evidence in the case had already ended and ripened into a recommendation for accord of sanction to prosecute the respondent accused, how could the house under reference be the subject of investigation if it was not so till then, particularly in view of I.O's observation in para 4 of the attachment order where, "investigation conducted" is referred to as basis for recall of the case from Govt. "to invoke the provisions" of amended Act. This in turn leads to another question as to who was the "Investigating Officer" within meanings of the amended provision. Obviously it could not have been the I.O instantly passing the attachment order, because much before his recall of the file the investigation had concluded. Was it recommenced after recall of the file from Govt.? There is nothing on record to suggest a reply in affirmative, nor has anything been said or submitted to canvass that it was. How then could the S.S.P passing attachment order act as I.O to invoke the power? It may be recalled that under amended provisions it is only a S.P "investigating the case" who, when he has "reasons to believe" that the property under reference was liable to be attached thereunder. If the present SSP had not investigated the case, how then and wherefrom did he derive reason to believe that the house in question had been acquired by "criminal mis-conduct" within meanings of Section 5 of the P.C Act. Perusal of the CD file reveals that till 14.06.2006 when it was received back from Govt. the investigation was conducted/completed by one Dy. SP Ab. Rashid. On 16.06.2006 it was furnished to the SSP who after recommendation of the same by Dy. SP passed attachment order with an observation that as "supervising officer" of the case he was well versed with the diaries even while, there is absolutely nothing in the CD's to suggest that he was ever associated with investigation. Even in the few diaries purporting to have been recorded by him he has referred to Dy. S.P Ab. Rashid as the I.O.
In view of all that has preceded hereinabove, the question that arises would be as to whether the power of attachment etc. vesting in the I.O, under S. 8-B of the amended P.C Act can be invoked in case where investigation conducted by some other officer is already complete and the property under reference has not directly been the subject matter thereof, and whether in such a case the S.P's belief that such property was ill gotten can sustain particularly while the original I.O may not have been a SP at all. It requires to be noticed here that given the level of I.O as S.P, the amended statute pre-supposes a comparatively better quality and higher level of investigation superior and competent enough to serve as basis for believing that property was ill gotten that forms the foundation of consequent attachment thereof. That level and quality of investigation cannot ordinarily be attributable to the investigations conducted by an inferior officer and using result of such investigation as the basis of believing that concerned property was ill gotten may be questionable.
7. Another feature of this aspect which too is rooted in time factor is that the matter in hand essentially pertains to 2003, commencing with registration of FIR No. 40/2003, against respondent accused alongwith others, while the amended provision providing for pre-trial attachment etc of certain properties came into force as late as in 2006, by which time, as already said, investigation in the case had been completed. Question raised is whether the punitive provision relating to seizure/attachment and subsequent forfeiture of the property under reference would be applicable in the matter as it was not provided for at the time the alleged offence was allegedly committed. Before proceeding further, it may be apt to quote the relevant provisions of amendment enabling attachment etc; which run as follows:
Section 8-C (3) It shall be competent for the special Court to make an order in respect of property seized or attached,-
(a) Forfeiting the property....
(b) ...
8-F. Order of forfeiture not to interfere with other punishments.- The order of forfeiture made under this Act by the Special court, Shall not prevent the infliction of any other punishment to which the person affected thereby is liable under this Act.
Perusal of these provisions reveals that while vesting the power of attachment/seizure etc. I.O, in the manner, discussed in some detail in the foregoing para, and providing for review of the same by "Designated Authority", detailed discussion whereupon would come in following paras; and enabling an appeal against his order before the "Special Court," with power to initiate proceedings for forfeiture of the attached/seized property where he agrees with Designated Authority's confirmation order after notice to holder/owner with the final order thereupon appealable before this Court. In terms of Section 8-F however, the penalty of forfeiture is in addition to any other penalty that may be imposed upon the guilty. Thus proceedings regarding seizure/attachment of property culminating in the order of forfeiture are an entirely different and distinct set of proceedings independent of the criminal trial, which is sufficiently borne out by provisions of Section 8-C, whereunder even a person not prosecuted in the criminal case can suffer the penalty of the forfeiture of his property. In final analysis therefore, the penalty of forfeiture under the amended provision is additional to the sentence that may be imposed upon the guilty, and the question, therefore, would be whether any person guilty of an offence on a particular date can be subjected to a punishment greater than what was provided therefor, at the time of commission of the offence. At this stage, the matter assumes a constitutional dimension traceable to Article 20 of the Constitution of India, which runs thus:
20. Protection in respect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
Part two of Clause (1) above quoted prohibits imposition of penalty greater than one that could have been inflicted at the time the offence was committed. Instantly at the time the offence is alleged to have been committed, it could be punished with sentence extending to a span of seven years, to which the penalty of forfeiture under the amended provision has been added by way of a separate proceeding though under one of the provisions of the Act, added after Section 8-A dealing with the "powers of Investigating officer",. Thus, the question seeking an answer would be as to whether, the amended P.C Act, as aforesaid would apply to the cases involving offences committed/investigated/prosecuted or even decided before the amendment became operative. "Decided", because in terms of the amendment as already said, the confiscation proceedings are independent of the trial of the case, and not necessarily restricted to the person tried only.
8. That brings me to the question, whether or not after attachment of the house under reference was ordered by the I.O, and matter referred to the Designated authority, the respondent/accused was given the hearing as envisaged under the Act. While proceeding ahead reference to Sub sections (2), (3), and (4) of Section 8-B becomes imperative:
(2) The Investigation Officer shall inform the Designated Authority, within forty-eight hours, of the seizure or attachment of such property together with a report of the circumstances occasioning the seizure or attachment of such property, as the case may be.
(3) It shall be open to the Designated Authority before whom the seized or attached properties are produced either to confirm or revoke the order of seizure or attachment so issued:
Provided that on opportunity of being heard is afforded to the Investigation Officer and the person whose property is being attached or seized before making any order under this sub-section.
(4) In the case of immovable property attached by the investigation officer, it shall be deemed to have been produced before the Designated Authority, when the investigating Officer notifies his report and placers it at the disposal of the Designated Authority.
Perusal of these provisions reveals that after receipt of information regarding seizure/attachment from the concerned I.O along with report on attending circumstances it is open to the designated authority either to confirm or revoke it, which by implication means that he has to approach the matter independently and uninfluenced by anything contained in the attachment/seizure order or the Vigilance Commissioner's approval. In other words, his opinion in the matter has to be substantial in legal sense to be arrived at after careful perusal of the materials before him, with proper application of mind after giving the effected party an opportunity of being heard, be it the Investigating Officer or the persons whose property has been seized/attached. The substance and subjectivity of designated authority's opinion and opportunity of hearing to respective sides thus appears to be essential to exercise of the power of confirming or revoking the seizure/attachment, without which it can be flawed. Since attachment/seizure directly on one side involves public interest and on the other the property rights of effected party the framers of the statute in their wisdom appear to have thought it proper not to leave the matter within exclusive realm of investigating agency and instead kept a check there upon through designated authority who has to be a Secretary to Govt. for hearing the concerned parties to review the order of attachment/seizure with the object of confirming or vacating it, for which all powers of a civil Court required for making a "full and fair" enquiry into the matter vest in him. The power, therefore, appears to be quasi judicial in nature and can't be cursorily exercised. This situation necessarily implies two elements; first, that the Designated authority is required to make a full and fair enquiry in the matter which may involve recording statements and perusal of documents furnished, if any, which must be maintained on the record of proceedings he conducts, and secondly, that fairness as envisaged under aforesaid Section together with the mandate of proviso Sub Section (3) of Section 8(B) amply conveys that the effected party and I.O. have to be given a genuine hearing before passing final order without which the exercise of power is bound to suffer the vice of arbitrariness. Otherwise also whenever and where ever there is a power to decide and determine anything effecting public interest or proprietary rights of any person, be it quasi judicial or even executive, an obligation to act judiciously is necessarily implied in the very exercise of that power. Accordingly, it follows that opportunity of being heard that is required to be given to the I.O and effected party cannot be an idle formality or a hollow exercise but has to be effective meaningful and substantial in order to measure up to the requisite level of fairness under the aforesaid provisions.
9. That being the position, let me now advert to record of Designated Authority pertaining to the matter as furnished by petitioner's counsel. Perusal thereof reveals that proceeding before the authority started on 3.7.06 with following note, apparently submitted by Dy. Secretary to the concerned authority:
Subject:- Attachment of property-Case FIR No. 40/2003 Under Section 5(2) PC Act Samvat 2006 r/w 409, 467 and 120B RPC P/S VOK Ref:- Sr. Superintendent of Police, Vigilance Organization (ABP) Kashmir's No: SSP (ABP)/2006-FIR-1502 dated 26.06.2006.
1. May kindly peruse reference from SSP Vigilance Organization placed along side the file along with attachment order dated 29.06.2006 issued by him as also prior approval of Commissioner of (Vigilance) Organization, in terms of which two storeyed House at Sarnal K.P. Road Anantnag constructed by Shir Ghulam Rasool Magray, has been attached.
2. SSP concerned has accordingly requested in his report that attachment order issued by him may be confirmed as required under law.
3. The report has been examined and as required under relevant provisions of Prevention of Corruption Act, the Designated Authority is to afford an opportunity of being heard to the accused and has also to hear the concerned investigating Officer.
4. Draft Summon has been prepared; which is to be served upon the accused besides draft communication to be sent to SSP concerned has also been prepared. The Notice to be served to accused will also be got published through leading Daily Newspapers for which Director Information will be requested to get the needful done. The accused has been summoned on 5th July 2006 at 11. A.M. This note appears to have been approved by Designated Authority on the same date and as per an endorsement on right side at bottom of the page confirmation appears to have been accorded on 05.07.2006, as reflected below:
Confirmation order approved today on 5.7.2006, on same day the detailed order already quoted also appears to have been passed.
A summon dated 3.7.2006 meant to be issued to respondent Gh. Rasool appears to have been forwarded to Director Information on the same day for its publication on following date i.e. 04.07.06 with nothing available to show as to whether or not the notice as such was at all published or said Gh. Rasool, appeared and what if any, were the proceedings conducted by Designated authority during hearing of the matter. At the same time a letter appears to have been sent to the I.O also for appearing before the Designated Authority. Total absence of the record of proceedings, whatever on Designated Authority's official file makes it quite difficult to know as to what if at all any proceedings were conducted by him, because there is not even a memorandum to reflect the same, thus hardly suggesting an effective hearing to the concerned person(s).
10. Another feature relevant to this aspect of the matter is that designated authority does not ever appear to have gone through the papers furnished to him, much-less applied his mind thereto which is demonstratively revealed by the fact that in terms of the note furnished to him by the I.O supported by relevant revenue records the land underneath and appurtenant to attached house measuring more than 4 Kanals is clearly shown to have been recorded in the name of one Gh. Mohd Magray, father of concerned employee, Gh. Rasool Magray, pursuant to civil Court decree, which despite its apparent relevance to the matter did not persuade the Designated authority to hear him also before ordering confirmation of the attachment even while in terms of Sub Section (3) of Section 8(b) quoted above, he appears to have been entitled to such hearing. The Proviso lays down that opportunity of being heard is to be afforded to I.O. and the person "whose property is being attached or seized". Aforesaid Gh. Mohd Parray, being the recorded owner of the land wherein attached house is situated the Designated Authority who is a very senior civil servant did not perhaps need to be specifically informed that the recorded owner was required to be heard even if one assumes that his ownership was only sham and his son the actual "Benami" owner. Taken together with non-availability of records regarding hearing of parties, if any, by Designated authority this factor strengthens the conclusion that confirmation of attachment as ordered by the Designated authority suffers from non application of mind and lack of opportunity to respondent for presenting their case, so much so that even his confirmatory order impugned before the appeal Court is shown to have been passed on a gazetted holiday (5th July 2006, shown as holiday on account of Guru Hargobind Singh J's birthday in the Govt. Calendar of 2006).
11. Before parting with this aspect of the matter I feel it would be appropriate to observe that Designated Authority being charged with the duty to review the I.O's orders of attachment/seizure of properties is discharging quasi judicial function which can neither be delegated nor exercised through purely executive procedures. It has to be conducted in a judicious manner for which purpose all requisite powers of a civil Court vest in the authority. This situation recommends that Designated authority devises a fair and transparent procedure for exercise of power under the Act and arranges for maintenance of records of such proceedings for judicial perusal by appeal Court or otherwise for assessing the vires of his orders confirming or vacating the attachment/seizure done by the I.O. The authority requires to appreciate that while exercising power vesting in him under amended Act, he discharges an onerous duty because his order ultimately effects either vital public interest or the property rights of a citizen, however, condemned he may be, which involves extremely serious implications, and any casual or cursory approach to the matter, non application of mind or failure to maintain a regular record of proceedings can render his action liable to be challenged/overset.
12. Now coming to the aspect relating to nature and import of attachment ordered by concerned I.O as discussed by appellate Judge. It may be recalled that in his impugned appellate order he has opined that attachment would only mean a restraint on owner's power to sell or otherwise transfer the attached property and not his physical deprivation from enjoyment thereof and released the attached property, which perhaps was not correct, because even if attachment be deemed not to mean physical deprivation, still then unless something is found wrong with the attachment order, the property could not have been released, because with attachment order in tact, the property would continue to remain attached albeit within meaning of "attachment" given to the expression by him. Incidentally however a contrary view appears to have been taken in another case captioned "Parshotam Singh Girdawar v. Vigilance Organization, Jammu through Senior Superintendent of Police, and Anr." by his counter part at Jammu who has opined that power to place fetters on concerned person's right of selling the attached property is in addition to his physical deprivation and dispossession there from. The subject has been thrashed by appearing Counsel at great length ranging from dictionary meanings of the words seizure/attachment and confiscation etc to their judicially acknowledged import. Collateral to all that is the content of the Prevention of Corruption Amended Act 2007, which came into force from 21st Feb. 2007 whereunder an explanation has been added to Sub Section (1) of Section 8(b) of the Act according to which the expression "attachment" has been explained to include temporarily assuming the custody, possession/or control of such property" which requires to be taken note of. Accordingly, before going ahead the meaning and import of the words "seizure" and "attachment" have to be settled. These expressions, as would be noticed in following paras, occur in many other statutes also with power to order the same vesting in different authorities under different circumstances, but in every case care appears to have been taken that the mode of carrying them out is in conformity with the object of the statute and in furtherance of its achievement. In context of the amended Act, and its subject, therefore, "seizure" as per accepted Dictionary and legal meaning would mean "an act of taking possession" under authority of law. The expression "attachment" can perhaps be better understood in terms of Section 88 of Cr.P.C which may be quoted here:
Section 88 Attachment of property of person absconding (1) The Court issuing a [proclamation under Section 87 may at any time order the attachment of any property, movable or immovable, or both belonging to the proclaimed person.
(2) .
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of receiver; or
(c) ...
(d) ...
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to Government, be made through the Collector of the district in which the land is situate, and in all other cases
(a) by taking possession; or
(b) by the appointment of receiver; or
(c) ...
(d) ...
(5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.
(6) .
Perusal of its provisions reveals that attachment power thereunder is vested in the magistrate, with, seizure, appointment of receiver and taking over physical possession mentioned as modes of executing the attachment with reference to nature of properties sought to be attached, which implies that the expression "seizure" and "taking over physical possession" have been taken within meanings of the expression "attachment", which in other words means that attachment can be capable of execution in more than one ways, of course in accordance with the nature of property and purpose of the statutes which further suggests that unless expressly provided the attachment when ordered can be executed through any permissible mode. Read therewith the wording of Sub section (1) of Section 8-B of the amendment which inter alia reads that where "Seizure" of the property would not be practicable, it may be attached by the I.O; "attachment" would mean "taking control of the property either by seizing it physically or getting constructive domain thereof". By implications thus Sub section (1) of Section 8-B conveys that an order of attachment if made by the I.O thereunder need not necessarily be executed by seizing the property concerned, because in terms thereof where the I.O does not find seizure to be practicable he may order attachment directing that such property shall not be transferred or otherwise dealt with, without his permission. The provision therefore, by itself makes a clear distinction between the expressions "seizure" and "attachment", which further connotes that in a case where I.O makes an order of attachment and not seizure, he necessarily conveys that seizure of the property ordered to be attached was not practicable. Now seizure as already said, means taking physical possession and once the I.O finds it impracticable, the attachment ordered by him can be deemed to mean only exercising control over the property with a direction against its transfer etc, without permission of the I.O and not taking its physical possession when that is so, it appears to be integral to I.O's duty to furnish reasons in writing while ordering "attachment" and not "seizure" in a particular case, for not ordering seizure which in terms of enabling clause has to be the first option only to be avoided in case of not being practicable. However, the apparent import of I.O's order would have to be that it meant attachment to exclusion of seizure approved by Vigilance Commissioner and confirmed by the Designated Authority. It may be noticed that investigating officer informed the Designated Authority under Sub section (2) of Section 8-B only about the attachment of the property under reference and not its seizure and thus, it is attachment only which was confirmed. Incidentally however there is nothing in I.O's order or confirmatory order of designated authority to indicate as to what precisely was to be the mode of executing the attachment order which in any case for what has been stated above could not be seizure thereof, thereby excluding physical taking over of the property. On the contrary if the order of attachment as made by I.O and confirmed by Designated authority in the instant case is ipsofacto deemed to include seizure of the house under reference also; then the question would be as to how then can the disjunctive and distinct use of expressions "seizing such property" and "where it is not practicable to seize such property, make an order of attachment" be reconciled without rendering one of them redundant which could not have been the legislative intent. The conclusion thus could be that the attachment of property as ordered and confirmed in the instant case for its own specifics indicated above would mean taking control over it by any means other than its seizure stated herein above, but practically it is not so. The case diaries reveal that the house in question has been seized by getting it vacated of inmates and sealed by the I.O. Thus the actual execution of I.O's attachment order appears to overflow its import as discussed above.
13. At this stage would arise the question as to what then is the connotation of the explanation added to the amending Act whereunder the expression "attachment" includes temporarily assuming custody, possession/or control of concerned property. In view of all that has been discussed above, this explanation does not appear to make any substantial difference because assuming custody, possession or control, in other words "seizure" of concerned property is, as already indicated well within meaning of the expression "attachment", as one among the modes of executing it, which in case not found to be practicable may not be invoked restricting its execution to constructive control and prohibiting sale etc thereof. Thus in view of the meanings given to the expressions "attachment" and "seizure" hereinbefore, the addition of aforesaid explanation does in terms not make any tangible difference enough to necessitate a re-look at the conclusion arrived at as above.
14. A question has been raised against validity of the conferment of attachment/seizure power upon vigilance organization, at the pretrial stage which may eventually result in forfeiture of the attached/seized property without any compensation. Before proceeding ahead it would be profitable to notice the context of the conferment of this power through the amendment under reference. Way back in 1996 Hon'ble Apex Court in the case captioned as "Delhi Development Authority v. Skipper Construction Company (p) Ltd. and Anr." reported as , while deciding a bunch of cases made following observations:
A law providing for forfeiture of properties acquired by holders of "public office" (including the officers/posts in the public sector corporations) by indulging corrupt and illegal acts and deals, is as crying necessity in the present State of our society. The law must extent not only to properties acquired in the name of the holder of such office but also to properties held in the names of his spouse, children or other relatives an associates. Once it is proved that the holder of such office has indulged in corrupt acts, all such properties should be attached forthwith. The law should place the burden of proving that the attached properties not acquired with the aid of monies/properties received in the course of corrupt deals upon the holder of that property. Such as law has become an absolute necessity, if the canker of corruption is not to prove the death-kneel.
(Emphasis supplied.) Apparently persuaded by these observations the J&K State brought an amendment in the "Prevention of Corruption Act" through Act No. 1 of 2006 with effect from 3rd Jan. 2006 whereunder the case in hand arises. Relevant provisions of the amendment may be noticed:
Section 8-A(2): The Investigation Officer shall inform the Designated Authority, within forty-eight hours, of the seizure or attachment of such property together with a report of the circumstances occasioning the seizure or attachment of such property, as the case may be.
(3) It shall be open to the Designated Authority before whom the seized or attached properties are produced either to confirm or revoke the order of seizure or attachment so issued:
Provided that on opportunity of being heard is afforded to the Investigation Officer and the person whose property is being attached or seized before making any order under this sub-section.
(4) In the case of immovable property attached by the investigation officer, it shall be deemed to have been produced before the Designated Authority, when the investigating Officer notifies his report and placers it at the disposal of the Designated Authority.
(5) Any person aggrieved by an order under the proviso to Sub-section (1) may apply to the Designated Authority for grant of permission to transfer or otherwise deal with such property.
(6) The Designated Authority may either grant, or refuse to grant, the permission to the applicant.
(7) The Designated Authority, acting under the provisions of this Act, shall have all the Prowers of a civil Court required for making a full and fair enquiry in to the matter before it.
8-C. Appeal against the order of Designated Authority.--(1) Any person aggrieved by an order made by the Designated Authority under Sub-section (3) or Sub-section (5) of Section 8-B may prefer an appeal to the Special Judge (Anti-Corruption) (hereinafter referred to as Special Court) and the Special Court may either confirm the order of attachment of property or seizure so made of revoke such order and release the property or pass such order as it may deem just and proper. Sub Section 8-B thus empowers investigating officer not below the rank of a SP of Vigilance Organization investigating an offence under "Prevention of Corruption Act" to seize/attach any property subject of investigation, of course with prior approval of Vigilance Commissioner, if he has reason to believe that it has been acquired by holder through mis-conduct within meaning of the Section 5 of the Act, and direct that the property would not be transferred or otherwise dealt with, without permission from prescribed authority etc. Within 48 hours of making such order the I.O has to inform the "Designated authority" which in the instant case is Commissioner Secretary General Administration Department, about the seizure/attachment along with a report of circumstances attending the same, who within 21 days (as amended) of the receipt of information may either confirm or revoke the order of seizure/attachment after hearing the effected party. Under Section 8(c) any order of confirmation/revocation so passed by the Designated Authority as also an order refusing permission for transfer of attached property may be appealed before the Special Court (the Court of Special Judge Anti-Corruption) who may either confirm the order of attachment/seizure or revoke the same, and either release the property or pass such orders as may be proper. If the appellate Court confirms the order he may direct forfeiture of concerned property in accordance with the procedure prescribed Under Section 8(D), whether or not the person from whose possession it is seized or attached is prosecuted under the Act. Any order of forfeiture passed by Special Court as such is appealable Under Section 8(c) but by itself shall not prevent infliction of any other punishment to which the person effected thereby may be found to be liable. It is in exercise of these powers that all the relevant orders of attachment by concerned SP, confirmation by Designated Authority and the appeal order impugned herein have been passed. It may be noticed here that the use of expression "once it is proved..." in the above quoted apex Court judgment by necessary implication conveys that enactment of law regarding attachment of ill gotten property as desired was suggested to cover proved cases only; but the State government appears to have gone steps ahead to provide for more than what was desired under the judgment even without, trial of the substantive offence. In that view the amendment under reference does not appear to be in strict conformity with the apex Court observations.
15. Now, let me briefly notice, the attachment power existing elsewhere. Under Civil law, attachment is generally either preliminary to secure satisfaction of decree that may ultimately be passed like attachment before judgment under CPC; or incidental where the object of a proceeding is not capable of being achieved without a provisional attachment like conditional attachment under Financial Corporation Act, where attachment order has to be part of the very first notice for appearance, or else coercive to effect execution of a civil decree. For instant case however the nature and contours of the power to order attachment on civil side does not appear to be referable, so the power as such obtaining under some criminal statutes may be briefly surveyed:
(a) Under Code of Criminal Procedure in case of a person proclaimed as an absconding offender power to issue attachment of any of his movable or immovable properties has been vested under concerned Magistrate under Section 88, as already quoted in para 12 hereinbefore. This provision appears to have been borrowed by many other enactment's like "Conversion of Foreign Exchange and Prevention of Smuggling Act 1974" and "Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980".
(b) Under third Proviso to Sub Section 4 of Section 145 of the same Code a Magistrate while dealing with any immovable property subject matter of a dispute likely to cause breach of peace may at an interim stage attach such property pending final decision. Even though no specific mode for execution of attachment thereunder is prescribed yet as general practice while effecting attachment as such the Magistrates take constructive control of the disputed property through "Superdars" who some times happen to be the very holder of property, duly appointed as such.
(c) Under "The Narcotic Drugs and Psychotropic Substances Act. 1985" express provisions for seizure of Narcotics and Psychotropic Substances believed by any officer authorized thereunder to be or have been the subject matter of an offence under Chapter (4) of the Act is provided for along with that of the conveyance, and any other article liable to be forfeited under Section 143. Similarly Under Section 48 an empowered Magistrate can order attachment of any prohibited plant which he has reason to believe has been illegally cultivated. Under Section 61 Confiscation of any goods used for concealing the Narcotic Drugs and Psychotropic Substances is also provided for. Under chapter 5(a) of the Act after a prohibition against holding illegally acquired property; Section 68(c) and 68(e) empower its seizure Under Section 68(f) by the officer investigating an offence under the Act when he has reason to believe the property in relation to which such enquiry or investigation is being conducted is illegally acquired and is likely to be concealed transferred or dealt with in any manner that would frustrate the forfeiture proceedings.
(d) Under Section 10 of "Explosive Act 1884" and Section 32 of "Arms Act 1959" enabling provisions have been enacted for forfeiture and confiscation of explosive and arms/ammunitions respectively after conviction of the accused. Under these two statutes therefore, the provision of forfeiture/confiscation come into play after conclusion of the trial in conviction of the accused with relation to explosives, and arms/ammunitions regarding which the offence is proved to have been committed.
(e) Under "Forest Act 1987", seizure of property liable to confiscation has been dealt with Under Section 26 according to which when there is reason to believe that forest offence has been committed in respect of any forest produce, such produce may be seized by concerned officer, along with tools etc., report whereof is required to be submitted to the "Forest Officer" who for reasons to be recorded may confiscate the same. Against the order of confiscation revision can be preferred before the concerned Court of Sessions.
16. In all fore going statutes the powers of seizure, attachment and confiscation and their exercise can be categorized in three types each having its distinct features. First, under "Code of Criminal Procedure" and statutes which borrow provisions thereof, whereunder attachment of property is aimed at securing attendance of an absconding offender with many modes prescribed for its execution consistent with achievement of the object i.e. appearance of the accused whereafter the attached property is required to be released. The provision thereby, even though vesting power in the magistrate and not investigating agency, does not at all appear to be punitive in nature. Secondly, under "Arms Act" and "Explosives Act", whereunder the power of seizure and confiscation as already said comes into operation only after conviction of the accused and can be exercised thereafter in relation to the Arms/Explosive regarding which the offence is proved to have been committed and as such there is no scope of its exercise at any stage prior to conclusion of trial, much-less by the investigating agency. Thirdly under Forest Act and NDPS Act wherein power of seizure and confiscation is necessarily not linked with out come of the trial, and is exercisable at pretrial stage by officers authorized to investigate cases thereunder. In that much therefore, the power appears to be akin to that provided for under the amended P.C Act whereunder the investigating agency is authorized to attach/seize the concerned property. At the same time however there is a basic difference in the subjects dealt with by these enactments and the anti corruption law. While Forest Act and NDPS Act deal with regulation of substances which are lawfully prohibited ;and possession, sale or transportation whereof is by itself an offence unless authority for same is shown, under Prevention of Corruption Act, the property under reference would not be deemed to be illegal unless shown/proved to be so. It may be apt to point out that under anti corruption law, the acquisition of property perse is not an offence it is the owners/holders failure to satisfactorily account for its acquisition that is. That being so the pretrial power of seizure etc under Forest Act and NDPS Act commodities dealt with thereunder possession whereof by any person is perse an offence and automatically renders him liable to explain the same without which he would certainly be guilty of dealing with the prohibited commodity. The power of pretrial seizure/confiscation under these statutes, therefore, cannot perhaps be seriously questioned because in no case the possessor or holder thereof can claim any title or right of possession therein. That is why under both the statutes the culpable mental state of the accused is almost presumed and the onus to explain the possession etc of the prohibited commodity lies upon him. On the contrary that is not so under the corruption law. No presumption of guilt is attached with acquisition of any property dealt with thereunder. That being so the pretrial power of attachment/seizure vesting in investigating agency under NDPS Act/Forest Act and P.C Act differs at the very root.
17. Thus the context and frame work attending the amended Act is slightly different. The power of seizure, attachment or forfeiture vested in Vigilance organization thereunder is neither ancillary as being aimed at securing attendance of the accused nor is it exercisable only after conclusion of the trial and conviction of the accused, nor it pertains to any substance possession whereof is prohibited unless lawfully explained by holder. On the contrary the Act deals with properties which can be lawfully created, acquired, or held by the owner/holder acquisition/creation whereof would not perse be illegal. In other words, therefore, the presumption regarding property dealt with under the amendment law like any other property is that of legality unless the contrary is proved. In that sense the seizure/attachment of proprietary property without trial by investigating agency with only an executive review open to judicial intervention only on appeal which may or may not be preferred irrespective of whether the effected person is ultimately convicted or acquitted might render the power questionable as excessive pretrial police/executive power.
18. Now coming to the power of confiscation vested in special Court under Sub section (2) of Section 8-C, and Sub Section 8-E and Section 8-F, which for the sake of convenience may be reproduced here:
(2) of Section 8-C Where any property is seized or attached under Section 8-B and the Special Court is satisfied about such seizure or attachment, it may order forfeiture of such property, whether or not the person from whose possession it is seized or attached is prosecuted in the Special Court for an offence under this Act.
8-E. Appeal.-(1) Any person aggrieved by order of forfeiture under Section 8-C may within one month from the date of the receipt of such order, appeal to the High Court.
8-F. Order of forfeiture not to interfere with other punishments.- The order of forfeiture made under this Act by the Special court, Shall not prevent the infliction of an7 other punishment to which the person affected thereby is liable under this Act.
In view of these provisions determination of the nature of forfeiture power appears to be the first aspect calling attention. It appears that Sub section (1) of Section 8-C, deals with appeal against Designated Authority's order, whereunder on appeal by person aggrieved thereby he may either confirm or revoke the attachment order and release the property and that appears to be the end of whole appeal provision, with contents of Sub section (2) not appearing to be integral thereto. Here is, why. Under Sub section (2) when the Special Court is satisfied about the seizure or attachment of any property, he may order its forfeiture, after hearing the concerned person under Section 8-D, irrespective of whether or not he is prosecuted for the offence. On face of it, the provision if read in conjunction with Sub section (1) makes it difficult to understand as to how the Special Court would get seizen of the matter if no appeal is preferred, because his power under Sub section (1) comes into play only in exercise of appellate jurisdiction. If it be on appeal only that Special Court's forfeiture power becomes exercisable, then in absence of an appeal which may or may not be preferred, the exercise of this power suffers for want of a medium. Further in that case only a person preferring an appeal runs the risk of suffering forfeiture while the other who may not appeal from designated authority's order does not face any such prospect. On face of it this position appears to be anomalous. But then the question arises as to how otherwise does the Special Court get seizen of the matter when nothing is expressly contained in the amendment for reference of the matter by designated authority to the Special Court, because Sub section (2) of Section 8-C, which deals with the subject does not mention anything in this behalf. Does that mean that power of forfeiture contained therein is incapable of being exercised without an appeal? Perhaps not, and here are the reasons.
19. Sub section (2) of Section 8-C, opens with reference to the seizure/attachment of property under Section 8-B whereunder the I.O has power to seize/attach the concerned property after approval of Vigilance Commissioner to be confirmed by the Designated authority; and as such appears to be in continuation with provisions thereof instead of being a part of Section 8-C, with which it appears to be wrongly grouped, particularly because while referring to the property seized or attached under Section 8-B in the opening line, it does not refer to exercise or outcome of appeal power by Special Court. It therefore, follows that the forfeiture power of Special Court under Sub section (2) of Section 8-C is independent of and additional to the appeal power or proceedings and not a part thereof. In that view it has to be read in disjunction with Sub section (1). Further support to this view comes from provisions of Section 8-D, whereunder before initiation of proceeding regarding forfeiture of property under Sub section (2) of Section 8-C, notice is required to be given to effected person and he heard in the matter. Had the power been purely a part of the appellate power, under Sub section (1) of Section 8-C, then there was no need for a fresh notice to and further hearing of the effected person, because it would be on his appeal only that the order would have been passed, which would also not perhaps be further appealable before this Court under Section 8-E, because with order of forfeiture taken to be an appellate order the appeal provided for under that section would be the second appeal which does not appear to be what Section 8-E apparently deals with. In the result thus the power of forfeiture vested in the Special Court is a separate and distinct power independent of and additional to the appeal power vesting in him. By necessary implication therefore it means that after confirmation of the seizure/attachment order of concerned property by the Designated authority, even though not expressly provided for, the matter is necessarily required to be reported to the Special Court for his consideration and orders under Sub section (2) of Section 8-C, without which that power may become useless for want of an appeal. The conclusion, therefore, is that the power of forfeiture as contained in the amended Act is a distinct judicial power, exercisable by designated court, in a judicious manner.
20. Viewed thus the exercise of this power controls I.O's power of seizure/attachment along with review power of the designated authority and in that much therefore, involves an automatic judicial review thereof diluting to some extent the objections to vesting of pretrial seizure/attachment power in the investigating agency. The essential element, however, appears to be the submission of the case by designated authority to special Court for initiation of forfeiture proceedings which as said is not expressly provided for, but which only would involve the requisite judicial scrutiny of his order. The sequence of proceedings accordingly appears to be that after his seizure/attachment order the I.O would compulsorily report the matter to designated authority, who after his confirmatory order or revocation thereof would submit the records to Special Court immediately. Submission of records as such, as already said, is not expressly provided for but has to be read within exercise of the confiscation power by him under Sub section (2) of Section 8-C, of amended Act, because otherwise there is no mode of entering into the matter for the Court for assessing Designated Authority's satisfaction regarding seizure/attachment ordered under Section 8-B which is the essential requirement for exercise of the power. In that sequence, therefore, it follows that the seizure/attachment order of I.O in strict accordance with Section 8-B as already discussed would be purely provisional till its confirmation by the designated authority in the manner indicated herein, which shall be subject to the orders to be passed by Special Court on submission of records to him. As a necessary corollary thus the level and mode of seizure/attachment may have to be different at these different stages of the proceeding. To illustrate it could perhaps be suggested that while ordering seizure/attachment then I.O may only execute his order by taking over the constructive control of property in a suitable and legally acceptable manner with direction prohibiting its sale or transfer by any other mode; after confirmation by designated authority the level of executing the seizure/attachment may be raised to actual taking over of the property dispossessing the owner/holder; whereafter the ultimate order of its confiscation or release would naturally come from the designated court, of course appealable before this Court. This sequence would perhaps harmonize all the relevant provisions and render the amended law fair enough and more presentable.
21. Still then one important question remains unanswered which pertains to the mode of the exercise of forfeiture power by Special Court. As already seen with amendment undo reference the Special Judge of anti corruption Court has now a three pronged capacity to work in. He is the trial Court for the case involving offences mentioned in the Act; appeal forum against Designated authority's orders passed under Section 8-B; and the Special Court to exercise power of forfeiture under Sub section (2) of Section 8-C as narrated above. Under Clause (a) of Section 8-D, if the person effected by forfeiture is the original owner/holder of property in question-who may be facing trial before him, he has to give him ample opportunity to represent against the grounds of proposed forfeiture and hear him in support thereof. Otherwise if he 'claims to be a bonafide transferee thereof and not be facing the trial but shows that he purchased it for a value without knowledge of the property having been acquired by "Criminal misconduct" then the Special Judge would have to drop the forfeiture proceedings. In second case perhaps the Special Court may be able to devise some procedure and set a standard for appreciating the effected person's claim; but in first case, where the effected person may be facing trial also with wrongful acquisition of property possibly a charge against him, hearing him on forfeiture and passing a final order thereupon may prove to be quite a difficult exercise due to the very real possibility of an overlapping of pleas and materials being raised or relied upon during both the trial and hearing on forfeiture adversely effecting one of the two this way or that. The ultimate question, therefore, would be that with given nature and contours of the forfeiture power as discussed above, vesting in the Special Court, what should be the procedure and method for its exercise so that it does not effect any of the parties at trial. The question becomes more pronounced because the forfeiture provision mentioned above extends to all persons holding or possessing the attached or seized property irrespective of whether or not they are facing the trial. Had it been restricted to those only who do not figure as accused in the case and are not facing prosecution, matter might have perhaps been quite different.
22. For all that has been said above, the conclusion is that while the confirmatory order of the designated authority regarding attachment/seizure of respondent's house is bad for want of a proper hearing to him and the recorded owner, the appellate order impugned herein also suffers because even according to his definition of the expression "attachment" the attached house could not be released so as to render the I.O's order also in effective. At the same time some vital questions touching different features of the amended Act as discussed in foregoing paras arise which in view of their importance need to be referred to a larger bench. Accordingly while referring following questions arising from proceeding discussions for consideration of large bench:
I) Whether the provisions of "Prevention of Corruption Act" as amended by the aforesaid amendment (Amending Act of 2001) providing for attachment/seizure of property in terms thereof can be invoked by a S.P of Vigilance Organization in a case where investigation had been completed before the amendment and/or conducted by an officer below the rank of a SP, and/or where the property sought to be attached/seized was not subject matter of investigation so conducted; and whether an order of seizure/attachment would be bad due to existence these circumstances or any of them.
II) Whether the Designated Authority, is required to refer the case to Special Court after completion of proceedings before him within prescribed time whether he confirms or vacates the I.O's order of attachment/seizure for its consideration by Special Court under Sub section (2) of Section 8-C If no, then how would the Special Court get seizen of the matter otherwise than on an appeal under Sub section (1) thereof, and whether in that case the judicial review of the seizure/attachment would be excluded rendering the power of I.O's designated authority's seizure/attachment improper as being excessive.
III. What should be the mode/procedure for exercise of the power of "forfeiture" of attached/seized property by Special Court, given the fact that the same Court is the forum for trial of connected offence also.
IV. Whether confiscation of property under the amended Act as a penalty additional to that originally prescribed under Section 7 of the Act can in view of Article 20, of the Constitution operate retrospectively also, i.e. in cases committed before the amendment.
23. It is directed that, subject to orders of the larger bench;
a) Sub-ordinate proceedings shall relegate back to the stage of Sub-section (2) of Section 8-B, and the designated authority shall recommence proceedings thereunder by giving the respondent and the recorded owner effective opportunity of being heard and maintain a record of his proceedings.
b) Subject to the orders of Designated authority and proceedings following the I.O's order of attachment relating to the house under reference shall stand, but the recorded owner thereof shall be the "Superd-dar" thereof on behalf of I.O. He shall be responsible for its watch and ward but the house shall remain vacant and not be used for residential, commercial or any other purpose. Electricity and water supply thereto shall be dis-connected and the house conspicuously marked as "attached".
c) Nothing contained herein shall hinder or delay institution of the case on basis of original FIR No. 40/03 of VOK, under law before the competent court.
24. These directions be conveyed to all concerned and the matter placed before Hon'ble Chief Justice for appropriate orders.