Kerala High Court
Jose vs State Of Kerala
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 15TH DAYOF JANUARY 2016/25TH POUSHA, 1937
Crl.MC.No. 3377 of 2015
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CRIME NO. 2518/2012 OF THE KUNNAMKULAM POLICE STATION-NOW CBCID
CRIME 39/CR/OCW-/PKD-2013
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PETITIONER(S) :
-------------------------
1. JOSE, AGED 68 YEARS,
S/O.MATHEW, KONNIKARA HOUSE, PERAMANGALAM,
THRISSUR DISTRICT.
* ADDITIONAL PETITIONERS 2 TO 8 IMPLEADED
2. THRESSYAMA TESSY JOSE, AGED 60 YEARS,
W/O.JOSE, KONNIKARA HOUSE, PERAMANGALAM,
THRISSUR DISTRICT.
3. DIXON JOSE,
SON OF JOSE, KONNIKARA HOUSE, PERAMANGALAM,
THRISSUR DISTRICT.
4. JINI DIXON,
WIFE OF DIXON JOSE, KONNIKARA HOUSE, PERAMANGALAM,
THRISSUR DISTRICT.
5. SAJO KUTTUKARAN,
SON OF JOSE, KUTTUKARAN HOUSE, POST POOTHOLE,
THRISSUR DISTRICT.
6. JISNA, SAJO,
WIFE OF SAJO, KUTTUKARAN HOUSE, POST POOTHOLE,
THRISSUR DISTRICT.
7. DINOY JOSE,
SON OF JOSE, KONNIKARA HOUSE, PERAMANGALAM,
THRISSUR DISTRICT.
8. M/S.KONNIKARA BANKERS, ESJEE COMPLEX,
NORTH BUS STAND, THRISSUR- 680 020- PARTNERSHIP FIRM,
REPRESENTED BY ITS MANAGING PARTNER- JOSE.K.M.
* ARE IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 8 AS PER ORDER
DATED 25.09.2015 IN CRL.M.A.NO.9487 OF 2015.
BY ADVS.SRI.K.A.SALIL NARAYANAN
..2/-
..2..
Crl.MC.No. 3377 of 2015
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RESPONDENT(S) :
----------------------------
1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. THE DEPUTY SUPT.OF POLICE,
CBCID, OCW III, SUB UNIT, THRISSUR-678 021.
3. THE SUB REGISTRAR,
ERUMAPETTY SUB REGISTRAR'S OFFICE
THRISSUR DISTRICT-678 021.
4. SAIFUDHEEN,
SON OF MONU, POKKILATH HOUSE, ERANELLUR VILLAGE,
KECHERI, THRISSUR DISTRICT-678 001.
$ ADDITIONAL R5 IMPLEADED
5. THE COMPETENT AUTHORITY,
SMUGGLERS AND FOREIGN EXCHANGE MANIPULATORS
(FORFEITURE OF PROPERTY ACT) AND NDPS ACT,
'UTSAV, 64/1, G.N.CHETTY ROAD, T-NAGAR, CHENNAI-600 017.
$ ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 17.07.2015 IN
CRL.M.A.NO.6685 OF 2015.
R1 TO R3 BY SRI.ASAF ALI, DIRECTOR GENERAL OF PROSECUTION
BY SR.GOVT. PLEADER SMT.KOCHUMOL KODUVATH
R4 BY ADV. SRI.P.K.ANIL
R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 23-12-2015 , THE COURT ON 15-01-2016 PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 3377 of 2015
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE-A1: TRUE COPY OF THE RESTRAINT ORDER PASSED BY
THE 2ND RESPONDENT DATED 26.04.2013.
ANNEXURE-A2: TRUE COPY OF THE TAX RECEIPT IN RESPECT OF
THE PETITIONER'S PROPERTY.
ANNEXURE-A3: TRUE COPY OF THE FREEZE ORDER PASSED BY
THE 2ND RESPONDENT DATED 20.01.2015.
ANNEXURE-A4: TRUE COPY OF THE DOCUMENT ACCOMPANYING
ANNEXURE A3.
ANNEXURE-A5: TRUE COPY OF THE CONFIRMATION ORDER PASSED BY
THE ADDITIONAL 5TH RESPONDENT DATED 19.02.2015.
ANNEXURE-A6: TRUE COPY OF THE DOCUMENT ACCOMPANYING
ANNEXURE A5.
ANNEXURE-A7: TRUE COPY OF THE PASSPORTS HELD BY
THE PETITIONER.
ANNEXURE-A8: TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN
THE 4TH RESPONDENT AND THE MANAGING PARTNER OF
THE FIRM WITH ENGLISH TRNALSATION.
ANNEXURE-A9: TRUE COPY OF THE PROCEEDINGS OF
THE 2ND RESPONDENT UNDER SECTION 68F OF THE ACT
DATED 27TH OF MAY 2014.
RESPONDENT(S)' ANNEXURES :
ANNEXURE R2(A): TRUE COPY OF THE GOVERNMENT NOTIFICATION
NO.H2-54642/58/HOME/(A) DATED 14.08.1958.
ANNEXURE R2(B): TRUE COPY OF THE FREEZING ORDER ISSUED BY
THE DY.SP CBCID, THRISSUR UNIT.
ANNEXURE R2(C): TRUE COPY OF THE CONFIRMATION ORDER
DATED 19.02.2015.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
ALEXANDER THOMAS, J.
-----------------------------
Crl.M.C.No.3377 Of 2015
---------------------------------
Dated this the 15th day of January, 2016.
O R D E R
The main prayers in this Criminal Miscellaneous Case instituted under Sec.482 of the Code of Criminal Procedure seeking invocation of the inherent powers conferred on this Court as per that provision are to call for the records pertaining to Anx.A-1 dated 26-04-2013, Anx.A-3 dated 20-01-2015 and Anx.A-5 dated 19-02-2015 and for a declaration that the 1st petitioner's property is not liable to be proceeded against under Chapter VA of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and to hold that the 1st petitioner's property cannot be proceeded under Chapter VA of the NDPS Act, and to direct the 3rd respondent to permit the 1st petitioner to deal with his property ignoring the impugned proceedings, etc. The 1st petitioner herein is the Managing Partner of the 8th petitioner's partnership firm (in which petitioners 1 to 7 are partners), and the said partnership firm has title and ownership rights over the property coming to an extent of about 1.90 acres of land in ::2::
Crl.M.C.No.3377 Of 2015 Survey Nos.599/1, 599/3, 598, 599/2 in Chiranellur Village, Thalappilly Thaluk, Thrissur District. The 1st petitioner in his capacity as Managing Partner of the firm had entered into an agreement for sale with the 4th respondent, as per Anx.A-8 agreement for sale dated dated 18-10-2012, pursuant to which, an advance sale consideration of Rs.75 Lakhs was paid and balance sale consideration of Rs.66,25,500/- was to be paid within 6 months therefrom. It is stipulated in Annexure- A8 agreement that in case the petitioner commits default in executing the sale deed after the 4th respondent comes prepared with the balance sale consideration, then the latter has all the right to get the same executed through the process of court and that he will have the right to get whatever loss he suffers due to the process of the court. Further that during the currency of the agreement, in case there is failure on the part of the 4th respondent to get the sale deed executed, then the loss that could be suffered by the petitioners will be appropriated from the advance amount and that the agreement will stand cancelled and that the 4th respondent will not have any right to recover anything from the said advance, etc. According to the petitioners, since the 4th respondent did not comply with the terms of the agreement, the said agreement was ::3::
Crl.M.C.No.3377 Of 2015 cancelled and that the amount was returned by him. That when the petitioner was taking further steps to deal with the property, he could learn from the 3rd respondent's office (Sub Registrar concerned) that the impugned Anx.A-1 order dated 26-04-2013 has been passed by the 2nd respondent directing that all concerned are restrained from dealing with the petitioners' said property. That copy of Anx.A-1 order was not served on the 1st petitioner and that he could get a copy of the same only on making an application under the under the Right to Information (RTI) Act. It is thereupon that he became aware for the first time that the said Anx.A-1 restraint order was passed by the 2nd respondent in purported exercise of the powers conferred under Chapter VA of the NDPS Act. That it is stated in Anx.A-1 by the 2nd respondent that the money paid as advance sale consideration was obtained by the 4th respondent by illegal sale of Narcotics Drugs, etc. That later, the 1st petitioner could come to know that the 2nd respondent is conducting investigation in Crime No.39/CR/OCW-III/PKD/13 (formerly Crime No.2518/12 of Kunnamkulam Police Station), for offences allegedly committed under the NDPS Act. It is the specific case of the petitioner that he is not in any way involved in the commission of ::4::
Crl.M.C.No.3377 Of 2015 the aforestated crime. That later, the 2nd respondent has passed the impugned Anx.A-3 order dated 20-01-2015 wherein it is inter alia ordered that the aforestated property of the 1st petitioner is the subject matter of the freezing order therein as per the enabling provisions contained under Sec.68F(1) of the NDPS Act. That subsequently, the 5th respondent Competent Authority has passed the impugned Anx.A-5 order dated 19-02-2015 confirming the impugned Anx.A-3 freezing order, by taking recourse of the enabling provisions under Sec.68F(2) of the Act. It is the specific case of the petitioner that no reasonable opportunity was granted by the 2nd respondent before the issuance of Anx.A-3 freezing order and Anx.A-5 confirmation order. The specific contention of the petitioner is that he is not a 'person' as envisaged under Sec.68 A(2) under Chapter VA of the NDPS Act and that Anx-A8 sale transaction was never completed and that the agreement was cancelled and that the title, ownership and possession of the property covered by Anx-A8 (which is the subject matter of the impugned proceedings) is still with the 1st petitioner in his capacity as Managing Partner of the partnership firm. That the impugned Anxs.A-3 and A-5 orders are passed also in respect of various other properties, the title ::5::
Crl.M.C.No.3377 Of 2015 and ownership of which had already passed on persons who are accused in the aforestated crime or their close family relatives or associates and that all such persons are persons as envisaged under Sec.68A(2) of the NDPS Act. That the property covered by Anx.A-8 is the only property which is covered by the impugned Anxs.A-3 and A-5 orders for which the title, ownership and possession vest completely with persons who are not coming under Sec.68A(2) of the NDPS Act. Further that since the title, ownership and possession in respect of the present property continues to be vest with the petitioners who do not come within the purview of Chapter VA of the NDPS Act, the said property can by no stretch of imagination be said to be illegally acquired property as envisaged in Chapter VA of the NDPS Act. It is on the basis of these specific contentions that the petitioners have sought the aforestated reliefs in this petition.
2. The 2nd respondent (Deputy Superintendent of Police, Crime Branch CID) has filed a statement dated 23-06-2015 through the State Public Prosecutor. It is averred therein that based on the investigation conducted in the aforestated crime, it has been revealed prima facie that accused No.1 in the crime (Saifudheen, who is the 4th respondent ::6::
Crl.M.C.No.3377 Of 2015 herein) has acquired properties by using the money derived from illegal sale of Narcotics supplied by accused No.2 in the crime (Gireesh Kumar). That during the search conducted on 19-12-2012 in the house of A-1 Saifudheen, a sale agreement of purchase of 1 Acre 93.500 cents of land from one Jose, S/o Mathu, Konikkara house, Peramangalam, Thrissur (1st petitioner herein) was recovered, that as per the said Anx.A-8 agreement, A-1 Saifudheen had paid Rs.75 lakhs to the 1st petitioner herein towards advance sale consideration and that the amount has not been recovered so far. And that the petitioner herein has stated before the Investigating Officer that he had received the amount without any knowledge that it is the sale proceeds of the Narcotics, etc. It is further averred therein that all the properties held by accused Nos.1 to 3 in the crime including the advance money given by A-1 to the 1st petitioner herein were sale proceeds of Narcotics business and as such they are liable for confiscation under Chapter VA of the NDPS Act. Therefore, proceedings as envisaged in Chapter VA of the Act were initiated by the Investigating Officer under Sec.68F of the NDPS Act and the impugned Anx.A-3 order was issued on 20-01-2015 by the 2nd respondent-Investigating Officer with respect to the various ::7::
Crl.M.C.No.3377 Of 2015 properties covered in the schedule attached thereto. That after the issuance of Anx.A-3 order dated 20-01-2015, copies of the same were served on the parties concerned including the petitioners herein. Later, the papers were forwarded to the 5th respondent-competent authority within 48 hours for further proceedings of confirmation as provided under Sec.68F of the Act. That within the time limit of 30 days as stipulated in the Statute, the 5th respondent-Competent Authority has passed the impugned Anx.A-5 order dated 19-02-2015 confirming the impugned Anx.A-3 freezing order in respect of all the properties covered by that order including the property of the 1st petitioner herein as provided under Sec.68F (2) of the NDPS Act. It is further stated that the contention of the petitioner that his property is not liable for freezing as per Chapter VA of the NDPS Act is not correct as he has received Rs.75 Lakhs from accused No.1 in the crime as per Anx.A-8 agreement dated 18-10-2012. That the money paid by A-1 Saifudheen is the amount derived from the illegal sale of Narcotics by A-2 GireeshKumar @ Alibhai and A1 Saifudheen acting as the agent of A-2 Gireeshkumar and had handed over the money to the 1st petitioner herein. That as the money received by the 1st petitioner as per the ::8::
Crl.M.C.No.3377 Of 2015 written agreement it is clear that the petitioners' property is clearly connected or involved in the illegally acquired properties of A-1 Saifudheen. That as the amount of Rs.75 Lakhs could not be recovered during the investigation, the only available means for the 2nd respondent was to freeze the property upon which the amount was received. That the freezing authority and the competent authority have got the right to proceed against the 1st petitioner's property under Chapter VA of the NDPS Act. That the freezing order has been issued on the subjective satisfaction of the Investigating Officer that the property was illegally acquired by A-1 Saifudheen through the funds derived from the sale of Narcotics. It is further stated therein that the contention of the petitioner that the 2nd respondent-Investigating Officer is not empowered under sub Sec.(2) of Sec.68A of Chapter VA of the NDPS Act is not correct as an Officer of the rank of Deputy Superintendent of Police, Crime Branch, Criminal Investigation Department (CBCID) is conferred with the powers as per Anx.R-2(a) Government Notification No.H2-54642/58/Home/(A) dated 14-08- 1958. As per the said Notification, the State Government had notified that all Police Officers of and above the rank of Inspectors of Police in ::9::
Crl.M.C.No.3377 Of 2015 the Criminal Investigation Department may exercise powers through out the State of Kerala, the power of an Officer in Charge of a Police Station under the Code of Criminal Procedure.
3. The 5th respondent (Competent Authority) under Section 68F(2) has filed a statement dated 5-08-2015 through the learned Assistant Solicitor General. The details regarding the registration of the aforestated crime against the accused persons has been dealt with in the said statement. It is further stated therein that the 2nd respondent being the empowered officer, has passed the impugned Anx.A-3 freezing order dated 20-01-2015 directing accused No.1 not to deal with the property of the 1st petitioner, as the said property was acquired by the accused out of the moneys derived from illegal narcotic trade. That the Competent Authority had given a reasonable opportunity of being heard to accused No.1 Saifudheen to represent through his Advocate before passing the impugned conformation order. That after the issuance of the impugned Anx.A-5 order, copy of the same was also communicated to the 1st petitioner herein. That as regards the contentions of the 1st petitioner that Anx.A-8 agreement for sale entered into with Sri.Saifudheen was cancelled and that the advance amount ::10::
Crl.M.C.No.3377 Of 2015 was returned etc., the petitioner has to be put to strict proof to prove his claim in that regard etc. The other details discernible from the impugned Anxs.A-3 and A-5 orders are also dealt with in detail in the aforestated statement. More crucially, in paragraph 11 of the said statement dated 05-08-2015, the 5th respondent has categorically stated that the 1st petitioner herein does not come under the purview of Chapter VA of the NDPS Act, as defined under Sec.68A of the NDPS Act. It is further submitted in the said statement that the charge or interest of the accused Sri.Saifudheen arising out of the advance given by him in respect of the 1st petitioner's land stands frozen as per the impugned proceedings, even though the aspects in that regard are not clearly stated in the impugned proceedings. As regards the contention of the petitioner regarding the inapplicability of the provisions contained in Sec.68A(2)(ii), it is pointed out in the said statement that accused Sri.Saifudheen is an associate of one Sri. Gireesh kumar who is a person coming under Sec.68B(ii) which defines "an associate" as "any individual who had been or is managing the affairs or keeping the accounts of such person." That the statements of both Sri.Saifudheen the holder of the properties, and Sri.Gireesh Kumar @ Alibhai, the ::11::
Crl.M.C.No.3377 Of 2015 person who admitted to have involved in illicit trafficking in drugs, confirm that Sri.Saifudheen was managing the affairs of Sri.Gireesh Kumar and that he was keeping the amount remitted to him in his Bank accounts and that the contents of their statement clearly reveal the actual state of affairs in their own method of accounting in respect of the transactions. It is pointed out that Sec.68B(a)(iii) of the NDPS Act as enumerated in the year 2014 provides as follows:
"(iii) any property acquired by such person, whether before or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, wholly nor partly out of or by means of any income, earnings or assets the source of which cannot be proved, or the equivalent value of such property."
4. That the Competent Authority, immediately on receipt of the papers in relation to the impugned freezing order, had given reasonable opportunity to the accused Sri.Saifudheen and has passed the impugned Anx.A-5 confirmation order within the statutory time limit of 30 days. That the objection raised by the petitioner that he is not a person falling within the provisions of Chapter VA of the NDPS Act is not disputed, etc.
5. The 3rd respondent-Sub Registrar was directed by this Court to furnish a report regarding the property of the petitioner ::12::
Crl.M.C.No.3377 Of 2015 covered by the impugned proceedings. The said 3rd respondent-Sub Registrar, Erumappetty, Thrissur District, has filed a report dated 8-07- 2015 in this matter wherein it is stated that he has verified the records concerned relating to the property mentioned in Anx.A-1 coming to 1 acre 93.5 cents of land situated in Chiranellur Village under his jurisdiction and that the said property is in the actual possession of the 1st petitioner herein, who is the managing partner of M/s.Konnikkara Bankers, a partnership firm. That the said partnership firm had purchased the said 1 acre 42.500 cents of land by a sale deed registered as Sale deed No.2360/2007 dated 06-12-2007 and the balance 51 cents of land by sale deed registered as sale deed No.462/2008 dated 22-02-2008 and that from then onwards the 1st petitioner, who is the managing partner of the firm, is the owner of the properties. That Anx.A-1 proceedings was received by the 3rd respondent on 26-04-2013 and the impugned freezing order and confirmation order were received on 20-01-2015 and 22-02-2015 respectively. That as per the records of the Sub Registrar's office, the said property is in the possession of the 1st petitioner Sri.Jose, that verification of the records in his office clearly reveals that the ::13::
Crl.M.C.No.3377 Of 2015 ownership of the aforementioned properties is with the 1st petitioner, Sri.Jose, who is the managing partner of M/s.Konnikkara Bankers from the date of registration of the above sale deeds, ie; from 06-12-2007 and 22-02-2008 and that the 1st petitioner has not transferred the ownership of the property till date by a registered deed. The 4th respondent has filed an affidavit inter-alia stating stating that he paid a total advance of Rs.75 Lakhs to the 1st petitioner and that he could not get the sale deed executed within the stipulated time due to unforeseen circumstances and that coming to know of his adverse financial conditions, the 1st petitioner returned the amount of Rs.75 Lakhs to him on various dates. That the 4th respondent was indebted to various persons for raising this amount and that he could discharge his liabilities by using the said returned amount, etc.
6. Heard the learned counsel appearing for the petitioners, the learned Public Prosecutor appearing for respondents 1 to 3, the learned Assistant Solicitor General appearing for the 5th respondent and the learned counsel appearing for the 4th respondent.
7. Though the learned prosecutor and the learned Assistant Solicitor General have made a preliminary submission that the 1st ::14::
Crl.M.C.No.3377 Of 2015 petitioner has not availed the alternative remedy to challenge the impugned proceedings by filing a statutory appeal as provided under Sec.68 O(2) of the NDPS Act, it is by now well established that if the decision making process which led to the impugned proceedings is vitiated by taking into account the irrelevant considerations or by not taking into account the crucial relevant aspects or by jurisdictional errors or illegalities, then this Court can consider those aspects of the matter in the present proceedings, without relegating the petitioner to the appellate remedy.
8. The impugned Anxs.A-3 & A-5 proceedings have been issued in respect of various properties mentioned in the schedule thereto including the property of the petitioners herein. Writ Petitions, W.P.(C).Nos.30285/2014 & 3995/2015 have been filed by one Sri.Saifudheen and one Sri.Thajudeen to challenge the above impugned proceedings to the extent it affected the properties purchased by them. This Court repelled the contention raised by the petitioners therein that the Deputy Superintendent of Police of the Crime Branch, CID, who is the Investigating Officer in the crime, is not an empowered officer as per Sec.53 of the NDPS Act. This Court held in view of the notification ::15::
Crl.M.C.No.3377 Of 2015 dated 14.8.1958 issued by the State Government that all officers of and above the rank of Inspectors of Police in the Criminal Investigation Department have been empowered to exercise through out the State of Kerala the power of an Officer in Charge of Police Station as per Cr.P.C and accordingly, it was held by this Court that such an officer of the Criminal Investigation Department of the State Police is invested with all the powers of an Officer in Charge of a Police Station and hence stands properly empowered as per Sec.53 of the NDPS Act. This Court as per judgment dated 29.6.2015 in those Writ Petitions was not inclined to exercise discretion in those cases as the petitioners therein could avail the benefit of the statutory appeal remedy provided under Sec.68 O of the Act. It is to be noted that Sri.Saifudeen, is an accused in the crime and Sri.Thajudeen, who was an accused and had later become an approver in respect of that crime. Both of them would certainly come within the ambit of Sec.68A(2) of the persons. Unlike those cases, it can be seen that the petitioners herein are in no way connected with the crime in question for offences under the NDPS Act.
9. It may also be noted that one Smt.Sharmila, who is the wife of the aforesaid accused Sri.Saifudeen, had approached this Court by ::16::
Crl.M.C.No.3377 Of 2015 filing Crl.M.C.No.1033/2015 to challenge the aforestated impugned proceedings to the extent it ordered the freezing of one of her bank accounts. A learned Single Judge of this Court has passed order dated 26.3.2015 in that Crl.M.C which reads as follows:
"The 1st respondent has failed to submit report in compliance with the direction made by the court on 20.2.2015. He was required to report whether the prohibition order made under Section 68 F of the NDPS Act is confirmed by the competent authority within the prescribed time. Now, the learned counsel for the petitioner submits that there is no such confirmation order. If so, the said order will have no force. The consequence is that the petitioner will be at liberty to operate his bank account. He is accordingly allowed to operate his bank account. Direction accordingly is given to the 3rd respondent. The 3rd respondent will comply with the directions and act accordingly. Furnish a copy of this order to the learned Standing Counsel for the 3rd respondent."
Later, the learned State Prosecutor submitted that the freezing order pertaining to the said bank account of the petitioner therein was not confirmed in terms of Sec.68F(2) of the Act even though confirmation order in some other aspects has already been issued and moneys involved in that bank account has already been released to the petitioner therein on 26.3.2015. Accordingly, this Court had closed the said Crl.M.C.No.1033/2015 on 26.5.2015. In the instant case, petitioners herein are no in any way involved with the commission of the crime in question involving offences under the NDPS Act. Petitioners herein are not family members of such accused persons nor ::17::
Crl.M.C.No.3377 Of 2015 are they associates of such accused persons as envisaged in Sec.68B(b) of the NDPS Act. The learned Assistant Solicitor General has fairly submitted that the petitioners are not persons as envisaged in Sec.68A (2) of the Act. The title and ownership in respect of all the properties covered by the impugned orders except the property of the petitioners herein, stood vested with either the accused persons or their family members or their associates. Where, even as per the case projected by the respondents, the sale transaction has not yet been complete and the report of the 3rd respondent-Sub Registrar, clearly indicates that title, ownership and possession continued to remain with the petitioners' firm. These are clear aspects which distinguish the present case from the previous cases which dealt with other properties involved in the impugned proceedings. Accordingly, in the light of these aspects, this Court is inclined to exercise discretion in order to examine the matter within the narrow compass as to whether the impugned decision making process which led to the impugned proceedings relating to the property in question is initiated by irrelevant considerations or by not taking into account the crucial relevant aspects or by jurisdictional errors or illegalities. In that limited perspective this Court proposes to ::18::
Crl.M.C.No.3377 Of 2015 examine the matter without going into any serious assessment of the merits of the impugned decision. In that view of the matter, this Court is inclined to overrule the objections raised by the official respondents that the petitioners are to be relegated to the remedy by way of statutory appeal as provided under Sec.68-O of the Act.
10. It will be profitable to make a reference to some of the relevant provisions contained in Chapter VA of the NDPS Act which read as follows:
'Chapter VA FORFEITURE OF PROPERTY DERIVED FROM, OR USED IN ILLICIT TRAFFIC Sec.68A. Application:-(1) The provisions of this Chapter shall apply only to persons specified in sub-section (2) (2) The persons referred to in sub-section (1) are the following, namely:-
(a) every person who has been convicted of an offence punishable under this Act with imprisonment for a term of ten years or more;
(b) every person who has been convicted of a similar offence by a competent court of criminal jurisdiction outside India;
(c ) every person in respect of whom an order of detention has been made under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988), or under the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (J & K Act XXIII of 1988):
Provided that such order of detention has not been revoked on the report of the Advisory Board constituted under the said Acts or such order of detention has not been set aside by a court of competent jurisdiction;
(cc) every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act with imprisonment for a term of ten years or more, and ::19::
Crl.M.C.No.3377 Of 2015 every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of a similar offence under any corresponding law of any other country.
(d) every person who is a relative of a person referred to in clause (a) or clause (b) or clause (c ) or clause (cc ); (e) every associate of a person referred to in clause (a) or clause (b) or clause (c ) or clause (cc);
(e) every associate of a person referred to in clause (a) or clause (b) or clause (c) or clause (cc);
(f) any holder (hereinafter in this clause referred to as the "present holder") of any property which was at any time previously held by a person referred to in clause (a) or clause (b) or clause(c) or clause (cc); unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.
Sec.68-B. Definitions.--In this Chapter, unless the context otherwise requires,--
xxxx xxxx xxxx xxxx xxxx
(b) "associate" in relation to a person whose property is liable to be forfeited under this Chapter, means--
(i) any individual who had been or is residing in the residential premises (including outhouses) of such person;
(ii) any individual who had been or is managing the affairs or keeping the accounts of such person;
(iii) any association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies Act, 1956 (1 of 1956), of which such person had been or is a member, partner or Director;
xxxx xxxx xxxx xxxx xxxx
(vi) the trustee of any trust, where,--
(1) the trust has been created by such person; or (2) the value of the assets contributed by such person (including the value of the assets, if any, contributed by him earlier) to the trust amounts, on the date on which contribution is made, to not less than twenty per cent of the value of the assets of the trust on that date;
xxxx xxxx xxxx xxxx xxxx
(g) "illegally acquired property", in relation to any person to whom this Chapter ::20::
Crl.M.C.No.3377 Of 2015 applies, means,--
(i) any property acquired by such person, whether before or after the commencement of this Chapter, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to the contravention of any provisions of this Act; or
(ii) any property acquired by such person, whether before or after the commencement of this Chapter, for a consideration, or by any means wholly or partly traceable to any property referred to in sub-clause (i) or the income or earning from such property, and includes--
(A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;
(B) any property acquired by such person, whether before or after the commencement of this Chapter, for a consideration, or by any means, wholly or partly traceable to any property falling under Item (A), or the income or earnings therefrom;
(h) `"property" means property and assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets, derived from, or used in, the illicit traffic;
(i) `relative' means--
(1) spouse of the person;
(2) brother or sister of the person;
(3) brother or sister of the spouse of the person;
(4) any lineal ascendant or descendant of the person; (5) any lineal ascendant or descendant of the spouse of the person; (6) spouse of a person referred to in sub-clause (2), sub-clause (3), sub- clause (4) or sub-clause (5);
(7) any lineal descendant of a person referred to in sub-clause (2) or sub-clause (3);
(j) "tracing" means determining the nature, source, disposition, movement, title or ownership of property;
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Crl.M.C.No.3377 Of 2015 Sec.68-C. Prohibition of holding illegally acquired property.--(1) As from the commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any illegally acquired property either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Chapter:
Provided that no property shall be forfeited under this Chapter if such property was acquired, by a person to whom this Act applies before a period of six years from the date he was arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act or from the date the order of detention was issued, as the case may be.
Sec.68E. Identifying illegally acquired property:-(1) Every officer empowered under Section 53 and every officer-in-charge of a police station shall, on receipt of information is satisfied that any person to whom this Chapter applies holds any illegally acquired property, he may, after recording reasons for doing so, proceed to take all steps necessary for tracing and identifying such property. (2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institution or any other relevant matters. (3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions or guidelines as the competent authority may make or issue in this behalf.
Sec.68F. Seizure or freezing of illegally acquired property:- (1) Where any officer conducting an inquiry or investigation under section 68E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is an illegally acquired property and such property is likely to be concealed, transferred or dealt within in any manner which will result in frustrating any proceeding relating to forfeiture of such property under this Chapter, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order 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 competent authority and a copy of such ::22::
Crl.M.C.No.3377 Of 2015 order shall be served on the person concerned:
Provided that the competent authority shall be duly informed of any order made under this sub-section and a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made.
Explanation:- For the purposes of this section, "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes-
(a) the creation of a trust in property:
(b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property;
(c ) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and
(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.
xxxx xxxx xxxx xxxx xxxx Sec.68J. Burden of proof.- In any proceedings under this Chapter, the burden of proving that any property specified in the notice served under section 68H is not illegally acquired property shall be on the person affected.'
11. The Apex Court in the case Aslam Mohammad Merchant v. Competent Authority and ors. reported in (2008) 14 SCC 186 has examined the validity of the impugned forfeiture proceedings issued therein by virtue of the powers conferred under Sec.68-I under Chapter VA of the NDPS Act. Though the Apex Court was mainly considering the forfeiture proceedings issued under Sec.68-I of the Act, the ::23::
Crl.M.C.No.3377 Of 2015 provisions contained in Sec.68E and Sec.68F of the Act has also been duly taken note of and it has been held in para 29 of that ruling that the word "tracing" also assumes importance which leads to determining the nature, source, disposition, movement, title or ownership of the property. That the direction to forfeiture of a property is in two parts. Firstly, it has to be identified in terms of Sec.68 E of the Act. For the said purpose, as contemplated under Sec.68 E of the Act, a satisfaction must be arrived at by the authority specified therein to the effect that the person concerned had been holding any illegally acquired property. Secondly, that on the basis of such information on the basis of which such satisfaction has been arrived at, the competent officer is entitled to take steps for tracing and identifying the property and he is also entitled to seize or freeze such a property. In para 30 of the said ruling, Their Lordships of the Supreme Court held that before actual order of forfeiture of illegally acquired property is passed, the issuance of notice to show cause is essential so as to fulfil the requirements of natural justice and such a notice is to be issued by the authority having regard to:
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Crl.M.C.No.3377 Of 2015
(i) the value of the property held by the person concerned,
(ii) his known source of income, earning or assets,
(iii) any other information or material made available as a result of a report from any officer making an investigation under Sec.68E of the Act or otherwise.
That when these conditions are satisfied, the competent authority would be entitled to issue a show cause notice, if he has reason to believe, wherefor reasons are to be recorded in writing that the properties are illegally acquired properties. In para 31 of the Aslam Mohammed Merchant's case (supra), the Apex Court held that once notice to show cause as aforestated is found to be satisfying, the statutory requirements which are condition precedent therefor, a valid proceeding can be said to have been initiated for forfeiture of the property and that only in a case where a valid proceedings has been initiated, the burden of proof that any property specified in the notice is not illegally acquired property, would be on the "person" affected. Accordingly, it was held in para 32 of that ruling that before any order of forfeiture can be passed, the competent authority must not only comply with the principles of natural justice, he is also required to apply his mind on the materials ::25::
Crl.M.C.No.3377 Of 2015 brought before him. It is also necessary that all or any of the properties in question were illegally acquired properties is recorded. After finding that the impugned proceedings therein were initiated due to various reasons, their Lordships of the Supreme Court held in para 60 thereof that dealing in narcotics is a social evil that must be curtailed or prohibited at any cost and Chapter VA seeks to achieve a salutary purpose. But, it must also be borne in mind that the right to hold property, although no longer a fundamental right, is still a constitutional right and it is a human right. In para 61 it was held by the Apex Court that the provisions of the NDPS Act must be interpreted in a manner so that its constitutionality is upheld and the validity of the provisions might have received constitutional protection, but when stringent laws become applicable as a result whereof some persons are to be deprived of his/her right in a property, scrupulous compliance with the statutory requirements is imperative. The legality and validity of the impugned proceedings in this case are to be examined in the light of the aforestated legal principles well settled by the Apex Court.
12. It has been categorically held by the Apex Court in para 57 of the Aslam Mohammad Merchant's case (supra) that if the impugned ::26::
Crl.M.C.No.3377 Of 2015 proceedings themselves have were not initiated validly, after satisfaction of the statutory conditions thereof, the competent authority did not derive any jurisdiction to enter into merits of the matter.
13. Sec.68 E(1) mandates that every officer shall on receipt of information is satisfied that any person to whom Chapter VA applies holds any illegally acquired property, he may, after recording reasons for doing so, proceed to take all steps necessary for tracing and identifying such property. Therefore, in a case where the officer concerned is satisfied hat any person to whom Chapter VA applies holds any illegally acquired property, then he may proceed to take all steps necessary for tracing and identifying such property. But, in such eventuality, he has to record reasons about his satisfaction that any person to whom Chapter VA applies holds any illegally acquired property on the basis of any material information received by him. Once this threshold under Sec.68E is crossed, the officer is empowered as per Sec.68 E(2) to conduct any enquiry or investigation or survey in respect of any person, place, property, assets, documents, books of account, etc., or any other relevant matters as contemplated under Sec.68 E(2). As per Sec.68 E(3) any such enquiry, investigation or ::27::
Crl.M.C.No.3377 Of 2015 survey as contemplated under Sec.68 E(2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions or guidelines as the competent authority may make or issue in that behalf. So, even if it is assumed that the threshold statutory requirement at the stage of Sec.68 E(1) has been fully satisfied, still the officer concerned is bound to make an enquiry or investigation, etc., as contemplated under Sec.68 E(2) in an effective and proper manner. It is only after completion of such enquiry or investigation in a reasonable and proper manner that the stage for issuance of freezing proceedings as per Sec.68F(1) will arise. Therefore, even in a case where threshold statutory requirements at the stage of Sec.68 E(1) has been fully satisfied and complied, still , the designated officer concerned is bound to make an enquiry or investigation as mandated under Sec.68 E(2) in an effective and proper manner so that the issuance of the freezing of seizing order is lawfully justified.
14. After hearing all the parties concerned in extenso and after meticulous examination of the matters borne out by the official records brought on behalf of official respondents, the following indisputable aspects have been clearly brought to light:-
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Crl.M.C.No.3377 Of 2015
(i) Matters on record clearly indicate that the 2nd respondent has not conducted any enquiry whatsoever so as to ascertain from the office of the 3rd respondent-Sub Registrar regarding the title, ownership and possession of the property of the petitioners in question covered by Anx.A-8 agreement. The impugned Anx.A-1 restraint order was passed by the officer as early as on 18.10.2012 and the impugned Anx.A-3 freezing order passed by him is only on 20.1.2015. Therefore, the officer had all the time to make an effective and proper enquiry to ascertain the basic factual aspects regarding the property in question from jurisdictional Sub Registrar Office. After this case was admitted, this Court had directed the 3rd respondent-SRO to file a report in the matter and in compliance with that direction, the 3rd respondent has filed the aforestated report dated 8.7.2015, the details of which are stated earlier hereinabove. The impact of these crucial and relevant aspects flowing from the aforesaid report of the 3rd respondent-SRO has not been considered either in the impugned Anx.A-3 freezing order issued by the 2nd respondent or in impugned Anx.A-5 confirmation order passed by the 5th respondent.
(ii) No enquiry has been done by the 2nd respondent to ::29::
Crl.M.C.No.3377 Of 2015 ascertain from the competent revenue authorities concerned like Village Officer, Thahsildar, etc., regarding the property of the petitioners in question. The Village Officer is the competent authority to issue possession certificate of properties coming within its jurisdiction and to effect applications for mutation, etc. Sec.68B(j) defines "tracing" to mean determining the nature, source, disposition, movement, title or ownership of property. As held by the Apex Court in para 29 of Aslam Mohammad Merchant's case (supra), the term "tracing" (as envisaged in Sec.68B(j) and Sec.68E(1) of the Act) of property assumes importance as it leads to determining the nature, source, disposition, movement, title or ownership of the property. Therefore, the non conduct of an enquiry clearly amounts to not taking into account the crucial relevant inputs that could have been gathered from such competent revenue officials having jurisdiction of the property in question.
(iii) The title deed of the properties of the petitioners has not even been examined by the official respondents at any point of time.
Not even the attested copies of their title deeds are called for by the 2nd respondent from the petitioners. Therefore, it cannot be said that effective and proper steps were taken in the enquiry conducted by the ::30::
Crl.M.C.No.3377 Of 2015 2nd respondent in the matter of tracing of the property so as to have effective determination of the nature, source, disposition, title or ownership of the property, etc.
(iv) Though Anx.A-8 sale agreement clearly revealed that the property in question vested with the partnership firm of the petitioners, no effort whatsoever has been taken by the 2nd respondent in securing an attested or certified copy of the partition deed which regulated the partnership firm of the petitioners. No enquiry is seen conducted by the 2nd respondent about the nature of the business carried out by the petitioners partnership firm and about the details of the share with regard to the rights and titles of each of the partners in the property in question. No effort has been made by the 2nd respondent to conduct any enquiry through any other Governmental agency like the Police, etc., to ascertain as to whether any of the aforestated accused persons in the crime are having any connection or defacto control over the possession of the property in question.
(v) It has been clearly admitted by the learned Assistant Solicitor General that neither the original nor copy of Anx.A-8 sale agreement has been forwarded by the 2nd respondent to the 5th ::31::
Crl.M.C.No.3377 Of 2015 respondent-competent authority for examination and consideration, before passing of the impugned confirmation order. The crucial aspects that flowed from the very nature of the transaction arrived at between the parties as per Anx.A-8 has not been examined by the 5th respondent.
(vi) Though the 2nd respondent claim in his pleadings statement that a statement was taken by the 1st petitioner on 11.4.2012, it has been clearly stated by the learned Assistant Solicitor General appearing on behalf of the 5th respondent that even a copy of the said statement was never forwarded to the 5th respondent before passing of the confirmation order. Therefore, the crucial aspects that flows from this is that the statement was never been effectively considered in its proper perspective by the 5th respondent. A perusal of the said statement reveals that it is an unsigned statement and that it is said to have been made on 11.4.2012. Obviously this could only be a mistake. The crime in question was registered only on 19.10.2012 and Anx.A-8 agreement for sale was executed on 18.10.2012. Therefore, the statement from the 1st petitioner-Jose could not have been taken on 11.4.2012.
Presumably, the date shown therein could be referring to the date ::32::
Crl.M.C.No.3377 Of 2015 11.4.2013 and not 11.4.2012. Be that as it may, this clearly shows the casual manner in which such a crucial aspect has been dealt with in the so called enquiry conducted by the 2nd respondent. All the more serious lapse in this regard is that even a copy of the statement has never been forwarded by the 2nd respondent to the 5th respondent for his considered evaluation at least before passing of the impugned confirmation order.
(vii) No enquiry is seen conducted by the 2nd respondent to ascertain from the petitioners herein, who are partners of the 8th respondent's firm, as to whether Anx.A-8 agreement was subsequently cancelled or whether the moneys were returned, etc. Anx.A-8 agreement for sale was executed on 18.10.2012. Even if it is assumed that the unsigned statement of the 1st petitioner was taken on 11.4.2013, still the 2nd respondent had plenty of time to ascertain as to what has transpired in the transaction at least after 11.4.2013. This lapse is all the more serious as there was no constraint of time for the 2nd respondent in completing the enquiry and as a matter of fact he has passed the freezing order as per Anx.A-3 only on 20.1.2015. Therefore, lack of time could not be a justifiable excuse for the 2nd respondent to explain such a serious lapse.
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Crl.M.C.No.3377 Of 2015
(viii) Schedule to the impugned Anx.A-3 freezing order disclose that the 2nd respondent has understood that the title of the property in question is vested with the accused Saifudheen. True that there is an additional remark in the remark column that there is an agreement for sale. But in the relevant column for title holder it is specifically and clearly shown in the schedule to Anx.A-3 order that title holder is the accused Saifudheen. This is clearly taking into account the wrong and relevant consideration inasmuch as the sale transaction has not been completed and the aforestated report of the 3rd respondent clearly shows that the title, ownership and possession of the properties in question continue to vest with the petitioners' partnership firm. Based on this wrong approach made by the 2nd respondent, the 5th respondent has also proceeded on this basis as can be seen from the schedule to Anx.A-
5 order listing out the details of the various properties covered by the impugned proceedings including the present property in question.
(ix) During the course of hearing in this case, the learned Public Prosecutor appearing for the respondent-State authorities strongly asserted that the petitioners herein is a person within the meaning of Sec.68A(2) and therefore, he comes within the ambit of ::34::
Crl.M.C.No.3377 Of 2015 Chapter VA of the NDPS Act. Whereas, it has been fairly and correctly submitted by the 5th respondent through learned Assistant Solicitor General that the petitioner is not a Sec.68A(2) person. None of the petitioners are in any way involved with the impugned crime for the offences under the NDPS Act, nor are they in any way directly or indirectly related to the families of the accused therein and nor can they said to be associates as envisaged under Sec.68B(b) of the NDPS Act. A meticulous consideration of the facts in this case with reference to the provisions contained in Sec.68A(2) and Sec.68B(b) would make it clear that the stand taken by the 5th respondent-competent authority that the petitioner is not a Sec.68A(2) person is correct and tenable. Thus, it can be seen from the aforestated submission made by the learned Public Prosecutor appearing on behalf of the 2nd respondent that the 2nd respondent appears to have been swayed by the irrelevant and wrong factual premise that the petitioner is a Sec.68A(2) person.
(x) During the course of submission made previously in this case, the learned State Prosecutor had submitted that the 1st petitioner Sri.Jose, referred to in page 2 of Anx.A-3 order could very well be the person named as "Jose", residing at Kuwait as mentioned in para 14 of ::35::
Crl.M.C.No.3377 Of 2015 the impugned Anx.A-5 order. The latter Jose is said to be residing in Kuwait and it is alleged in Anx.A-5 that he has some narcotic drug connection with the accused Saifudheen. This Court had specifically requested the learned Assistant Solicitor General appearing for the 5th respondent competent authority as to the correctness and tenability of this factual submission made by the learned State Prosecutor and it is pointed out by the learned Assistant Solicitor General that the 5th respondent does not have any such case and that they do not have any materials whatsoever to show that the 1st petitioner Jose is the same as the Jose said to be residing in Kuwait, who was allegedly connected with the narcotic drug connection with the accused Saifudheen. 1st Petitioner had produced copy of his passport as Anx.A-7 in this case which clearly shows that he has never visited Gulf country including Kuwait. Faced with this situation, when the matter was taken up for consideration on 23.12.2015, the learned State Prosecutor fairly submitted that his earlier assertion was wrong and that there are no materials whatsoever to show that the 1st petitioner-Jose is the same as the person named as Jose, who is said to be residing in Kuwait, etc. This clearly shows that no reasonable or proper enquiry has been conducted ::36::
Crl.M.C.No.3377 Of 2015 by the 2nd respondent to even ascertain such crucial aspects relating to even the identity of the 1st petitioner. The 1st petitioner is obviously the Managing Partner of the 8th respondent's partnership firm M/s. Konnikara Bankers and Anx.A-7 passport clearly shows that he has not visited any Gulf country including Kuwait. It has to be borne in mind that precious property rights of the persons like the petitioners are detrimentally affected by the impugned proceedings. Therefore, official respondents were under the legal and statutory obligation to conduct an effective and proper enquiry to ascertain the correct meticulous facts as mandated under Sec.68E(2) of the Act before they have had issued the impugned proceedings. These aspects would clearly show that the crucial relevant inputs have not been taken into account and patently extraneous and irrelevant consideration have swayed their decision making process.
(xi) The paper book of documents made available by the Assistant Solicitor General discloses that though the statement recorded by the police from accused-Thajudheen under Sec.161 of Cr.P.C mention about the agreement for sale entered with the 1st petitioner, the statement recorded from Thajudheen by the Judicial Magistrate under ::37::
Crl.M.C.No.3377 Of 2015 Sec.164 of the Cr.P.C does not make any mention whatsoever about any such transaction with the petitioner. The impact of this crucial and relevant aspect has not been considered or adverted to either in Anx-A- 3 order or in Anx.A-5 order.
(xii). It is admitted by both the 2nd respondent and 5th respondent that a reasonable opportunity has not been afforded to the 1st petitioner or any other petitioners before the issuance of the impugned Anx.A-3 freezing order and Anx.A-5 confirmation order. The learned Public prosecutor appearing on behalf of the 2nd respondent vehemently contended that the Act does not provide for any such obligation and therefore there is no illegality in their action in not giving any reasonable opportunity to the petitioners. But it is very pertinent to note that both the 2nd respondent and 5th respondent have served copies of impugned Anx.A-3 and Anx.A-5 orders to the petitioners after the issuance of said orders. Moreover, both the respondents 2 & 5 would contend that the petitioners have an alternate remedy to file statutory appeal against the impugned order as conferred under Sec.68-O of the Act. Sec.68 O(1) of the Act provides that any person aggrieved by an order of the competent authority made under Sec.68F, etc., could prefer ::38::
Crl.M.C.No.3377 Of 2015 such an appeal. Therefore, the aforesaid contention of respondents 2 & 5 would clearly indicate that even according to them the petitioners are aggrieved by the impugned proceedings within the meaning of Sec.68-
O. If petitioners are said to be aggrieved by the issuance of impugned order, then certainly elementary principles of fairness and natural justice demand that a reasonable opportunity should have been granted to them to advance their various contentions and submissions. It is very strange to note that even the accused Saifudheen has been given a reasonable opportunity of being heard before passing the impugned Anx.A-5 order. The accused Saifudheen has not in any way challenged the impugned proceedings to the extent it affected the property in question belonging to the petitioners. This prima facie shows that the accused Saifudheen is totally disinterested as to the detrimental effects of the impugned proceedings to the extent it affects the property of the petitioners' firm. Therefore, affording reasonable opportunity to such apparently disinterested person and at the same time denying such a vital reasonable opportunity to petitioners, who appear to be directly affected by the outcome of the proceedings, appear to be patently unfair and against the rudimentary elementary principles of natural justice.
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Crl.M.C.No.3377 Of 2015 At any rate, Sec.68E(2) contemplates the conduct of an effective, proper and reasonable enquiry to arrive at the correct facts regarding the tracing and identifying of the property in question and also as to whether the property in question has been illegally acquired by a person like the accused Saifudheen, who come within the ambit of Se.68A(2) of the Act. All the properties covered by the impugned proceedings except the property in question belong either to person, who is a relative, or their close family members or business associates. The property in question that belong to petitioners are in no way connected with the crime. True that an agreement for sale has been entered into between the partnership firm and the accused Saifudheen. As to what has transpired after the currency of the agreement is not seen in any way properly enquired into and ascertained. Therefore, the denial of such an opportunity to the petitioners is serious and prejudicial to the precious proprietary rights of the petitioners. Therefore, it is only to be held that non-grant of reasonable opportunity to the petitioners to atleast participate in the Sec.68E(2) enquiry and for a modicum of hearing by the confirmation authority before the issuance of the impugned orders are clearly vitiated by patent violation of ::40::
Crl.M.C.No.3377 Of 2015 principles of fairness and natural justice.
The aforestated clinching aspects mentioned in sub paragraphs (i) to
(xii) of paragraph 13 hereinabove, would clearly lead to the irresistible conclusion that the enquiry or investigation proceedings purportedly done under Sec.66E(2) has been vitiated by irrelevant considerations or by not taking into account relevant considerations and other legal infirmities, etc.
15. The learned Public Prosecutor was specifically requested to pin point the clear materials in the files of the 2nd respondent from where it can be discerned that the statutory prerequisite mandated under Sec.68E(1) of the NDPS Act in the matter regarding recording of reasons about the satisfaction of the 2nd respondent that the person to whom Chapter VA applies holds any illegally acquired property, before the 2nd respondent had exercised his discretion to proceed to take steps for tracing and identifying such property. The learned Public prosecutor submitted that the files do not disclose any such specific reasons at the stage of Sec.68E(1) and that the said provision is only directory and not obligatory and that deviance from the requirement of Sec.68E(1) for recording of reasons can at best be described as irregularity which does not vitiate the proceedings. From a reading of ::41::
Crl.M.C.No.3377 Of 2015 para 14 of the judgment of the Apex Court in Aslam Mohammad Merchant's case (supra) it can be seen that Their Lordships have also referred to the provisions contained in Secs.68E and 68F even though the impugned proceedings therein related to forfeiture order passed under Sec.68I. Para 29 of the Aslam Mohammad Merchant's case (supra) also deals with the aspect of tracing of property for determining the nature, source, disposition, movement, title or ownership of the property. Further it has been held therein that satisfaction must be arrived at by the authority specifying therein to the effect that all persons concerned has been holding any illegally acquired property as envisaged under Sec.68E(1). Secondly, that on the basis of such information the officer concerned is entitled to take steps for tracing and identifying the property and as the authority is also entitled to seize or freeze such property. The Supreme Court has considered the impact of the requirement of issuance of show cause notice for forfeiture of property under Sec.68H and has held that only in case valid proceedings has been initiated that the burden of proof that any property specified in that notice is not legally acquired property would be on the person affected and that there must be a clear finding that all ::42::
Crl.M.C.No.3377 Of 2015 or any of the property in question were illegally acquired property is recorded. In para 57 of the said ruling Their Lordships of the Supreme Court has clearly held that if the impugned notice for forfeiture under Sec.68H were not initiated validly, then competent authority will not derive any jurisdiction to enter into the merits of the mater. Though the observations in paras 30, 31, 32, 57, etc., are in relation to issuance of forfeiture proceedings, the wholesome principles laid down therein should also be borne in mind while exercising the powers under Secs.68E and 68F. As held by the Apex Court in paras 60 & 61 of Aslam Mohammad Merchant's case (supra), it has to be borne in mind that right to hold property, although no longer a fundmental right, is still a constitutional right and a human right as well and that when stringent laws becomes applicable as a result of which the persons are sought to be deprived of right in property then scrupulous adherence and compliance with statutory requirement is imperative. Therefore, prima facie, this Court is of the opinion that there has to be scrupulous adherence to the stipulations contained in provisions in Secs.68E(1). But in the light of the view already taken by this Court in the earlier portion of this judgment that the so called enquiry or investigation said ::43::
Crl.M.C.No.3377 Of 2015 to have been conducted purportedly under Sec.68E(2) has been vitiated by irrelevant considerations and not taking into account relevant aspects, etc., the detailed examination as to the effect of non-adherence to the statutory requirements of Sec.68E(1) need not be considered in detail in the facts and circumstances of this case.
16. A reading of the impugned orders at Anxs.A-3 and A-5 orders would clearly indicate that though the said orders have stated that there are clear materials to show that accused Saifudheen had given advance sale consideration to the 8th petitioner-firm from out of the amount received from illegal narcotic business conducted by the said accused, no details or findings are precisely and clearly made therein to show as to how those properties could be treated as illegally acquired properties of the accused Saifudheen as per the statutory requirements of Secs.68B(g) and (h) and amended Sec.68B (iii), etc., and also that the said sale transaction has not been completed. Of course, the statement filed on behalf of the 5th respondent makes an attempt to get over this lacuna by stating that it is only the interest of charge that the accused Saifudheen has to the extent of value of advance sale consideration over the property in question that is the relevant aspects ::44::
Crl.M.C.No.3377 Of 2015 in the matter. When the files of the 2nd respondent does not disclose recording of reasons as required in Sec.68E(1), at least the impugned order should have disclosed such crucial aspects.
17. In the case State of Haryana v. Mukesh Kumar reported in (2011) 10 SCC 404 it has been held by the Apex Court that the right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension and that human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. The said view of the Apex court the right to property should also be viewed from the prism of human right apart from other characteristics as constitutional right under Article 320 of the Constitution of India and as a statutory right.
This position that right to property is also a human right has been reiterated by other rulings as in Chandigarh Housing Board v. Major- General Devinder Singh (Retd.) reported in (2007) 9 SCC 67 = 2007 KHC ::45::
Crl.M.C.No.3377 Of 2015 4152 para 11, Karnataka State Financial Corpn. v. N. Narasimahaiah, reported in (2008) 5 SCC 176 = 2008 KHC 6242 para 48, etc. Therefore, this Court has no hesitation to hold that the decision making process in the steps taken for the purported conduct of Sec.68E(2) enquiry or investigation is seriously vitiated by the aforestated aspects as regards the property of the petitioner.
18. However, it is to be noted that the impugned proceedings deal not only with this property but various other properties. As all the other properties concerned deal with properties of either accused persons or family members or associates and in view of the clearly distinguished facts and circumstances of this case, it is made clear that the findings in this order relating to the vitiated aspects of the decision making process is confined only to the impugned proceedings to the limited extent it affects the property of the petitioners herein and not in respect of any other item of property dealt with in the schedule appended to the impugned proceedings. Moreover, the factual transactions in respect of each of the properties covered by the schedule to the impugned orders are separate and distinct. So the observations and findings herein are only in respect of the property of the ::46::
Crl.M.C.No.3377 Of 2015 petitioners. In the light of these aspects, it is only to be ordered in the interest of justice, that the impugned orders are liable to be interdicted and accordingly it is ordered that the impugned Anxs.A-3 and A-5 orders, to the extent it affect the property covered by Anx.A-8, are quashed. As the impugned Anx.A-1 restraint order dated 26.4.2013 is only an ad interim order which was issued prior to the issuance of impugned Anx.A-3 order, there is no necessity to quash such ad interim order at Anx.A-1. However, it is made clear that in view of the quashment of the impugned Anxs.A-3 and A-5 orders, the ad interim order at Anx.A-1 does not have any further efficacy. The Apex Court in para 62 of the Aslam Mohammad Merchant's case (supra), while quashing the forfeiture proceedings impugned therein on the ground of lack of fulfillment of the statutory prerequisites in the exercise of statutory power, have made it clear that setting aside of the impugned order therein is with liberty that it would be open to the respondents therein to initiate fresh proceedings if they are so advised. Accordingly, in tune with the ruling of the Apex Court in the aforestated direction given by the Apex Court in para 62 of the Aslam Mohammad Merchant's case (supra), it is made clear that it would be open to the ::47::
Crl.M.C.No.3377 Of 2015 competent authorities of the official respondents to initiate fresh proceedings in accordance with law, if so advised.
With these observations and directions this Crl.M.C stands finally disposed of. However, there will be no order as to costs.
ALEXANDER THOMAS, Judge.
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