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Jammu & Kashmir High Court

Rubina Akhter Age 38 Years vs National Investigation Agency on 9 November, 2023

Bench: Tashi Rabstan, Mohan Lal

                                                               Sr. No.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT JAMMU

                                              Crl A(D) No. 54/2022
                                              Reserved on : 06.11.2023
                                              Pronounced on: 09.11.2023
Rubina Akhter age 38 years, W/O Yaser                      .....Appellant (s)
Ahmed Khan R/O Kala Kam Tehsil
Mendhar, District Poonch.

               Through:- Mr. Ajaz Chowdhary, Advocate
               V/s
   1. National    Investigation    Agency,               .....Respondent(s)
      Jammu.
   2. Station House Officer, Police Station
      Mendhar, District Poonch.

               Through:-Mr. Sumant Sudan, Assisting Counsel to
                        Mr. Vishal Sharma, DSGI
                        Mr. Vipan Kalra, Public Prosecutor, NIA Jammu
CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
         HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
                       J U D G M E N T

Per Mohan Lal-J

1. This appeal under Section 21 of the National Investigation Agency Act 2008 (hereinafter referred to as „the Act 2008) is directed against the orders dated 08.10.2021 issued by the Designated Authority as well as the order dated 25.07.2022 rendered by the Court of learned 3rd Additional Sessions Judge Jammu (the Special Judge under Section 22 of NIA Act) as an appellate authority in an appeal under Section 25(6) of the Unlawful Activity (Prevention), Act, 1967 (for short 'the UA(P) Act') titled "Rubina Akhter vs National Investigation Agency and another".

2. The impugned order of the Designated Authority dated 08.10.2021 has been assailed by the appellant on the grounds, that in FIR No. 292/2020 dated 27.12.2020 under Sections 16/18/20 of the UA (P) Act read with Section 121-A/122/295-A IPC of Police Station Mendhar, the investigation was assigned to NIA by the Government of India taking into consideration the gravity of the case whereafter the NIA B/O Jammu accordingly re-registered the case as RC-

02/2021/NIA/JMU dated 16.03.2021 and the investigation was commenced; that the order of Designated Authority dated 08.10.2021 is after thought and suffers from illegality as the same is in violation of Section 25(2)(3) of the UA(P) Act as on the date of seizure of the vehicle on 27.12.2020, the Investigating Officer had to inform the Designated Authority within 48 hours of seizure of the vehicle and in the case in hand the procedure has not been followed by the Investigating Officer i.e SDPO Mendhar; that as per sub Section 2 of Section 25 the UA(P) Act, the Investigation Officer i.e SDPO Mendhar has to inform the Designated Authority i.e Director General of Police of UT of J&K within 48 hours of seizure of vehicle (Scorpio) bearing registration No. JK02BG-8086; that the Designated Authority has issued the impugned order dated 08.10.2021 after the lapse of six (06) months and twenty two (22) days, whereas in terms of sub Section 3 of Section 25 of the UA(P) Act, the Designated Authority has to issue the impugned order dated 08.10.2021 within period of 60 days.

3. Further the impugned order dated 25.07.2022 passed by appellate authority of learned 3rd Additional Sessions Judge Jammu (NIA Court) under Section 25(6) of the UA(P) Act has been assailed by the appellant primarily on the ground, that the seized vehicle was never involved in any terrorist activity and incase the same is kept in the police station for a long time there is likelihood of it being damaged and becoming junk as the same is perishable item, and no fruitful purpose would be served by keeping it in custody, moreso, the trial court has failed to appreciate the fact that no material or evidence connects the vehicle for using the same in furtherance of terrorist activity or is a proceed of terrorism.

4. Mr. Ajaz Chowdhary, learned counsel for the appellant has strenuously argued, that the Designated Authority while passing the impugned order dated 08.10.2021 has not followed the mandatory provisions of Section 25 of the UA (P) Act and moreso the appellate authority-trial Court while passing the impugned order dated 25.07.2022 has not appreciated the fact that there is no material or evidence to connect the seized vehicle using the same for furtherance of terrorist activity or it being a proceed of terrorism.

5. Mr. Sumant Sudan Assisting Counsel to Mr. Vishal Sharma, learned DSGI appearing for the respondents has vehemently sought dismissal of the appeal by canvassing arguments that the seizure of vehicle (Scorpio) bearing registration No. JK02BG-8086 is not the end of the game, as further proceedings for its forfeiture are required to be initiated by the Special Court of 3rd Additional Sessions Judge (NIA Court) in terms of Section 26 read with Section 27 of the UA (P) Act 1967, and in case such proceedings are initiated, the appellant would be mandatorily required to be put on notice and will have an opportunity to plead and demonstrate that the seized vehicle in question has not been used for terrorist activity or is not a proceeds of the crime.

6. We have heard learned counsel for the parties, perused the entire material on record extensively and have gone through the relevant provisions of law governing the filed.

7. Section 25 of the UA (P) Act deals with the powers of Investigating Officer and Designated Authority and appeal against order of Designated Authority. Section 25(2)(3) of the UA (P) Act specifically lays down that the Investigating Officer has to duly inform the Designated Authority within forty-eight (48) hours of the seizure or attachment of the property, whereas, the Designated Authority has to either confirm or revoke the order of seizure or attachment so issued by the Investigating Officer within a period of sixty (60) days. Section 25(6) of the UA (P) Act lays down the procedure that any person aggrieved by an order made by the Designated Authority may prefer an appeal to the court within a period of thirty (30) days and the court may either confirm the order of attachment of property or seizure so made or revoke it and release the property. Section 26 of the UA (P) Act deals with the provisions that the Court has power to confirm the order passed by the Designated Authority in regard to seizure of the property in terms of Section 25(6) of the UA (P) Act. Section 27 of the UA (P) Act deals with the mandatory provisions of show-cause notice before forfeiture of the proceeds of terrorism, while Section 28 deals with the provisions of appeal within a period of one month from the date of order of forfeiture made under Section 26 of the UA (P) Act.

8. Designated Authority under Section 2(e) of the UA (P) Act is the joint Secretary, Ministry of Home Affairs (MHA). Record depicts that the Designated Authority vide impugned order dated 08.10.2021 has confirmed the order of attachment of Scorpio Car made by the Investigating Officer of the case No. RC-02/2021/NIA/JMU in accordance with Section 25(3) of the UA (P) Act 1967 on the ground that the seized Scorpio Car No. JK02BG-8086 is the proceeds of terrorism. The vehicle has been seized by the Chief Investigating Officer (CIO) in NIA case bearing No. RC-02/2021/NIA/JMU on 11.08.2021 and the said Investigating Officer (I.O) has informed the Designated Authority on 12.08.2021 within approximately 24 hours and not later than 48 hours as mandated under Section 25(2) of the UA (P) Act. Moreso, the Designated Authority has received information of seizure of the vehicle on 12.08.2021 and has passed the impugned order of confirmation of order of attachment of the vehicle on 08.10.2021 approximately on 56 days and within the mandatory period of 60 days as prescribed by Section 25(3) of the UA (P) Act. We are of the firm opinion that the impugned order dated 08.10.2021 has been passed by the Designated Authority in consonance with the provisions of sub-sections 2 & 3 of Section 25 of the UA (P) Act. We disagree with the arguments canvassed by learned counsel for the appellant that the Designated Authority vide impugned order dated 08.10.2021 has not followed the provisions mandated under Section 25(2)(3) of the UA (P) Act.

9. Now, the impugned order dated 25.07.2022 rendered by the Court of learned 3rd Additional Sessions Judge (Special Judge U/S 11 NIA Act) Jammu as appellate authority has also been thrown to challenge by the appellant on the ground, that the trial Court has failed to appreciate the fact that the vehicle is not used for any terrorist activity or is not the proceeds of terrorism. Bare perusal of the impugned order dated 25.07.2022 clearly demonstrates that the seized vehicle Scorpio bearing registration No. JK02BG-8086 has been used by the son of appellant, namely, Mohd Mustafa for transportation of hand grenades, posters of prescribed terrorist organization TUM/JKGF as per the direction of accused Rafiq Nai alias Sultan and other handlers operating from POK/Pakistan with intention to carry out the 5 Crl A(D) No. 54/2022 subversive activities in District Poonch or other parts of UT of J&K. The seizure of vehicle in question is covered by the definition of proceeds of terrorism under Section 2(g) of the UA (P) Act which clearly demonstrates, that any property which is being used or is intended to be used for a terrorist act or for the purpose of an individual terrorist or a terrorist gang or a terrorist organization is the proceeds of terrorism. The sole ground urged by the learned counsel for the appellant is, that there is no evidence or material before the trial Court to confirm that the vehicle has been used for the commission of terrorist activities. It is open for the appellant to agitate and contest before the trial Court whether the vehicle seized has been used for the commission of terrorist activities, and the said argument is a pure issue of trial and cannot be decided in appeal. The arguments urged by learned counsel for the appellant that the seized vehicle in question has not been used for any terrorist activity or is not a proceeds of terrorism, are legally misplaced, repelled, rejected and discarded.

10. In view of the aforesaid discussion, we are of the firm view, that the impugned orders dated 08.10.2021 as well as 25.07.2022 do not suffer from any illegality, patent error or impropriety and the same are upheld. Resultantly, the appeal is utterly misconceived and the same is disallowed, rejected and dismissed.

11. Disposed of accordingly.

                                   (Mohan Lal)                   (Tashi Rabstan)
                                     Judge                            Judge

JAMMU
09.11.2023
Vijay

                          Whether the order is speaking: Yes
                          Whether the order is reportable: Yes