Madras High Court
Arivagam vs The Inspector / Chief Investigating ... on 24 April, 2023
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)SR.Nos.28075 & 27802 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.P.(MD)SR.Nos.28075 & 27802 of 2023
1.Arivagam,
Rep. by its Principal
Mogdoom Naina
2.The Tamil Nadu Development Foundation Trust,
Rep. by its Secretary
K.Syed Mohamed Ibrahim ... Petitioners
Vs.
The Inspector / Chief Investigating Officer,
National Investigation Agency, Chennai,
Camping at Theni District. ...Respondent
in W.P.(MD)SR.No.28075 of 2023
The Government of India,
Rep. by its Additional Secretary & Designated Authority,
Minister of Home Affairs, New Delhi-110003. ...Respondent
in W.P.(MD)SR.No.27802 of 2023
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https://www.mhc.tn.gov.in/judis
W.P.(MD)SR.Nos.28075 & 27802 of 2023
COMMON PRAYER: Petition filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorari, calling for the records relating to the
impugned order of attachment of the respondents in
No.RC-42/2022/NIA/DLI-02, dated 10.02.2023 and No.
11011/84/2022/NIA, dated 24.02.2023 respectively and to quash the same
as illegal and without jurisdiction.
For Petitioners : Mr.C.M.Arumugam
(in both Writ Petitions)
COMMON ORDER
(Order of the Court was made by R.SURESH KUMAR, J.) These two Writ Petitions have been filed by the petitioners, challenging the order of attachment and show cause notice issued by the respective respondent under the provisions of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'the Act').
2.Though the orders impugned in these Writ Petitions had only been stated as show cause notice, within the meaning of proviso to Sub Section 3 of Section 25 of the Act, it was argued by Mr.C.M.Arumugam, learned counsel for the petitioners that, though these orders, which are 2/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023 impugned in these Writ Petitions, are shown as only show cause notice, in practicality and with sum and substance they can only be treated as final orders. When an earlier order to that effect had already been passed and as against which when the petitioners filed appeals before the concerned Court ie., District Court or Special Court, where those appeals have been entertained and pending for consideration, once again the Designated Authority within the meaning of Section 25 of the Act does not have any jurisdiction either to issue show cause notice or to confirm the order of attachment of the property concerned of the petitioner. On that ground these Writ Petitions have been preferred against the orders, which are impugned herein.
3.However, the Registry, having considered the prayer, has raised maintainability of these Writ Petitions and when the question had been raised by the Registry, it was answered by the learned counsel for the petitioners that since the cause of action arises within the jurisdiction of this Court, based on which these Writ Petitions would be maintainable. 3/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023
4.Only at that juncture, a maintainability note had been put up, based on which these cases are listed before us under the caption 'for maintainability'.
5.We have heard the said submissions made by the learned counsel for the petitioners.
6.If we look at the scheme of the Act, especially, under Section 25 of the Act with a heading 'Powers of Investigating Officer and Designated Authority and appeal against order of Designated Authority', it has been made clear that, if an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, or where the investigation is conducted by an officer of the National Investigation Agency, with the prior approval of the Director General of National Investigation Agency, make an order, seizing such property and where it is not practicable to seize such property, make an order of attachment, 4/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023 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 property seized or attached is produced and a copy of such order shall be served on the person concerned.
7.In this case, such an attachment had already been made by the Investigating Officer with a prior approval of the Director General of Police concerned.
8.After such attachment is passed by the officer concerned, it shall be duly informed to the Designated Authority within 48 hours and under Sub Section 3 of Section 25 of the Act, the Designated Authority before whom the seized or attached property is produced shall either confirm or revoke of the order of seizure or attachment so issued within a period of 60 days from the date of such production.
9.The proviso to Sub Section 3 of Section 25 of the Act makes it clear that an opportunity of making a representation by the person whose property is being seized or attached shall be given. 5/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023
10.Therefore, before making any final order under Sub Section 3 of Section 25 of the Act, the Designated Authority shall give an opportunity of making a representation by the person whose property is being seized or attached.
11.Only in order to fulfil the said proviso to Sub Section 3 of Section 25 of the Act, the impugned order dated 24.02.2023 has been passed, whereby the following show cause notice has been issued.
“7.And now, therefore, before confirming / revoking the order of attachment of the aforesaid immovable property, the undersigned as Designated Authority gives an opportunity, in terms of proviso to Section 25(3) of the Unlawful Activities (Prevention) Act, 1967, to the person whose property has been attached by the said order for making representation to the undersigned within 21 days from date of issue of this order. If no representation is received within the prescribed period, a considered order under Section 25(3) of the Unlawful Activities (Prevention) Act, 1967 would be passed, based on the facts brought before this Authority.” 6/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023
12.Therefore, it is for the petitioners to make their reply to the said show cause notice by way of representation as to why such an order of attachment shall not be confirmed by the Designated Authority. It is further to be noted under the scheme of the Act that, after receipt of such reply under the proviso to Sub Section 3 of Section 25 of the Act, the Designated Authority can confirm the order or revoke it. If the order passed by the Designated Authority is prejudicial to the person against whom such order has been passed, he can prefer an appeal to the Court within a period of 30 days from the date of receipt of a copy of the order.
13.The powers of the Court has also been mentioned under Sub Section 6 of Section 25 of the Act.
14.Once the order passed by the Court ie., District level Court by way of First Appeal, still the person against whom such an order is passed by the District level Court before whom the First Appeal was entertained and ordered, against such order, can prefer an appeal before the High Court within whose jurisdiction the property situated have been attached or seized. 7/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023
15.Such a Second Appeal is also available under Section 28 of the Act.
16.Therefore, under the said Act, it is a complete scheme as to how the investigation has to be made and how the attachment order can be passed and once the attachment order is passed, how it would be confirmed by the Designated Authority and once it is confirmed, where to prefer an appeal and if an appeal is preferred and decided, against which the aggrieved party can prefer the Second Appeal before which Court all has been clearly stated.
17.Therefore, absolutely, there has been no situation, where the petitioner has become remediless in each and every stage of the proceedings as stated supra under the provisions of the Act. Here in the case on hand, it is a show cause notice under the proviso to Sub Section 3 of Section 25 of the Act. Therefore, within 21 days time the petitioners could have filed a representation by way of reply. However, without choosing to file a reply by way of representation, the petitioners have chosen to file these Writ Petitions before this Court.
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18.When this legal position has been explained, the learned counsel for the petitioners would submit that, since 21 days time granted through the impugned order, even treated it as show cause notice, is already over, some reasonable time may be given to the petitioners to give a reply within the meaning of Sub Section 3 of Section 25 of the Act and based on which, let the Designated Authority consider the same and pass orders under Sub Section 3 of Section 25 of the Act.
19.We have considered the said request made by the learned counsel for the petitioners. Even though three weeks time granted by the Designated Authority was over, in view of these factors, which have been discussed herein above, as we are not inclined to entertain these Writ Petitions, invoking the extraordinary jurisdiction of this Court under Article 226 of Constitution of India, we are of the view that a time frame of one week from the date of receipt of a copy of this order can be given to the petitioners to make a reply by way of representation to the Designated Authority under proviso to Sub Section 3 of Section 25 of the Act against the orders impugned in these cases and within a period of one week, if the 9/11 https://www.mhc.tn.gov.in/judis W.P.(MD)SR.Nos.28075 & 27802 of 2023 petitioners are able to give a reply, that can be considered by the Designated Authority and order can be passed thereon provided if final orders are not passed so far ie., as on date. It is made clear that if the final orders are already passed, opportunity now has been granted by extending the time to give reply by the petitioners within a period of one week would not operate.
20.With these observations and directions, we feel that we can dismiss these Writ Petitions at SR stage as not maintainable before this Court. Accordingly, these Writ Petitions are dismissed as not maintainable at SR stage itself. Therefore, the Registry is hereby directed to return the case papers along with original by retaining photocopy of those documents with proper acknowledgment from the learned counsel for the petitioners on record forthwith. No costs.
(R.S.K., J.) & (K.K.R.K, J.)
24.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
MYR
Note: Issue Order copy on 26.04.2023.
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https://www.mhc.tn.gov.in/judis
W.P.(MD)SR.Nos.28075 & 27802 of 2023
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
MYR
W.P.(MD)SR.Nos.28075 & 27802 of 2023
24.04.2023
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https://www.mhc.tn.gov.in/judis