Kerala High Court
Saifudheen vs Circle Inspector Of Police on 24 October, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936
Crl.MC.No. 3401 of 2014 ()
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Crl.M.P.1734/2014 OF SESSIONS COURT,THRISSUR
CRIME NO. 2518/2012 OF KUNNAMKULAM POLICE STATION, THRISSUR
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PETITIONER/1ST ACCUSED :
-------------------------------------------
SAIFUDHEEN
S/O.MANU, POOKKAKILLATH HOUSE, PERUMENU
KEEZHERRY P.O., THRISSUR DISTRICT.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT/COMPLAINANT :
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1. CIRCLE INSPECTOR OF POLICE
KUNNAMKULAM, PIN - 680 503.
2. STATE,
REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1 & R2 BY ADDL. DIRECTOR GENERAL OF PROSECUTION SRI. ASIF ALI
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 04-08-2014, THE COURT ON 24-10-2014 PASSED THE FOLLOWING:
Mn
...2/-
Crl.MC.No. 3401 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES :
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ANNEXURE I. TRUE COPY OF THE FIRST INFORMATION REPORT.
ANNEXURE II. TRUE COPY OF THE SEARCH LIST PREPARED BY THE SUB
INSPECTOR OF POLICE.
ANNEXURE III. TRUE COPY OF THE ORDER IN CRL.M.P 1734/2014 OF
SESSIONS COURT, TRICHUR.
ANNEXURE IV. COPY OF THE STATEMENT FILED BY THE PRESENT
INVESTIGATING OFFICER IN CRL.M.C. NO. 2611/2014 & WITH
OUT ANNEXURES.
RESPONDENT(S)' ANNEXURES :
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ANNEXURE R1(a) COPY OF DETAILS OF ILLEGALLY ACQUIRED PROPERTY
SEIZED FROM THE RESIDENTIAL HOUSE OF A1-SAIFUDHEEN.
//TRUE COPY//
P.S. TO JUDGE
Mn
K. RAMAKRISHNAN, J.
.................................................
Crl.M.C.No.3401 of 2014
..................................................
Dated this the 24th day of October, 2014.
O R D E R
This is a petition filed by the petitioner in Crl.M.P.No.1734/2014 of Sessions Court, Thrissur in Crime No.2518/2012 of Kunnamkulam police station challenging the order in Crl.M.P.No.17342014 of that court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
2. It is alleged in the petition that the petitioner is the first accused in Crime No.2518/2012 of Kunnamkulam police station for the alleged commission of the offences under Sections 468, 471 and 419 of the Indian Penal Code and Section 12(1)(b) of the Passport Act, 1967 and Sections 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).
3. On 19.12.2012, while the Sub Inspector of Police, Kunnamkulam police station along with the police constables were conducting patrol duty, he got reliable information that unaccounted money and costly articles were kept in the house Crl.M.C.No.3401 of 2014 2 of the petitioner. Thereafter, he went to the police station and after complying with the formalities, along with the first respondent and the police party, came to the house of the petitioner bearing No. XIII/436 of Choondal Grama Panchayat and searched the house and seized a sum of Rs.53,80,900/-, two passports and gold ornaments and seized the same as per a mahazer. They questioned the petitioner and at that time he told that the amount was entrusted by his friend in Gulf country for the purpose of real estate business. But it was alleged by the prosecution that the petitioner had given a statement that the amount was acquired by illicit trade of narcotic drugs and his passport was seized as the address mentioned in the petition was different. Thereafter they took the articles and the petitioner and went to the police station and the Sub Inspector of Police, Kunnamkulam registered Crime No.2518/2012 under Sections 468, 471 and 419 of the Indian Penal Code and Section 12(1)(b) of the Passport Act, 1967 and Sections 27 A and 29 of the NDPS Act. The entire action of registering the case against the petitioner under Sections 27 A and 29 of the NDPS Act is highly misconceived. The petitioner filed Crl.M.P.No.1734/2014 before the Sessions Crl.M.C.No.3401 of 2014 3 Court, Thrissur and the learned Sessions Judge dismissed the application for interim custody of the amount of Rs.53,80,900/-, 2 gold bars each weighing 10 grams each and one gold necklace as per order dated 11.6.2014. Aggrieved by the same, the present petition has been filed challenging that order.
4. The respondents filed Crl.M.A.No.7128/2014, in which it was mentioned that the deponent is the investigating officer in Crime No.39/OCW-III/Pkd/2013 (Kunnamkulam police station in Crime No.2518/2012) under Sections 468, 471 and 419 of the Indian Penal Code and Section 12(1)(b) of the Passport Act, 1967 and Sections 27 A and 29 of the NDPS Act. He took investigation on 24.2.2014. It is alleged in the petition that when the Sub Inspector of Police, Kunnamkulam came to know that unauthorised money is kept in the house of the petitioner, he along with the Circle Inspector of Police on 19.12.2012 at 00.30 hours conducted search of the house and seized articles including the amount and gold ornaments mentioned in the petition. Thereafter he registered a crime as Crime No.2518/2012 of Kunnamkulam police station alleging commission of the above said offences. The petitioner in the main petition gave a statement stating that he had acquired Crl.M.C.No.3401 of 2014 4 landed properties at various places in Kerala using the money sent by Gireeshumar @ Alibhai, S/o. Vijaya, Kalarithodi House, Thottakkara village, Ottapalam, who is undergoing imprisonment in Kuwait Jail for being convicted for 10 years in a narcotic case. The 2nd accused Gireeshkumar was regularly sending money to the first accused through various agencies and also through the hawala route. It is revealed that he had acquired several properties as well. The amount so far seized is also a part of such amount. The articles were produced before the court and considering the nature of the offence, the case has been transferred to CBCID and they are now conducting the investigation after re-registering the case as C.R.No.39/OCW-III/PKD/2013. They sent a requisition to the competent authority for advise as to what is to be done and they had received a letter to pass appropriate orders under Section 68 F of the NDPS Act and accordingly, the petitioner is not entitled to get interim custody of the articles. So in this petition, he prayed for permission to proceed with the proceedings of seizure under the Act.
5. The respondent in this petition who is the petitioner in the main petition filed counter denying the allegations and Crl.M.C.No.3401 of 2014 5 further submitted that even earlier, they were aware and they have already come to a conclusion that the properties and the money were acquired by using the amounts obtained by illegal traffic of narcotic substances and even in the earlier petition, they filed a counter stating that steps have been taken for confiscation of freezing of the accounts and these things were done much earlier and this was not intimated to the competent authority within the time provided under the section and thereby the order of seizure has ceased to have any effect and in order to cover up this illegality, they are now trying to get some excuses. So he prayed for dismissal of the application.
6. Heard the counsel for the petitioner and Public Prosecutor appearing for the respondents.
7. The counsel appearing for the petitioner, Sri.T.G. Rajendran submitted that, in fact, the seizure was effected on 19.12.2012 itself and there is no further necessity to make any further order of seizure arises. Once seizure has been effected, then it has to be intimated to the competent authority within forty eight hours and it has to be confirmed by the competent authority within thirty days of such intimation and if that is not done, then the order of seizure became ceased to have any Crl.M.C.No.3401 of 2014 6 effect. So under the circumstances, the seizure itself is illegal and he is entitled to get back the amount and other articles.
8. On the other hand, the Director General of Prosecution, Sri. Asif Ali, argued that on getting information regarding the possession of unauthorised money, the Sub Inspector of Police conducted a search and took away the articles and the money as per a mahazer and that will not be a seizure as provided under Chapter V A and he has taken possession of the article to be produced before court for the purpose of investigation. Chapter V A of the NDPS Act is an independent proceedings and only if an order under Section 68 F is passed, that alone need be communicated to the competent authority within forty eight hours as provided therein and within thirty days, it must be confirmed by the competent authority otherwise it will have no effect. So no order under Section 68 F has been passed so far. Further Section 68E of the Act provides an enquiry and enquiry under the section can be done under the supervision of the competent authority also. So, under the circumstances, it cannot be said that seizure is illegal as contended.
9. Heard both sides and perused the records.
10. The question arises in this case is as to whether since Crl.M.C.No.3401 of 2014 7 seizure effected on 19.12.2014 has not been intimated to the competent authority within 48 hours and no confirmation by the competent authority within 30 days as provided under Section 68 F, the seizure will become of no effect and on that ground, the petitioner is entitled to get interim custody of the articles seized on the basis of the search conducted.
11. It is an admitted fact that on 19.12.2012 while the Sub Inspector of Police, Kunnamkulam police station was doing patrol duty along with police constables, he got information that the petitioner was in possession of unauthorised and unaccounted money and thereafter he came to the police station and made an entry in the general diary regarding the information received and thereafter, after complying with the procedure, he along with the first respondent, went to the house of the petitioner bearing No.XIII/436 of Choondal grama panchayat and conducted search of the house and found cash worth Rs.53,80,900/-, two passports and gold ornaments and gold bar and when the petitioner was questioned, he was not able to give proper answer and they seized the articles as per a mahazer and arrested the petitioner and came to police station and registered a case as Crime No.2518/2012 of Kunnamkulam Crl.M.C.No.3401 of 2014 8 police station under Sections 468, 471 and 419 of the Indian Penal Code and Section 12(1)(b) of the Passport Act, 1967 and Sections 27 A and 29 of the NDPS Act and while questioning him, it was revealed that the petitioner was getting this amount from the second accused, who is undergoing imprisonment in Kuwait Jail convicted for the offences in dealing with narcotic substances and it is also revealed that he had acquired properties using those amount. It was on that basis that the articles taken possession as per a mahazer were produced before the court. It is true that till now no orders have been passed under Chapter VA of the NDPS Act.
12. Chapter V A deals with forfeiture of property derived from or used in illicit traffic and this Chapter has been incorporated in the Act by Amendment Act 2 of 1989, which come into effect from 29.5.1989, the relevant portions required for our purpose read as follows:
Chapter VA : FORFEITURE OF PROPERTY DERIVED FROM, OR USED IN ILLICIT TRAFFIC 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:-
Crl.M.C.No.3401 of 2014 9
(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 a side 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 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 Crl.M.C.No.3401 of 2014 10 to in clause (a) or clause (b) or clause (c ) [or clause (cc )];
(e) every associate of a person referred to in caluse (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.
xxxx xxxxx xxxxx
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 Crl.M.C.No.3401 of 2014 11 in sub-section (1) in accordance with such directions or guidelines as the competent authority may make or issue in this behalf.
68 F 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 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 Crl.M.C.No.3401 of 2014 12 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.
68G. Management of properties seized or forfeited under this Chapter:-(1) The Central Government may, by order published in the Official Gazette, appoint as many of its officers (not below the rank of a Joint Secretary to the Government) as it thinks fit, to perform the functions of an Administrator.
(2) The Administrator appointed under sub-section (1) Crl.M.C.No.3401 of 2014 13 shall receive and manage the property in relation to which an order has been made under sub-section (1) of section 68F or under section 68-I in such manner and subject to such conditions as may be prescribed.
(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is forfeited to the Central Government.
68H. Notice of forfeiture of property:- (1) If, having regard to the value of the properties held by any person to whom this Chapter applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, and any other information or material available to it as a result of a report from any officer making an investigation under Section 68E or otherwise, the competent authority has reason to believe (the reasons for such belief to be recorded in writing) that all or any of such properties are illegally acquired properties, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the sources of his income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and Crl.M.C.No.3401 of 2014 14 forfeited to the Central Government under this Chapter.
(2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person:
[Provided that no notice for forfeiture shall be served upon any person referred to in clause (cc) of sub-section (2) of section 68A or relative of a person referred to in that clause or associate of a person referred to in that clause or holder of any property which was at any time previously held by a person referred to in that clause].
68-I. Forfeiture of property in certain cases:- (1) The competent authority may, after considering the explanation, if any, to the show cause notice issued under section 68H, and the materials available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties:
Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the competent authority or represent his case before it within a period of thirty days specified in the Crl.M.C.No.3401 of 2014 15 show cause notice, the competent authority may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it.
(2) Where the competent authority is satisfied that some of the properties referred to in the show cause notice are illegally acquired properties but is not able to identify specifically such properties, then, it shall be lawful for the competent authority to specify the properties which, to the best of its judgment, are illegally acquired properties and record a finding accordingly under sub-section(1).
(3) Where the competent authority records a finding under this section to the effect that any property is illegally acquired property, it shall declare that such property shall, subject to the provisions of this Chapter stand forfeited to the Central Government free from all encumbrances:
[Provided that no illegally acquired property of any person who is referred to in clause (cc) of sub-section (2) of section 68A or relative of a person referred to in that clause or associate of a person referred to in that clause or holder of any property which was at any time previously held by a person referred to in that clause shall stand forfeited]. (4) Where any shares in a company stand forfeited to the Central Government under this Chapter, then, the company shall, notwithstanding anything contained in the companies At, 19567 (1 of 1956) or the article of association of the Crl.M.C.No.3401 of 2014 16 company, forthwith register the Central Government as the transferee of such shares.
xxxx xxxxx xxxxx 68-O. Appeals:- (1) [Any officer referred to in sub-section (1) of section 68 E or any person aggrieved by an order of the competent authority] made under section 68F, section 68-I, sub-section (I) of section 68K or section 68L, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal:
Provided that the Appellate Tribunal may entertain an appeal after the said period of forty-five days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm or set aside the order appealed against.
(3) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches consisting of three members and constituted by the Chairman of the Appellate Tribunal.
(4) Notwithstanding anything contained in sub-section (3), where the Chairman considers it necessary so to do for Crl.M.C.No.3401 of 2014 17 the expeditious disposal of appeals under this section, he may constitute a Bench of two members and a Bench so constituted may exercise and discharge the powers and functions of the Appellate Tribunal:
Provided that if the members of a Bench so constituted differ on any point or points, they shall state the point or points on which they differ and refer the same to a third member (to be specified by the Chairman) for hearing of such point or points and such point or points shall be decided according to the opinion of that member.
(5) The Appellate Tribunal may regulate its own procedure.
(6) On application to the Appellate Tribunal and on payment of the prescribed fee, the Tribunal may allow a party to any appeal or any person authorised in this behalf by such party to inspect at any time during office hours, any relevant records and registers of the Tribunal and obtain a certified copy of any part thereof".
xxx xxxx xxxx
13. Section 68A(2) deals with to whom this Chapter will apply and Section 68A (2)(d) of that section says every person who is a relative of a person referred to in clause (a) or clause
(b) or clause (c ) or clause (cc) will also come under this Crl.M.C.No.3401 of 2014 18 Chapter. Further this also will apply to persons who are coming under Section 68A(2)(cc) as every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for commission of the offence punishable under this Act for imprisonment for a term of 10 years or more and every person who has been arrested or against whom a warrant or authorisation of warrant has been issued under the commission of similar offence in any corresponding law of any other country. Section 68E deals with identifying illegally acquired property and Section 68E(3) says that 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 notice in this behalf. Section 68F deals with seizure or freezing of illegally acquired property and proviso to Section 68F (1) 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 48 hours of its being made and sub section (2) of that section says that any order made under sub-section(1) shall have no effect unless the said Crl.M.C.No.3401 of 2014 19 order is confirmed by the order of the competent authority within a period of 30 days of its being made. So it is clear from the above that it is an independent Chapter dealing with passing of order of forfeiture of property or freezing or seizure of the property by conducting independent enquiry other than an enquiry to be conducted in connection with the investigation of commission of an offence. So merely because the articles were seized on the basis of the search that itself does not amount to seizure or freezing as mentioned in Section 68 F of the NDPS Act. It has to be independently considered after appreciation of materials and to pass an order of seizure and that order of seizure alone need be intimated to the competent authority within 48 hours of making such an order and that has to be conferred by the competent authority within thirty days and it is not so, the seizure will have no effect, that is nothing to do with the seizure effected for the purpose of considering the question of commission of offence by the court below under the provisions of the NDPS Act. Further there is no time limit provided as to within what time the order has to be passed as well.
14. The question as to whether seizure of the articles made Crl.M.C.No.3401 of 2014 20 by the Customs Authorities under Section 180 is the same as provided under Section 178 A of the Act has been considered by the Constitution Bench of the Hon'ble Supreme Court in Gian Chand and others v. State of Punjab ( AIR 1962 SC
496) and observed as follows:
"Sections 178, 178A and 180, which have to be read together, draw distinction between seizure under the Act and a seizure under the Act and a seizure under provisions of other laws. A seizure under the Act is one for which the authority to seize is conferred by the Act and in the context it could be referred to as a seizure under S.179. The seizure from the owner of the property under S.180 is not a seizure under the Act but by a Police officer effecting the seizure under other provisions of the law, for instance the criminal Procedure Code. The last part of sub-s. (1) of S. 178 A lays the burden of proving that the goods are not smuggled on "the person from whose possession the goods are taken." When the goods are delivered to the Customs authorities by the Magistrate under S.180 they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the section contemplated. "proof to the contrary" by the Crl.M.C.No.3401 of 2014 21 Magistrate under whose orders the delivery is effected. Hence, the possession obtained by the Customs department by goods being "conveyed to and deposited at the nearest custom house" within the last words of the second paragraph of S.180 are not goods which have been seized under the Act within the opening words of S.178 A. And in such a circumstance the terms of S. 178 A which require a seizure under the Act are not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the goods were not smuggled on the accused.
(c ) Sea Customs Act (1878), S. 178 A - "Seized"-
The expression "seized" in the context in which it is used in the Act in S.178 A means "take possession of, contrary to the wishes of the owner of the property". No doubt, in cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal right, whether oral or backed by a warrant, it will be a case of seizure but the idea that it is the unilateral act of the person seizing is the very essence of the concept".
15. So, it is clear from the above decision that taking possession of the articles from the possession of a person though in a general sense will be termed as seizure is not the Crl.M.C.No.3401 of 2014 22 same sense in which order of seizure was mentioned in a particular section vested with the authority by conducting an independent enquiry. So, in this case taking possession of the articles effected on the basis of a search conducted as part of the information received cannot be said to be an order of seizure passed as contemplated under Section 68F of the Act. So under the circumstances, there is no merit in the submission made by the counsel for the petitioner that the seizure has become of no effect and as such, the article is liable to be released.
16. As regards the impugned order is concerned, once it was informed to the court that the authority is going to pass an order under Chapter V A of the NDPS Act, then the court can refuse to release the articles in interim custody under Section 451 of the Code and further it is only in the character of an interim order and it need not be interfered with by this Court under Section 482 of the Code. If that article is subjected to confiscation or seizure under the provisions of this Act and the authorities are going to initiate proceedings for this purpose and if the articles are seized or confiscated or forfeited under Chapter V A of the Act, the petitioner is having Crl.M.C.No.3401 of 2014 23 remedy of filing an appeal before the appellate tribunal under Section 68 O of NDPS Act. If an order of seizure has been passed under Section 68F of the NDPS Act by the empowered officer and before passing a forfeiture order, the competent authority has to conduct enquiry giving opportunity to the petitioner for raising objection on that aspect and only thereafter final order of forfeiture can be made. This was so held in the decision reported in Aslam Mohammad Merchant v. Competent Authority & others (2009 (2) SCC Crl. 793) and the legality of passing of order of seizure can also be raised by the petitioner before the competent authority and that can be considered by the competent authority before passing an order of forfeiture. So under the circumstances, this Court feels that there is no necessity to interfere with the order passed by the court below dismissing the application for interim custody invoking the power under Section 482 of the Code and the petition is liable to be dismissed.
In the result, this petition is dismissed.
K. RAMAKRISHNAN, JUDGE.
cl Crl.M.C.No.3401 of 2014 24