Gauhati High Court - Kohima
Shri Aphong Khoisia vs National Investigating Agency And 5 Ors on 3 March, 2026
Page No.# 1/11
GAHC020005242025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
KOHIMA BENCH
Case No. : W.P.(Crl.)/19/2025
SHRI APHONG KHOISIA
PROPRIETOR OF M/S ATWA ENTERPRISES, RESIDENT OF
NATUNKHETI VILLAGE, PO- DEOMALI, DISTRICT- TIRAP,
ARUNACHAL PRADESH-792129
VERSUS
NATIONAL INVESTIGATING AGENCY AND 5 ORS
REPRESENTED BY ITS DIRECTOR GENERAL, CGO COMPLEX,
OPPOSAITE LODHI ROAD, NEW DELHI
2:THE JOINT SECRETARY
AND DESIGNATED AUTHORITY
NIA
GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
CTCR DIVISION
NORTH BLOCK
NEW DELHI
3:THE DEPUTY INSPECTOR GENERAL (NER) NIA
NAZIRAKHAT
PO-SONAPUR
DISTRICT- KARUP (METROPOLITAN)-782402 ASSAM
4:THE DEPUTY SUPERINTENDENT OF POLICE AND
INVESTIGATING OFFICER NIA
NBCC SQUARE
15TH FLOOR
NEW TOWN
RAJARGHAT
ACTION AREA III
DISTRICT NORTH 24 PARGANAS KOLKATA-700135
WEST BENGAL
Page No.# 2/11
5:THE STATE BANK OF INDIA
KHONSA BRANCH
REPRESENTED BY ITS BRANCH MANAGER
KHONSA-792130
DISTRICT- KHONSA ARUNACHAL PRADESH
6:THE HDFC BANK LIMITED
TINSUKIA BRANCH
REPRESENTED BY ITS BRANCH MANAGER
1ST FLOOR
ARJUN TOWERS CHIRWAPATTY
TINSUKIA-786125
ASSA
Advocate for the Petitioner : IMTI LONGJEM, GRACE I
NAMGI,CATHERINE ANICHAR
Advocate for the Respondent : SENTIYANGER, R/1-4,
BEFORE
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
ORDER
Date : 03-03-2026
JUDGMENT & ORDER (ORAL)
The instant application under Article 226 of the Constitution of India has been preferred by the petitioner assailing the freezing of his bank accounts in connection with NIA Case No.RC- 10/2019/NIA/GUW pending before the Court of Special Judge, NIA, Dimapur Nagaland without following the due process as mandated under the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act,1967).
2. Heard the learned counsel for the petitioner Mr. Imti Longjem as well as Mr. Sentiyanger, learned Special P.P for the respondent Nos.1 to 4 and Mr. R. Chakraborty, learned counsel for the Page No.# 3/11 respondent No.6.
3. The facts leading to the filing of this case is that the petitioner is the proprietor of a firm M/S Atwa Enterprises (herein referred to as the petitioner's firm). The petitioner's firm has an account bearing No.31650533776 in the State Bank of India,(SBI) Khonsa Branch Arunachal Pradesh. The petitioner's firm also has another account bearing No.50200018467151 in the HDFC Bank Limited, Tinsukia Branch Assam. Both the accounts have been freezed by the respective banks on the instructions of the respondent No.1/NIA in connection with NIA Case No.RC-10/2019/NIA/GUW pending before the Court of Special Judge, NIA, Dimapur, Nagaland.
4. It is the case of the petitioner that the NIA had filed an FIR No. RC-10/2019/NIA/GUW dated 17.09.2019 under Section 384/34 IPC, section 7 NSR and Section 13 and 20 of the UA (P) Act, 1967 against Shri. Luckin Mashangva and Shri Jaikishan Sharma who have been named as the accused persons in the said FIR. After the investigation started in the year 2019, the two bank accounts of the petitioner's firm mentioned above were freezed by the concerned banks. In the meantime, the NIA has already filed charge-sheet on 14.02.2020 before the learned Special Judge, Dimapur, Nagaland against the two aforementioned accused persons under Section 384/120(B) IPC and Section 17 UA (P) Act, 1967. The petitioner is not named as an accused in the charge-sheet.
5. Subsequently, the petitioner submitted an application to the Branch Manager of the SBI, Khonsa Branch and HDFC Bank Tinsukia Branch seeking the reasons as well as the documents based on which the accounts of his firm have been freezed. By letter No.BM/58/2025-26/16 dated 05.05.2025, the Branch Manager SBI, Page No.# 4/11 Khonsa branch replied that the account of the petitioner's firm was freezed on the basis of a letter i.e.NIA Case No.RC- 10/2019/NIA/GUW dated 9.12.2019. Similarly, the HDFC Bank vide letter No.2025-26/1064/003 dated 10.04.2025 also replied that the account of the petitioner's firm was put on debit block on the basis of a notice received from the NIA Kolkata dated 20.12.2019.
6. It is the submission of the learned counsel for the petitioner that the power to search and seize property under the UA(P)Act is provided in Section 25 of the Act. He submits that the procedure envisaged under the said section and the rights flowing from the said provisions have not been followed while making the aforesaid seizure making the seizure illegal. It is the submission of the learned counsel for the petitioner that under Section 2(h) of the UA(P) Act, bank accounts also comes within the definition of property. According to the learned counsel for the petitioner when an officer is investigating an offence under chapter IV and chapter VI of the UA(P) Act, the order to seize or attach the property can only be made with the prior approval in writing of the Director General of Police of the State in which the property is situated. Thereafter, within forty eight hours the investigating officer must inform the Designated Authority of such seizure or attachment who shall either confirm or revoke the order of seizure or attachment within a period of sixty days from the date of such production. Before the order is passed by the Designated Authority, an opportunity of making a representation has to be given to the person whose property is seized or attached. It is also provided under Section 25 of the UA (P) Act that any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Court within a Page No.# 5/11 period of thirty days from the date of receipt of the order and the Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property.
7. It is the case of the petitioner that the bank accounts of the petitioner's firm have been freezed/attached without following the procedures prescribed under Section 25 of the UA (P) Act. The petitioner has not been furnished with any notice regarding the freezing of his firm's bank accounts and he was also not given an opportunity to make a representation as provided under the proviso of Section 25(3) of the UA (P) Act. The learned counsel submits that the basic principles of natural justice have been violated by the respondents while freezing the bank accounts of the petitioner's firm inasmuch as the petitioner has not been given an opportunity of hearing before the bank accounts of his firm were freezed. The learned counsel for the petitioner has relied on the following authorities in support of his contentions:-
1. OPTO Circuits (India) Ltd vs Axis Bank reported in (2021) 6 SCC 707
2. Tamil Nadu Development Foundation Trust vs Assistant Commissioner of Police, vepery Range reported in 2024 SCConline Mad 8310
3. Bilkis Yakub Rasool vs Union of India reported in (2024) 5 SCC 481,
4. Vashdeo R. Bhojwani vs Abhyudaya Coop.Bank Ltd reported in (2019) 9 SCC 158, paragraph 4
5. Dharnidhar Mishra vs State of Bihar reported in (2024) 10 SCC 605, paragraphs 23
6. State of Rajasthan vs O.P. Gupta reported in Page No.# 6/11 (2022) 18 SCC 382 paragraphs 25 and 26.
7. M.Sudakhar vs V. Manoharan reported in (2011) 1 SCC 484,, paragraph 14
8. Commissioner of Income Tax vs Chhabil Dass Agarwal reported in (2014) 1 SCC 603. paragraph 15
9. South Indian Bank Ltd vs Naveen Mathew Philip reported in (2023) 17 SCC 311, paragraph 16.
8. In view of the above submissions and the authorities relied upon, the learned counsel for the petitioner prays that the respondents may be directed to de-freeze the bank accounts of the petitioner's firm and allow the petitioner to operate the said accounts.
9. The learned Special P.P. Mr. Sentiyanger submits that the petitioner had given power of attorney to one Robin Bukalsaria to open the company M/S Atwa Enterprises and open the bank accounts in the name of the said company. On the strength of such power of attorney the said Robin Bukalsaria had open the accounts in the name of M/s Atwa Enterprises at SBI Khonsa Branch and at the HDFC Bank at Tinsukia Assam and the cheque book and pass book of the said accounts were handed over to Robin Bukalsaria by the petitioner. The investigation had revealed that Robin Bukalsaria had good relations with the accused Jaikishan Sharma and huge amounts of money was transferred from the account of the petitioner's firm at SBI Khonsa Branch to the NSCN (IM) organisation. It was also seen that after the arrest of the accused Jaikishan Sharma, a huge amount of money was transferred from the SBI account of M/s Atwa Enterprises to another bank account No.50200019224305. It was further revealed that the accused Page No.# 7/11 Jaikishan Sharma was operating various bank accounts including the two bank accounts of the petitioner's firm for transferring funds into the bank accounts of the accused Luckin Mashangva and others. Therefore, the investigating agency had filed applications before the Manager of the concerned banks for freezing of the accounts as the accused Jaikishan Sharma was using the said accounts for transferring funds to the members of the NSCN (IM), a terrorist organization. Hence, the petitioner's firm accounts were frozen in the interest of investigation of the instant case.
10. The learned Special P.P further submits that the present writ petition is not maintainable inasmuch as the petitioner has directly approached this Court by way of filing a writ petition without availing the alternative remedy of approaching the Special NIA Court Dimapur where Case No.RC-10/2019/NIA/GUW is pending trial. The learned Special P.P for NIA, however, has fairly submitted that the procedures under Section 25 of the UA(P) Act 1967 were not followed by the investigating agency before freezing the bank accounts of the petitioner.
11. Mr. R, Chakraborty, learned counsel appearing for the respondent No.6/HDFC bank has submitted that the bank had received letter No. No.RC-10/2019/NIA/GUW dated 20.12.2019 from the NIA directing the bank to stop withdrawal or transfer of any funds from account number 50200018467151 till further orders. Accordingly, the HDFC Bank had kept the said account of the petitioner on debit block on the basis of the instruction received from NIA Kolkota. The learned counsel submitted that the HDFC bank is bound to follow any directions that may be passed by this Court.
Page No.# 8/11
12. This Court has given its anxious consideration to the submissions of the opposing counsels for the parties. The procedure for search and seizure of property under the UA (P) Act is provided under Section 25. The said section is reproduced here below:-
"25. Powers of investigating officer and Designated Authority and appeal against order of Designated Authority-(1) 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 prior approval in writing of the Director General of Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned.
(2) The investigating officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property. (3) The Designated Authority before whom the seized or attached property is produced shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production:
Provided that an opportunity of making a representation by the person whose property is being seized or attached shall be given. (4) In the case of immovable property attached by the investigating officer, it shall be deemed to have been produced before the Designated Authority, when the investigating officer notifies his report and places it at the disposal of the Designated Authority. (5) The investigating officer may seize and detain any cash to which this Chapter applies if he has reasonable grounds for suspecting that-
(a) it is intended to be used for the purpose of terrorism; or
(b) it forms the whole or part of the resources of a terrorist organisation:
Provided that the cash seized under this sub-section by the investigating officer shall be released within a period of forty eight hours beginning with the time when it is seized unless the matter involving the cash is before the Designated Authority and such Authority passes an order allowing its retention beyond forty-eight hours. For the purposes of this sub-section, "cash" means-
(a) coins or notes in any currency;
(b) postal orders;
(c) traveller's cheques;
(d) banker's drafts; and Page No.# 9/11
(e) such other monetary instruments as the Central Government or, as the case may be, the State Government may specify by an order made in writing (6) Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Special Court within a period of sixty days from the date of receipt of the order, and the Court may either confirm the order of attachment or seizure or revoke the order and release the property."
13. A perusal of the requirements under Section 25 of the UA(P) Act shows that the investigating agency has to get prior approval in writing of the Director General of Police of the State in which the property is situated. It is also provided that any final seizure of property or order of attachment or freezing of bank accounts shall not be done except with the prior permission of the designated authority before whom the property seized or attached is produced and copy of such order shall be served on the person concerned. In the present case, the Designated Authority would be Joint Secretary, Government of India, Ministry of Home Affairs. It is also provided in Section 25 that the investigating Officer shall duly inform the Designated Authority within forty eight hours of the seizure or attachment of such property. The Designated Authority shall either confirm or revoke the order of seizure or attachment within a period of sixty days from the date of the production provided that an opportunity of making a representation by the person whose property is being seized or attached shall also be given. Clause (6) of Section 25 provides that any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Special Court within a period of sixty days from the date of receipt of the order and the Court may either confirm the order of attachment or seizure or revoke the order and release the property.
14. It is therefore amply clear from a reading of the writ petition Page No.# 10/11 and also the affidavit-in-opposition of the respondent Nos. 1 to 4 that the procedure mandated under Section 25 of the UA (P) Act has been given a complete go by in the instant case. In other words, the mandate of Section 25 of the UA (P) Act has not been complied with by the NIA before freezing the accounts of the petitioner. As the investigating agency had not informed the Designated Authority nor produced the seized property/bank accounts before the Designated Authority, there was no opportunity for the Designated Authority to confirm or revoke the order of seizure or attachment. Consequently, the petitioner also had no opportunity to approach the Special NIA Court under Section 25(6) of the UA (P) Act as the Designated Authority had not passed any order. Therefore, the petitioner could not have availed the remedy to approach the Special NIA Court under Section 25(6) of the UA (P) Act. As held by the Hon'ble Supreme Court in the case of OPTO Circuits(India) Ltd(supra), if a statute provides for a thing to be done in a particular manner, it has to be done in that manner alone and in no other manner. So also in the instant case, though the investigating agency is vested with power for search, seizure and attachment of property under the UA(P) Act, such power is circumscribed by a procedure laid down under the statute. As such, the power is to be exercised in that manner alone failing which the same would be vitiated as having not complied with due process.
15. In view of the above discussion and observations, the instant writ petition is allowed.
16. The respondents, particularly respondent 5 and 6 are directed to de-freeze the petitioner's firm account bearing No. No.31650533776 in the SBI Khonsa Branch, Arunachal Pradesh and Page No.# 11/11 the account bearing No.50200018467151 in the HDFC Bank Limited, Tinsukia Branch, Assam.
17. The writ petition is disposed of.
Sd/-
JUDGE Comparing Assistant