Allowed

FPA-ND-37/DLI/2012 of Fateh Singh & Others v/s The Competent Authority, Delhi

ATFP10 Mar 2017FPA-ND-37/DLI/2012

Case brief

AI extract

What is this about?

The appellate court set aside a forfeiture order against the appellant. The property was acquired more than six years before the FIR was registered. The proviso to Section 68(3) of the NDPS Act bars forfeiture of such legacy property, regardless of subsequent acquittal challenges pending in parallel proceedings.

What did the court decide?

Impugned freezing order passed by the Station House Officer is set aside.

FPA-ND-37/DLI/2012 of Fateh Singh & Others v/s The Competent… — Narcotics (NDPS) | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY AT NEW DELHI

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Date of Decision: 20.03.2017

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MP-ND-39/DLI/2014 (Addl. Doc.) MP-ND-16/DLI/2013 (Misc.) FPA-ND-37/DLI/2012

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Fateh Singh & Others … Appellant/Applicant Versus The Competent Authority, Delhi … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Shri Pravesh Sharma, Advocate For the respondent : Shri Anil Tripathi, Advocate CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI G.C. MISHRA : MEMBER SHRI B.K. BANSAL : MEMBER JUDGMENT

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FPA-ND-37/DLI/2012

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The appellant has filed the above said appeal under section 68 (O) (1) of the NDPS Act, 1985. Admittedly the appellant was booked in FIR Nos. 31/12/ dated 29.03.2012 under sections 20/61/85 of the Narcotic Drugs and Psychotropic Act, 1985 by the Station House Officer, Police Station Padhar, Distt. Mandi, H.P.

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It is a matter of fact that the Station House Officer, Police Station, Padhar, Distt. Mandi, H.P., who has conducted the enquiry and investigation in relation to the illegally acquired properties as defined u/s FPA-ND-37/DLI/2012 Page 1 of 5

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68 B(g) of the NDPS Act of the AP, has passed a freezing order No. 257582/5A dated 13.07.2012 u/s 68 F(1) of the NDPS Act 1985, whereby the following properties have been seized/freezed and it has been ordered that the properties shall not be transferred or otherwise dealt with without prior permission from him or the Competent Authority & Administrator, New Delhi:-

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Single Story Pucca house situated at Muhal Katipari (Padhar) in the name of Shri Fateh Singh, valued at Rs. 8,35,900/(Approx).

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Saving Account No. 30691154143 in the name of Shri Balbir Singh S/o Shri Fateh Singh, with the balance of Rs. 31,595/-.

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The freezing order in the above said matter was confirmed on 9^th August, 2012 with following finding is under:

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“I have carefully considered the facts and have examined the records. A preliminary enquiry and investigation has been conducted by the officer freezing the properties, who has, recorded in the freezing order that neither any member of AP!s family is in any government job nor doing any kind of business and the income from all the sources is not sufficient for the livelihood of the family. Further all the properties are of recent origin and do not commensurate with the source of income of the AP. Therefore, the officer freezing the properties has reason to believe that the properties in question have been acquired from the income derived from illicit trafficking of narcotic drugs.

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With regard to investment in the land and construction of house property thereon, it is claimed that the land was acquired for Rs. 80,000/- in 2004 and construction of the house was completed in year 2005 with the investment of Rs. 4,00,000/-. The source of investment is claimed to be savings from agricultural income and sale of sheep, goat and wool thereof. AP has claimed his annual income from all sources at Rs. 1,50,000/whereas the certificate of Executive Magistrate, Tehsil Padhar, Mandi indicates that the total income from all sources of the family of Shri Fateh Singh i.e. AP is Rs. 53,000/- per annum. It is also mentioned that the certificate of income is based on the information furnished by the applicant and after verification from the concerned authorities. The certificate is dated 23.07.2012 i.e. barely 10

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FPA-ND-37/DLI/2012

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Page 2 of 5

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days before the date of written submission dated 03.08.2012 wherein it has been claimed that the annual income of AP is Rs. 1,50,000/-. Therefore the income estimated by the AP is without any basis. The letter of Gram Pradhan stating that AP has annual ' income of Rs. 1,00,000/- is also without any basis and it is at variance with the certificate of Revenue Authority i.e. Tehsil Office, Padhar. Further during the course of hearing it was stated by Shri Balbir Singh that AP has to support a family of 5 and their annual house hold expenditure is Rs. 10,000/- per annum.

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This claim does not appear t0 be correct as it is not possible for a family of 5 members to survive in such meager amount of Rs. 10,000/- per annum.

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The certificate of the Revenue Authority i.e. Executive Magistrate, Tehsil Padhar is based on the information given by AP and verification from concerned authorities and in the year 2012 it shows annual income of Rs. 53,000/- whereas the investment in the house property is in the year 2004 & 2005. At that time the annual income of the AP would have been much less and the question of savings to the tune of approximately Rs. 5,00,000/- for investment in land (cost of land plus stamp duty) and construction of houses does not arise. Further, on the basis of the investigation carried out, the SHO, Padhar has clearly mentioned in the freezing order that income from all sources of AP was not sufficient for his family. Besides, AP has not produced any documentary evidences to show that the aforesaid house property is legally acquired/earned despite being given a specific opportunity to do so. They have also not furnished any proof in the form of bank statement regarding source of investment in the said property. This fact has been noted by Shri Balbir Singh s/o AP during the course of hearing. Further, the son of AP was given employment under NREGA scheme which is meant for very poor families. This clearly shows that the AP has acquired the property from illegal income earned from illicit trafficking of narcotic drugs and hence this is an illegally acquired property.

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With regard to deposits of Rs. 35,959/- into the savings bank account No. 30691154143 in the name of Shri Balbir Singh, it is claimed that the deposits are out of income received from NREGA Scheme and an amount of Rs. 30,000/has been received from L1C Policy on 27.10.2011. The LIC Policy is of the year 2003 hence falls with the period covered by section 68-C of the NDPS Act. No source of investment in the LIC Policy has been furnished. As stated above, the income from all sources was not sufficient for the family of the AP. Hence the investment in the LIC Policy appears to be from income acquired from illicit trafficking of narcotic drugs.

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We are only concerned with the freezing property i.e. Single Story Pucca house situated Muhal Katipari (Padhar) in the name of Shri Fateh

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FPA-ND-37/DLI/2012

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Page 3 of 5

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Singh, valued at Rs. 8,35,900/- (Approx) and deposit of Rs. 30,000/- out of Rs. 31,595/- passed by the Station House Officer, Police Station Padhar, Distt. Madi, H.P.

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Admittedly in earlier FIR No. 407/2008 (dated 14^th September, 2008) the accused was acquitted on 30^th March, 2013. The learned counsel for the respondent confirmed to us that the said acquittal order was not challenged by the Concerned Authority and the same has attained finality.

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With regard to the second FIR 31/2012 which is also subject matter of the present appeal the accused has also been acquitted on 29^th March, 2012. We have been informed by the respondent that the appeal is pending. The said fact has not been disputed by the counsel for the appellant.

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The important issue involved in the present case is that in the freezing order itself in which it was admitted that the land in question was acquired by the appellant for sum of Rs. 80,000/- in the year 2004 and construction of the house was completed in the year 2005. There is no dispute that the freezing order in the above said matter was passed on 9^th August, 2012 apparently i.e. approximately after the eight years of acquiring the property by the appellant. The proviso of section 68 C reads as under:

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Prohibition of holding illegally acquired property .

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(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.

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(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

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FPA-ND-37/DLI/2012

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Page 4 of 5

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Government in accordance with the provisions of this Chapter.

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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 authorization of arrest has been issued for the commission of an offence punishable under this Act or from the date the order or detention was issued, as the case may be.

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It is evident from the said provision which mandates that no property shall be forfeited under this chapter if property was acquired by person before a period of six years. The FIR was registered on 29.03.2012 in which also he has been acquitted thus apparently the appellant’s property was freezed after expiry of six years from the date of acquiring the property. Second FIR was filed after expiry of six years from the date of acquiring the property. Therefore the impugned order is set aside by allowing the present appeal. However, we are not expressing any view on merit of the case as well as the consequences about final outcome of the appeal which has been filed after the acquittal order of the appellant in FIR NO. 31/2012.

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No costs.

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(Justice Manmohan Singh) Chairman

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(G.C. Mishra) Member

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(B.K. Bansal) Member

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New Delhi, 20^th March, 2017

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‘d’

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FPA-ND-37/DLI/2012

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FPA-ND-37/DLI/2012 of Fateh Singh & Others v/s The Competent Authority, Delhi

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FPA-ND-37/DLI/2012 of Fateh Singh & Others v/s The Competent Authority, Delhi

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