Allowed

FPA-ND-76/KOL/2016 of Prasant Kumar Sahu v/s The Competent Authority, Kolkata

ATFP15 Mar 2017FPA-ND-76/KOL/2016

Case brief

AI extract

What is this about?

The Appellate Tribunal allowed the appeal and quashed the Competent Authority's freezing order. The court held that the appeal filed by the vehicle owner, supported by affidavits proving ownership and lack of connection to the accused, lacked discussion in the impugned order.

What did the court decide?

Set aside the impugned freezing order and direct the immediate release of the Mahindra Scorpio vehicle and seized documents.

FPA-ND-76/KOL/2016 of Prasant Kumar Sahu v/s The Competent… — Narcotics (NDPS) | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI

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Date of Decision: 15.03.2017

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FPA-ND-76/KOL/2016

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Prasant Kumar Sahu … Appellant/Applicant Versus The Competent Authority, Kolkata … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Pranaya Kumar Mohapatra, Advocate
For the respondent	: Shri Haridas, Joint Commissioner
CORAM JUSTICE MANMOHAN SINGH SHRI G.C. MISHRA	: CHAIRMAN : MEMBER
SHRI B.K. BANSAL	: MEMBER
JUDGEMENT JUSTICE MANMOHAN SINGH	: CHAIRMAN

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FPA-ND-76/KOL/2016

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The appellant’s advocate and Shri Haridas, Joint Commissioner appearing on behalf of the Competent Authority made their submissions. Following reliefs have been sought in the present appeal:

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“(i) Direct the release of the Mahendra Scorpio vehicle bearing registration no. ODO2B-0029, registered in the name of Prasant Kumar Sahu, the appellant herein, to him pending disposal of the present appeal.

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(ii) Set aside the order dated 23.09.2016 which is impugned in the present appeal and direct immediate release and handing over of “Mahendra Scorpio” vehicle bearing registration no. ODO2B-0029, to

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FPA-ND-76/KOL/2016

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the appellant herein along with entire documents seized from the appellant.

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(iii) Direct cost of the litigation against the respondents and in favour of the appellant.

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(iv) Direct departmental action against the officer concerned who arbitrarily by misusing of his power seized the vehicle in question.”

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It is the case of the respondent that the appellant being the relative of Chagali @ Dibakara Sahu, affected party, is has covered under section 68A(2)(d) of the NDPS Act, 1985. Out of many, one of the property which was freezed. i.e. Mahendra Scorpio vehicle bearing Registration no. ODO2B-0029, which is subject matter of the present appeal. The same was purchased by the appellant in his name, who is admittedly a driver and plying the said vehicle on commercial basis. The learned counsel for the appellant states that the appellant is not involved in any offence, no criminal case is pending against him, he has nothing to do with the accused person and has no relation whatsoever with the accused person.

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The reply was filed by the appellant on 3^rd June, 2015 and 5^th November, 2015 before the Competent Authority. The relevant of the same has been reproduced in impugned by the C.A. which is as follows:

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“ Vide reply dated 03.06.2015 & 05.11.2015

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2. It is pertinent to mention herein that, the present applicant Prasant Kumar Sahu has no relation with the said Chagali @ Dibakar Sahu in whatsoever in nature and manner and the applicant is a driver by profession and purchased the aforesaid vehicle on hire purchase basis to take out his day to day livelihood. However, the officer concerned effecting seizure the aforesaid vehicle arbitrarily and illegally with malafide intention seized the vehicle inspite of the applicant providing the supportive documents. The original documents of the said vehicle when shown by the applicant to the concerned officer effecting seizure, the

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FPA-ND-76/KOL/2016

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officer concerned seized the same, as such the applicant is producing photocopies of the original documents.

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3. That the aforesaid vehicle is the absolutely belong to the applicant and he is the registered owner of that vehicle and the said vehicle is purchased on hypothecation cum loan basis financed by Mahindra & Mahindra Finance Ltd. and applicant is paying installment for the aforesaid vehicles. The copy of the registration certificate of the vehicle and statement of account pertaining to payment towards loan to Mahindra & Mahindra Finance Ltd. are annexed herewith Annexure-A and Annexure-B.

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4. That from the documents its crystal clear that applicant is the owner of the aforesaid vehicle and continuing his payment of installment towards the Mahindra & Mahindra Finance Ltd. as the vehicle is on hirepurchase basis. The total cost of the said vehicle is Rs. 10,32,650/- (Ten lakhs thirty two thousand and six hundred fifty only) and total loan advanced by the Mahindra & Mahindra Finance Ltd. for the said vehicle is Rs. 5,00,000/- (Five Lakhs only). That so far as the remaining amount is concerned the petitioner being driver for more than 15 years had saved money for purchase of a vehicle for plying same as private taxi and took some hand loans from his relatives and friends and accordingly purchased the aforesaid vehicle and plying same taxi purpose from its inception of purchasing.”

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The appellant has also filed the affidavit of Mr. Ajit Kumar Pattanayak. The contents in para 1 to 8 of the said affidavit are reproduced below:-

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“I Ajit Kumar Pattanayak, aged about 36 years, S/o-Jasodanandan Mohanty, resident of Village – Kadali Munda, P.O.-Kishorganj, Dist-Angul, I do hereby solemnly affirm and state as follows: 1. That I know Prasanta Kumar Sahoo, S/o-Kathia Sahoo, resident of Kadali Munda since last 20 years as he is my co-villager.

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2. That I am a contractor doing different contract works.

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3. That the said Prasanta Kumar Sahoo is earning his livelihood through engaging his four wheeler in transport business as taxi.

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4. That in order to purchase a Mahindra Scorpio, he has borrowed a sum of Rs. 5 lakhs from me on 10.10.2012.

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5. That the said amount of Rs. 5 lakhs I have given as a friendly loan to him with interest @ 5% per annum since he was in need of depositing the down payment amount apart from finance obtained from the bank for purchase of Mahindra Scorpio.

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FPA-ND-76/KOL/2016

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Page 3 of 6

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6. That he has till date has repaid me a sum of Rs. 3 lakhs and he is due to pay me another Rs. 2 lakhs plus interest as agreed upon by him.

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7. That in the meantime I came to know that his vehicle bearing No. ODO20029 has been seized by the Angul Police in connection with a NDPS case and pursuant to the seizing order dated 15.7.2014 passed by the Competent Authority, smugglers & foreign exchange manipulators (Forfeiture of property) Act, 1976 & NDPS Act, 1985, Kolkata.

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8. That the facts stated in this affidavit are true to my knowledge and I believe to be true. I swear this affidavit for production before the Competent Authority and administration (SAFEMA and NDPSA), department of Revenue, Kolkata proceeding at New Delhi reference No. C.S./KOL/NDPSA/OR-S-3/2014-15/195.”

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It appears from the said affidavit the appellant has taken friendly loan of Rs. 5,00,000/- (Five Lakhs). The appellant has filed the copy of the statement of account alongwith the bank certificate showing that whereby he has obtained the loan for mortgaged vehicle. The accounts would show that appellant has been paying the regular installment for the said vehicle. There is no connection between the vehicles and the accused person, no connection has been mentioned by the Competent Authority between the Vehicles and Ganja recovered from the accused person.

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We have gone through the impugned order passed by the Competent Authority at Kolkata wherein it was held that the appellant has neither furnished any proof/documents book proving the vehicle in question was plied as taxi by the appellant. It was also held that the appellant has not been able to establish past saving or the loan, if taken from his relatives or friends and no proof, whatsoever, has been provided. The said findings are contrary to the record and reply filed by the appellant before the Competent Authority alongwith documents.

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FPA-ND-76/KOL/2016 Page 4 of 6

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Thus we are not agreeable with the finding of the Competent Authority as apparently the appellant has filed documentary evidences in order to show that the total cost of Vehicle is Rs. 10,32,650/- out of which 5,00,000/- was financed from Mahindra & Mahindra Finance Ltd. and the balance was taken by him from past savings and loans from his relatives and friends.

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In support of his submission the appellant has filed the affidavit of Shri Ajit Kumar Pattanayak who specifically depose that in order to purchase Mahendra Scorpio he has borrowed a sum of Rs 5,00,000/- on 10^th October, 2012; that the said loan was given to him with interest @ 5% per annum, out of the total amount; the appellant has repaid him Rs. 3,00,000/- and the remaining amount is still due. Nothing has been discussed about the said documents in the impugned order except the Competent Authority has come to the conclusion that nothing has been proved.

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It is also pertinent to mention that nothing has been discussed in the findings of the impugned order how the appellant is related to Chagli @ Dibakar Sahu, despite of the fact that, the appellant has specifically made the statement that he has no relations with Chagali Dibakar Sahu.

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One of the main reason given in the freezing order is that the appellant is related to Chagali @ Dibakar Sahu, therefore, he is covered under section 68A(2)(d). The relation between the accused and the appellant has not been verified and discussed in the freezing order which

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FPA-ND-76/KOL/2016

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is totally silent about it. The order lacks all the details. Even the pleas raised by the appellant in his reply dated 3^rd June, 2015 and 5^th November, 2015 have not been discussed in the impugned order when the findings are verified.

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The findings are given merely dis-believing the entire case of the appellant without any discussion. In the circumstances, we allow the appeal. Thus, the impugned order is liable to be set aside. The vehicle i.e. Mahindra Scorpio in the name of the appellant is released forthwith.

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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,

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15^th March, 2017

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‘d’

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FPA-ND-76/KOL/2016

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FPA-ND-76/KOL/2016 of Prasant Kumar Sahu v/s The Competent Authority, Kolkata

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FPA-ND-76/KOL/2016 of Prasant Kumar Sahu v/s The Competent Authority, Kolkata

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