Partly allowed

FPA-ND-49/DLI/2016 of Ms. Shaminder Kaur v. The Competent Authority, Delhi

ATFP19 Apr 2024FPA-ND-49/DLI/2016

Case brief

AI extract

What is this about?

The Appellate Tribunal partially allowed an appeal by the appellant, Smt. Shaminder Kaur, challenging a freezing order under the NDPS Act. The court held that while she successfully explained Rs. 4.25 lakhs, she failed to prove the legal source of the remaining Rs. 25.58 lakhs, upholding the Competent Authority’s order.

What did the court decide?

The appeal allowed to the extent that the appellant failed to explain the source of Rs. 25.58 lakhs; the freezing order confirmed for this amount.

FPA-ND-49/DLI/2016 of Ms. Shaminder Kaur Vs. The Competent… — Property and Title | ATFP (2024)

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APPELLATE TRIBUNAL UNDER SAFEMA NEW DELHI

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FPA-ND-49/DLI/2016

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Ms. ShaminderKaur	… Appellant
Versus
The Competent Authority, Delhi	… Respondent
Advocates/Authorized Represen	tatives who appeared
For the Appellant :	Mr. AnkitVerma, Adv. Mr. V.P. Verma, Adv.
For the Respondent	: Mr. S.P. Shrivastava, Adv. Mr. L. Ojha, Adv.
CORAM
SHRI G. C. MISHRA	: MEMBER
SHRI V. ANANDARAJAN	: MEMBER

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FINAL ORDER

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19 .04.2024

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The present Appeal has been preferred against the order dated 07.12.2015 by Ld. Competent Authority (CA), SAFEMA,1976 and NDPS Act,1985 in F.No.CA/DL/(HR)/NDPS/07/15-16/227 partly confirming the freezing order No. NCB/CZU/Crime No.14/2015/II/3281 dated 09.11.2015 passed by Intelligence Officer, NCB, Chandigarh Zonal Unit, NCB, Chandigarh.

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Facts in Brief

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2. It is seen from the impugned order that consequent upon the seizure of 23.150 Kilograms of Opium from the possession of ShriSukhbir Singh @ Sukha and ShriLakhbir Singh @ Lakha, both S/o ShriBaldev Singh, R/o H.No.426,Sector-20, Huda Colony, Sirsa, Haryana or Village: JandwalanJattan, Tehsil: Dabwali, Sirsa, Haryana, they were

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FPA-ND-49/DLI/2016 Page 1 of 10

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booked vide NCB Crime Case No. 14/2015 dated 05.05.2015 under section 8, 18,20,29 of the NDPS Act, 1985, by the officers of NCB, Chandigarh. Further, as per the disclosure of accused ShriSukhbir Singh @ Sukha and ShriLakhbir Singh @ Lakha, 13 Kilograms of opium was also seized from the house of ShriLabh Singh @ Labha, s/o ShriSukhminder Singh, R/o Village: JandwalanJattan, Sirsa, Haryana on 05.05.2015.

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3. Seizure of 23.150 Kg. of Opium is an offence punishable with rigorous imprisonment for ten years or more under section 8, 18,20,29 of NDPS Act,1985 and thus ShriSukhbir Singh @ Sukha and ShirLakhbir Singh @ Lakha (hereinafter referred to as Affected Persons, in short, APs) are persons covered under section 68 A (2)(cc) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Further, Smt. ShaminderKaur w/o ShriSukhbir Singh @ Sukha and Smt. SukhvirKaur, W/o ShriLakhbir Singh @ Lakha, respectively being the relatives of APs are covered under section 68A (2)(d) of the NDPS Act, 1985.

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4. The Intelligence Officer, Narcotics Control Bureau, Chandigarh Zonal Unit, Chandigarh, who has conducted the financial investigation in to the illegally acquired property as defined u/s 68 B(g) of the NDPS Act,1985 of the APs, has passed Freezing Order No.NCB/CZU/ Crime No.14/2015/II/3281 dated 09.11.2015 u/s 68 F(1) of the NDPS Act, 1985, whereby, the following properties have been frozen and it has been ordered that the properties shall not be transferred/sold/purchased/or otherwise dealt with, unless permission is received either from the Intelligence officer, Narcotics Control Bureau, Chandigarh Zonal Unit, Chandigarh or the Competent Authority & Administrator, Delhi:

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Details of the confirmed properties in the name of the appellant are

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as below:

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SCHEDULE OF PROPERTIES CONFIRMED BY THE CA AGAINST THE APPELLANT

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SL. No.	Land holder name	Address of the land identified	Land purchased and registry date	Registe vide Va No.	red sika Sl.	Area of land( in acre)	Price of th property	e land	Confir med / Not confir med
				Khew atKha toni Numb er	Khat a Numb er		Collecto rate Rate( Rs)	Actual purchase amount(R s)
1.	Smt. ShaminderKa	Village: Rampura	08.05.2012	78	197	02.64750 0	---	31,80,000	Confir med
	ur W/o Sukhbir	Vishoniya Tehsil:	08.05.2012	202	500- 503	01.50000 0	---	17,80,000
	Singh @ Sukha	Goriwala	17.05.2012	78 202 203	197 500- 503 504- 528	00.25000 0	---	3,40,000
			14.12.2012	78 122		01.06625 0	---	12,90,000
			Tot	al		5.4575 (Acre)	---	6,590,000

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5. The Intelligence Officer, Narcotics Control Bureau, Chandigarh Zonal Unit, Chandigarh in the aforesaid order has observed on the basis of his financial investigation that the above-mentioned properties have been acquired by the APs out of illegal income earned through drug trafficking.

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6. The Ld. CA offered at opportunity to the parties. Both the parties were represented through their respective counsel. The matter was heard and that statement on oath u/s 68 R of the NDPS Act, 1985 was recorded in respect of ShriParamjeet Singh S/o Kartar Singh, ShriKirpal Singh S/o ShriNachatar Singh and ShriHansraaj Singh S/o Duli Chand. 7. It is also seen that the present Appellant and other three APs.raised preliminary objections which was controverted by the NCB. The preliminary objections and reply to the same were considered by Ld. CA.

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It is also seen from the record that Ld. CA considered each and every submission, both legal and factual,made by both the parties and partly confirmed the freezing order by releasing four properties out of the eight properties. The properties in the name of SukhbirKaurW/oShriLakhbir Singh and Sukhbir Singh @ Sukha were released.

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8. On the other hand, the Ld. Authority confirmed the four properties of Smt. ShaminderKaurW/oSukhbir Singh @ Sukha to the extent of Rs.29.83 lakhs as the Appellant could not produce sufficient evidence to prove the sources of income to acquire the four properties in her name to the extent of amount stated above. The details of finding are explicitly mentioned in the internal Page Nos.18 & 19 of the impugned order. The Appellant could not explain the source of investment in the property purchased by her to the extent of Rs.29.83 lakhs out of Rs.65.90 lakhs.

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9. Being aggrieved with the aforesaid order the Appellant has preferred the present appeal on following grounds:

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(A) The Ld. CA erred in rejecting the evidence in support of the source of investment of Rs. 13,78,000/-.

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(B) The CA erred in rejecting the explanation furnish in support of the investment of Rs. 4,25,000/-.

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(C) The Ld. CA erred in rejecting the explanation furnished in support of Rs. 5,00,000/- on the unjustified ground that no documentary evidence was furnished.

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(D) The Ld. CA erred in rejecting the explanation furnished in support of the investment of Rs. 6,80,000/-.

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(E) The Ld. CA erred in confirming the freezing order in respect of all the four properties although explained investment was more than value of each one of four properties.

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(F) The Ld. CA erred in not allowing further opportunity to the Appellant to produce further evidence.

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10. In the written submissions the Appellant has tried to explain the legal source of income of Rs.29.83 lakhs. In nutshell those are reflected below:

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(A)Regarding Rs. 13.78 lakhs- To substantiate this amount the Appellant submitted that her husband Sukhbir Singh sold his share in ancestral property situated at village Jandawala, Jattan to ShriAngrej Singh and ShriGurtej Singh on 06.05.2012 for a consideration of Rs.13.78 lakhs. To prove the sale the Appellant has placed the xerox copy of one certificate from sarpanch of the Village confirming the sale and affidavits of the said purchasers.

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(B)Regarding Rs. 4.25 lakhs- The Appellant has received this amount from her husband Sukhbir Singh out of the sale of his family property on 13.06.2011.The property was sold for Rs.21.25 lakhs and his 1/5^th share comes to Rs.4.25 lakhs. The said property was sold to Smt. MandeepKaurW/oShriSwaran Singh and Smt. SurjeetKaur w/o ShriBalbir Singh. The copy of registered sale deed of property was furnished before Ld. CA, however, CA held that the source of funds in the hands of buyer‟s not submitted and also doubted the genuinity of the transaction.

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In this regard, the Appellant has filed certain additional documents i.e., a copy of sale deed (page No. 45-47) annexed with the application for additional evidence to substantiate that the vendees namely, Smt. SurjitKaur has sold her agricultural land situated in village Ahmadpur for Rs. 12 lakhs on 03.06.2011, Smt. SurjeetKaur mother in law of Smt. MandeepKaur entered into an agreement to sale of her land for a consideration Rs.7 lakhs and against the sale consideration, she received

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Rs.5 lakhs on 20.04.2011 as advance, copy of agreement to sale is submitted with additional evidences (Page Nos.48-50), ShriBalbeer Singh entered into an agreement to sell and had received a sum of Rs. 5.7 lakhs as advance, copy of agreement to sell annexed (page No.51-52).

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(C) Regarding Rs.5,00,000/- This was received by the appellant from her father ShriHarbans Singh. Sh. Harbans Singh Rs.5,00,000/- to his daughter out of the funds he received from the sale of his land for Rs.17,20,000/- on 10.05.2011. An affidavit of the father was filed before Ld. CA confirming thereby gift of Rs.5,00,000/- to her daughter Smt. ShaminderKaur, appellant which was not believed by Ld. CA on the reasons stated in the impugned order.

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(D) Regarding Rs. 6.8 lakhs. The said funds are available out of sale of her jewellery /silver utensils and ornaments which was her “Stridhan”. An affidavit of Sh. Harbans Singh, father of Smt. ShaminderKaur, Appellant affirming thereby gift of the jewellery and ornaments at the time of her marriage in the year 2000 and which constituted her “Stridhan”. Also bills from the jeweler for purchase of the jewellery were also filed before Ld. CA. Ld. CA had erred while passing impugned order doubted the fact the Appellant kept her Stridhanfor about eleven years from the date of marriage and also sale of jewellery was made on different dates but the sale bills were of consecutive nos. The doubts and objections raised by the Ld. CA are not only unfounded, but are against the Indian Culture value attached with the “Stridhan. An Indian woman does not part with her “Stridhan” unless and until compelling circumstances arise such as purchase of the property or illness etc. in her family. Hence the comments that” It would be farfetched to accept

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the claim of AP that she kept the ornaments for about 11 years” are not only unfounded but against the traditions and culture of our country.

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11. During the course of proceeding, the Ld. Counsel for the Appellant submitted that the Appellant has filed an application for introduction of additional evidence wherein it is prayed that appellant may be allowed opportunity to produce and rely on the evidences copies of which are enclosed and described in the application.

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The aforesaid application is taken into consideration. Rule 14 of the Appellate Tribunal for Forfeited Property(Procedure) Rules, 1989 prescribes,are reproduced below:

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“Production of additional evidence before the Tribunal.-

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(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal, where-

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(a) the competent authority from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(b) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the order appealed against was passed, or

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(c) the Tribunal requires any document to be produced or any witnesses to be examined to enable it to pronounce orders, or for any other substantial cause, or

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(d) the Tribunal is satisfied that the competent authority has decided the case without giving a reasonable opportunity to

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the appellant to adduce evidence on any point, it may allow such evidence or document to be produced, or witness to be examined.

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(2) Wherever additional evidence is allowed to be produced by the Tribunal, it shall record the reason for its admission.”

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12. We have gone through the application for introduction of additional evidence and it is found that the appellant has additionally filed so called affidavit from purchasers to confirm the purchase of Sukhbir Singh‟s share in the ancestral property for Rs. 13.78 lakhs. Infact, that document is not an affidavit and that the original of same has not been filed nor it is explained why it was not filed before the Competent Authority even though it is mentioned to have been executed on 18.11.2015 which was during the pendency of the proceeding before the Competent Authority. So, this documentcannot be accepted as it has got no evidentiary value nor any explanation has been made either in terms of the rules quoted above or otherwise.

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The appellant has merely filed a photo copy of the certificate allegedly issued by the Sarpanch, Gram Panchayat, JandwalanJattan dated 06.05.2012. Admittedly, no other proof such as purchase/ sale deed has been filed except the copy of the additionally filed document.

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From the above discussion, we are of the view that the appellant has failed to explain the legal source of Rs. 13.78 lakhs. So, we find that there is no illegality in the findings of the Ld. Competent Authority with regards to the amount of Rs. 13.78 lakhs.

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13. So far as the amount of Rs. 4.25 lakhs is concerned, we are not in agreement with the findings of the Ld. Competent Authority becausethe appellant was able to prove the same by filing the copy of the registered sale deed before the Ld. Competent Authority. It was not for the appellant to produce the proof of legal source of income of the

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purchasers/ vendors who have purchased the property in which the husband of the present appellant was having 1/5^th share.

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In view of the above, we are of the view that the appellant has been able to prove the legal source of Rs. 4.25 lakhs.

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14. With regards to thefindings of the Competent Authority on the amount of Rs. 5 lakhs, claimed to have been gifted by the father of the appellant, it is held that there is no illegality or ambiguity in the order. There is no evidence except the copy of the agreement to sale of the land sold by her father for Rs. 17.20 lakhs.Neither any sale deed nor any cogent evidence of making/ receivingthe gift of Rs. 5 lakhs has been produced by the appellant to substantiate the legal source of gift.

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Accordingly, we do not find any merit in the submission made by the appellant nor there is any illegality in the findings of the Ld. Competent Authority in this regard.

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15. With regards to the source of Rs. 6.80 lakhs, the Ld. Competent Authority has not accepted the explanation as well as the documents produced by the appellant. On perusal of the copies of the purchase voucher issued by the jeweller, namely, GurdeepJewellers, it is seen that jewellery has been purchased allegedly from the appellants by the said jewellers on different dates during the year 2011-2012 but the vouchers were mostly in consecutive serial nos. i.e. voucher nos. 34 dated 26.07.11, 37 dated 02.11.11, 39 dated 12.11.11,40 dated 17.11.11, 41 dated 26.11.11, 42 dated 07.01.2012, 43 dated 25.02.2012. There is also a correction in one of the purchase vouchers dated 25.02.2012 in which the voucher No. 42 has been corrected as 43.Considering the consecutive serial numbers of the vouchers, the dates of the vouchers and the correction made in one of the vouchers,

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itgoes to show that these vouchers have been manufactured to cover up the illicit source of income to acquire the property in question.

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Therefore, we do not accept those vouchers as valid piece of evidence to proof the legal source of income to the extent of Rs. 6.80 lakhs. There is no other cogent evidence/ documents produced by the appellant to prove the legal source of Rs. 6.80 lakhs.

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In view of the above, we do not find any illegality and ambiguity in the findings of the Ld. Competent Authority with regards to Rs. 6.80 lakhs.

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16. In the light of the aforesaid discussion, we come to the conclusion that out of 29.83 lakhs the appellant has failed to explain the legal source of Rs. 25.58 lakhs which is arrived at after deducting Rs. 4.25 lakhs from Rs. 29.83 lakhs.

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17. The appellant has not discharged the burden of proof (to the extent of Rs. 25.58 lakhs) as stipulated u/s 68J of the NDPS Act, 1985.

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Accordingly, the appeal is allowed in part. The properties acquired through the aforesaid unexplained money are covered under the relevant provisions of NDPS Act, 1985 and hence cannot be said to have been acquired from legitimate money. The impugned order is confirmed to that extent.

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Ordered accordingly.

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Pronounced in open court.

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The copy of the order be sent to the parties.

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The record may be consigned to record room after compliance.

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(V. Anandarajan) (G. C. Mishra) Member Member

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New Delhi 19th April, 2024

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„ST‟

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FPA-ND-49/DLI/2016 Page 10 of 10

FPA-ND-49/DLI/2016 of Ms. Shaminder Kaur v. The Competent Authority, Delhi

Case brief

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FPA-ND-49/DLI/2016 of Ms. Shaminder Kaur v. The Competent Authority, Delhi

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