Bombay High Court
Ibrahim Adamali Patel & Ors vs Union Of India & Ors on 27 July, 2017
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 398 OF 2003
1. Shri. Ibrahim Adamali Patel, ]
residing at Haji Manzil Building, Member ]
street, Nabipur, Taluka & District Bharuch, ]
Gujarat. (At present confined in Nasik ]
Road, Central Prison, Nasik Road, State of ]
Maharashtra ]
]
2. Mrs. Sultana Ibrahim Patel, ]
residing at Haji Manzil Building, Member ]
Street, Nabipur, Taluka & District Bharuch, ]
Gujarat. ]
]
3. Ms. Samina Abid, Member, ]
residing at Member Street, Village ]
Nabipur, Taluka and District Bharuch, ]
Gujarat State. ] ..Petitioners.
VERSUS.
1. The Union of India, ]
Law & Judiciary Department, ]
Room No. 242, 2nd floor, Income Tax, New ]
Marine Lines, Mumbai. ]
]
2. The appellate Tribunal for forfeited ]
Property, 4th floor, Lok Nayak Bhavan, ]
Khan Market, New Delhi. ]
]
3. The Competent Authority and ]
Administrator, SAFEMA/N.D.P.S. Nariman ]
Point, Mittal Court, 'C' Wing, 3rd floor, ]
Nariman Point, ]
Mumbai 400021 ]
]
4. The State of Maharashtra. ] ..Respondents.
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Mr. K. M. Sangani for the Petitioners.
Ms. Rebecca Gonsalvez for Respondent No. 1 to 3.
Mr. K. V. Saste, APP for the State / Respondent No. 4.
Coram : Ranjit More &
A. S. Gadkari, JJ.
Date : July 27, 2017.
Judgment [Ranjit More, J.] :
1. At the outset, Mr. Sangani, the learned Counsel
appearing for the Petitioner, having taken instructions from his client,
makes a statement that he is restricting this writ petition to the relief
claimed in prayer clause (d) only. Statement accepted.
2. Heard Mr. Sangani, the learned Counsel for the
Petitioner and Ms. Gonsalvez, the learned Counsel for Respondent
Nos.1 to 3. By the judgment and order dated 5 th August 1997, the
Petitioner is convicted by the Special Court in Special Case No. 286 of
1996 for the offence punishable under sections 8(c) read with 22 and
29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for
short, "NDPS Act"] and sentenced to suffer rigorous imprisonment for
10 years and to pay fine of Rs.1 lakh. The Petitioner challenged this
judgment and order by filing an appeal before the High Court. The
appeal, however, is dismissed.
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3. On 15th May 1998, an order was passed by the Anti
Narcotic Cell, CID Mumbai under section 68F of the NDPS Act for
freezing Petitioner's property, namely, Flat No. 301, Wimbledon II
Apartment, Four Bunglow, Andheri (West), Mumbai, claiming that the
Petitioner has acquired the same illegally. The Competent Authority
was informed about the freezing order within 48 hours as
contemplated under section 68F of the NDPS Act. By the order dated
29th May 1998, the Competent Authority confirmed the freezing order
and issued show cause notice as postulated under section 68H of the
NDPS Act to the Petitioner asking him to show cause as to why the said
property should not be forfeited. The notice was served on the
Petitioner on 24th May 1998. The Petitioner thereafter on 23 rd June
1998 gave reply to the notice. Subsequently, the matter before the
Competent Authority was fixed on 21st May 1999 and 22nd June 1999.
the Petitioner did not appear despite notice. The Competent
Authority, therefore, on the basis of the Petitioner's reply, passed
order dated 6th August 1999 thereby the said property was declared to
be illegally acquired property and the same was forfeited to the
Central Government. This order was challenged by the Petitioner by
filing an appeal before the appellate tribunal. By the order dated 1 st
October 2001, the appeal is also dismissed after giving an opportunity
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of hearing to the Petitioner. This order is impugned in the present
writ petition.
4. Mr. Sangani, the learned Counsel appearing for the
Petitioner made two-fold submissions. Firstly, that the property in
question was not illegally acquired property and secondly that
mandatory procedure under section 68F of the NDPS Act was not
followed by the Competent Authority while freezing the property. In
order to support his contentions, Mr. Sangani relied upon the decision
of the Apex Court in Aslam Mohammad Merchant v. Competent
Authority [(2008) 14 SCC 186] and unreported decision of Division
Bench of this Court in Neeta Nitin Bhanushali v. State of Maharashtra
and Others [Criminal Writ Petition No. 881 of 2000, decided on 30 th
September 2008].
5. Ms. Gonsalvez, the learned Counsel appearing for the
Respondents, on the contrary, supported the impugned judgment and
order. She submitted that the burden to prove that the property was
acquired legally is on the Petitioner, he has not discharged the same,
and therefore no fault can be found with the impugned order passed
by the tribunal. She also submitted that required procedure as
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contemplated under the provisions of the NDPS Act is followed and
therefore no interference is called for.
6. Having considered the rival submissions and having
gone through the petition along with annexures and ratio of the
decisions cited supra, we find no merit in the writ petition. There is no
dispute that the provisions of Chapter V-A are applicable to the
Petitioner by virtute of the provisions of section 68A since admittedly
the Petitioner has been convicted for the offence punishable under
sections 8(c) read with 22 and 29 of the NDPS Act and sentenced to
suffer 10 years rigorous imprisonment and his conviction is confirmed
by the High Court.
7. By the order dated 15th May 1998, the Senior Inspector
of Police, Anti Narcotic Cell, CID Mumbai freezed the said property and
the Competent Authority was informed about the same within the
stipulated time. The freezing order was confirmed under section
68F(2) of the NDPS Act and notice was issued to the Petitioner under
section 68H of the NDPS Act. Mr. Sangani, the learned Counsel
appearing for the Petitioner submitted that before passing the order
for freezing of the illegally acquired property, the authorised officer
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under section 68F mandatorily required to disclose what is the
relevant information available with him to confirm a belief that
property in question was illegally acquired. He submitted that since
such disclosure is not there in the freezing order under section 68F,
the same is vitiated and therefore forfeiture of the property by the
Competent Authority and confirmation of the same by the appellate
tribunal is also vitiated. The learned Counsel for the Petitioner as
stated above, in support of his submissions relied upon the
unreported decision of Division Bench of this Court in Neeta Nitin
Bhanushali (supra) and especially paragraph 14 thereof. We are
unable to accept the submission of Mr. Sangani inasmuch as the
officer authorised under section 68F in terms has stated in his freezing
order that on the basis of information available to him and after
carefully examining and considering the said information, he has
reason to believe that the property in question is acquired by the
Petitioner illegally through the income generated from drug trafficking
within the meaning of section 68B(g) and section 68(c) of the NDPS
Act.
8. This takes us to consider the second submission of Mr.
Sangani that subject property is not acquired illegally. Under section
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68J of the NDPS Act, the burden of proving that any property specified
in the notice served under section 68H is not illegally acquired
property, shall be on the person affected. The Petitioner was given
notice under section 68H on 4th June 1998, which was replied by the
Petitioner by his letter dated 23rd June 1998. In this reply, the
Petitioner stated that he acquired the subject property by receiving gift
from London through State Bank of India for Rs.1,92,000/- vide draft
No. DFTBR/94080900398 dated 9th August 1994, Rs.1,92,000/- vide
draft No. DFTBR/94080900384 dated 9 th August 1994 and Rs.1,68,350/-
vide draft No. DFTBR/94081800452 dated 16 th August 1994. The
Petitioner also claimed that the said amount was gifted by Valli Adam
Abhuji and Ismail Ahmed Patel and Ayub Ahedali Member. The
Petitioner thereafter by the letter dated 20 th July 1998 was asked to
give particulars and addresses of the donors. To this, the Petitioner
replied by the letter dated 4th September 1998. He stated that he does
not know the whereabouts of these persons. The tribunal perused the
agreement to purchase of the subject property, copy of which is
annexed at Exhibit- A to this petition, and found that there are no
details about the pay-order, viz., Pay Order Numbers, Dates and
Amounts paid to the builder developer. There is nothing on record to
show that where the Petitioner has deposited the said drafts and
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whether the said drafts were utilised for purchase of the said flat. In
terms of the provisions of section 68J of NDPS Act, it was for the
Petitioner to prove that subject flat was acquired legally. Initial stand
of the Petitioner was that he purchased this flat from the monies
gifted by brother-in-law. However, he could not give particulars,
addresses or whereabouts of those donors. Neither the Petitioner
could show by adducing any evidence that flat was acquired by legal
means. In the circumstances, the tribunal reached to the conclusion
that property was acquired illegally and therefore confirmed the order
of the Competent Authority. We find no reason to interfere with the
same in exercise of jurisdiction of this Court under Article 226 of the
Constitution of India.
9. Before parting with this judgment, we would like to deal
with the decision of the Apex Court in Aslam's case relied upon by Mr.
Sandani. The Apex Court in Aslam's case (supra) held that before
actual forfeiture, issuance of the show cause notice is must. It is not
disputed in the present case that show cause notice was given to the
Petitioner and therefore this decision will not come to the rescue of
the Petitioner.
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10. In the light of above, we find no substance in the petition
and the same is accordingly dismissed.
[A. S. GADKARI, J.] [RANJIT MORE, J.]
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