Delhi High Court

Shahid Parvez vs Union Of India & Ors. on 27 October, 2010

Author: S. Muralidhar

          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    W.P.(C) 4800/2008

                                         Reserved on: October 7, 2010
                                         Decision on: October 27, 2010

         SHAHID PARVEZ                             ..... Petitioner
                      Through: Mr. Vinoo Bhagat with
                      Mr. M.R. Mishra, Advocate.

                           versus

         UNION OF INDIA & ORS                   ..... Respondents
                       Through: Mr. Atul Nanda, Advocate
                       for R-1 to R-3.

         CORAM: JUSTICE S. MURALIDHAR

         1. Whether reporters of the local news papers
            be allowed to see the judgment?                        No
         2. To be referred to the Reporter or not?                 Yes
         3. Whether the judgment should be reported in the Digest? Yes

                               JUDGMENT

27.10.2010

1. This writ petition has been filed against an order dated 1 st February

2006 passed by the Appellate Tribunal for Forfeited Property („Appellate

Tribunal‟) dismissing the Petitioner‟s appeal against an order dated 7 th

July 1999 passed by the Competent Authority („CA‟) under Section 68-I

(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS

Act‟).

Background facts

2. The Petitioner‟s brother Mohd. Azad Parvez of Balasore Town, Orissa

was detained on 10th July 1991 for the alleged offence of indulging in

illicit trafficking of drugs punishable under the NDPS Act. This was

subsequent to an order of detention passed against Mohd. Azad on 26th

July 1989 passed by the Joint Secretary to the Government of India. After

Mohd Azad was arrested, he was served with the order of detention and

grounds of detention on 10th July 1991. On 30th July 1991, a reference was

made to the Advisory Board under Section 9 (1) of the NDPS Act. The

Advisory Board held that there was sufficient cause for the detention and

a confirming order was passed by the Central Government under Section

9(1) read with Section 10(2) of the NDPS Act for a period of two years

with effect from 10th July 1991.

3. It is stated that Mohd. Azad served out the entire detention period.

However, while under detention, Mohd. Azad filed a Writ Petition

(Criminal) No. 315 of 1992 in this Court challenging the said order of

detention. However, the said writ petition was not taken up for hearing for

many years and not before he completed the period of detention.

4. Meanwhile, the property belonging to the Petitioner Shahid Parvez,

brother of Mohd. Azad being immovable property located in Balasore

Town, which was purchased in his name under a sale deed dated 11 th

February 1998, was frozen by the Inspector In-charge, Police Station (PS)

Balasore on 18th January 1999. This was confirmed by the CA on 12th

February 1999. The said action was taken on the ground that the order of

detention dated 26th July 1989 against Mohd. Azad had not been revoked

by any Court and the Petitioner being his brother was a person covered

under Section 68-A (2) (d) of the NDPS Act. It was suspected that the

source of the above immovable property at Balasore in the name of the

Petitioner as well as another motor parts shop belonging to the Petitioner

also located at Balasore, Orissa were illegally acquired properties in terms

of Section 68B (g) of the NDPS Act.

5. According to the Respondents, on 17th February 1999 and 9th March

1999, notices were issued to the Petitioner under Section 68-H (1) of the

NDPS Act calling upon him to indicate the sources of his income,

earnings or assets, out of which or by means of which he had acquired the

said two properties, the evidence on which he relies and other relevant

information and particulars. It is stated that the above notices were served

on the Petitioner on 13th May 1999. However, there was no response to

the above notice. Thereafter, a notice under Section 68-I (1) of the NDPS

Act was issued to the Petitioner on 14th June 1999, which was served on

him on 23rd June 1999, informing him of the date of hearing of 5 th July

1999 before the CA. It is stated by Respondents that despite service of

notice the Petitioner did not appear before the CA. Consequently, the

proceedings were concluded ex parte with a presumption being drawn

against the Petitioner that the assets mentioned in the Schedule were the

illegally acquired properties of his brother Mohd. Azad under Section 68-

B (g) of the NDPS Act. The said properties were declared to have been

forfeited to the Central Government free from all encumbrances.

Thereafter, the Petitioner filed an appeal before the Appellate Tribunal

which was pending before it.

6. In the meanwhile, on 16th May 2002 the petition of Mohd. Azad being

Writ Petition (Criminal) No. 315 of 1992 was taken up for hearing by this

Court and disposed of on that date by the following order:

"Crl.W. No. 315/92 It is agreed between the parties that this matter is covered by

the decision of this Court in Akhilesh Kumar Tyagi v. Union of India reported in 1995 IV AD (Delhi) 107. The writ petition is allowed in terms thereof. The initial period of detention of three months is sustained.

It is contended by learned counsel for the Petitioner that the original detention for a period of three months is only valid and any detention subsequent thereto is vitiated. On the contrary, the learned ASG submits that even if there is no declaration of continued detention yet detention of a period of one year would not suffice but further detention would be bad. I have heard the learned counsel, it appears to me that the contention raised by Mr. Sood, learned ASG is not borne out from the law laid down by the Supreme Court. I, therefore, hold that the detention for a period of three months is valid and continue detention is vitiated. The writ petition is allowed accordingly."

7. Meanwhile the Appellate Tribunal, on 1st October 1999, directed that

the Petitioner "should be given an opportunity to produce his evidence

and submit his contentions before the CA." The CA was asked to consider

the documents and submissions and pass fresh orders. Pursuant thereto, on

11th October 1999 the Petitioner appeared before the CA and presented

documents. The CA informed the Appellate Tribunal on 15th October

1999 that the certificates produced by the Petitioner about receipt of salary

and commission from the three different firms in Calcutta could not be

verified as such firms did not exist at the addresses given. However,

before the Appellate Tribunal the Petitioner pointed out that he was an

employee in these concerns during the period 1979-80 to 1985-86 and that

the inquiry was made after a long time-gap of 15-20 years during which

time his employers might have shifted to other places and, therefore, mere

non-availability of the concerns at the addresses given should not have

been a ground for the CA to disbelieve the Petitioner. The Appellate

Tribunal, on 3rd December 2002, passed an order directing the CA to give

a further opportunity to the Petitioner to prove the genuineness of those

concerns. The CA was directed to make further enquiries. The

proceedings were directed to be completed within three months. The

appeal was again taken up before the Appellate Tribunal on 18 th August

2005. It was noted that the supplementary findings of the CA that were

called for by the Appellate Authority in its order dated 3rd December 2002

had not been submitted. Accordingly, a direction was issued to CA to

submit the additional findings.

8. Subsequently, the appeal was taken up for hearing on 1 st February 2006

before the Appellate Tribunal. None appeared for the Appellant

(Petitioner herein). The Appellate Tribunal was informed of the order

passed by this Court on 16th May 2002 setting aside the continued

detention of the Petitioner‟s brother. The further findings of the CA had

been submitted to the Appellate Tribunal. The CA reiterated that the

Petitioner had not been able to produce any fresh document and, therefore,

was unable to discharge the burden under Section 68-J of the NDPS Act.

The Appellate Tribunal then concurred with the findings of the CA that

the evidentiary documents filed by the Petitioner could not be believed. It

was further concluded that the firms which issued the receipts of salary

income and the commission to the Petitioner were shown as not existing at

the given addresses. Consequently, it was difficult to believe that the

Petitioner was having his own valid source of income. The Appellate

Tribunal observed that as regards the second forfeited property, the

Petitioner had taken a plea that he was a tenant. However, in the absence

of any documentary evidence to prove the same, the Appellate Tribunal

refrained itself from making any observations on that plea.

9. Since the appeal was decided ex parte, the Petitioner filed application

MP-ND-29 & ND-30/CAL/2006 before the Appellate Tribunal for

recalling of its order dated 1st February 2006. By order dated 4th October

2007, the Appellate Tribunal held that there is no explicit provision in the

Appellate Tribunal for Forfeited Property Rules, 1989 for recalling of any

order of the Appellate Tribunal passed on merits and no case was made

out for recalling of the order dated 1st February 2006. It was also observed

that since the detention for a period of three months was upheld, "the

provisions of Chapter V-A will continue to apply to the Petitioner."

10. It was noticed by the Appellate Tribunal in the order dated 4 th October

2007 that the Petitioner had initially challenged the order dated 1 st

February 2006 of the Appellate Tribunal before the High Court of Orissa,

but he withdrew the petition which was dismissed as withdrawn on 17th

July 2006. Therefore, the CA took the physical possession of the forfeited

property in terms of the order dated 7th July 1999 of the CA.

11. While directing notice to issue in the present petition on 15 th October

2008, this Court directed that the impugned order dated 1 st February 2006

of the Appellate Tribunal shall remain stayed till the next date of hearing.

The said interim order was continued on 7th August 2009, 26th November

2009 and 5th April 2010.

Submissions of Counsel

12. Mr. Vinoo Bhagat, learned counsel appearing for the Petitioner first

submitted that for the operation of Section 68-A(2)(d) of the NDPS Act,

there has to be a subsisting valid order of detention. The consequence of

this Court‟s order dated 16th May 2002 setting aside the detention order of

the Petitioner‟s brother Mohd. Azad, was that in terms of the decision of

the Full Bench of this Court in Akhilesh Kumar Tyagi v. Union of India

60 (1995) DLT 203 (FB), the detention order was void ab initio. It is

submitted that though the initial period of detention of three months was

sustained, the detention order itself was being set aside from the date of its

passing. It is further submitted that the Respondents had failed to

discharge the initial burden of showing nexus between the properties

acquired by the Petitioner in 1998 with the alleged illegal earnings of the

Petitioner's brother for which the detention order was passed at least nine

years prior to the said acquisition and for which the Petitioner‟s brother

had served term in jail for two years between 1991 and 1993. It is

submitted that unless there was a prima facie material linking the alleged

illegal earnings of the Petitioner‟s brother and the acquisition of the

property in question by the Petitioner, the impugned order cannot be

sustained.

13. On the other hand, it is submitted by Mr. Atul Nanda, learned counsel

appearing for Respondents that as explained by the Supreme Court in

Meena Jayendra Thakur v. Union of India (1999) 8 SCC 177 and Union

of India v. Harish Kumar (2008) 1 SCC 195, the entire detention order

was not held to be illegal by this Court in its order dated 16 th May 2002.

That being the position, the burden shifted on the Petitioner to show that

the property was acquired by him from his own sources of income.

Effect of this Court's order dated 16th May 2002 quashing the detention

14. First the effect of this Court‟s order dated 16th May 2002 quashing the

detention of the Petitioner‟s brother‟s detention requires to be considered.

The decision of the Full Bench of this Court in Akhilesh Kumar Tyagi,

was in the context of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act, 1975 („COFEPOSA Act‟). The

relevant provisions of COFEPOSA Act are more or less similar to the

corresponding provisions in Chapter V-A of the NDPS Act with which the

present case is concerned. In Maqudoom Meera Hameem v. Joint

Secretary to Govt. of India (Crl Writ Petition No. 83 of 1995 decided on

17th August 1995), the Division Bench of this Court had held that in case

where the reference to the Advisory Board was made beyond 5 weeks and

the Advisory Board gave its opinion beyond 11 weeks, the continued

detention during the extended period became bad. In Akhilesh Kumar

Tyagi, the correctness of the decision in Maqudoom Meera Hameem was

questioned by the Union of India. It was contended that till such time the

detention order was quashed, it remained valid. It was urged by the Union

of India that the respective periods of 5 weeks and 11 weeks in

Maqudoom Meera Hameem which got extended to „4 months and 2

weeks‟ and „5 months and 3 weeks‟ respectively, did not get contracted or

reduced back to 5 weeks and 11 weeks respectively when the declaration

under Section 9 COFEPOSA Act was quashed. Consequently, it was

contended by the Union of India that the detention beyond three months

did not become illegal automatically.

15. It may be recalled that in Akhilesh Kumar Tyagi the detention was set

aside on the ground that the Petitioner had not been informed by the

declaring authority that he had a right to make a representation against the

order of detention to the Advisory Board and the Central Government and

also to the declaring authority. In answering the question whether the

declaration made under Section 9 of the COFEPOSA Act was valid till it

was quashed or whether it becomes void ab initio, the Full Bench of this

Court in Akhilesh Kumar Tyagi v. Union of India held in para 30 as

under ([email protected] p. 213):

"30. If, therefore, there is a violation of Article 22 (5) in not informing the detenu that he had an opportunity to represent to the declaring authority, upon the Court quashing the Section 9 declaration, the order is impliedly declared void from its inception and on that basis, the benefit of extension of the period of 5 weeks to 4 months and 2 weeks, and the benefit of extension of 11 weeks to 5 months and 3 weeks in Section 9 (2), cease to apply. It is indeed not a case of extension of the periods and a later contraction but the order quashing the Section 9 declaration would make the declaration ineffective from the date it was issued and in case either the reference to the Board is beyond 5 weeks and/or the report of the Board is beyond 11 weeks, then the "continued detention" beyond three months would be invalid." (emphasis supplied)

16. Analysing the order dated 16th May 2002 passed by this Court in the

present case, the opening line appears to indicate that this Court held the

initial period of three months‟ detention of the Petitioner‟s brother to be

valid but the remaining period of detention to be invalid in terms of the

judgment in Akhilesh Kumar Tyagi. What is also significant is that the

contention of the learned ASG to the contrary was negatived and it was

held that "the detention for a period of three months is valid and continued

detention is vitiated." Extending the logic of the decision in Akhilesh

Kumar Tyagi to the order dated 16th May 2002, while the detention for a

period of three months was held to be valid, the detention order itself was

held to be void ab intio. It must be noted that the order dated 16th May

2002 passed by this Court attained finality with the Respondents accepting

it. Further, while the period of three months of detention was held valid,

the detention order was itself held to be void ab initio, i.e. from the date it

was issued.

17. The resultant position is that, the order dated 16th May 2002 related

back to the date of passing of the detention order i.e. 7th July 1989. Even if

one were to extend the ratio of Meena Jayendra Thakur or Harish

Kumar the detention order became void three months after the actual date

of the detention of the Petitioner‟s brother on 10th July 1991. The show

cause notice was issued to the Petitioner on 17th February 1999. In terms

of this Court‟s order dated 16th May 2002 the detention order of the

Petitioner‟s brother had been rendered void ab initio, i.e. void from 7th

July 1989 or in any event from a date three months after 10th July 1991.

Viewed from any angle, there was on 17th February 1999 no valid

detention order against the Petitioner‟s brother. Consequently, the

essential condition for invoking Section 68-A of the NDPS Act, had been

rendered non-existent on account of the subsequent development of the

passing of the order dated 16th May 2002 by this Court. The Petitioner is,

therefore, entitled to succeed on this ground.

Impugned order of CA bad even on merits

18. The impugned order of the CA, affirmed by the Appellate Tribunal,

cannot be sustained even on merits. The records of the CA have been

perused by this Court. The relevant period is the one immediately

preceding issuance of show cause notice to the Petitioner under Section

68-H (1) of the NDPS Act. It appears that following certain letters

received from the Income Tax Office, Balasore, on 1st November 1996,

the Investigating Officer/CA at Calcutta made a noting directing the

Department "to ascertain the existence of Shri Shahid Parvez." He

advised: "We may as well write to Branch Manager, Central Bank of

India, Brahamansahi Branch, Soro, Balasore to furnish details of Bank

Account No. 263 such as name of holder and address, name of introducer

and address, date of opening and present position of the account."

19. This was followed by several reminders and the noting dated 17th June

1997 where it was acknowledged that the Branch Manager, Central Bank

of India had furnished address of the brother of the Petitioner and other

required information. However, the notice sent under Section 68-H (1)

NDPS Act appears to have been returned with the remark "left". It

appears that previous to this, an order was already passed against the

Petitioner on 10th August 1992 under Section 68-F (2) of the NDPS Act.

The noting in the file CA/CAL/NDPS-86/92/93 do not show any

investigation having been conducted to co-relate the details received from

the Income Tax office in respect of source of the Petitioner‟s income to

even form a prima facie view that the properties in question were acquired

by him from the earnings of his brother Mohd. Azad on account of illicit

trafficking in drugs. In file CA/Cal/NDPS/31/98-99, there are two

identical notings dated 17th February 1999 and 9th March 1999 by the CA,

Calcutta which reads as under:

"I have perused the relevant records. I have applied my mind to all the facts and circumstances of the case. I have today recorded my reasons in terms of Section 68H (1) of the NDPS Act, 1985 and I am satisfied that this is a fit case for issue of notice under Section 68 H (1) of the NDPS Act, 1985.