Himachal Pradesh High Court
Date Of Decision: 03.10.2023 vs State Of Himachal Pradesh on 3 October, 2023
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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Cr.MMO No.886 of 2022
Date of Decision: 03.10.2023
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Uma Devi & another
....Petitioners
Versus
State of Himachal Pradesh
...Respondent
___________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1
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For the petitioners : Mr. Nand Lal Thakur, Advocate.
For the respondent : Mr. B.N. Sharma, Additional
Advocate General.
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Sushil Kukreja, Judge (Oral)
The present petition has been filed by the petitioners
under Section 482 of the Code of Criminal Procedure (Cr.P.C.)
seeking direction to the police authority to defreeze the bank
accounts, which have been frozen by the order of SHO, Police
Station Sadar, District Mandi, H.P., in case FIR No.47/2021,
dated 05.03.2021, under Sections 21 & 29 of NDPS Act.
2. The facts of the case, in brief, are that FIR
No.47/2021, dated 05.03.2021, under Sections 21 & 29 of
1 Whether reporters of Local Papers may be allowed to see the judgment?
NDPS Act was registered against petitioner No.1 Uma Devi and
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her husband Amit Kumar for having been found in possession of
144 grams of heroin. During the course of investigation, the
bank details of petitioner No.1 and her family members were
obtained and after perusal of their bank accounts, it was found
that lot of money transactions had been made in the accounts of
petitioner No.1 as well as her family members, whereas, they
have no source of income. It was also found that petitioner No.1
Uma Devi had illegally earned money by sale/purchase of
NDPS substances, hence, the bank accounts of the petitioners
and Abhay Kumar, s/o Amit Kumar had been frozen by the
police, vide freezing order dated 24.05.2021, Annexure P-1.
3. I have heard learned counsel for the petitioners as
well as the learned Additional Advocate General for the
respondent-State and also gone through the material available
on record.
4. As per Section 68-F(2) of NDPS Act, any order
made under sub-section (1) shall have no effect unless the said
order is confirmed by an order of the competent authority within
a period of thirty days of its being made. At this stage, it would
be relevant to reproduce Section 68-F (2) of NDPS Act , which
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reads as under:-
"(2) Any order made under sub-section (1) shall have no
effect unless the said order is confirmed by an order of
the competent authority within a period of thirty days of
its being made.
Explanation.---For the purposes of this section, "transfer
of property" means any disposition, conveyance,
assignment, settlement, delivery, payment or other
alienation of property and, without limiting the generality
of the foregoing, includes-
(a) the creation of a trust in property;
(b) the grant or creation of any lease, mortgage,
charge, easement, licence, power, partnership or interest
in property;
(c) the exercise of a power of appointment of property
vested in any person, not the owner of the property, to
determine its disposition in favour of any person other
than the donee of the power; and
(d) any transaction entered into by any person with
intent thereby to diminish directly or indirectly the value
of his own property and to increase the value of the
property of any other person."
5. It is not disputed that the bank accounts of petitioner
No.1 as well as her family members have been ordered to be
seized/frozen, vide order dated 24.05.2021 (Annexure P-1),
passed by the Station House Officer, Sadar Mandi, District
Mandi, H.P. The relevant portion of the aforesaid order dated
24.05.2021 reads as under:-
"......It is therefore established that all the above
said accounts are of recent origin and do not
commensurate with the source of the income of the
accused and their family, There is a reasonable belief
that the accused has acquired the amount of these
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accounts through the illicit trafficking of narcotic drug and
Psychotropic substance. Therefore in exercise of the
power conferred upon me under section 68E read with
section 68 F of the ND&PS Act 1985, I hereby
seize/freeze the accounts mentioned in the above
annexure and direct the above mentioned person that
they shall not part with the transaction, transfer, or
otherwise deal with the amount/accounts except the prior
permission of the Competent Authority & Administrator,
NDPS Act, 9th Floor, Loknayak Bhavan, Khan Market,
New Delhi-110003.
This order is issued without prejudice to any other
action that may be initiated in future under this Act or any
for time being in force in India."
6. It is also not disputed that the approval of the
competent authority, as required under Section 68-F(2) of
NDPS Act, was not taken. The supplementary affidavit filed by
the respondent-State clearly points out that the order of seizure
has not been confirmed by the competent authority even after
thirty days of its being communicated. The relevant portion of
the supplementary affidavit reads as under:-
"7. That as per the report submitted by Station
House Officer, Sadar Mandi, District Mandi to the office
of replying respondent, no permission/confirmation or
any other order regarding Financial Investigation has
been received from the Competent Authority and
Administrator ND&PS Act, 9th Floor Lok Nayal Bhawan
Khan Market, New Delhi, till date."
7. Thus, it has become clear from the record that the
order of seizure dated 24.05.2021 has not been confirmed by
the competent authority as required under Section 68-F (2) of
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NDPS Act, which stipulates that any order made under sub-
section (1) shall have no effect unless the said order is
confirmed by an order of the competent authority within a period
of thirty days of its being made.
8. Therefore, keeping in view the facts and
circumstances of the case, since the order of seizure was made
on 24.05.2021, but has not been confirmed by the competent
authority as required under Section 68-F(2) of NDPS Act, the
present petition is allowed and the seizure order dated
24.05.2021 (Annexure P-1), passed by the Station House
Officer, Sadar Mandi, District Mandi, H.P. during investigation of
FIR No. No.47/2021, dated 05.03.2021, under Sections 21 & 29
of NDPS Act, registered at Police Station Sadar Mandi, District
Mandi, H.P., is quashed and aside.
The pending miscellaneous application(s), if any,
shall also stand disposed of.
( Sushil Kukreja )
October 03, 2023 Judge
(VH)
