Suhail Ramzan Aged 32 Years vs Union Of India
2023 Latest Caselaw 2330 j&K

                                                                     Sr.No. 42


                  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT JAMMU

                                                      Crl A(D) No. 65/2022

Suhail Ramzan Aged 32 years                                .... Appellant(s)/Petitioner(s)
S/o Mohd. Ramzan
R/o Khanabal, Anantnag, Tehsil and Distt.
Anantnag.

                        Through :- Mr. Bari Abdullah, Advocate.


            V/s


Union of India                                                        ....Respondent(s)
Through Joint Secretary, Ministry of
Home Affairs through NIA, Jammu,
Trikuta Nagar, Jammu.
                        Through :- Mr. Vishal Sharma, DSGI.
                                   Mr. Vipin Kalra, Public Prosecutor, National
                                   Investigation Agency, Jammu.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
                                  JUDGMENT (Oral)

18.10.2023.

(Sanjeev Kumar J)

1. This appeal under Section 21 of the NIA Act is directed against

order dated 16.09.2022 passed by the Court of 3rd Additional Session Judge,

Jammu (the Special Judge under Section 22 NIA Act) as an appellate authority

in an appeal under Section 25(6) of the Unlawful Activity (Prevention), Act,

1967 ["the UA(P) Act"] titled "Suhail Ramzan v. Joint Secretary, MHA through

NIA.

2. The impugned order, of the appellate authority passed under Section 25(6)

of the UA(P) Act, is assailed by the appellant primarily on the ground that the

appellant was a bona fide purchaser of the seized vehicle i.e. Mahindra Scorpio

bearing registration No. JK0CE-1221 dated 30.11.2021 and, therefore, could not

have been made subject matter of seizure being „proceeds of terrorism.‟

3. Mr. Vishal Sharma, learned DSGI appearing for the respondents submits

that "the plea of bona fide purchaser" was not raised before the designated

authority and, therefore, there was no occasion for either the designated authority

or the appellate authority, who is to either confirm or reject the seizure, to deal

with such question.

4. Mr. Vishal Sharma, learned DSGI further submits that the seizure of the

vehicle is not the end of the game. The further proceedings for forfeiture of the

seized vehicle are required to be initated by the special Court in terms of

Sections 26 and 27 of the UA(P) Act, 1967 and in case such proceedings are

initiated, the appellant would be put on notice and will have an opportunity to

plead and demonstrate that the seized vehicle which is sought to be confiscated/

forfeited is bonafidely purchased by him.

5. Having heard learned counsel for the parties and perused the material on

record, we are of the view that the order passed by the appellate authority in

terms of Section 25(6) of the UA(P) Act is in consonance with law. We are

saying so because the plea, that the appellant was bona fide purchaser of the

seized vehicle supported by any documentary evidence, was never raised before

the designated authority. The appellate authority, which was only to scan the

order of the designated authority to find out as to whether it deserved to be

confirmed or rejected, could not have gone into this factual question raised for

the first time before the appellate authority.

6. Be that as it may, the fact remains that the seizure of the vehicle on the

ground that it represents proceeds of terrorism is to be followed by forfeiture in

terms of Sections 26 and 27 of the UA(P) Act. Before we proceed further, we

deem it appropriate to set out the provisions of Sections 26 an 27 of the UAP

Act, 1967, below:

"26. Court to order forfeiture of proceeds of terrorism.--Where

any property is seized or attached on the ground that it constitutes

proceeds of terrorism and the court confirms the order in this

regard under sub-section (6) of section 25, it may order forfeiture of

such property, whether or not the person from whose possession it

is seized or attached, is prosecuted in a court for an offence under

Chapter IV or Chapter VI.

27. Issue of show cause notice before forfeiture of proceeds of

terrorism.--(1) No order forfeiting any proceeds of terrorism shall

be made under section 26 unless the person holding or in

possession of such proceeds is given a notice in writing informing

him of the grounds on which it is proposed to forfeit the proceeds

of terrorism and such person is given an opportunity of making a

representation in writing within such reasonable time as may be

specified in the notice against the grounds of forfeiture and is also

given a reasonable opportunity of being heard in the matter.

(2) No order of forfeiture shall be made under sub-section

(1), if such person establishes that he is a bona fide transferee of

such proceeds for value without knowing that they represent

proceeds of terrorism.

(3) It shall be competent for the court to make an

order in respect of property seized or attached,--

(a) directing it to be sold if it is a perishable property

and the provisions of section 459 of the Code shall, as nearly

as may be practicable, apply to the net proceeds of such sale;

(b) nominating any officer of the Central Government

or the State Government, in the case of any other property,

to perform the function of the Administrator of such property

subject to such conditions as may be specified by the court."

From a reading of Section 26 and 27, it clearly transpires that the Court

initiating proceedings for forfeiture of the „proceeds of terrorism‟ is under an

obligation to issue a show-cause notice to the person holding or in possession of

„proceeds of terrorism‟ informing him of the grounds on which it is purposed to

forfeit seized vehicle/goods and in such an eventually, the person concerned

shall have an opportunity of making representation in writing within such

reasonable time as may be specified in the notice against the grounds of

forfeiture.

Subsection 2 of Section 27 clearly provides that no order of forfeiture

under Subsection 1 of Section 27 shall be passed by the Court if the person in

possession establishes that he is a bona fide transferee of such proceeds for valid

reasons without knowing that it represents „proceeds of terrorism‟.

7. In view of the clear position emerging from reading of Section 26 and 27

of UAP Act, we are of the considered view that as and when the Court initiates

proceedings for forfeiture of the seized vehicle, a notice of hearing shall be

provided to the appellant. The appellant, who is served with a show-cause notice

under Section 27(1) of the UAP Act, shall be well within his rights to plead and

establish before the Court that he is a bona fide transferee of the seized vehicle

representing the proceeds of terrorism.

8. In view of the aforesaid, we do not find any merit in this appeal and the

same is, accordingly, dismissed with liberty to the appellant to avail the benefit

of provisions of Section 27(2) of the UA(P) Act and raise the plea of bona fide

transferee of proceeds before the competent Court.

9. Needless to say that in case, such defense is taken by the appellant, the

same shall be considered and disposed of in terms of Section 27 of the UAP Act,

1967.

10. We further make it clear that nothing said hereinabove in this order shall

prejudice any of the parties in the proceedings for forfeiture before the Court

concerned.

                                    (Mohan Lal)           (Sanjeev Kumar)
                                      Judge                    Judge

Jammu:
18.10.2023.
Neha-1


                       Whether the order is reportable: Yes/No.