Sheminsha vs Union Of India
2025 Latest Caselaw 9575 Ker

Kerala High Court

Sheminsha vs Union Of India on 10 October, 2025

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

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                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                           PRESENT

                   THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                                              &

                        THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR


                   FRIDAY, THE 10TH DAY OF OCTOBER 2025 / 18TH ASWINA, 1947

                                     WA NO. 2328 OF 2025

          AGAINST THE JUDGMENT DATED 09.09.2025 IN WP(Crl.) NO.1197 OF 2025 OF HIGH

COURT OF KERALA

APPELLANTS/PETITIONERS:

      1        SHEMINSHA, AGED 35 YEARS​
               S/O SALIM, SHEMINSHA MANZIL HOUSE, KALLUVETTANKUZHY,
               MANCODE P.O, KOLLAM DISTRICT, PIN - 691559

      2        MUNEERA BANU, AGED 34 YEARS​
               W/O SHEMINSHA SALIM, S S MANZIL, KALLUVETTANKUZHY,
               CHITHARA P.O., CHITHARA, KOLLAM DISTRICT, PIN - 691559

              BY ADVS. ​
              SRI.K.MOHAMMED RAFEEQ​
              SRI.BIBIN MATHEW​
              SRI.P.M.MATHEW​
              SRI.AMARNATH R LAL​
              SHRI.SANALDEV E.P.​
              SMT.VISHNUMAYA ANANDAN​
              SHRI.SONYMON ANTONY​
              SMT.SHIFANA M.​
              SHRI.ABHIJITH P.A.

RESPONDENTS/RESPONDENTS:

      1        UNION OF INDIA, REPRESENTED BY SECRETARY,
               MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
               NORTH BRANCH, NEW DELHI, PIN - 110001

      2        COMPETENT AUTHORITY, [SAFEM (FOP) A & NDPS A],
               SHASTRI BHAVAN, NEW BUILDING COMPLEX (4TH FLOOR), NO.26,
               HADDOWS ROAD, NUNGAMBAKKAM, CHENNAI, TAMIL NADU, PIN - 600006
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      3       STATION HOUSE OFFICER​
              VELLARADA POLICE STATION,
              THIRUVANANTHAPURAM DISTRICT, PIN - 695505


              BY ADV O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA

         THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2025, THE COURT ON
10.10.2025 DELIVERED THE FOLLOWING:
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                                 JUDGMENT

​ ​ Feeling aggrieved by the judgment of the learned Single Judge dated 09.09.2025 in WP(Crl.) No. 1197 of 2025, the petitioners preferred this Writ Appeal. By judgment dated 09.09.2025, the learned Single Judge dismissed the Writ Petition.

​ 2.​ The brief facts necessary for the disposal of the Writ Appeal are as follows:

​ The 1st appellant, Sheminsha, is the 3rd accused in Crime No. 915 of 2024 of Vellarada Police Station, Thiruvananthapuram. The 2nd appellant, Muneera Banu, is the wife of the 1st appellant. The offences alleged against the 1st appellant are under Sections 20B(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act', for the sake of brevity). The allegation was that the 1st appellant was found to be transporting a commercial quantity of ganja weighing about 136.05 kg in an Innova Car. The 1st appellant, Sheminsha, was arrested on 28.09.2024 and was enlarged on bail on 14.05.2025.

​ 3.​ The learned counsel for the appellants/writ petitioners submitted that the petitioners have purchased 4.86 Ares of property in Survey No. 299/20-3 in Block No.53 of Mancode Village in Kottarakkara Taluk in Kollam district as per Ext.P2 sale deed on 18.06.2021, four years prior to the alleged crime.

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​      4.​     The primary contention of the appellants is that the 2nd

respondent, without affording the appellants an opportunity of hearing, passed Ext. P4 order on 26.03.2025 under Section 68F(2) of the NDPS Act. It is also argued that the attachment was effected during the period when the 1st appellant was in custody, which, according to the appellants, renders the impugned order invalid on both procedural and substantive grounds. ​ 5.​ Smt. O. M. Shalina, the learned Deputy Solicitor General of India, supported the judgment of the learned Single Judge and submitted that no interference from the Court is warranted in this matter. ​ 6.​ On the other hand, the learned counsel for the appellants would submit that no effective opportunity was granted to the 1st appellant before passing Ext.P4 order. At the time of passing Ext.P4 order, the 1st appellant was in judicial custody and no notice was served to the 2nd appellant, the co-owner of the property. Since the 2nd appellant was not heard by the Competent Authority, the principles of Audi Alteram Partem were violated. The learned counsel for the appellants further submitted that the attached property has no link or nexus with the alleged illegal act committed by the 1st appellant and as per the dictum of the Apex Court, property acquired prior to the commencement of alleged illegal activities cannot be forfeited. ​ 7.​ Furthermore, it is also argued that Ext.P4 order passed by the 2nd respondent is in violation of Article 300A of the Constitution of India. It is further pointed out that the deprivation of property directly results in the loss of livelihood of the appellants, thereby amounting to a violation of Article 21 2025:KER:75245 W.A.2328/2025​ ​ ​ ​ ​ 5​ ​ ​ ​ ​ ​ ​ ​

of the Constitution of India.

​ 8.​ Placing reliance on the dictum laid down by the Apex court in Aslam Mohd. Merchant v. Competent Authority and Others1, it was argued that only properties derived from or used in illicit trafficking can be attached and the burden of proof lies on the competent authority.​ ​

9.​ The learned Single Judge vide judgment dated 09.09.2025, noticing the rival submissions of the parties, dismissed the Writ Petition.

The relevant paragraphs of the judgment read as follows:

​ "2. Ext.P4 is impugned in this writ petition. Ext.P4 is admittedly an appealable order. In such circumstances, I am of the considered opinion that this writ petition need not be entertained. This Court considered this point in detail in Controller of Examinations, Kannur and Another v. Sreya N. [2021 KHC 537].

​ In the light of the same, I think this writ petition need not be entertained. But I make it clear that if the petitioner is aggrieved by Ext.P4, the petitioner is free to challenge the same in accordance with law.

​ With the above observation, the writ petition is disposed of."

​ 10.​ We have carefully considered the rival submissions of the counsel and appraised the paper book.​

11.​ The reasoning of the learned Single Judge is that Ext.P4 order

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of confirmation of freezing is appealable and the appellants have not exhausted the remedy of statutory appeal.

​ 12.​ The learned counsel for the appellants would submit that this Court has ample powers to pass appropriate orders, even though an appeal is provided in the Statute. Before further discussion, it may be useful to extract Section 68F of the NDPS Act.

"68F. Seizure or freezing of illegally acquired property.

(1) Where any officer conducting an inquiry or investigation under section 68E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is an illegally acquired property and such property is likely to be concealed, transferred or dealt with in any manner which will result in frustrating any proceeding relating to forfeiture of such property under this Chapter, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, or of the competent authority and a copy of such order shall be served on the person concerned:

Provided that the competent authority shall be duly informed of any order made under this subsection and a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made.

(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."

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13.​ On a bare perusal of Section 68F(1) of the NDPS Act, it is crystal clear that, if the empowered officer has reason to believe that the property in respect of which enquiry is conducted is an illegally acquired property and it is likely to be transferred or concealed, the officer can pass an order of seizure or freezing of such property. The object of the seizure order is to protect and preserve the property from alienation till the conclusion of the trial. The proviso to Section 68F(1) mandates that a copy of the seizure order shall be sent to the competent authority within 48 hours.

14.​ Sub-section (2) of Section 68F makes it obligatory on the competent authority to confirm the order of seizure within a period of 30 days. If not, the order passed under sub-section (1) shall have no effect.

15.​ Section 68-O states that an order passed under Section 68F of the NDPS Act is appealable. An appeal can be preferred to the Appellate Tribunal within 45 days from the date of serving of the order. ​ 16.​ We have carefully examined Ext. P4, order issued by the Competent Authority. A perusal of Ext. P4 indicates that the 1st appellant was afforded a reasonable opportunity of hearing on 18.03.2025 through video conferencing. During the said hearing, the 1st appellant contended that the property in question was purchased using the income legitimately earned during his employment abroad. The appellants approached this Court without exhausting the statutory appeal provided under Section 68-O of the NDPS Act.

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​      17.​    On a careful consideration of the submissions of the counsel and

perusal of the records, we do not find any illegality or infirmity in the impugned judgment. No good ground for interference is made out.

​ 18.​ It is open for the appellant to pursue the remedy of statutory appeal in accordance with law. If an appeal is preferred, the Appellate Authority shall dispose of the appeal in accordance with law, untramelled by the observations of this Court.

This Writ Appeal fails and is dismissed accordingly.

Sd/-

                                             RAJA VIJAYARAGHAVAN V
                                                      JUDGE


​      ​       ​     ​     ​      ​     ​      ​          Sd/-

                                                   K. V. JAYAKUMAR
                                                          JUDGE



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