TMI Blog1998 (1) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside and remanded to the competent authority for fresh disposal and again orders forfeiting the properties were passed, which were again questioned before this Tribunal on the ground that the appellants had no opportunity of putting forth their case, as they had no notice of the proceedings taken by the competent authority. This Tribunal by order dated February 7, 1996, set aside the orders of forfeiture and directed the competent authority to give four weeks time to the appellants to file reply/explanation to the show-cause notices which were issued to the appellants and to decide the matters afresh, by following the guidelines/directions set out in the said order. The appellants were permitted to produce evidence/documentary or oral, or to make oral submissions before the competent authority. The Narcotics Control Bureau identified some more properties acquired by the detenu and his family members and a notice dated September 15, 1994, was issued to the detenu including those properties also and similar notices were issued to the other appellants, in whose names the properties were found. The appellants took the plea before the competent authority that the forfeited prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence relating to illicit traffic. Learned counsel vehemently contended that the properties acquired prior to six years from the date on which the detenu was charged cannot be held to be illegally acquired properties and inasmuch as the properties were acquired during the year 1982 and earlier, their acquisition was clearly beyond six years from the date of the detention of the detenu on April 4, 1990, and hence the forfeiture orders should be set aside. From a reading of the proviso to section 68C(2) it is seen that a period of limitation of six years from the date on which the person was charged for an offence relating to illicit trafficking is fixed and properties acquired prior to six years from the date cannot be forfeited. By virtue of section 68A of the NDPS Act, the provisions of Chapter VA are made applicable to persons specified in sub-section (2) of section 68A, namely, (a) every person who has been convicted of an offence punishable under the Act with imprisonment for a term of 5 years or more, (b) every person who has been convicted of a similar offence by a competent court of criminal jurisdiction outside India, (c) every person in respect of whom an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry. It was, therefore, felt that a separate legislation should be enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances. Apart from imposing punishments on drug traffickers by virtue of the NDPS Act, the activities of illicit traffickers were sought to be prevented by virtue of section 3 of the PITNDPS Act which is in the following terms: 3. Power to make orders detaining certain persons. (1) The Central Government or a State Government, or any other officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained. . . While incorporating Chapter VA in the NDPS Act in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne meaning, the task of interpretation can hardly be said to arise. We cannot agree with the contention of learned counsel that it will lead to a harsh result, if the proviso is not interpreted as to cover the cases of persons detained. As expounded by Coleridge J. (Gwynne v. Burnell [1840] 7 Cl. F. 572), the interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient. Words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The proviso to section 68C(2) made an exception only in the case of a person charged for an offence related to illicit traffic . The words charged and offence are not defined in the NDPS Act. An inclusive definition of charged is made in section 2(b) of the Code of Criminal Procedure, 1973, as including any head of charge when the charge contains more heads than one. A charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. The words denote a charge formulated after an enquiry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Roopa Rai is not covered under section 68A(2)(d) of the NDPS Act and that her properties cannot be forfeited. It is pertinent to note that Roopa Rai clearly stated in the affidavits filed in this Tribunal as well as before the competent authority that she is the wife of the detenu. Even in the vakalat and the memorandum of appeal filed before this Tribunal, she described herself as the wife of the detenu and has given his address as hers. It is not open to the appellant to blow hot and cold and to approbate and to reprobate. She cannot be permitted to take different stands at different times to suit her convenience. Having regard to the long course of conduct of the appellant, that she is the legally wedded wife of Virendra Kumar Rai, the court may presume the existence of a valid marriage between the appellant and Virendra Kumar Rai, having regard to the common course of natural events and their conduct. Under section 114 of the Indian Evidence Act, 1872, the court may presume the existence of certain facts. In Badri Prasad v. Deputy Director of Consolidation, AIR 1978 SC 1557, it was held by the Supreme Court that a strong presumption arises in favour of wedlock where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents with the properties claimed to have been acquired between 1953 and 1955, we, by our order dated September 10, 1997, directed the appellants to peruse the documents which they had submitted before the competent authority and to make a statement correlating the properties covered by those documents with the forfeited properties acquired between 1953 and 1955. The competent authority was directed to record his findings on the basis of the statement, as aforesaid, to be filed by the appellants. Since then we have received findings from the competent authority. These relate to properties listed at S. Nos. 1, 2, 3, 4, 5, 10 and 11 in the Schedule annexed to the impugned order ; these are the properties claimed to have been acquired between 1953 and 1955. Mainly for the following reasons, the competent authority has concluded that none of the said properties, viz., listed at Sl. Nos. 1, 2, 3, 4, 5, 10 and 11, were acquired between 1953 and 1955 and hence the appellants are not entitled to the benefit of the argument that these were acquired when Shri Virendra Kumar Rai, detenu, was only 5-7 years old : (a) The number(s) of the plot (s) as given in the show-cause notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has been issued to the party is not the same as mentioned in the registered sale deed. In her support the party has stated that due to consolidation of land in vill. Ghatampur by the consolidation department in 1983, the plot numbers of her land were changed. The photocopy of entry in Chakbandi Akar Patra 41, of vill. Ghatampur, as under : Old No. New No. Area 15sa 6 GA 0 9 18 or 0.125 hect 32/1 sa 18 Kha 0 13 2 or 0.165 hect 23 12 1 12 13 or 413 Hect. 30 sa 0 15 17 or 0.201 hect 31 sa 27 32/2 sa 33/2 sa 30 0 13 14 or 0.173 hect 34/2 sa The photo-copy of entry in Chakbandi Akar Patra 45 of vill. Ghatampur, filed by the party shows as under : Khatauni Name, Parentage and residence of the owner New, plot No Area (in Gata Hect.) Khata No 20 Smt. Kundan Devi, W/o Kamta Pd. Rai, vill. Malsa Distt. Gazipur 18 Kha 0.165 27/2 0.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these documents. These statements, inter alia, show names of persons from whom and by whom properties were acquired, year of acquisition, original numbers of the plots, various stages of consolidation proceedings, revised numbers of the plots and in whose names now these plots stand and these facts have been duly supported by the relevant documents. We are satisfied that these properties must have been acquired during 1953 and 1955. It may be noted that at the time of consolidation of land holdings, one does not necessarily get the same plots, or the same area in exchange, and that very often mutation takes place after long time. Since Shri Virendra Kumar Rai, the detenu, was admittedly of 5 7 years of age in 1953-54, it would be safe to presume that at that time he could not have tainted money of his own to acquire these properties. Accordingly, we hold that properties listed at S. Nos. 1, 2, 3, 4, 5, 10 and 11 in the Schedule are not illegally acquired properties and thus are not liable for forfeiture. The impugned order is modified accordingly. The property listed at S. No. 12 in the said Schedule is in the name of Smt. Roopa Rai (Appeal No. ND 15/LKN/96). Learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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