TMI Blog2014 (2) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... CIR is registered in accordance with the crimes already registered against the petitioner and others and the investigation is taken up in pursuant to the ECIR. Thus, the power of competent authority to summon the petitioner, impugned in this writ petition is traceable to Section 50(2) of the Act 2002. Thus, it cannot be said that there is no power vested in the Assistant Director to summon the petitioner as alleged by the petitioner. No merit in the writ petition. - Writ Petition No.38314 of 2013 - - - Dated:- 7-2-2014 - P. NAVEEN RAO J. Sri D.V. Sitarama Murthy, Senior Counsel for Sri. P. Kasi Nageswara Rao for the Petitioner. Sri P. Ashok gound, Asst. Solicitor General for Sri N. Harinath, Standing Counsel for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.139 of 2013 on the file of Nuzvid Town Police Station, Krishna District, he was shown as accused No.4. Petitioner further avers that respondent Nos.2 and 3 issued summons dated 11.12.2013 directing the petitioner to appear before the 3rd respondent on 20.12.2013 along with relevant documents. Accordingly, petitioner appeared before the third respondent on the said date. Petitioner was directed to appear again after fifteen days. Though petitioner appeared before the third respondent as directed by him, petitioner challenges the order dated 11.12.2013 directing him to appear before the third respondent in this writ petition. 3. Counter-affidavit is filed by the third respondent. The stand of the third respondent is provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of respondents 2 and 3 summoning him for enquiry by placing reliance on the decision of this Court in Criminal Petition No.11459 of 2011, dated 29.01.2012. Learned senior counsel contended that this Court held in the above case that only on the report filed by the Police under Section 173 of Cr.P.c., or on filing of a complaint under Section 36(1) of N.D.P.S.Act, 1985, ECIR can be registered and investigation can be taken up by the competent authority. Learned senior counsel therefore submits that before the final report is filed in accordance with Section 173 Cr.P.C., respondents 2 and 3 have no power and authority to summon the petitioner for enquiry and to direct him to produce the records under the Act, 2002. 6. Learned senior co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. He submitted that it was the case where the investigating officer filed quash petition contending that he was not supposed to conduct any investigation until final report was filed and, therefore, question of attachment of properties of a person against whom crime was registered would not arise and, therefore, he has not violated any provision of law. 9. Learned counsel placed reliance on the decision of Supreme Court in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma and another in support of his contention that writ petition is not maintainable against the show cause notice. Issue in the writ petition is that the petitioner is summoned as part of investigation into violations of the Act 2002. Therefore, at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess report is forwarded to the Magistrate under Section 173 of Cr.P.C. Reliance was placed on the provision in Section 5(1) of the Act. Interpreting the provision as obtaining with reference to the relevant period, judgment was rendered by this court. This Court held that in view of the provisions contained in Section 5(1) of the Act, as was in force, unless report under Section 173 of Cr.P.C., is forwarded to the Magistrate, property cannot be attached. It is to be noted that Section 5(1) of the Act, underwent amendment in the year 2001 and 2013. By way of amendment second proviso to Section 5(1)(b) is incorporated. Second proviso is an exception to the main provision in Section 5(1) (b). The scope of the amended second proviso to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictively defined in Section 2(s) limited to a person charged of having committed a scheduled offence), could be proceeded against for attachment, adjudication and confiscation. We are persuaded to the view that incorporation of the 2nd proviso Section 5(1) is intended to clarify the position or remove any ambiguity as to the application of Section 5(1) to property of a person not charged of having committed a scheduled offence. 33. In our considered view, the provisions of the Act which clearly and unambiguously enable initiation of proceedings for attachment and eventual confiscation of property in possession of a person not accused of having committed an offence under section 3 as well, do not violate the provisions of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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