9911796707
TMI Blog2011 (10) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is that the detenue unsuccessfully challenged the detention order dated 26.07.1989 before the Calcutta High Court vide Crl. Misc. No. 1244/1992. The Special Leave Petition (SLP) preferred by the detenue before the Supreme Court was also dismissed. However, the challenge to the declaration made under Section 10(1) of the PITNDPS Act was successful before this Court vide W.P.(Crl.) No. 315/1992. This Court while disposing of W.P.(Crl.) No. 315/1992, inter alia, passed the following order: "It is agreed between the parties that this matter is covered by the decision of this Court in Akhilesh Kumar Tyagi Vs. Union of India reported in 1995 IV AD (Delhi) 107. The writ petition is allowed in terms thereof. The initial period of detention of three months is sustained. ..... ..... ..... ..... ..... I, therefore, hold that the detention for a period of three months is valid and continue detention is vitiated." 3. The petitioner is the brother of the detenue Md. Azad @ Avid Parwiz. A show cause notice was issued to the petitioner under Section 68H(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) on 20.04.1994. It was contended that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the same already stands quashed by this Court in W.P.(Crl.) No. 315/1992. Moreover, it is not open to the petitioner in these proceedings to challenge the detention order in the light of the judgment of the Supreme Court in Attorney General For India & Others Vs. Amratlal Prajivandas & Others, (1994) 5 SCC 54, at para 56(3)(b). 7. The first submission of the learned counsel for the petitioner is that the show cause notice was incompetent inasmuch as the petitioner is not covered under Chapter V-A of the NDPS Act. He submits that in the present case, the detention beyond the period of three months was held to be illegal. Consequently, Section 68Z came into play, which provides that where the detention order of the detenue is set aside or withdrawn, properties seized or frozen under this Chapter shall stand released. In this regard, he places reliance on the order dated 16.05.2002 in W.P.(Crl.) No. 315/1992 as also the judgment of this Court in Shahid Parvez vs. Union of India & Others, 175 (2010) DLT 547. He submits that in Shahid Parvez (supra), this Court had considered the effect of the order passed on 16.05.2002 in W.P.(Crl.) No. 315/1992 and in paragraph 16 held that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtract inasmuch, as, the word „detention' existing in the 13th line of the said paragraph has wrongly been typed in place of the word „declaration'. The learned Judge in Shahid Parvez (supra) has extracted in para 14 the position in law as it existed in the light of the decision in Maqudoom Meera Hameem Vs. Joint Secretary to Government of India, W.P.(Crl.) No. 83/1995 decided on 17th August, 1995, wherein it was held by the Division Bench that in case "where the reference to the Advisory Board was made beyond 5 weeks and the Advisory Board gave its opinion beyond 11 weeks, the continued detention during the extended period became bad" (emphasis supplied). In Akhilesh Kumar Tyagi (supra) the correctness of the decision in Maqudoom Meera Hameem (supra) was questioned by the Union of India. It was contended that till such time as detention order was quashed it remain valid. Consequently, it was contended by the UOI that the detention beyond three months did not become illegal automatically. This contention of the Union of India was rejected in Akhilesh Kumar Tyagi (supra), wherein the Full Bench observed that the continued detention beyond three months would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard, he again places reliance on the decision in Shahid Parvez (supra), and, in particular, paragraphs 18 to 20 of the said decision, which read as follows: "18. The impugned order of the CA, affirmed by the Appellate Tribunal, cannot be sustained even on merits. The records of the CA have been perused by this Court. The relevant period is the one immediately preceding issuance of show cause notice to the Petitioner under Section 68-H (1) of the NDPS Act. It appears that following certain letters received from the Income Tax Office, Balasore, on 1st November 1996, the Investigating Officer/CA at Calcutta made a noting directing the Department "to ascertain the existence of Shri Shahid Parvez." He advised: "We may as well write to Branch Manager, Central Bank of India, Brahamansahi Branch, Soro, Balasore to furnish details of Bank Account No. 263 such as name of holder and address, name of introducer and address, date of opening and present position of the account". 19. This was followed by several reminders and the noting dated 17th June 1997 where it was acknowledged that the Branch Manager, Central Bank of India had furnished address of the bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingredients of Section 68-H (1) NDPS act stood attracted." (emphasis supplied) 12. Once again I do not find any merit in the submission of the learned counsel for the petitioner. It is not in dispute that the petitioner was minor of about 12 years at the time when the aforesaid properties are stated to have been acquired in the year 1985. He did not have any independent source of income of his own at that time. This is not even his case. The case set up by the petitioner at the appellate stage was that his father had acquired the said properties for him. He did not produce any material or evidence before the competent authority or the appellate authority, and none has been produced even in these proceedings, to show as to what was his father's avocation, income and how he cornered the resources to acquire the said properties. 13. I may note that, for the first time, in the present writ petition the petitioner has made an assertion that his father was having liquor vends; that he was an income tax assessee, and; that he had rental income. None of this was stated before the competent authority or the appellate authority. No evidence/document was filed either before the compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 6(1) of SAFEMA is similar to section 68H of NDPS Act. Section 8 of SAFEMA is similar to section 68J of NDPS Act. The Supreme Court, inter alia, observed as follows: "The condition precedent for issuing a notice by the competent authority under Section 6(1) is that he should have reason to believe that all or any of such properties are illegally acquired properties and the reasons for such belief have to be recorded in writing. The language of the Section does not show that there is any requirement of mentioning any link or nexus between the convict or detenu and the property ostensibly standing in the name of the person to whom the notice has been issued. Section 8 of the Act which deals with burden of proof is very important. It lays down that in any proceedings under the Act, the burden of proving that any property specified in the notice served under Section 6 is not illegally acquired property, shall be on the person affected. The combined effect of Section 6(1) and Section 8 is that the competent authority should have reason to believe (which reasons have to be recorded in writing) that properties ostensibly standing in the name of a person to whom the Act applies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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