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IN THE HIGH COURT OF BOMBAY
A.V. Savant T.K. Chandra Shekhara Das, JJ.
The State of Maharashtra ..... Petitioner.
Versus
Iqbal Mohammed Memon others ..... Respondents.
Criminal Writ Petition No. 227 of 1998 with Criminal Applications No. 2854 and 2833 of 1998, decided on 8-10-1998.
Advocates appeared :
S.G. Page, S.P.P. with D.G. Bagwe, A.P.P., for the petitioners.
Adhik Shirodkar with S.V. Pikale, G.S. Pikale S.S. Pikale, R.A. Shirodkar i/by S.V. Pikale Co., for the respondents Nos. 1 to 7.
J.C. Satpute, for respondent No. 8.
Narcotic Drugs and Psychotropic Substances Act, 1985
Sections 3,4, 68-I, 68-T, 68-G, 74=A, 76 and 78-Forfeiture of property used in illicit traffic-Property released by competent authority of Central Government-Interference by State Government by filing writ petition against release-Scope - Held, State Government not an aggrieved party and hence its petition not maintainable-Moreover, delay in filing writ petition not explained and hence cannot be condoned.-On a consideration of the scheme of the provisions of the NDPS Act including Section 68-1, it is clear to Court that in the proceedings for forfeiture of property derived from or used in illicit traffic, which is the subject-matter of Chapter V-A of the NDPS Act, an officer of the State Government has a very limited role to pay. Under subsection (2) of Section 53. The State Government may by notification published in the Official Gazette invest any officer of department of drug control, revenue or excise, or any class of such officers with the powers of an officer in charge of a police station in investigation of offences under this Act. Court has also indicated that the earlier provisions, starting with the preamble, Section 3 and Section 4 onward" made it clear that it is not Central Government which is primarily concerned with taking such measures as it deems necessary and expedient for preventing and combating abuse of narcotic drugs, psychotropic substances and illicit traffic therein. The sale proceeds of the properties which are forfeited in accordance with the provisions of Chapter V-A of the Act vest in the provisions of Chapter V-A of the Act vest in the Central Government which has to credit the proceeds to the National Fund constituted Section 7-A. The said fund is administered by the Central Government.
Taking into account the scheme of the provisions of the NDPS and in particular, the provisions of Chapter VA under which the impugned order is passed and bearing in mind the law laid down by the Apex Court in Mohd. Sharfuddins case Court has no hesitation in coming to the conclusion that the State Government was not a necessary or even a proper party in the proceedings before the Competent Authority. Similarly, the State Government is not a person aggrieved within the meaning of sub- section (1) of Section 68-D of the Act.
Sections 68-O and 68-I-Constitution of India, Article 22-State of Maharashtra not being "person aggrieved" within meaning of Section 68-O(1) of Narcotic Drugs and Psychotropic Substances Act, it cannot file appeal under Section 68-O - Not being aggrieved the State has no locus to maintain writ petition to challenge the order under Section 68-1 of the Act.- The State of Maharashtra not being "person aggrieved", it could not have filed the appeal challenging the order of the Competent Authority passed under Section 68-1 of the Narcotic Drugs and Psychotropic Substances Act. Consequently, it would follow that writ petition filed by the State of Maharashtra will not be maintainable on the ground that the State is not a "person aggrieved" and hence it has no locus to file the petition.
2. This is the petition filed by the State of Maharashtra seeking to challenge the Order dated 20-10-1997, passed under section 68-I of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'N.D.P.S. Act') by the Competent Authority, appointed by the Central Government under section 68-D of the N.D.P.S. Act. Under the said order, out of 11 properties which are mentioned at Exhibit A-1 to the petition, four properties mentioned at Sr. Nos. 2, 3, 4 and 5 have been held to be illegally acquired within the meaning of Clause (g) of section 68-B of the N.D.P.S. Act and the said properties have been ordered to be forfeited to the Central Government, free from all encumbrances, as contemplated by sub-section (3) of section 68-I of the said Act. In respect of the property at Sr. No. 6 in Exhibit A-1, viz. the contents in Locker No. 297/A with the Union Bank of India, Juhu Tara Road, Juhu, Mumbai, a direction has been given that the said locker should be closed back by keeping the contents therein and a fresh show-cause notice should be issued under section 68-H of the said Act as to why the said properties should not be declared to be the illegally acquired properties and forfeited to the Central Government. In respect of the remaining six properties at Sr. Nos. 1, 7, 8, 9, 10 and 11, a finding has been recorded that the affected persons were able to explain the source from which the said properties were acquired and on the basis of the material on record, it was proved that the said six properties were acquired lawfully and could not, therefore, be treated as illegally acquired properties. Consequently, these six properties are taken out of the forfeiture proceedings under Chapter V-A of the N.D.P.S. Act. This petition by the State of Maharashtra is, therefore, confined to the six properties which have been released from the forfeiture proceedings viz. the properties at Serial Nos. 1, 7, 8, 9, 10 and 11 of Exhibit A-1 to the petition. Few facts necessary to appreciate the rival contentions may be stated.
3. On the 2nd September, 1994, the Secretary to the Government of Maharashtra, Preventive Detention, Home Department, viz. the detaining authority passed an order under sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, 'PITNDPS Act') recording his satisfaction that it was necessary to detain Shri Iqbal Mohammad Memon @ Iqbal Mirchi respondent No. 1 (for short, 'detenu') with a view to preventing him from engaging in illicit traffic in psychotropic substances. On 30th December 1994 the State Government issued an order under section 8(1)(b) of the PITNDPS Act, 1988 recording its satisfaction that the detenu had absconded or was concealing himself. The State Government, therefore, directed the detenu to appear before the Commissioner of Police, Greater Bombay, between 10 A.M. and 5 P.M. on any working day within 30 days from the date of publication of the order. The detenu was ordered to be detained in the Bombay Central Prison, Bombay. However, since the order of detention could not be executed, a proclamation was issued by the Chief Metropolitan Magistrate, Esplanade, Bombay, on 12th January 1995 under section 82 of the Code of Criminal Procedure, 1973 to the effect that the State of Maharashtra had reason to believe that the detenu had absconded or was concealing himself so that the order of detention could not be executed. Proclamation was, therefore, made that the detenu was required to appear before the Commissioner of Police, Greater Bombay, on any working day between the 31st and 45th day from the date of publication of the said proclamation.
4. As stated earlier, the first respondent is the detenu. Respondents No. 2 and 4 are the wives of th
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