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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Bashir Ahmad Kirmani, J.
Sr. Superintendent Of Police Vigilance Organization - Appellant
Versus
Gh. Rasool Magray - Respondent
OWP No. 749/2006
Decided On : 04 July, 2007
The petitioner-vigilance organization is aggrieved of an order passed by Special Judge Anti-Corruption, as the "Special Court" under section 8(C) of the amended "Prevention of Corruption Act" whereunder while dis-agreeing with confirmation order of "Designated Authority" regarding attachment of respondents house he quashed the same, releasing the attached house.
Fact of the Case:
The matter arises with following circumstantial back-drop. 2. Ghulam Rasool Magray, the respondent was booked by VOK under FIR 40/2003 u/s 409, 467 and 120-B RPC for having defrauded government while working in Food and Supplies Department at Wardwan Tehsil Kishtwar, by wrongly enhancing the number of people entitled to rations by around twenty two thousand and thereby wrongly procuring thousands of quintals of excessive grains from 1997 to 2002 causing a loss of around 9 corer rupees to State exchequer to his benefit along with others involved. Investigation in the matter was complete, when amendment of 2006 came in the "Prevention of Corruption Act" to incorporate a provision for seizure/attachment of property believed by concerned I.O, not below the rank of SSP, to have been acquired by misconduct by an accused official.
Finding of the Court:
The conclusion is that while the confirmatory order of the designated authority regarding attachment/seizure of respondents house is bad for want of a proper hearing to him and the recorded owner, the appellate order impugned herein also suffers because even according to his definition of the expression "attachment" the attached house could not be released so as to render the I.Os order also in effective.
Issues: I) Whether the provisions of "Prevention of Corruption Act" as amended by the aforesaid amendment (Amending Act of 2001) providing for attachment/seizure of property in terms thereof can be invoked by a S.P of Vigilance Organization in a case where investigation had been completed before the amendment and/or conducted by an officer below the rank of a SP, and/or where the property sought to be attached/seized was not subject matter of investigation so conducted; and whether an order of seizure/attachment would be bad due to existence these circumstances or any of them. II) Whether the Designated Authority, is required to refer the case to Special Court after completion of proceedings before him within prescribed time whether he confirms or vacates the I.Os order of attachment/seizure for its consideration by Special Court under sub section (2) of S.8-C. If no, then how would the Special Court get seizen of the matter otherwise than on an appeal under sub section (1) thereof, and whether in that case the judicial review of the seizure/attachment would be excluded rendering the power of I.Os designated authoritys seizure/attachment improper as being excessive. III. What should be the mode/procedure for exercise of the power of "forfeiture" of attached/seized property by Special Court, given the fact that the same Court is the forum for trial of connected offence also. IV. Whether confiscation of property under the amended Act as a penalty additional to that originally prescribed under S.7 of the Act can in view of Art. 20, of the Constitution operate retrospectively also, i.e in cases committed before the amendment.
Ratio Decidendi: While the confirmatory order of the designated authority regarding attachment/seizure of respondents house is bad for want of a proper hearing to him and the recorded owner, the appellate order impugned herein also suffers because even according to his definition of the expression "attachment" the attached house could not be released so as to render the I.Os order also in effective.
Final Decision: a) Sub-ordinate proceedings shall relegate back to the stage of sub section (2) of S.8-B, and the designated authority shall recommence proceedings thereunder by giving the respondent and the recorded owner effective opportunity of being heard and maintain a record of his proceedings. b) Subject to the orders of Designated authority and proceedings following the I.Os order of attachment relating to the house under reference shall stand, but the recorded owner thereof shall be the "Superd-dar" thereof on behalf of I.O. He shall be responsible for its watch and ward but the house shall remain vacant and not be used for residential, commercial or any other purpose. Electricity and water supply thereto shall be dis-connected and the house conspicuously marked as "attached". c) Nothing contained herein shall hinder or delay institution of the case on basis of original FIR No. 40/03 of VOK, under law before the competent court.
2. Ghulam Rasool Magray, the respondent was booked by VOK under FIR 40/2003 u/s 409, 467 and 120-B RPC for having defrauded government while working in Food and Supplies Department at Wardwan Tehsil Kishtwar, by wrongly enhancing the number of people entitled to rations by around twenty two thousand and thereby wrongly procuring thousands of quintals of excessive grains from 1997 to 2002 causing a loss of around 9 corer rupees to State exchequer to his benefit along with others involved. Investigation in the matter was complete, when amendment of 2006 came in the "Prevention of Corruption Act" to incorporate a provision for seizure/attachment of property believed by concerned I.O, not below the rank of SSP, to have been acquired by misconduct by an accused official. After said amendment as per version of concerned SSP the file which had been sent to Government to get sanction for respondents prosecution, was recalled and taken up for action under the aforesaid amendment which as stated was taken in following terms :--
"Attachment of property viz two storeyed Residential House at Sarnal K.P. Road Anantnag is terms of section 8(B) of J&K P.C.(Amendment) Act 2006, in case FIR No. 40/2003 U/S 5 (2) PC Act 2006 r/w 409/467,120-B RPC P/S VOK.
1. Whereas, case being FIR No. 40/2003 U/S 5 (2) PC Act 2006 r/w 409, 467,120-B RPC P/S VOK pertaining to the alleged misappropriation of food grains drawn against artificially inflated population of Marwah/Warwan Block of Tehsil Kishtwar and carriage charges meant for such excess food gains during the period 1997-2002 by the officer/officials of CA &PD department and Revenue department Kishtwar, District Doda stands registered in this organization.
2. Whereas, the investigation of the case was concluded as proved against the accused public servant and others for commission of offences indicated above and the case was forwarded to the sanctioning authority for accord of sanction for launching prosecution against the accused for commission of said offences.
3. Whereas, an amendment making it obligatory on the part of investigation officer investigation the case to attach the property in respect of which investigation of being conducted, if found to have been acquired by the public servant through corrupt practices, came into force subsequently.
4. Whereas, a property viz 2 storeyed residential house at Sarnal K.P.Road Anantnag in respect of which investigation conducted has been found during the course of investigation to have been raised out of ill- gotten money by the accused Shri Gh. Rasool Magray.
5. Whereas, it was appropriate and expedient to call the case dairy file from the Govt to invoke the provision of J&K Prevention of Corruption (Amendment) Act 2006 in the instant case.
6. Whereas, the investigation conducted has revealed that the accused Shri Gh. Rasool Magray S/o Gh.Mohmmad Magray R/o Nowpachi Marwah, Tehsil Kistiwar has abused his official position and misappropriate the public money in league with others by subverting the supply of food, grains meant for the consumers of Marwah/Warwan block of Tehsil Kistiwar dishonestly and fraudulently after inflating the number of consumers by incorporating fictitious persons and/or repeating the names of already existing consumers also with the aim of misappropriate the carriage charges connected with such food gains meant for fictitious consumers. This has been done by inflating actual consuming population of 37,900 to 59,400 souls in the year 1997 and 1999 by fraudulently adding approximately 21,500 non existent consumers which
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