The main legal point established in the judgment is the mandatory nature of prescribed procedures and the need for decisions to be made in accordance with the statutory provisions, particularly in the context of the Unlawful Activities (Prevention) Act, 1967.

JUDGMENT :

1. The instant Writ Petition has been filed on behalf of the petitioners, whereby they have called in question the impugned orders dated 30.06.2008, 17.11.2008 and 30.06.2009 passed by respondent No.2 and 3 i.e., Designated Authority under Unlawful Activities (Prevention) Act, 1967, (Divisional Commissioner), Jammu and Sessions Judge Udhampur, respectively. Petitioners, by issuance of writ of mandamus against the respondents, are also seeking that the properties seized from the two residential houses/accommodation of the petitioners located in Delhi and Hyderpora, be released in favour of the petitioners on any condition which the Court may deem fit and proper under the facts and circumstances of the case.

2. With a view to appreciate the controversy involved, it would be apt to give brief factual background of the instant case.

3. A notice was issued by respondent no.2 on 26.03.2008 to the petitioners indicating therein that Deputy Superintendent of Police, HQ Udhampur, after obtaining search warrant from the CJM Udhampur duly endorsed by Metropolitan Magistrate, Delhi, conducted search of their houses situated at Nadira Apartment 2nd Floor, Johri Farm, Okhla, New Delhi on 08.11.2007 and recovered the cash amounting to Rs. 16,000/-, 02 Laptops, 01 CPU (LG), 04 Floppies, 03 CDs, foreign currencies of different countries, 01 digital camera “Kodak” and a book titled Constitution of J&K APHC.

4. It was further stated that Superintendent of Police, SSR Jammu, after obtaining search warrant from the CJM Udhampur duly endorsed by Metropolitan Magistrate Delhi, conducted search of the house of the petitioners situated at Green Park, Hyderpora, Budgam Kashmir and recovered 01 Laptop HP, 01 Laptop Toshiba, 01 Laptop Campaq, 03 Passports, 02 Election Photo Identity Cards, 03 Identity cards, 03 Driving licenses, 04 Mobile Phones, cheque books of J&K Bank, 01 ATM card, 19 photographs, consumer pass book of Electric Department, 01 diary of J&K Bank, Medi-claim Policy card, 01 ration card, documents of IRM Industries, revenue papers, map of residential houses, 46 CDs, 19 books and some other documents of vehicle including insurance papers on 18.11.2007.

5. Further case of the petitioners is that the aforesaid notice dated 26.03.2008 was received by petitioner no.1 on 08.04.2008 when he was in Central Jail, Kotebhalwal Jammu and accordingly, submitted his reply through his counsel to the said notice, stating therein that the cash amounting to about Rs.50.00 lacs was declared to have been recovered from a CNG Kit carried by some Delhi based businessman from Udhampur by the J&K Police. This cash, according to the respondents, was linked to the ongoing militancy and was termed as “hawala” transaction and the petitioner was sought to be involved in the case. Further it was stated that the petitioner no.1 was arrested by police on 04.11.2007 from Qazigund on his way from Delhi to Srinagar and was lodged in police custody. Raids were conducted at the New Delhi residence of the petitioner no.1 during the intervening night of 3/4th November 2007, wherefrom cash amounting to Rs.16,000/-, 02 laptops, 01 CPU (LG make), 04 floppies, 03 CDs, 01 digital camera and certain documents were seized in absence of the petitioner no.1 from the said residence.

6. The specific stand of the petitioners is that at the time of search and seizure, petitioner no. 1 was not present in the house and petitioner no.2 along-with his sister, who both were students, were present at their residence. Further case of the petitioners is that since inventory was prepared in presence of petitioner no.2 but neither any independent person was called to witness the search and seizure nor signatures of petitioner no.2 were taken on the inventory. Petitioners were also not provided copy of the said inventory.

7. Furthermore, it is stated that in a similar fashion, Hyderpora residence of petitioner no.1 was raided during the intervening night of 3/4th November 2007, where petitioner’s