APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP-ND-1178/KOL/2023 (Stay)

FPA-ND-719/KOL-2023 Smt. Chandani Devi &Ors. … Appellants Versus The Competent Authority, Kolkata &Anr. … Respondents Advocates/Authorized Representatives who appeared For the Appellants : Mr. Bitu Kumar Singh, Adv.

Mr. Shyamal Kumar, Adv.

For the Respondent : Mr. Varun Jain, Adv.

CORAM SHRI G. C. MISHRA : MEMBER SHRI BALESH KUMAR : MEMBER

ORDER

28.11.2024 The present appeal is preferred against the impugned order dated

19.09.2023 passed by the Ld. Competent Authority & Administrator [SAFEM (FOP) A & NDPS, 1985] Kolkata (hereinafter referred to as the “Ld. C.A” wherein the immovable properties of the appellants no.1 to 4 as listed in para no.4 of the impugned order have been seized/freezed under Section 68F (2) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter referred to as the “NDPS Act, 1985”

Brief facts:

2. It is revealed from the record that on the basis of search and seizure and the voluntary statement of Shri Gautam Kumar and Shri Vicky Kumar and after gathering enough evidence the appellant no.5 i.e. Raushan Kumar @ Roshan Singh was made an accused in NCB Crime no.17/2019 (NDPS case No.102/2019. It is also revealed from the record that the appellant no.5 is a habitual offender and several criminal cases under NDPS Act, 1985 and under IPC have been registered and pending.

3. It is also seen from the record that 19 (nineteen) immovable properties are owned by the appellant nos. 1 to 4. The said immovable properties are found during the financial investigation conducted by the Freezing Authority.

The Freezing Authority after the financial investigation freezed the said immovable properties i.e. the details of the property listed in Table-A of para 4 of the impugned order and forwarded the same to Ld. Competent Authority for confirmation. The Ld. Competent Authority confirmed the Freezing Order on the grounds mentioned in the impugned order vide its order dated 19.09.2023.

Being Aggrieved with the said order the appellants preferred the present appeal.

The Ld. Counsel for the appellants confined his arguments on the following grounds.

A Whether the appellants were served with the notice dated 02.08.2023 & given sufficient opportunity/time, to file their response & being heard, or not, at the stage of enquiry (under section 53 & 68 E) & in the absence of the same passing of order dated 21.08.2023 (under section 68F (1)) by the Junior Intelligence officer, is illegal or not?

B Whether there is any direct nexus or link between the properties sought to be forfeited or that the orders have been passed merely on assumption &

perception of the officers?

C Whether the Competent Authority was required to keep distinction between his functions & the one under the Income Tax Act & the Wealth Tax in mind; his jurisdiction being limited that is, whether the properties were illegally acquired properties or not, whereof he could not have gone further & hold that only because notices had not been able to trace the source of their income, the properties were to be treated to be illegally acquired. D Whether the Competent Authority issued the show cause notice under Section 68 (F) incorporating the following statutory requirements or not:

a) Forming of his opinion regarding his reason to believe;

b) Recordingofreasonthereof.

E Whether non-compliance of the statutory provisions of Section68 (F) would not only render the show cause notice illegal but also the subsequent proceedings initiated pursuant to the same? F Whether the implication of the appellants as co-accused under the NDPS Act, merely on the confessional statement of the co-accused persons, is sufficient to assume the person guilty of commission of the alleged offence, in the absence of any recovery & the same is barred by the law laid down by the Hon‟ble Supreme Court of India in the case of “Toofan Singh vs. State of Tamil Nadu”?

4. While arguing the case for the appellants, the Ld. Counsel submitted that n