1992 (3) TMI 318 - AT - FEMA

Summary

Issues:
- Interpretation of provisions under Chapter V-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
- Applicability of freezing order on property under sections 68E and 68F.
- Determination of whether the appellant falls under the definition of "person" specified in section 68A(2) of the Act.

Analysis:
The case involves a respondent accusing the appellant of possessing narcotics during a raid, resulting in the freezing of the appellant's shop under the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant challenges the freezing order, arguing that he does not fall under the categories specified in section 68A(2) of the Act, which determines the application of Chapter V-A. The appellant asserts that the provisions of Chapter V-A, including sections 68E and 68F, cannot be invoked against him as he does not meet the criteria outlined in section 68A(2) (a).

The introduction of Chapter V-A by Act 2 of 1989 aims to forfeit properties acquired through illicit means under the Act. Section 68A delineates the persons to whom Chapter V-A applies, including those convicted of specific offenses or subject to detention orders. The appellant has not been convicted of an offense punishable under the Act for five years or more, nor does he fall under any of the specified categories in section 68A(2). Therefore, the appellant is not considered an "affected person" to whom Chapter V-A applies, as per the controlling provision of section 68A.

Sections 68E and 68F of the Act pertain to the identification and freezing of illegally acquired properties, respectively. However, these provisions can only be invoked against individuals falling within the purview of Chapter V-A. Since the appellant does not meet the criteria set out in section 68A(2), the Investigating Officer's actions under sections 68E and 68F against the appellant lack jurisdiction and cannot be sustained.

The Competent Authority argues for a broad interpretation of sections 68E and 68F to include individuals not explicitly covered under section 68A(2). Citing legal precedents, the Competent Authority emphasizes the societal interest in retrieving properties acquired through illicit means. However, the Tribunal rejects this argument, stating that the clear language of the law, as enacted by the Legislature, precludes the application of Chapter V-A to individuals not falling under section 68A(2).

In conclusion, the Tribunal allows the appeal, setting aside the freezing order on the appellant's shop. The possession of the shop is directed to be restored to the appellant promptly, emphasizing that the freezing of property under sections 68E and 68F is a procedural step that cannot be applied to individuals outside the scope of Chapter V-A.