2008 (9) TMI 956 - HC - Customs

Summary

Issues Involved:
1. Legality of the forfeiture of properties under the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Validity of the show cause notice issued under Section 68-H of the NDPS Act.
3. Burden of proof regarding the legality of the properties.
4. Impact of the acquittal of the petitioner's husband on the forfeiture proceedings.
5. Procedural lapses in serving the freezing order and show cause notice.

Detailed Analysis:

1. Legality of the Forfeiture of Properties:
The petitioner challenged the forfeiture of her properties under Section 68-I of the NDPS Act, 1985. The properties in question were three residential flats and two shops. The respondents claimed that these properties were acquired from the illegal income of the petitioner's husband, who was allegedly involved in narcotic trafficking with Iqbal Mirchi. The Competent Authority and the Appellate Tribunal for Forfeited Properties confirmed the forfeiture, leading to the present petition.

2. Validity of the Show Cause Notice:
The show cause notice under Section 68-H of the NDPS Act was issued based on three grounds: relevant information available to the Competent Authority, the statement of the petitioner's husband admitting his association with Iqbal Mirchi, and the petitioner's alleged statement admitting that the properties were acquired from illegal income. However, the court found that:
- No relevant information was available to the Competent Authority at the time of issuing the show cause notice.
- The statement of the petitioner's husband was not produced, and even if it existed, it did not mention the acquisition of the properties.
- The petitioner's alleged statement was not produced, and its admissibility was questionable.

The court held that the Competent Authority issued the show cause notice without any "reason to believe" as required under Sections 68-B(g) and 68-C of the NDPS Act.

3. Burden of Proof:
The Competent Authority and the Tribunal placed the burden of proving the legality of the properties on the petitioner, based on Section 68-J of the NDPS Act. However, the court clarified that this burden arises only if the show cause notice is validly issued with recorded reasons to believe that the properties are illegally acquired. Since the notice was issued without such reasons, the burden could not be cast on the petitioner.

4. Impact of the Acquittal of the Petitioner's Husband:
The petitioner's husband was acquitted of all charges related to narcotic trafficking. The court noted that the entire basis for the forfeiture proceedings was the alleged illegal activities of the petitioner's husband. With his acquittal, the foundation for linking the properties to illegal activities collapsed, rendering the forfeiture action unsustainable.

5. Procedural Lapses:
The freezing order and subsequent communications were not served on the petitioner or her husband, violating principles of natural justice. The court emphasized that the petitioner was not given an opportunity to be heard, and the orders were issued without proper service, further invalidating the forfeiture proceedings.

Conclusion:
The court concluded that the forfeiture of the properties was unsustainable due to the lack of valid reasons for issuing the show cause notice, the improper casting of the burden of proof on the petitioner, and the procedural lapses in serving the orders. Consequently, the court directed the respondents to restore the actual physical possession of the properties to the respective persons from whom possession was obtained. The petition was allowed, and the rule was made absolute with no order as to costs.