2011 (10) TMI 707 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention order dated 26.07.1989 and the declaration dated 12.08.1991.
2. Validity of the show cause notice issued u/s 68H(1) of the NDPS Act.
3. Burden of proof regarding the properties being illegally acquired.

Summary:

1. Legality of the detention order dated 26.07.1989 and the declaration dated 12.08.1991:
The petitioner challenged the detention order dated 26.07.1989 and the declaration dated 12.08.1991 concerning his brother. The court noted that the detention order had already been unsuccessfully challenged before the Calcutta High Court and the Supreme Court, thus attaining finality. The declaration dated 12.08.1991 had already been quashed by this Court in W.P.(Crl.) No. 315/1992. Therefore, the petitioner could not reopen these issues.

2. Validity of the show cause notice issued u/s 68H(1) of the NDPS Act:
The petitioner argued that the show cause notice was incompetent as he was not covered under Chapter V-A of the NDPS Act. The court found no merit in this submission, stating that the petitioner, being the brother of the detenue, was covered by Chapter V-A of the NDPS Act as per Section 68A(2)(d). The court also clarified that the initial detention order dated 26.07.1989 remained intact and valid, and only the detention beyond three months was held illegal due to the quashed declaration.

3. Burden of proof regarding the properties being illegally acquired:
The petitioner contended that the show cause notice was issued without any prima facie appreciation of relevant material and that the respondents failed to establish a nexus between the petitioner's property and the detenue's illegal income. The court rejected this argument, emphasizing that u/s 68J of the NDPS Act, the burden of proving that the property is not illegally acquired lies on the person affected. The court noted that the petitioner, a minor at the time of property acquisition, did not provide any evidence of his father's income or how the properties were acquired. The court also referred to the Supreme Court's judgment in Kesar Devi Vs. Union of India, which upheld similar provisions under SAFEMA, stating that the competent authority need not establish a nexus between the convict or detenu and the property.

Conclusion:
The court dismissed the petition, upholding the orders of the competent authority and the appellate authority, and imposed costs of Rs. 50,000 on the petitioner.