9911796707
TMI Blog2011 (10) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ly challenged the detention order dated 26.07.1989 before the Calcutta High Court vide Crl. Misc. No. 1244/1992. The Special Leave Petition (SLP) preferred by the detenue before the Supreme Court was also dismissed. However, the challenge to the declaration made under Section 10(1) of the PITNDPS Act was successful before this Court vide W.P.(Crl.) No. 315/1992. This Court while disposing of W.P.(Crl.) No. 315/1992, inter alia, passed the following order: It is agreed between the parties that this matter is covered by the decision of this Court in Akhilesh Kumar Tyagi Vs. Union of India reported in 1995 IV AD (Delhi) 107. The writ petition is allowed in terms thereof. The initial period of detention of three months is sustained. ..... ..... ..... ..... ..... I, therefore, hold that the detention for a period of three months is valid and continue detention is vitiated. 3. The petitioner is the brother of the detenue Md. Azad @ Avid Parwiz. A show cause notice was issued to the petitioner under Section 68H(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) on 20.04.1994. It was contended that the petitioner is a person covered under Section 68A(2)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outset, I may note that the prayer in relation to the detention order dated 26.07.1989 and the declaration dated 12.08.1991 made in the present petition is misconceived for the reason that the detention order dated 26.07.1989 was unsuccessfully challenged by the detenue before the Calcutta High Court and thereafter before the Supreme Court. The said challenge has attained finality and the petitioner cannot seek to reopen the same. So far as the declaration dated 12.08.1991 is concerned, the same already stands quashed by this Court in W.P.(Crl.) No. 315/1992. Moreover, it is not open to the petitioner in these proceedings to challenge the detention order in the light of the judgment of the Supreme Court in Attorney General For India Others Vs. Amratlal Prajivandas Others, (1994) 5 SCC 54, at para 56(3)(b). 7. The first submission of the learned counsel for the petitioner is that the show cause notice was incompetent inasmuch as the petitioner is not covered under Chapter V-A of the NDPS Act. He submits that in the present case, the detention beyond the period of three months was held to be illegal. Consequently, Section 68Z came into play, which provides that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al by this Court in W.P.(Crl.) No. 315/1992, the effect was that the act of detention of the detenue beyond the period of three months became illegal. 9. A careful examination of the order dated 16.05.2002 in W.P.(Crl.) No. 315/1992, the judgment of the Full Bench of this Court in Akhilesh Kumar Tyagi Vs. Union of India Others, 60 (1995) DLT 203 (FB), and the judgment of this Court in Shahid Parvez (supra) would show that there is a typographical error in the aforesaid extract inasmuch, as, the word detention existing in the 13th line of the said paragraph has wrongly been typed in place of the word declaration . The learned Judge in Shahid Parvez (supra) has extracted in para 14 the position in law as it existed in the light of the decision in Maqudoom Meera Hameem Vs. Joint Secretary to Government of India, W.P.(Crl.) No. 83/1995 decided on 17th August, 1995, wherein it was held by the Division Bench that in case where the reference to the Advisory Board was made beyond 5 weeks and the Advisory Board gave its opinion beyond 11 weeks, the continued detention during the extended period became bad (emphasis supplied). In Akhilesh Kumar Tyagi (supra) the correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome allegedly derived from his alleged dealing in narcotics drugs and psychotropic substances. He submits that the onus to establish the said nexus lay upon the respondents, which they have completely failed to discharge. He submits that the orders passed by the competent authority and the appellate authority proceed on a presumption. Since the exercise undertaken has penal consequences, the onus lay upon the respondents. In this regard, he again places reliance on the decision in Shahid Parvez (supra), and, in particular, paragraphs 18 to 20 of the said decision, which read as follows: 18. The impugned order of the CA, affirmed by the Appellate Tribunal, cannot be sustained even on merits. The records of the CA have been perused by this Court. The relevant period is the one immediately preceding issuance of show cause notice to the Petitioner under Section 68-H (1) of the NDPS Act. It appears that following certain letters received from the Income Tax Office, Balasore, on 1st November 1996, the Investigating Officer/CA at Calcutta made a noting directing the Department to ascertain the existence of Shri Shahid Parvez. He advised: We may as well write to Branch Manager, Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the CA, as extracted hereinbefore, fails to establish even prima facie any casual link existing between the Petitioner's properties and the illegal earnings of the Petitioner's brother. The order of the CA is a mere reproduction of the language of the statute which is inadequate for demonstrating application of mind to arrive at even a prima facie satisfaction that the essential ingredients of Section 68-H (1) NDPS act stood attracted. (emphasis supplied) 12. Once again I do not find any merit in the submission of the learned counsel for the petitioner. It is not in dispute that the petitioner was minor of about 12 years at the time when the aforesaid properties are stated to have been acquired in the year 1985. He did not have any independent source of income of his own at that time. This is not even his case. The case set up by the petitioner at the appellate stage was that his father had acquired the said properties for him. He did not produce any material or evidence before the competent authority or the appellate authority, and none has been produced even in these proceedings, to show as to what was his father s avocation, income and how he cornered the resources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Supreme Court in Kesar Devi Vs. Union of India Others, (2003) 7 SCC 427. This was a case dealing with the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The provisions of SAFEMA, dealt with by the Supreme Court in para 10 of the judgment, are similar to the provisions of the NDPS Act with which I am concerned. Section 6(1) of SAFEMA is similar to section 68H of NDPS Act. Section 8 of SAFEMA is similar to section 68J of NDPS Act. The Supreme Court, inter alia, observed as follows: The condition precedent for issuing a notice by the competent authority under Section 6(1) is that he should have reason to believe that all or any of such properties are illegally acquired properties and the reasons for such belief have to be recorded in writing. The language of the Section does not show that there is any requirement of mentioning any link or nexus between the convict or detenu and the property ostensibly standing in the name of the person to whom the notice has been issued. Section 8 of the Act which deals with burden of proof is very important. It lays down that in any proceedings under the Act, the burden of proving tha ..... 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