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2008 DIGILAW 251 (JK)

Fareeda Akhter v. State Of J. &K.

2008-06-06

BASHIR AHMAD KIRMANI

body2008
1. Petitioner herein seeks quashment of criminal proceedings purporting to have been initiated by concerned police which ultimately culminated in seizure/attachment of her residential house situated at Saderbal, Srinagar wherefrom she has reportedly been driven out after the seizure. 2. It appears that way back in 2007 her husband, namely, Gulam Hassan Mir was arrested on information and found to be an active militant of Hizb-ul-Mujahiddin (a militant organization) who is reported to have informed his interrogators that he had constructed a house in the name of his wife at Saderbal, Sriangar out of the money which he got and collected by terrorist activities whereupon concerned police while invoking the provisions of Unlawful Activities (Prevention) Amendment Act, 2004 seized the house after Deputy Commissioners furnishing a questionnaire to the petitioner herein regarding sources from where she constructed the same. 3. Grounds pleaded to assail the proceedings as projected by petitioners counsel during course of arguments are that in the first instance the house belonged to and was constructed by petitioner and not her husband and, as such, could not have been seized by concerned police and, secondly, that the requisite procedural steps for its attachment / seizure not having been taken the seizure was illegal. In response Mr. Rathore appearing for other side has contended that having been found to have been constructed out of the proceeds of militancy the house was rightly seized by police under the aforesaid Act and, as such, proceedings could not be assailed. 4. I have heard learned counsel and considered the matter. Before proceeding ahead, it would be appropriate to notice that from the case diaries furnished in the matter it transpires that petitioners husband, namely, Gulam Hassan, was arrested on June 24, 2007 on a tip off by some source who during course of interrogation is reported to have divulged that the house under reference was constructed by him in the name of his wife, the present petitioner, out of money collected by him during terrorist activities which persuaded concerned Investigating Officer to initiate proceedings under Unlawful Activities (Prevention) Amendment Act, 2004 and proceeding thereunder he ultimately seized / attached the house throwing out the petitioner and her family therefrom. 5. In order to assess the challenge put forth to the process of seizure etc. it would be appropriate to notice the relevant provisions of the Act. 5. In order to assess the challenge put forth to the process of seizure etc. it would be appropriate to notice the relevant provisions of the Act. After defining the relevant terms / expressions in Section 2(d), (e), (g), (h) and (k) as follows: "(d) "Court" means a Criminal Court having jurisdiction, under the Code, to try offences under this Act. (e) "Designated Authority" means such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by a notification published in the Official Gazette; (g) "proceeds of terrorism" means all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose possession they are found, and includes any property which is being used, or is intended to be used, for the purpose of a terrorist organization; (h) "property" means property and assets of every description, whether corporeal or incorporeal, movable or immovable; tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets, and includes cash and bank account; and (k) "terrorist act" has the meaning assigned to it in Sec. 15, and the expressions "terrorism" and "terrorist" shall be construed accordingly; The Act provides for forfeiture of proceeds of terrorism in Chapter V containing Sections 24 to 34 with relevant sections running as under: "24. Forfeiture of proceeds of terrorism.- (1) No person shall hold or be in possession of any proceeds of terrorism. (2) Proceeds of terrorism, whether held by a terrorist or by any other person and whether or not such terrorist or other person is prosecuted or convicted for any offence under Chapter IV or Chapter VI, shall be liable to be forfeited to the Central Government or the State Government, as the case may be, in the manner provided under this chapter. 25. 25. Powers of investigating officer and Designated Authority and appeal against order of Designated Authority.- If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned. (2) The investigating officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property. (3) The Designated Authority before whom the seized or attached property is produced shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production; Provided that an opportunity of making a representation by the person whose property is being seized or attached shall be given. (4) In the case of immovable property attached by the investigating officer, it shall be deemed to have been produced before the Designated Authority, when the investigating officer notifies his report and places it at the disposal of the Designated Authority. (5) The investigating officer may seize and detain any case to which this chapter applies if he has reasonable grounds for suspecting that - (a) it is intended to be used for the purposes of terrorism; or (b) it forms the whole or part of the resources of a terrorist organization; Provided that the case seized under this sub section by the investigating officer shall be released within a period of forty-eight hours beginning with the time when it is seized unless the matter involving the case is before the Designated Authority and such `Authority passes an order allowing its retention beyond forty-eight hours. (6) Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the Court within a period of thirty days from the date of receipt of the order, and the Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property. 26. Court to order forfeiture of proceeds of terrorism. - Where any property is seized or attached on the ground that it constitutes proceeds of terrorism and the Court confirms the order in this regard under sub-section (6) of Sec. 25, it may order forfeiture of such property, whether or not the person from whose possession it is seized or attached, is prosecuted in a Court for an offence under Chapter IV or Chapter VI. 27. Issue of show cause notice before forfeiture of proceeds of terrorism.- (1) No order forfeiting any proceeds of terrorism shall be made under Section 26 unless the person holding or in possession of such proceeds is given a notice in writing informing him of the grounds on which it is proposed to forfeit the proceeds of terrorism and such person is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of forfeiture and is also given a reasonable opportunity of being heard in the matter (2) No order of forfeiture shall be made under subsection (1), if such person established that he is a bona fide transferee of such proceeds for value without knowing that they represent proceeds of terrorism. (3) It shall be competent for the Court to make an order in respect of the property seized or attached, - (a) directing it to be sold if it is perishable property and the provision of Sec. 459 of the Code shall, as nearly as may be practicable, apply to the net proceeds of such sale; (b) nominating any officer of the Central Government or the State Government, in the case of any other property, to perform the function of the administrator of such property subject to such conditions as may be specified by the Court. 28. Appeal. 28. Appeal. - (a) Any person aggrieved by an order of forfeiture under Sec. 26 may, within one month from the date of the receipt of such order, appeal to the High Court within whose jurisdiction, the Court, which passed the order appealed against is situated. (2) XXX XXX XXX 31. Powers of Designated Authority. - The Designated Authority, acting under the provisions of this chapter, shall have all the powers of a Civil Court required for making a full and fair inquiry into the matter before it." Thus under Section 25, any property created from proceeds of terrorism by any person whether in his own name or in the name of his spouse or anybody else is liable to forfeiture after having been found to have been so created which the concerned Investigating Officer would in the first instance attach and inform the Designated Authority within 48 hours who would after hearing the effected party confirm or vacate the same and submit the case to the `court within two months who would conduct proceedings for forfeiture in accordance with above quoted provisions before whom the aggrieved party would be entitled to represent for vacation of the seizure / attachment order. 6. Incidentally, as alleged by petitioners counsel and confirmed by case diaries in first instance no formal order of seizure appears to have been passed by concerned Investigating Officer even while prior permission of Director General of Police is shown to have been received by him for the same, nor for that matter does the case diaries reveal anything to suggest that the Designated authority received the report of Investigating Officer regarding seizure or conducted any proceedings thereupon. Issuance of notice to petitioner of any such proceedings ordered or conducted is also not revealed by case diary. That being so, the contention raised on behalf of petitioner regarding non observance of procedural requirements as envisaged under above mentioned provision of the Act appears to be well founded exposing the entire proceeding to the challenge. At the same time, however, seizure / attachment under the Act is lawfully questionable before the appointed court in terms of the Act itself and in first instance ordinarily the effected party in this case should be left to exhaust that remedy because nothing is known about the proceedings, if any, taken by the Designated authority. 7. At the same time, however, seizure / attachment under the Act is lawfully questionable before the appointed court in terms of the Act itself and in first instance ordinarily the effected party in this case should be left to exhaust that remedy because nothing is known about the proceedings, if any, taken by the Designated authority. 7. Accordingly, in given circumstances, the petition is disposed of by providing that the Investigating Officer and designated authority concerned shall provide copies of all orders passed by them to the petitioner so that she is able to seek redressal by approaching the concerned court in terms of Section 25(3) of the Act. Meanwhile, the order of seizure / attachment passed in the matter regarding petitioners house above said would stay intact subject to final orders of concerned court. However, petitioner and her minor children would be allowed to reside therein after executing an undertaking to the satisfaction of concerned Investigating Officer that she would not lease out or dispose of the property or change its nature. At the same time, Investigating Officer would conspicuously exhibit a board on this house reflecting the fact of its being attached property. The concerned `court would conclude proceedings coming before him whether from Designated Authority or the petitioner within a period of four months from now. Disposed of accordingly.