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2017 DIGILAW 1657 (RAJ)

Sumta @ Sunita v. State Of Rajasthan

2017-07-25

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT ORDER Pushpendra Singh Bhati, J. - This criminal misc. petition under Section 482 Cr.P.C. has been preferred against seizing/freezing order passed for seizure of Plot No.C-46, Parshvanath City, Jodhpur of the petitioner in FIR No.190/2016, registered at Police Station, Boranada for the offences under Sections 8/18, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and Sections 467, 468 and 471 IPC. 2. Brief facts of this case, as noticed by this Court, are that an FIR bearing No.190/2016 was registered at Police Station, Boranada on 11.10.2016. During investigation, on 14.10.2016, a notice was given to the petitioner by the SHO, Police Station, Luni under Sections 68-E and 68-F of the Act. As per the notice, the concerned SHO, during investigation of the above-mentioned FIR No.190/2016, seized 70 grams of opium and some cash from possession of the present petitioner from the above-mentioned property. The SHO, Police Station, Luni vide notice dated 14.10.2016 seized the property of the petitioner under Sections 68-E and 68-F of the Act. The copy of the said notice was sent to the Deputy Commissioner (West), Jodhpur Commissionerate and the competent authority under the NDPS Act, New Delhi. Thereafter, the concerned SHO has locked and sealed the premises of plot No.C-46, Parshvanath City, Jodhpur. 3. Learned counsel for the petitioner has pointed out that invocation of Section 68-F of the Act was illegal, as under the relevant provision, copy of the order of seizure was to be sent to the competent authority within forty eight hours and was to be approved within thirty days by the competent authority, failing which the proceedings under Section 68-F of the Act shall have no effect. 4. As per learned counsel for the petitioner, copy of the order of seizure was sent to the competent authority after lapse of forty eight hours, and as per the reply filed by the respondent, the approval of the competent authority under the NDPS Act, New Delhi has yet not been received, even after passage of so many months. 5. Learned Public Prosecutor has shown the track record of the petitioner and has tried to impress upon the Court that the petitioner is a habitual offender, and therefore, invocation of Section 68-F of the Act was justified. 6. Heard learned counsel for the parties and perused the record of the case. 7. 5. Learned Public Prosecutor has shown the track record of the petitioner and has tried to impress upon the Court that the petitioner is a habitual offender, and therefore, invocation of Section 68-F of the Act was justified. 6. Heard learned counsel for the parties and perused the record of the case. 7. Section 68-F of the Act reads as under:- "Section 68-F. Seizure or freezing of illegally acquired property. - (1) Where any officer conducting an inquiry or investigation under section 68E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is an illegally acquired property and such property is likely to be concealed, transferred or dealt with in any manner which will result in frustrating any proceeding relating to forfeiture of such property under this Chapter, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order 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 competent authority and a copy of such order shall be served on the person concerned: Provided that the competent authority shall be duly informed of any order made under this sub-section and a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made. Explanation.- For the purposes of this section, "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes- (a) the creation of a trust in property; (b) the grant or creation of any lease, mortgage, charge, easement, license, power, partnership or interest in property; (c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favor of any person other than the donee of the power; and (d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person." 8. It is not disputed by the respondent that as per Section 68-F(2), the approval was not taken, and therefore, the order of seizure automatically becomes bad after lapse of thirty days. The document dated 18.10.2016 written by the competent authority, NDPS Act, New Delhi clearly points out that the order of seizure has not been confirmed by the competent authority even after a passage of thirty days of the order being communicated. Thus, it is clear from the record that the mandatory provision of Section 68-F(2) of the Act, which stipulates that any order made under sub-section (1) of Section 68-F of the Act shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made. 9. In light of the aforesaid discussion and considering the fact that in the present case, the order of seizure was made on 14.10.2016, but has not yet been confirmed by the competent authority, the present misc. petition is allowed and the seizure order dated 14.10.2016 passed by SHO, Police Station, Luni, Jodhpur (West) during investigation in FIR No.190/2016, registered at Police Station, Boranada is quashed and set aside, in terms of the same having no effect, as per the clear statutory provision of Section 68-F (2) of the Act. petition is allowed and the seizure order dated 14.10.2016 passed by SHO, Police Station, Luni, Jodhpur (West) during investigation in FIR No.190/2016, registered at Police Station, Boranada is quashed and set aside, in terms of the same having no effect, as per the clear statutory provision of Section 68-F (2) of the Act. It is needles to say that if the respondents have to proceed against the petitioner, the same shall be only strictly in accordance with law.