| |
| |
| Nomination of Competent Authority |
|
|
|
| |
Under Sec. 68D
of the NDPS Act, 1985. the Central Government
is empowered to nominate officers of the rank
specified in the said Section to perform the functions
of the Competent Authority. |
|
| Prohibition
of holding illegally acquired property |
|
Section 68C of
NDPS Act states that it shall not be lawful for
any person to hold any “illegally acquired
property” as defined in Section 68B(g),
ibid. Any illegally acquired property is liable
to be forfeited to the Central Government in accordance
with the provisions of Chapter V-A of the NDPS
Act. However, no property can be forfeited if
the property was acquired before a period of six
years from the date on which a person is arrested/detained
for an offence relating to illicit trafficking
in drugs. |
|
| Identification,
seizure and freezing of illegally acquired property |
|
Sections 68 E
and F contain provisions for identification, tracing
and freezing/ seizing of proceeds and property
illegally acquired. It is one of the most important
part of investigation by drug enforcement agency.
The legislative scheme envisages that officers
authorized u/s. 53 should trace and identify illegally
acquired property and either freeze or seize it
before initiation of detailed investigation and
formal for feiture. The aim of these
measures is to prevent transfer, concealment etc.
of the property during the pendency of proceedings
of forfeiture of property and prosecution launched
under the Act.
The tracing and identification may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of accounts in any bank or financial institutions or any other relevant matter. The inquiry or investigation or survey for tracing and identification of any property illegally acquired shall be carried out in accordance with any directions or guidelines issued by the Competent Authority in this behalf. |
|
| Freezing
or seizing of illegally acquired property |
|
Whenever any
officer conducting enquiry or investigation under
Sec. 68 E has a reasonable belief that the properties
which is the subject matter of investigation is
likely to be concealed, transferred or otherwise
dealt with in a manner which would frustrate forfeiture
under Chapter V-A, he may make an order for seizing
such property and where it is not possible, he
may make an order to the effect that the property
shall not be transferred or otherwise dealt with
except with the prior permission of the officer
making such order or the Competent Authority.
A copy of this order should be served on the person
concerned and also sent to the Competent Authority
within 48 hours of its being made. |
| |
| Proceedings by the Competent Authority |
| |
| 1. Coformation of ceizing /freezing |
| |
| No order made under Section 68 F (1) shall have any effect unless it is confirmed by order of the Competent Authority within a period of 30 days of its being made. This is a statutory requirement under the law. If the Competent Authority does not confirm the freezing order within the stipulated period, such order is automatically rendered ineffective and the trafficker can do whatever he likes with the property. |
| |
| 2. Issue of show cause notice U/S 68 H of NDPS Act |
| |
| After the offender is convicted for ten years are more or he/she is detained under PIT N.D.P.S.1988 & the competent authority has reason to belive (the reason for such belive to be recorded in writing) on the basis of a report from investigating offcer, that all or any of such propreties are illgally acqired properties, he may issue a notice upon such person (affected person) calling upon him /her within a period of thirty days to indicate the sources of his/her income earnings or asstes to prove the legal acuqisition of the properties and to show couse why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government. A copy of show cause notice are also issued to the relatives/associates of the affected person.. However, in case of persons arrested under NDPS Act 1985 who have neither been convicted nor detained under PIT N DPS ACT 1988, notice of forfeiture under section 68 H of NDPS Act can not be issued but their properties shall remain still seized/freezed. |
| |
| Afording apportunity of personal hearing |
| |
| Before final order of forfeiture/release is passed by the Competent Authority, the affected person is given opportunity a personal hearing in the interest of natural justice and to enable to him/her to submit the proof/ evidence of legal source of acquisition of the properties. |
| |
| Order of forfeiture/release of property U/S 68 I of NDPS Act |
| |
| The Competent Authority may, after sonsidering the explanation, if any, to the show cause notice issued under section 68 H, and the materials available before if and after giving to the person affected (and in case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties. |
| |
|
| Service of any notice or order |
|
Section 68X requires
that any notice or order issued under Chapter
V-A shall be served by sending it by Registered
post with acknowledgement due to the person for
whom it is intended or to his agent. If the notice
cannot be served in the aforesaid manner, it should
be affixed in a conspicuous place in the property
in relation to which the notice or order is issued.
This section does not require effective service
on the person receiving it. The notice can also
be served by pasting in a conspicuous place of
the premises in which the person for whom it is
intended is known to have last resided or carried
out business or personally worked for gain. |
|
| Meaning
of the term ‘property’ |
|
Property has
been defined in Chapter V-A to include assets
of description whether corporeal or in corporeal,
movable or immovable, tangible or intangible and
deeds and instruments evidencing title to, oninterest in, such property or assets, derived from or used in, the illicit traffic.
Trusts have also been defined. Besides, the property
of a person charged for an offence, the property
of certain relatives, associates and trusts have
also to be included. Movable properties may include
vehicles, conveyances, live stock, cash, gold,
diamond, jewellery of all description, fixtures,
furniture, consumer durables like TV, fridge,
VCR etc, bank deposits, investments of all types
including fixed deposits, shares and debentures,
deposits with the public and private companies,
bank accounts, deeds and instruments including
any advance or loans made etc. Immovable property,
besides land and buildings, would include trees
and crops attached to the ground. |
|
| Management
of seized/forfeited property |
|
Under Section
68G, Administrators are required to receive
and manage the seized or forfeited property. Presently,
the Competent Authorities have also been designated
as Administrators. The illegally Acquired property
(Receipt, Management and Disposal) Rules, 1989
have been framed for better management and disposal
of property. These rules lay down the manner of
storage of valuables, other property, management
of land and building, procedure for disposal of
livestock, perishables etc. |
| |
|
| |