1. This batch of appeals under section 68-O(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), arise out of a common order of the Competent Authority, Lucknow, dated August 30, 1996, made under section 68-I(1), (2) and (3) of the NDPS Act, forfeiting the properties of the appellants mentioned in the said order.
2. Virendra Kumar Rai, the appellant in F.P.A. No. ND-8/LKW of 1996 was detained under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS), under a detention order dated April 4, 1990, for illicit trafficking in NDPS, in which a reference was made by an earlier detention order dated October 1, 1986, made under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
3. The properties of the appellants were forfeited as illegally acquired properties by the competent authority by earlier orders. The said orders were questioned before this Tribunal and were set aside and remanded to the competent authority for fresh disposal and again orders forfeiting the properties were passed, which were again questioned before this Tribunal on the ground that the appellants had no opportunity of putting forth their case, as they had no notice of the proceedings taken by the competent authority. This Tribunal by order dated February 7, 1996, set aside the orders of forfeiture and directed the competent authority to give four weeks time to the appellants to file reply/explanation to the show-cause notices which were issued to the appellants and to decide the matters afresh, by following the guidelines/directions set out in the said order. The appellants were permitted to produce evidence/documentary or oral, or to make oral submissions before the competent authority.
4. The Narcotics Control Bureau identified some more properties acquired by the detenu and his family members and a notice dated September 15, 1994, was issued to the detenu including those properties also and similar notices were issued to the other appellants, in whose names the properties were found.
5. The appellants took the plea before the competent authority that the forfeited properties are not illegally acquired properties and are not liable to be forfeited. They filed certain documents in original and photocopies of certain other documents in support of their contentions.
The competent authority considered the documents produced by the appellants and on hearing their contentions, directed the forfeiture of the properties, by holding that they are illegally acquired properties, giving rise to the present appeals.
6. Shri Manish Tiwari, learned counsel for all the appellants firstly contended that the proceedings are barred by limitation prescribed under the proviso to section 68C of the NDPS Act, inasmuch as more than six years have lapsed before the order of detention on April 4, 1990, whereas, the forfeited properties were acquired between the years 1953 and 1992. The second contention of learned counsel is that the properties of Roopa Rai, the appellant in appeal No. ND-15/LKW of 1996, cannot be forfeited as she is not related to the detenu and her so-called marriage with the detenu was void and is not valid in the eye of law. It was further submitted that the properties acquired between the years 1953 and 1955 can in no case be held to be illegally acquired properties, as the detenu was aged only about five years during that period and he could not have acquired the said properties by money earned out of illegal trafficking. It was lastly contended that the forfeiture of the other properties is also incorrect inasmuch as they are not the illegally acquired properties of the appellants and are their properties which were legally acquired by them.
7. The first contention of learned counsel is based on the proviso to section 68C(2) of the NDPS Act. Section 68C reads as follows : "68C. (1) As from the commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any ille-gally acquired property either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Chapter : Provided that no property shall be forfeited under this Chapter if such property was acquired by a person to whom this Act applies before a period of six years from the date on which he was charged for an offence relating to illicit traffic." 8. Learned counsel vehemently contended that the properties acquired prior to six years from the date on which the detenu was charged cannot be held to be illegally acquired properties and inasmuch as the properties were acquired during the year 1982 and earlier, their acquisition was clearly beyond six years from the date of the detention of the detenu on April 4, 1990, and hence the forfeiture orders should be set aside.
9. From a reading of the proviso to section 68C(2) it is seen that a period of limitation of six years from the date on which the person was charged for an offence relating to illicit trafficking is fixed and properties acquired prior to six years from the date cannot be forfeited. By virtue of section 68A of the NDPS Act, the provisions of Chapter VA are made applicable to persons specified in sub-section (2) of section 68A, namely, (a) every person who has been convicted of an offence punishable under the Act with imprisonment for a term of 5 years or more, (b) every person who has been convicted of a similar offence by a competent court of criminal jurisdiction outside India, (c) every person in respect of whom an order of detention has been made under the PITNDPS, or under the Jammu and Kashmir Prevention of Illicit Traffic in NDPS, provided that the said order of detention has not been revoked on the report of the Advisory Board constituted under the said Acts or such order of detention has not been set aside by a court of competent jurisdiction. Under clauses (d), (e) and (f), relatives, associates and others all the persons mentioned above are also included. It is, therefore, to be seen that the provisions under Chapter VA apply to persons convicted of an offence punishable under the aforementioned Acts with imprisonment for a term of five years and also every person in respect of whom an order of detention has been made under those Acts and has not been revoked or set aside judicially.
10. It is to be noted that Chapter VA of the NDPS Act was inserted by Act 2 of 1989 by which time the PITNDPS Act, 1988, had already been enacted by Parliament. The NDPS Act was enacted in the year 1985. It was found that it was not possible to contain the great damage done by the illicit traffic in the NDPS Act by the mere enactment of the NDPS Act. Parliament found it necessary to effectively immobilise the traffickers in drugs by enacting the PITNDPS Act as is made clear by the Statement of Objects and Reasons of the said Act : In recent years, India has been facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction. This trend has created an illicit demand for drugs within the country which may result in the increase of illicit cultivation and manufacture of drugs. Although a number of legislative, administrative and other preventive measures, including the deterrent penal provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985, have been taken by the Government, the transit traffic in illicit drugs had not been completely eliminated. It was, therefore, felt that a preventive detention law should be enacted with a view to effectively immobilising the traffickers. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, provides for preventive detention in relation to smuggling of drugs and psychotropic substances, but it cannot be invoked to deal with persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was, therefore, felt that a separate legislation should be enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances." 11. Apart from imposing punishments on drug traffickers by virtue of the NDPS Act, the activities of illicit traffickers were sought to be prevented by virtue of section 3 of the PITNDPS Act which is in the following terms : "3. Power to make orders detaining certain persons. - (1) The Central Government or a State Government, or any other officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained . . ." 12. While incorporating Chapter VA in the NDPS Act in the year 1989, Parliament was aware of the existence of the PITNDPS Act and was aware of the fact that the persons engaged in illicit traffic in the NDPS Act can be detained under section 3 of the PITNDPS Act and that was the reason why clause (c) of section 68A(2) found place in section 68A.While prescribing a period of limitation in forfeiting the properties of the person to whom Chapter VA applies, Parliament thought it fit to except property of only persons charged with offence relating to illicit traffic and the property has been acquired before a period of six years from the date on which he was charged for an offence relating to illicit traffic and did not choose to bring under the exception, the person who has been detained under the PITNDPS Act. This omission to include detained persons for the purpose of the proviso, in our view, was made consciously by Parliament. The activities of illicit traffickers indulging in illicit traffic, as defined in clause (e) of section 2 are viewed to be of a very serious nature and hence, Parliament did not extend the same benefit which was made available to persons charged with an offence under the proviso to section 68C(2).
13. We are not impressed with the contention of learned counsel that the words "charged for an offence relating to illicit traffic" in the proviso to section 68C(2) should be read as including person detained also. The golden rule of interpretation is to take the plain reading of the words used by Parliament and to adhere to the ordinary meaning of the words used. It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute, unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. As Lord Loreburn L. C., Vickers Sons and Maxim, Ltd. v. Evans [1910] AC 444 (HL) said, we are not entitled to read words into an Act of Parliament, unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
14. It is not open to the court to add or subtract any words from the provisions of law enacted by Parliament in its wisdom. Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. We cannot agree with the contention of learned counsel that it will lead to a harsh result, if the proviso is not interpreted as to cover the cases of persons detained. As expounded by Coleridge J. (Gwynne v. Burnell [1840] 7 Cl.
& F. 572), the interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient. Words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded.
15. The proviso to section 68C(2) made an exception only in the case of a "person charged for an offence related to illicit traffic". The words "charged" and "offence" are not defined in the NDPS Act. An inclusive definition of "charged" is made in section 2(b) of the Code of Criminal Procedure, 1973, as including any head of charge when the charge contains more heads than one. A charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. The words denote a charge formulated after an enquiry, as distinguished from the popular meaning of the words. Charges are based on complaints, which either culminate in trial or discharge and either in acquittal or conviction if there is trial.
The word "offence" is defined in section 2(n) of the Criminal Procedure Code as meaning any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Tresspass Act, 1871. It is, therefore, clear that the words "charged for an offence relating to illicit traffic" used in the proviso to section 68C(2) are in relation to a charge against a person accused of committing an offence of illicit traffic in relation to narcotic drugs and psychotropic substances as defined by clause (viiia) of section 2 of the NDPS Act. Under the provisions of the NDPS Act, no detention is contemplated and hence no person engaged in illicit traffic can be detained under the said Act.
16. A person engaged in illicit traffic can be detained under section 3 of the PITNDPS Act with a view to preventing him from engaging in illicit traffic. Under the said proviso, charging a person for an offence is not contemplated. Detention is meant as a preventive measure and is not punitive, in the sense that the person is not punished for committing an offence. The question of charging a person for engaging in illicit traffic under section 3, therefore, does not arise. An order of detention under section 3 is to be based on grounds leading to the satisfaction of the detaining authority, but it is necessary to pass the order with a view to prevent the detenu from engaging in illicit traffic. It is thus clear that the words "charged for an offence" in the proviso to section 68C(2) do not refer to a person detained under the PITNDPS Act and the proviso to section 68C(2) cannot be invoked in the case of a person detained under section 3 of the PITNDPS Act. We are, therefore, of the considered view that the period of limitation prescribed in the proviso to section 68C(2) of the NDPS Act does not cover persons detained under the PITNDPS Act.
17. We will next deal with the second submission made by learned counsel for the appellant in Appeal No. 15 of Roopa Rai. The contention of learned counsel for the appellant is that there was no valid marriage between the appellant and the detenu in the eye of law and, therefore, Roopa Rai is not covered under section 68A(2)(d) of the NDPS Act and that her properties cannot be forfeited. It is pertinent to note that Roopa Rai clearly stated in the affidavits filed in this Tribunal as well as before the competent authority that she is the wife of the detenu. Even in the vakalat and the memorandum of appeal filed before this Tribunal, she described herself as the wife of the detenu and has given his address as hers.
18. It is not open to the appellant to blow hot and cold and to approbate and to reprobate. She cannot be permitted to take different stands at different times to suit her convenience. Having regard to the long course of conduct of the appellant, that she is the legally wedded wife of Virendra Kumar Rai, the court may presume the existence of a valid marriage between the appellant and Virendra Kumar Rai, having regard to the common course of natural events and their conduct.
19. Under section 114 of the Indian Evidence Act, 1872, the court may presume the existence of certain facts. In Badri Prasad v. Deputy Director of Consolidation, AIR 1978 SC 1557, it was held by the Supreme Court that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife and that although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin and that law leans in favour of legitimacy. In Chavali Bonoraoji v. Chavali Sankara Rao, AIR 1990 NOC 15 (AP) it was held that since they were living together for a long period as man and wife and recognised as such, there is a presumptive evidence of valid marriage. From the facts and circumstances of the case, we have no hesitation in holding that the appellant cannot be permitted to take a different stand and to contend that she is not the legitimate wife of Virendra Kumar Rai, only to defeat the provisions of the Act.
20. Apart from that, it is to be noted that the "associate" of a detenu also comes within the meaning of "person" under section 68A(2) of the NDPS Act. An associate is defined as any individual who had been or is residing in the residential premises, including out-houses of such person under clause (b) of section 68B. The appellant has been residing with Virendra Kumar Rai in the same premises ever since her marriage with him, which is not disputed. The address for service of notices given by her in the memorandum of appeal is the same as of Virendra Kumar Rai. Notices have been served on her at the same address. We, therefore, hold that the appellant squarely falls within the definition of "associate" and is a "person" within the meaning of the Act. Viewed from any angle, either as the spouse of Virendra Kumar Rai or his associate, the provisions of the Act are applicable to her. We, therefore, reject the contention advanced on behalf of the appellant that the provisions of the Act are not applicable to the appellant.
21. Now, we take up the appeals on the merits. It has been argued that the properties acquired between years 1953 and 1955 can in no case be held to be "illegally acquired properties" as the detenu was only about 5 years old during that period and could not have acquired these properties by money earned out of illegal trafficking. It has also been contended that the forfeiture of the other properties is also incorrect inasmuch as they are not the illegally acquired properties of the appellants and are their properties which were legally acquired by them. Since learned counsel for the appellants was not able to straightaway correlate the documents with the properties claimed to have been acquired between 1953 and 1955, we, by our order dated September 10, 1997, directed the appellants to peruse the documents which they had submitted before the competent authority and to make a statement correlating the properties covered by those documents with the forfeited properties acquired between 1953 and 1955. The competent authority was directed to record his findings on the basis of the statement, as aforesaid, to be filed by the appellants. Since then we have received findings from the competent authority. These relate to properties listed at S. Nos. 1, 2, 3, 4, 5, 10 and 11 in the Schedule annexed to the impugned order; these are the properties claimed to have been acquired between 1953 and 1955.
22. Mainly for the following reasons, the competent authority has concluded that none of the said properties, viz., listed at Sl. Nos. 1, 2, 3, 4, 5, 10 and 11, were acquired between 1953 and 1955 and hence the appellants are not entitled to the benefit of the argument that these were acquired when Shri Virendra Kumar Rai, detenu, was only 5-7 years old : (a) The number(s) of the plot (s) as given in the show-cause notice.
under section 6(1) of the NDPS Act and in the Schedule to the impugned order against each of the said properties on the one hand and those given in the transfer documents under which these properties were acquired on the other do not tally, consolidation of holdings in between the period notwithstanding; (b) in some cases, area of the land under forfeiture do not tally with the area given in the respective transfer documents under which these were acquired; (c) photocopies of the Khatauni and consolidation papers filed by the appellants are signed by some officers whose designation is not indicated and some are also not signed or attested by any Gazetted Officer or the State Revenue Officer and, therefore, the said papers without the seal of authenticity cannot be treated as certified documents to prove that the properties mentioned in the Khatauni and consolidation papers are the same as mentioned in the transfer documents.
23. For the sake of better appreciation, we reproduce below the competent authority's finding in respect of property No 1.
"Property No. 1 . Land Khasra No. 18 Kha, area 0.165 hect. and Khasra No. 27/2 area 0.201 hect, i.e., total area 0.366 hect.
situated at vill. Ghatampur, Tahsil-and-Pargana-Zamania, distt.-Gazipur in the name of Smt. Kundan Devi W/o Shri Kamta Prasad Rai R/o. Vill.-Malsa, Tehsil and Pargana-Zamania distt.-Gazipur, (U.P.) :- According to the party, this property of Ghatampur village was purchased jointly by Smt. Kundan Devi W/o Shri Kamta Prasad and Smt.
Radhika Devi W/o. Shri Ram Briksha Rai for Rs. 4,920 on December 22, 1954, from Shri Bansh Narain Rai and Batuk Narain Rai, Sheo Janam Rai and Jagdish Narain Rai of vill. Deva Bairam Pur, distt. Gazipur along with other land properties in vill. Karaila Kalan and Garha Chhanbey. The photo-copy of the regd. sale deed submitted by the counsel of the affected person reveals that the plot No. and area of land purchased in vill. Ghatampur jointly by Smt. Kundan Devi and Smt. Radhika Devi is as under :---------------------------------------------------------------------- Plot No. Area Mi-10 0 12 10 Mi-26 1- 17 10 Mi-30 0 12 8 Mi-31 0 11 14 Mi-32 1 16 5 Mi-37 0 7 7 Mi-37 0 3 10 Mi-9 0 11 5 Mi-10 0 8 16 Mi-30 0 4 11 Mi-31 0 10 14 --------- -----------------------------Total 11 Area 7 16 17Plots But the plot numbers of property No. 1 in respect of which show-cause notice has been issued to the party is not the same as mentioned in the registered sale deed. In her support the party has stated that due to consolidation of land in vill. Ghatampur by the consolidation department in 1983, the plot numbers of her land were changed.
The photocopy of entry in Chakbandi Akar Patra - 41, of vill.
Ghatampur, as under :------------------------------------------------------------------------ Old No. New No. Area 15sa 6 GA 0-9-18 or 0.125 hect 32/1 sa 18 Kha 0-13-2 or 0.165 hect 23 12 1-12-13 or 413 Hect.
30 sa 0-15-17 or 0.201 hect 31 sa 27 33/2 sa 30 0-13-14 or 0.173 hect 34/2 sa The photo-copy of entry in Chakbandi Akar Patra-45 of vill.
Ghatampur, filed by the party shows as under :------------------------------------------------------------------------Khatauni Name, Parentage and residence of New, plot No. Area (inKhata No. the owner 'Gata' Heet.) 20 Smt. Kundan Devi, W/o Kamta Pd.
18 Kha 0.165 Rai, vill. Malsa Distt. Gazipur 43 Narendra Kumar Rai S/o Kamta 6 Ga 0.125 Prasad Rai, vill.Malsa 61 Virendra Kumar Rai S/o Kamta 30 0.173 Prasad Rai, vill.Malsa From the above, it is evident that the new area in the name of Smt.
Kundan Devi as per the chakbandi-papers. filed by the party is 0.366 Hect. which is significantly less than half of the total area of her share in the sale deed. Besides, most of the plot numbers of the sale deed surprisingly do not find place in chakbandi Akar patra - 41 filed by the party. The photocopy of Khatauni filed by the party shows that mutation of the land (Dakhil-Kharij) was made by the Tehsildar on August 24, 1955, but another report of the Tehsildar dated December 30, 1992, submitted by the I.O. of N.C.B. reveals that the land was acquired in 1394 (i.e. year 1987). The photocopy of Khatauni and consolidation papers filed by the party are signed by some officials whose designation is not indicated and some are also not signed or attested by any gazetted officer of the State Revenue Office. Hence, the said papers without the seal of authenticity cannot be treated as certified document to prove that the properties mentioned in the Khatauni and consolidation papers are the same properties as mentioned in the registered sale deed dated December 22, 1954. The party has also failed to submit the proof of the legal source of investments. Hence, the party does not deserve to get the benefit of the proviso of section 68C of the NDPS Act. Therefore, this property is hit by the provisions of section 68B(g) of the said Act and is liable to be forfeited." 24. We find that the competent authority has adopted more or less the same methodology in respect of other properties and has concluded that none of the said properties, namely, those listed at Sl. Nos. 1, 2, 3, 4, 5, 10 and 11 could be said to have been acquired between 1953 and 1955. On receipt of these findings, we have perused the connected relevant papers such as Khatauni, Consolidation Akar Patra 23, Akar Patra 41, Akar Patra 45, etc., some of which have actually been attested by the Tabsildar and other Revenue authorities. We have also perused the statements prepared by the appellants on the basis of these documents. These statements, inter alia, show names of persons from whom and by whom properties were acquired, year of acquisition, original numbers of the plots, various stages of consolidation proceedings, revised numbers of the plots and in whose names now these plots stand and these facts have been duly supported by the relevant documents. We are satisfied that these properties must have been acquired during 1953 and 1955. It may be noted that at the time of consolidation of land holdings, one does not necessarily get the same plots, or the same area in exchange, and that very often mutation takes place after long time. Since Shri Virendra Kumar Rai, the detenu, was admittedly of 5-7 years of age in 1953-54, it would be safe to presume that at that time he could not have tainted money of his own to acquire these properties. Accordingly, we hold that properties listed at S.Nos. 1, 2, 3, 4, 5, 10 and 11 in the Schedule are not illegally acquired properties and thus are not liable for forfeiture. The impugned order is modified accordingly.
25. The property listed at S. No. 12 in the said Schedule is in the name of Smt. Roopa Rai (Appeal No. ND-15/LKN/96). Learned counsel for the appellant has contended that this property cannot be forfeited as she (Smt. Roopa Rai) is not related to the detenu (Shri Virendra Kumar Rai) and her so-called marriage with the detenu was void and is not valid in the eye of law. The other argument advanced is that she purchased this property for Rs. 42,000 including stamp duty, registration fee and other miscellaneous expenses, which were met out of the money she got by pawning her ornaments and that she got these ornaments as "stridhan" either from her parental family members and relatives prior to her marriage or were presented to her by her husband and his relatives at the time of her marriage and after marriage.
26. We have already discussed in detail in paragraphs 16-19 (see pages 19 and 20 supra) above as to how NDPS provisions are applicable to the appellant, Smt. Roopa Rai, and accordingly the appellant's contention in this regard is not acceptable. As for the sources of financing the acquisition of her properties, the appellant has not produced any tangible and acceptable evidence to show that she did possess the ornaments claimed by her as her 'stridhan' nor has it been shown that she had regular income of her own. In the circumstances, we hold that the property in question standing in the name of Smt. Roopa Rai was financed by Shri Virendra Kumar Rai, the detenu and hence illegally acquired property. In view of this, we do not see any reason to interfere with the impugned order in so far as this property is concerned.
27. We now take up other properties, viz., those listed at 8. Nos. 6, 7, 8 and 9. These were acquired some time in 1982 and stand in the name of the detenu Shri Virendra Kumar Rai and his brothers. In respect of these properties, the appellants have argued that these were acquired by them through the money earned from the ancestral properties and business. The appellants have not produced any documents to show that the money invested for acquisition of these properties was earned from their ancestral properties or from any other legitimate sources. In fact we find that in all these appeals, the entire burden of their arguments has been that these properties were acquired more than six years prior to the date of the notice issued under section 6(1) of the NDPS Act and hence not liable for forfeiture. In the appeals not a single averment has been made to show that the appellants did have legitimate sources of income to acquire these properties. On the other hand, the competent authority has detailed in the impugned order how Shri Virendra Kumar Rai, the detenu, was involved in illegal activities including illicit trafficking in the narcotics, in fact it appears some of his other family members were also so involved. Having regard to these facts, we are convinced that these properties, viz., listed at 81. Nos. 6, 7, 8 and 9 have correctly been forfeited as illegally acquired properties.
(a) that the period of limitation prescribed in the proviso to section 68C(2) of the NDPS Act does not cover persons detained under the PITNDPS Act; (b) that the provisions of the NDPS Act are correctly applicable to Smt. Roopa Rai; (c) that the properties listed at Sl. Nos. 1, 2, 3, 4, 5, 10 and 11, were acquired between 1953 and 1955 when the detenu, Shri Virendra Kumar Rai, was only 5-7 years of age and not liable for forfeiture; and (d) that properties listed at S. Nos. 6, 7, 8, 9 and 12 have been correctly forfeited.