|Under the NDPS Act 1985 prohibition has been imposed on possession of illegally acquired properties vide section 8 A and Section 68 C of the Act. Section 8 A is applicable to every person whereas prohibition under section 68 C is applicable for persons specified under section 68 A 2 of the Act (these persons are either drug offender themselves or their relatives and associates) . The prohibition imposed under section 68 C 1 has to be enforced by forfeiting the properties by following procedure under chapter VA of the Act.
I. The Prohibition under The Act
This section imposes prohibition on certain activities related with the properties derived from an offence under the NDPS Act. These prohibitions are applicable to all irrespective of his/her actual involvement in the activity of drug trafficking.
- Prohibition on conversion and transfer of property acquired illegally: A person who knows that a property has been derived form an offence under the NDPS Act shall not convert or transfer it for
i. Disguising its illicit origin.
ii. Assisting any person in commission of an offence
iii. Evading legal consequences.
- Prohibition on concealment of nature source etc of property acquired illegally: A person who knows that a property has been derived from an offence under the NDPS Act shall not conceal or disguise its true nature, source, location or disposition.
- Prohibition on acquisition possession or use of property acquired illegally: A person who knows that a property has been derived from an offence under the NDPS Act shall not acquire, possess or use it.
This section prohibits any person covered under section 68 A 2 of chapter VA of the Act to hold any illegally acquired property either directly or through any other person .If any illegally acquired property is held by such person this shall be liable for forfeiture to the central government. This section thus is the origin of forfeiture proceedings under the Act.
II. The Persons to whom prohibitions under the Act apply
Action for forfeiture of property under Narcotics Drugs and Psychotropic Substances Act 1985 is to be taken against following category of persons under provisions of chapter VA of the Act (Subsection 2 of Section 68A of the Act):
- A person who has been convicted of an offence punishable under the Act with imprisonment of ten years or more.
- A person who has been convicted of a similar offence by a competent court of criminal jurisdiction outside India.
- A person against whom an order for detention under PIT NDPSA 1988 or J&K PIT NDPSA 1988 has been made subject to conditions specified in the Act.
- A person who has been arrested or against whom a arrest warrant/authorization of arrest has been issued for an offence punishable with imprisonment of ten years or more or against whom a arrest warrant/authorization of arrest has been issued for commission of similar offence under any corresponding law of any other country.
- The following relatives of the person in (a) to (cc) above:
1. Spouse of the person
2. Brother or sister of the person
3. Brother or sister of the spouse of the person
4. Any lineal ascendant or descendent of the person
5. Any lineal ascendant or descendent of the spouse of the person
6. Spouse of the persons referred in (b) to (e) above.
7. Lineal descendent of persons in (b) and (c) above.
- The following associates of the person in (a) to (cc) above
1. Individual/s who had been or residing in the residential premises of the person.
2. Individual/s who had been managing the affairs or keeping the account of the person.
3. Any business entity** of which the person was or is a member, partner or director.
4. Those persons who had been member, partner or director of the business entity during the time when the person was member, partner or director.
5. Manager or accountant of the business entity referred in (j) above.
6. Trustee/s of trust created by the person or where the person has contributed more than twenty percent in the assets of trust.
7. The person/s who in the opinion of the competent authority for reasons recorded is holding benami property for the person.
**Business Entity means association of persons, body of individuals, partnership firms, or private company under The Company Act 1956.
- Holder of a property which was acquired from illegal earnings from drug trafficking unless the holder has purchased it in good faith for adequate consideration.
III. The Identification and Freezing of Illegal Properties
Section 68E of the Act empowers officers to carry out investigations for identifying illegally acquired properties of persons covered under the Act
IV. The Search, Seizure & Arrest for Collection of Evidence Relating to Illegal Properties
The Act has given wide powers for search seizure or arrest in connection with collection of evidence related with any property, which may be liable to forfeiture under Chapter VA of the Act.
This section grants powers to issue arrest warrant /search warrant in connection with collection of evidence for unearthing drugs or documents related with illegally acquire properties. The officers empowered are:
a) A Metropolitan Magistrate or a Magistrate of first class or a Magistrate of second class duly empowered by State Government.
b) Any Gazetted officer of department of
i. Central Excise
iv. Revenue Intelligence
v. Any other officer duly empowered
This section grants powers of search seizure and arrest without warrant, during the sunrise and sunset if the officer gets an information and record such information in writing. During sunset and sunrise if the officer has grounds to believe that obtaining a search warrant would lead to concealment of evidence or escape of the offender, he may record the grounds and proceed with further action without a warrant. He however shall send the information recorded or the ground of belief within seventy-two hours to his immediate superior.
The officers for purpose of this section are any officer (being superior in rank to a peon, sepoy and constable) of the departments of central excise, narcotics, customs revenue intelligence or any other central government department or para military forces or armed forces empowered by central government or any officer of state government duly empowered.
C. THE FORFEITURE PROCEEDINGS AND AUTHORITY
(Part D and E of the chapter have been combined with this part)
The Competent Authority
Section 68D of the Act provides for appointment of Competent Authority for forfeiture proceedings under chapter VA of the Act.
Section 68F of the Act empowers officers to freeze the properties so identified and send the freezing order to Competent Authority for confirmation within forty eight hours of freezing. The freezing orders become effective after confirmation by the competent authority.
The Show Cause Notice
Section 68 H of the Act provides for issue of show cause notice by the Competent Authority.
The Forfeiture of Property
Section 68 I provides for forfeiture of properties by the competent authority.
The Burden of Proof
Section 8 puts the burden of proof on the person hit by the provisions of the Act
The Fine in Lieu of Forfeiture
Section 68 K provides for imposition of fine in lieu of forfeiture in case where source of any part of of the illegally acquired property has been explained a fine in lieu of forfeiture equal to the market value of such part can be imposed.
The Transfer of Property
Section 68 M provides that transfer of any property in respect of which a show cause notice has been issued shall be ignored for proceedings under the Act and if the property is forfeited at a later date such transfer shall be treated as null and void.
Section 68 O provides for appeal before tribunal constituted under section 68 N of the Act.