1 - Shiv Kumar Sahu S/o Munna Lal Sahu Aged About 32 Years R/o v. 1 - Superintendent Of Police Dist. Baloda Bazaar, Bhatapara Chhattisgarh 2 - Station House
Case Details
1 2025:CGHC:14337 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment reserved on : 04.02.2025 Judgment delivered on : 25.03.2025 CRMP No. 437 of 2025 1 - Shiv Kumar Sahu S/o Munna Lal Sahu Aged About 32 Years R/o Lavan, P.S. - Lavan Dist - Baloda Bazaar, Bhatapara Chhattisgarh ----Petitioner(s) versus 1 - Superintendent Of Police Dist. Baloda Bazaar, Bhatapara Chhattisgarh 2 - Station House OfÏcer Lavan, Dist. - Baloda Bazaar, Bhatapara Chhattisgarh ----Respondent/s For Petitioner : For Respondent/State : Mr. Sumit Singh, Advocate Mr. Karan Kumar Bahrani, P.L. Hon'ble S hri Arvind Kumar Verma, Judge C.A.V. Judgment 1. By way of instant Petition filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner is challenging the legality of a notice dated 28.01.2025 whereby the Police Station Lavan, District Baloda Bazaar, Bhatapara (C.G.) issued a notice under Section 68(F) of NDPS Act to the petitioner to produce his Aadhar Card, Pan Card, Bank Passbook, Details of Moveable and Immoveable property including Digitally signed by JYOTI JHA Date: 2025.03.25 18:09:24 +0530 2 those of his family members within three days without assigning any reasons. 2. Facts of the present case are that the wife of the Petitioner namely Haseena Sahu submitted a written complaint on 02.03.2022 in the ofÏce of Respondent no.1/ SP, Baloda Bazaar alleging that during a marriage ceremony, the ofÏcers of Respondent no. 2 asked her to open the gate of the house and conducted a raid by stating that there is contraband narcotic .i.e. Cannabis in the house. Thereafter, she was called by ofÏcer of Police Station namely Bhim Kumar Som, Sanjeev Rajput, Shiv
Legal Reasoning
Rajeshri who demanded Rs. 8 Lakhs from her against the release of her husband namely Shiv kumar Sahu, then she came to know a false case of NDPS has been registered against her husband, Shiv Sahu. Further, the Police ofÏcers of the Police Station threatened Hasina Sahu that if she will not give Rs. 8 Lakhs to them, there will be dire consequences in which his son and husband namely Shubham and Shiv respectively shall be implicated in a false NDPS Case. Further on, 21.02.2022 she handed over Rs. 1.5 Lakhs to the constable Shiv Rajetri, on 25.02.2022, Rs. 4.5 Lakhs were given to the same ofÏcer. On 27.01.2022, the Police Party called her husband and arrested him in a false NDPS Case (Annexure P/1). On 11.03.2022, the Statement of Complainant Haseena Sahu was recorded in which she has deposed identically (ANNEXURE P/2). Thereafter, on 30.04.2022 an inquiry was conducted by Deputy Superintendent of Police, Dist.- Baloda Bazaar, Bhatapara against the above-named police ofÏcers in which they have been exonerated from 3 the charges (ANNEXURE P/3). The Respondent no.2 has issued a notice dated 18.01.2025 in which the Petitioner has called upon by the Respondent no. 2 to submit Aadhar card, PAN Card, details of Bank Passbook, and other details of immoveable and moveable property, Moreover the petitioner was under obligation to submit each and every detail of his wife, children, mother, father, brothers, sisters, uncles, aunts and all near friends including business partners within 7 days which has been challenged by the present petitioner vide CRMP no. 350/2025 listed before this Hon'ble court on 29.01.2025. Further, the respondent authorities have issued a fresh notice dated 28.01.2025 to submit the above-mentioned documents within a period of 3 days (ANNEXURE P/5). 3. Learned counsel for the petitioner submits that the impugned notice dated 28.01.2025 issued by Respondent no.2 is without authority of law and not sustainable. If they have to initiate the proceedings under Section 68F of NDPS Act, 1985, it is mandatory to conduct an enquiry or investigation under Section 68E of the Act of 1985. 4. Learned counsel referred to a judgment of the Hon’ble Supreme Court in the case of Aslam Mohammad Merchant v. Competent Authority and Others., reported in (2008) 14 SCC 186, wherein Hon’ble Supreme Court has held in Para 26 and 27 as under:- “26.Chapter V-A contains stringent provisions. It provides for forfeiture of property. Such property, however, as the heading of the Chapter shows, must be derived from or used in illicit trafÏc. Illegally acquired property in relation to any person to whom the Chapter applies would mean only such property which was acquired wholly or partly out of or by means of any income 4 attributable to the contravention of any provision of the Act or for a consideration wholly or partly traceable to any property referred to in b sub-clause (i) or the income or earning from property. 27. It is, therefore, evident that the property which is sought to be forfeited must be the one which has a direct nexus with the income, etc. derived by way of contravention of any of the provisions of the Act or any property acquired therefrom. What is meant by identification of such property having regard to the definition of "identifying" is that the property was derived from or used in the illicit trafÏc.” 5. It is humbly submitted by the learned counsel for the petitioner that the requirement of law is that there must be nexus between the income generated from violation of provisions incorporated under NDPS Act and the assets created therefrom. But, here, the impugned notice lacks both the statutory elements namely "reason to believe" and "recording of reason". Hence, a show cause notice cannot be issued on one's own ipse dixit. A roving enquiry is not permitted under the Act as properties sought to be forfeited must have a direct nexus with the properties illegally acquired. 6. Further learned counsel submits that Section 68F of the NDPS Act clearly postulates that there must be reasons to believe that such acquisitions are illegal and the order passed under the section must be served upon the concerned person along-with the reasons. The respondents having not followed the procedure as laid down in Section 68F of the NDPS Act to be read with Section 68E of the NDPS Act, therefore, communications dated 28.01.2025 to the Petitioner cannot be sustained in the eyes of law. The provisions of Section 68F to be read with Section 68E of the NDPS Act, specific procedure is required to be followed by the police ofÏcials while passing orders for issuance of 5 notice, freezing the bank accounts or ceasing property of the accused under the NDPS Act and in the absence of the following said procedure, the entire proceedings are actuated with malice and are unconstitutional, arbitrary and void ab initio. 7. Further, learned counsel for the petitioner submits that the investigating agency has not issued notice under Section 68F of NDPS Act, 1985 during investigation of Crime No. 173/2022 registered at Lavan Police Station but this notice has been served upon the Petitioner after filing of the charge-sheet especially at mid-trial stage. The respondent authorities with utmost malafides are issuing consistent notices compelling the petitioner to produce the details of assets without adhering to chapter XV that is the provisions of Section 68 of NDPS Act, without the satisfaction of the provisions of Chapter XV of the Act of 1985. Thus, learned counsel for the petitioner prays for setting aside the notice dated 28.01.2025 issued by the Respondent No. 2 to the petitioner. In support of his contention, learned counsel for the petitioner placed his reliance upon a decision of the Hon’ble Supreme Court in the matter of Domnic Alex Fernandes and Union of India reported in (2017) 9 SCC 489. 8. On the other hand, learned counsel for the State opposes the above contention of learned counsel for the petitioner. 9. Heard learned counsel for the parties and perused the material available on record with utmost circumspection. 10. Section 68 (E) of NDPS Act, 1985 provides as under: 6 Every Officer empowered under Section 53 and every officer- in- charge of a police station shall, on receipt of information is satisfied that any person to whom this Chapter applies holds any illegally acquired property, he may, after recording reasons for doing so, proceed to take all steps necessary for tracing and identifying such property. (2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institution or any other relevant matters. (3) Any inquiry, investigation or survey referred to in sub- section (2) shall be carried out by an officer mentioned in sub- section(1) in accordance with such directions or guidelines as the competent authority may make or issue in this behalf. 11. This Court on an earlier occasion in the present matter has passed the order in CRMP No. 350/2025 on 29.01.2025 wherein this Court has observed as under:- 8. On perusal of the notice issued to the petitioner as well as section 68E of NDPS Act, it is crystal clear that police ofÏcer has issued show cause notice to the petitioner and directed him to produce some documents relating to property, which in the considered opinion of this court is according to the norms of natural justice. Even in the case of Aslam Mohammad and Merchant Vs. Competent Authority and Others(supra) ti was held that before passing of final order/judgment by the concerned authority issuance of show cause notice is required. In the present case there has been no final order or judgment passed by the concerned authority and only a show cause notice has been issued to the petitioner which is in accordance with the norms of natural justice, therefore this court finds that the present petition is premature and deserves to be dismissed. However, petitioner has a right to raise all his grievances before the concerned authority and the same shall be decided the objection in accordance with law. 9. Accordingly, the instant petition being without any substance 7 is hereby dismissed. 12. This Court would stand by his earlier decision as has been passed in CRMP No. 350/2025. It is only a show-cause notice to the petitioner to produce some documents relating to property, it does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. No doubt, in some very rare exceptional cases, the High Court can quash a Charge- sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. 13.Accordingly, the instant petition being without any substance is hereby dismissed. 14.However, petitioner has a right to raise all his grievances before the concerned authority and the same shall be decided in accordance with law. Sd/- (Arvind Kumar Verma) Judge Jyoti