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Monday, February 27, 2017

CRIMINAL PETITION No.15912 of 2016 05-1-2017 A.Sambaiah Nayak and another Petitioners The State of Telangana, represented by its Special Public Prosecutor Respondent

HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY          

CRIMINAL PETITION No.15912 of 2016  

05-1-2017

A.Sambaiah Nayak and another  Petitioners  

The State of Telangana, represented by  its Special Public Prosecutor
Respondent

Counsel for the petitioners: Sri T.Pradyumna Kumar Reddy


Counsel for the respondent: Sri V.Ravi Kiran Rao,
                              Learned Special Standing Counsel for the ACB,
Telangana

<GIST:

>HEAD NOTE:  


?  CASES REFERRED:    

1)(2008) 9 SCC 800
2)(2014) 10 SCC 814
3)1958 CriLJ 1217
4)(2014) 4 SCC 392

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY        

CRIMINAL PETITION No.15912 of 2016  

ORDER:
        This Criminal Petition is filed under Section 482 Cr.PC
seeking to quash the order dated 18.10.2016 passed in
Crl.M.P.No.457 of 2016 in C.C.No.5 of 2016 on the file of the Court
of the Principal Special Judge for SPE & ACB Cases-cum-IV
Additional Chief Judge, City Civil Court, Hyderabad, wherein and
whereby the reliefs sought by the petitioners to (1) return the
original sale deeds, link documents and pattadar passbooks, which
are shown as item Nos.8 to 11 in the charge sheet, to the
petitioners and (2) direct the Sub-Registrar Offices to permit sale
transactions in respect of the above documents, were rejected.
2.      The contention of Sri T. Pradyumna Kumar Reddy, the
learned counsel for the petitioner is three fold: 1) the trial Court
failed to consider that the second petitioner is the owner of the
property covered under item Nos.8 to 11, 2) the trail Court, without
considering the scope of Criminal Law Amendment Ordinance
1944 (hereinafter referred to as, the Ordinance), dismissed the
petition on assumptions and presumptions, and 3) if the order
passed by the trial Court is allowed to stand, certainly, it would
amount to abuse of process of law; therefore, it is liable to be set
aside. Per contra, Sri V. Ravi Kiran Rao, the learned Special
Standing Counsel for the ACB, State of Telangana, submitted that
the application filed by the petitioners is not maintainable either
on facts or in law.  He further submitted that the petitioners are
asking for release of the sale deeds, which per se cannot be
ordered, without seeking relief of withdrawal of the attachment.
The learned Special Standing Counsel, with humility, submitted
that on some occasions the learned Special Judges are passing
orders in a routine manner without considering the scope and
object of the Ordinance as if the petitions for release of the
properties attached under the Ordinance are maintainable under
Sections 451 and 457 of Cr.PC.
3.      This court has come across the orders wherein the learned
Special Judges allowed the petitions filed under Sections 451 and
457 Cr.PC only, directing release of the properties attached under
the provisions of the Ordinance, which are not in accordance with
law.
4.      In order to appreciate the rival contentions, it is apt to refer
the historical background of the Ordinance and other relevant
Statutes.  Any Ordinance promulgated under Article 123 of the
Constitution of India shall have the same force and effect as an Act
of Parliament; the said Ordinance shall cease to operate at the
expiration of six weeks from its reassembly unless approved by
both the Houses of Parliament. It should be noted that the
Ordinance was promulgated by virtue of the powers conferred
under Section 72 , as set out in the ninth schedule to the
Government of India Act, 1935. Section 72 emphasises that, any
ordinance made under this section is subject to the like
disallowance as an Act passed by the Indian legislature, and
may be controlled or superseded by any such Act. Therefore,
unless and until it is repealed or superseded by the Parliament, it
should be in force. Sections 18(3) and 8(2) of the Indian
Independence Act refer to the continuation of the Government of
India Act, 1935.  Latter, by virtue of Article 372(1) of the
Constitution of India, the provisions of the Ordinance have been in
force, however, with certain modifications. The Ordinance was
promulgated with an avowed object of preventing disposal or
concealment of money or other property procured by means of
offences specified in the Schedule to the Ordinance (Scheduled
Offences) and to confiscate the same in favour of the Government.
To put it in a different way, the Ordinance was promulgated in
order to discourage public at large, more particularly bureaucrats,
to acquire or procure property or money by indulging in Scheduled
Offences. This Ordinance is one of the preventive measures aimed
at curbing the menace of corruption. The Ordinance, which is a
substantive in nature, is dealing with the money or other property
suspected to be tainted with the Scheduled Offences, pending
disposal of the trial and it is in force as on today.  There is no
conflict between the provisions of the Ordinance and that of the
provisions of the Code of Criminal Procedure, as both of them are
independent and operate in different spheres.
5.      Section 2 of the Ordinance deals with two aspects  (1) the
Scheduled Offences, and (2) the date of termination of the criminal
proceedings instituted under the Ordinance.  Section 3 of the
Ordinance enables the State or Central Government, as the case
may be, to make an application to the Special Court for
attachment of the money or other property of any person
suspected to have been procured the same by committing any of
the Scheduled Offences.  Sub-section (3) of Section 3 of the
Ordinance mandates that the application shall be accompanied by
an affidavit stating the grounds for belief, that the accused has
committed the Scheduled Offence.  The affidavit shall also disclose
the location of the property and other necessary details. A perusal
of Sub-section (2) of Section 3 of the Ordinance clearly
demonstrates that the learned Special Judge has to follow the
procedure as contained in Order XXVII of the Code of Civil
Procedure, 1908 (Suits by or against Government or public officers
in their official capacity), while dealing with the proceedings for an
order of ad interim attachment.
6.      Section 4 of the Ordinance enumerates the ad interim
attachment.  Sub-section (1) of Section 4, mandates that if there
exists prima facie ground the learned Special Judge has to pass the
order of ad interim attachment without delay in order to prevent
the disposal or concealment of the property or money liable for
confiscation. Otherwise, the learned Special Judge, by assigning
reasons, can refuse to order ad interim attachment. The learned
Special Judge, before passing the order of ad interim attachment,
can examine the deponent.
7.      In view of Sub-section (2) of Section 4 of the Ordinance, the
learned Special Judge shall issue a notice to the party, whose
money or other property is being attached, along with necessary
copies of documents directing him to show cause, within a
prescribed date, why the order of ad interim attachment should
not be made absolute.  Similarly, a show cause notice has to be
issued to the persons likely to claim title or interest in the
property, to submit their objections, if any, as postulated under
Sub-section (3) of Section 4 of the Ordinance.  Notwithstanding
receipt of the notice, any person, claiming interest in the money or
other property or any part thereof, can file objections for ad interim
attachment of the property in question, in view of sub-section (4) of
Section 4 of the Ordinance. The order of ad interim attachment
shall be passed by the Special Court even before issuing notice to
the affected party as provided under Sub-section (1) of Section 4 of
the Ordinance unlike under Order XXXVII Rule 5 of CPC wherein
an attachment order is passed only after issuing notice to the
respondent.
8.      Section 5 is heart and soul of the Ordinance, which deals
with the procedure for investigation of objections filed under
Section 4 of the Ordinance.  Section 5 of the Ordinance provides a
detailed procedure to be followed by the Special Court to safeguard
the interest of the accused as well as the persons claiming title or
interest over the attached property. The ad interim order of
attachment can be made absolute if no cause much less justifiable
cause is shown for withdrawing attachment, in view of Sub-section
(1) of Section 5 of the Ordinance.  If a cause is shown or an
objection is made under Section 4, the learned Special Judge has
to investigate into the same by following the procedure and in
doing so; the learned Special Judge has all the powers of a Civil
Court in adjudicating a suit.  The underlying object of Sub-section
(2) of Section 5 of the Ordinance is that the learned Special Judge
has to conduct the investigation in such a manner as if it is a title
suit.  If the accused or any other person has filed objection petition
against the order of ad interim attachment, the burden is on the
objector to establish, by adducing oral and documentary evidence,
that the property attached was acquired by him in a lawful manner
and by the time of ad interim attachment, he has interest in the
property. A perusal of sub-section (2) of Section 5 of the
Ordinance, to my mind, indicates that the objector has to prove his
case by preponderance of probabilities. After affording reasonable
opportunity, as provided under Sub-section (3) of Section 5, the
learned Special Judge can make the ad interim attachment
absolute or can withdraw the same. Sub-section (6) of Section 5 of
the Prevention of Corruption Act, 1988 (the PC Act) enjoins that
while trying an offence under the PC Act, the learned Special Judge
shall have all the powers and functions exercisable by a District
Judge under the Ordinance.  In view of introduction of Section 29
of the PC Act, 1988, the applicability of the Ordinance is widened.
9.      Section 6 of the Ordinance enjoins the learned Special Judge
to order attachment of the property in the hands of the transferee,
which was transferred by the accused with a mala fide intention.
Sub-section (2) of Section 6 of the Ordinance manifests that if the
transferee fails to prove that he purchased the property in good
faith and with lawful consideration, the same can be attached.
Section 7 of the Ordinance deals with execution of the orders of
attachment.  The learned Special Judge can exercise powers of an
executing court so far as attachment of property is concerned.
Even though this section does not unveil in so many words, the
learned Special Judge can exercise the power under Order XXI
Rule 42 Attachment in case of decree for rent or mesne profits or other
matter, amount of which to be subsequently determined, Rule 44
Attachment of agricultural produce, Rule 45 Provisions as to agricultural
produce under attachment, Rule 49 Attachment of partnership property,
Rule 50 Execution of decree against firm, Rule 51 Attachment of
negotiable instruments, Rule 52 Attachment of property in custody of
Court or public officer, and Rule 54 Attachment of immovable property of
CPC.
10.     Any person whose property has been attached is entitled to
make an application for release of the property by furnishing
sufficient security as contemplated in Section 8 of the Ordinance.
On such application is being filed, the learned Special Judge has to
satisfy himself objectively with regard to sufficiency of the security,
before releasing the property. The word sufficient, as mentioned
in the Section, qualifies security equivalent to the market value of
the property by the time of its release. The learned Special
Standing Counsel for ACB submitted that the Special Court cannot
release the property simply on furnishing security without taking
into consideration the market value of the property and other
relevant aspects. To substantiate his contention, he has drawn the
attention of this Court to paragraph No.7 of the decision in N.
Naveen Kumar v. State of A.P. , wherein it was held as follows:
7. The High Court has rightly noted that it is the present
value of the properties which is of relevance and not the
value of the assets at the relevant point of time of seizure.
We find no substance in the plea of the appellants as
canvassed in this appeal. It is open to the appellants to
participate in the auction for sale of the properties in
question as and when held.

As per the principle enunciated in the above cited case, the Special
Court, while releasing the property attached, has to take into
consideration the value of the property at the time of release, but it
is neither the value of the property at the time of seizure, nor the
consideration as mentioned in the sale deed.
11.     Section 9 of the Ordinance deals with administration of the
attached property.  Sub-section (2) of Section 9 enables the learned
Special Judge to appoint Receiver to administer the properties
under attachment. Order XL Rule 2 Remuneration, Rule 3 Duties,
Rule 4 Enforcement of Receivers Duties, and Rule 5 When Collector
may be appointed as Receiver of CPC are made applicable in the
matter of appointment of Receiver in respect of the properties
attached under the Ordinance.  The very purpose of incorporation
of Section 9 of the Ordinance is to safeguard the properties under
attachment and income generated thereon till closure of the
criminal proceedings.
12.     Section 10 of the Ordinance deals with duration of
attachment in force. Unless it is withdrawn, an order of ad interim
attachment would be in force for a period of three months, prior to
1988 and it is one year with effect from 09.9.1988, by virtue of
Section 29 of the PC Act. After expiry of the period of one year, the
concerned authority has to make an application, for extension of
the order of ad interim attachment, subject to non-taking of
cognizance of offence by the Special Court. If, for any reason, the
Authority fails to file petition seeking extension of ad interim
attachment, within the period of one year, the same will cease
automatically. When such contingency arises, the Authority has no
option except to file a fresh application for re-attachment of the
property. Once the Special Court takes cognizance of offence, the
attachment will continue till termination of the criminal
proceedings. Any person, aggrieved by the order of attachment
passed under Sections 4, 6, 8 or 9 of the Ordinance, can prefer
appeal before the High Court within thirty days from the date of
the order, as provided under Section 11 of the Ordinance.
13.     Another interesting aspect to be considered here is whether
the provisions of the Limitation Act are applicable to the Ordinance
or not.  In State of M.P. v. Anshuman Shukla , the Honble apex
Court, while dealing with the scope of the Limitation Act, with
regard to extension of period of limitation in filing appeals under
any special or local law, observed in paragraph Nos.21, 23 and 24
as follows:
21. The Limitation Act, 1963 is the general legislation on the law
of limitation. Section 5 of the Limitation Act provides that an
appeal may be admitted after the limitation period has expired, if
the appellant satisfies the court that there was sufficient cause for
delay.
22.  
23. This Court in Mukri Gopalan case examined the question of
whether the Limitation Act will apply to the Kerala Buildings
(Lease and Rent) Control Act, 1965. While holding that the
appellate authority under the Kerala Act acts as a court, it was
held that since the Act prescribes a period of limitation, which is
different from the period of limitation prescribed under the
Limitation Act, and there is no express exclusion of Sections 4 to
24 of the Limitation Act, in the above Lease and Rent Control Act,
thus, those sections shall be applicable to the Kerala Act.
    24. While examining the provisions of Section 29(2) of the
Limitation Act, it was observed: (Mukri Gopalan case, SCC p. 15,
para 8)
    8. ... A mere look at the aforesaid provision
shows for its applicability to the facts of a given
case and for importing the machinery of the
provisions containing Sections 4 to 24 of the
Limitation Act the following two requirements have
to be satisfied by the authority invoking the said
provision:
    (i) There must be a provision for period of
limitation under any special or local law in
connection with any suit, appeal or application.
    (ii) The said prescription of period of limitation
under such special or local law should be different
from the period prescribed by the Schedule to the
Limitation Act.
It was further held that if the above two conditions are satisfied,
then the following implications would follow: (Mukri Gopalan case,
SCC pp. 15-16, para 9)
    9. If the aforesaid two requirements are
satisfied the consequences contemplated by Section
29(2) would automatically follow. These
consequences are as under:
    (i) In such a case Section 3 of the Limitation Act
would apply as if the period prescribed by the
special or local law was the period prescribed by
the Schedule.
    (ii) For determining any period of limitation
prescribed by such special or local law for a suit,
appeal or application all the provisions
containing Sections 4 to 24 (inclusive) would
apply insofar as and to the extent to which
they are not expressly excluded by such special
or local law.
    (emphasis supplied)

14.     A period of limitation is prescribed for the validity of the ad
interim attachment.  The period of limitation is also prescribed to
prefer an appeal challenging the orders passed under Sections 4,
6, 8 and 9 of the Ordinance. No provision is made in the Ordinance
excluding the application of the Limitation Act. In such
circumstances, the provisions of the Limitation act are applicable
to the Ordinance, which is a special law, in view of Sub-section (2)
of Section 29 of the Limitation Act.
15.     In the light of the principle enunciated in Anshuman Shukla,
I am of the considered view that the provisions of the Limitation
Act with regard to extension of period of limitation viz., Sections 4
to 24 especially Section 5 of the Limitation Act are applicable to the
Ordinance, which is a special law.
16.     A duty is cast on the learned Special Judge, by virtue of
Section 12 of the Ordinance, to record a specific finding as to the
amount of money or the value of other property procured by the
accused by means of the Scheduled Offences, while convicting the
accused. Consequently, the learned Special Judge has to spell out
the money and the value of the property to be confiscated in favour
of the State, in the operative portion of the judgment.
17.     A specific procedure is prescribed, by way of Section 13 of
the Ordinance, for disposal of attached property upon termination
of criminal proceedings.  Sub-section (1) of Section 13 casts a duty
on the Agent to the Government to report the Special Court about
the result of the appeal or revision, as the case may be, along with
the copy of the judgment.  Basing on such report, the learned
Special Judge shall forthwith withdraw the order of attachment of
property, or release the security given in lieu of such attachment,
in view of Sub-section (2) of Section 13.  If the accused is
convicted, the learned Special Judge shall pass the order forfeiting
the money or other property attached in favour of the Government
as provided under Sub-section (3) of Section 13.  Sub-sections (4)
to (6) of Section 13 deals with the procedure to be followed for
disposal of the attached properties.  While dealing with the scope
of Section 13, the High Court of Panta in Sonamati Devi v The
State , observed as follows:
Even when the final judgment or order of the criminal Court
is one of acquittal, there will not be termination of the
attachment, unless pursuant to Section 13 the District
Judge has passed orders in that behalf.  When the order of
acquittal is final the District Judge shall withdraw any
orders of attachment of property made in connection with
the offence.  Unless and until the District Judge passes
orders withdrawing the order of attachment, the attachment
as provided in Section 10 will continue in force.

18.     The Honble apex Court in Biswanath Bhattacharya v Union of
India , while dealing with Sections 12 and 13 of the Ordinance,
made the following observations:
32.   The 1944 Ordinance provided for the attachment
of the money or other property which is believed to have
been procured by means of one of the abovementioned
Scheduled Offences by the offender. Such attached property
is required to be disposed off as provided under Section 13
of the said Ordinance. Under Section 12 of the Ordinance,
the criminal court trying a Scheduled Offence is obliged to
ascertain the amount or value of the property procured by
the accused by means of the offence. Under Section 13(3), it
is provided that so much of the attached property referred
to earlier equivalent to the value ascertained by the criminal
court under Section 12 is required to be forfeited to the
State.

19.     In view of the principle enunciated in the cases cited supra,
Section 13 of the Ordinance exhaustively deals with the withdrawal
of the attachment, release of the security or confiscation of
properties attached.  Therefore, except the procedure contained in
Section 13, no suit or other proceedings are maintainable against
the orders passed attaching or withdrawing the money or other
property under Sections 4, 6 and 13 of the Ordinance, in view of
the bar stipulated under Section 14 of the Ordinance.
20.     The next question to be considered is whether the
confiscation of property attached under the provisions of the
Ordinance would amount to violation of Articles 300A or 20 of the
Constitution of India or not. In Bishwanath Bhattacharya, the
Honble apex Court observed as follows:
33. Dealing with the question  whether such forfeiture (in
the factual setting of the case) violated Article 20 of the
Constitution of India, a Constitution Bench of this Court
held that the forfeiture contemplated in the Ordinance was
not a penalty within the meaning of Article 20 but it is only
a speedier mode of recovery of the money embezzled by the
accused.
39. If a subject acquires property by means which are not
legally approved, the sovereign would be perfectly justified
to deprive such persons of the enjoyment of such ill-gotten
wealth. There is a public interest in ensuring that persons
who cannot establish that they have legitimate sources to
acquire the assets held by them do not enjoy such wealth.
Such a deprivation, in our opinion, would certainly be
consistent with the requirement of Articles 300-A and 14 of
the Constitution which prevent the State from arbitrarily
depriving a subject of his property.

21.     In view of the principle enunciated in the case cited supra,
the property acquired or procured by resorting to Scheduled
Offences is liable for confiscation in the public interest and such
forfeiture would not amount to deprivation of right of enjoyment of
property ordained in the Constitution of India.
22.     Reverting to the facts of the case on hand, the first petitioner
is facing trial in C.C. No.5 of 2016 for the offences punishable
under Section 13(2) read with 13(1)(e) of the PC Act on the file of
the Court of the Principal Special Judge for SPE & ACB Cases-
cum-IV Additional Chief Judge, City Civil Court, Hyderabad.  The
second petitioner is none other than the wife of the first petitioner.
At the fag end of the trial, the petitioners filed Crl.M.P.No.457 of
2016 under Sections 451 and 457 of Cr.P.C., and Sections 4 and 8
of the Ordinance seeking to release the original documents marked
as Exs.P46, P47, P54 and P55 as well as link documents of
Exs.P54 and P55.  The prosecution filed counter before the trial
Court opposing release of the documents.  The learned Special
Judge, after affording reasonable opportunity to both sides,
dismissed the petition. Being aggrieved by the orders of the learned
Special Judge, the petitioners preferred the present criminal
petition.
23.     The learned counsel for the petitioners submitted that in
similar set of facts, the trial court allowed Crl.M.P.No.457 of 2015
in Crl.M.P.No.743 of 2010 in C.C.No.35 of 2010 ordering return of
original sale documents in favour of the accused therein.  To
substantiate his submission, he has filed copy of the order in
Crl.M.P.No.457 of 2015 dated 01.10.2015.  As rightly pointed out
by the learned counsel for the petitioners, the learned Special
Judge allowed the petition and released the documents.  It is not
known whether the legality or otherwise of that order was tested
before this Court.  In such circumstances, this Court cannot glibly
swallow the orders passed by the learned Special Judge in Crl.M.P.
No.457 of 2015 and allow this petition, without considering the
legal implications.
24.     In this case, release of documents is sought under the
provisions of Sections 451 and 457 Cr.P.C., besides Sections 4 and
8 of the Ordinance.  If the property produced before the court is
subject to speedy and natural decay or if it is otherwise expedient
to do so, the court may release the property by invoking Section
451 Cr.P.C.  The question of speedy and natural decay of property
attached does not arise in this case; therefore, Section 451 Cr.P.C.,
is not applicable to the facts of the case on hand.
25.     If the seizure of property by the police is reported to the
learned Magistrate under the provisions of Cr.P.C., the learned
Magistrate may order the property to deliver to such person on
imposing certain conditions under Section 457 Cr.P.C. In the
instant case, the Investigating Officer produced the documents
before the Special Court long back.  The documents in question are
not in the custody of the Police; therefore, Section 457 Cr.P.C., has
no application to the facts of the case on hand.  It appears that for
release of the properties attached under the provisions of the
Ordinance, petitions are being filed purely under Sections 451 and
457 Cr.P.C., before the Special Court.  The petitions being filed
exclusively under Sections 451 and 457 Cr.P.C., are not
maintainable, in view of specific provision (Section 13)
contained in the Ordinance.
26.     In the petition, the petitioners have categorically mentioned
that the property in question was attached vide orders in Crl.M.P.
No.143 of 2004.  The fact remains that attachment order was made
absolute from the date of taking cognizance of offence in C.C. No.5
of 2016.  As referred supra, Section 4 of the Ordinance deals with
ad interim attachment. The first petitioner has not filed objections
questioning the ad interim attachment.  The first petitioner allowed
the Special Court to make the ad interim attachment absolute. The
second petitioner did not file a petition claiming interest or title in
the properties under attachment at the time of ad interim
attachment.  Both the petitioners had kept quiet for a period of
twelve years and filed the petition for release of the properties at
this juncture. Section 8 of the Ordinance deals with furnishing of
security to the satisfaction of Court in lieu of attachment. An
application requesting permission to offer security in lieu of
attachment may be filed at any stage of the proceedings.  If it is
filed before passing the order of ad interim attachment, the learned
Special Judge may refrain from passing attachment order.  If it is
filed after attachment order, the learned Special Judge may
withdraw the order of attachment by recording reasons thereof.
27.     Section 8 of the Ordinance consists of two parts: (1) seeking
relief to withdraw the attachment, if it is made, and (2) production
of sufficient security to the satisfaction of the learned Special
Judge for the value of the property as on the date of its release.
The petitioners did not seek the relief of withdrawal of attachment
order; therefore, the learned Special Judge has no power
whatsoever to withdraw the attachment order. If the accused or
any third party makes an objection or files a petition for
withdrawal of the attachment order, the learned Special Judge has
to decide the same as if it is a title suit.  The burden lies on the
petitioner to establish that he has purchased the property with
known legal source of income. The learned Special Judge has to
keep in mind that the burden of proof heavily lies on the petitioner.
The Special Court shall not allow this type of petitions simply
because the respondent has not adduced any contrary evidence.
Mere filing of the petition under the provisions of the Cr.P.C., or
under the provisions of the Ordinance, does not automatically
entitle the accused or any other person claiming interest in the
property under attachment for release of the same in his favour.
While passing the orders, so far as the withdrawal of attachment is
concerned, the Special Court shall not lose site of various
provisions of the Ordinance. The very purpose of the Ordinance is
to confiscate or forfeit the properties, which are procured by any
person by resorting to any of the Scheduled Offences, in favour of
the Government.  If the Special Court releases the property by
taking into consideration the value of the property as on the date
of attachment, certainly it would amount to defeating the
provisions of the Ordinance.  While releasing the property under
attachment, the Special Court has to keep in mind all these
aspects.
28.     The Honble apex Court, taking note of the prevailing
scenario in the society more particularly the life style of the
persons, who indulged in procuring the property by resorting to
any of the schedule offences, the psychological feelings of the
general public towards those persons, and by referring the legal
measures taken by different countries restraining the persons to
enjoy such properties and moneys, made the following
observations in Paragraphs Nos.40, 41 and 42 of the decision in
Bishwanath Bhattacharya.  They read as follows:
40. Whether there is a right to hold property which is the
product of crime is a question examined in many
jurisdictions. To understand the substance of such
examination, we can profitably extract from an article
published in the Journal of Financial Crime, 2004 by
Anthony Kennedy .
     It has been suggested that a logical interpretation
of Article 1 of the First Protocol of the European
Convention on Human Rights is:
    Everyone is entitled to own whatever property they
have (lawfully) acquired.
hence implying that they do not have a right under
Article 1 to own property which has been unlawfully
acquired. This point was argued in the Irish High Court
in Gilligan v. Criminal Assets Bureau, Galvin, Lanigan &
Revenue Commissioners, (1994-97) 5 Irish Tax Reports
424, namely, that where a defendant is in possession or
control over assets which directly or indirectly constitute
the proceeds of crime, he has no property rights in those
assets and no valid title to them, whether protected by
the Irish Constitution or by any other law. A similar view
seems to have been expressed earlier in a dissenting
opinion in Welch v. United Kingdom, (1995) 20 EHRR
247: in my opinion, the confiscation of property acquired
by crime, even without express prior legislation is not
contrary to Article 7 of the Convention, nor to Article 1 of
the First Protocol. This principle has also been explored
in US jurisprudence. In United States v. Van Horn, 789 F
2d 1492 (1986), a defendant convicted of fraud and
money laundering was not entitled to the return of the
seized proceeds since they amounted to contraband
which he had no right to possess. In United States v.
Dusenbery, 34 F Supp 2d 602 (1999) the Court held that,
because the respondent conceded that he used drug
proceeds to purchase a car and other personal property,
he had no ownership interest in the property and thus
could not seek a remedy against the Governments
decision to destroy the property without recourse to
formal forfeiture proceedings. The UK Government has
impliedly adopted this perspective, stating that:
     It is important to bear in mind the
purpose of civil recovery, namely, to establish
as a matter of civil law that there is no right to
enjoy property that derives from unlawful
conduct.
41. Non-conviction based asset forfeiture model also known
as Civil Forfeiture Legislation gained currency in various
countries: the United States of America, Italy, Ireland,
South Africa, UK, Australia and certain Provinces of
Canada.
42. Anthony Kennedy conceptualised the civil forfeiture
regime in the following words:
    Civil forfeiture represents a move from a crime and
punishment model of justice to a preventive model of
justice. It seeks to take illegally obtained property out of
the possession of organised crime figures so as to prevent
them, first, from using it as working capital for future
crimes and, secondly, from flaunting it in such a way as
they become role models for others to follow into a
lifestyle of acquisitive crime. Civil recovery is therefore
not aimed at punishing behaviour but at removing the
trophies of past criminal behaviour and the means to
commit future criminal behaviour. While it would clearly
be more desirable if successful criminal proceedings
could be instituted, the operative theory is that half a
loaf is better than no bread.
29.     The petitioners filed the petition seeking permission of the
Court to sell the property under attachment and a consequential
direction to the Sub-Registrars to permit the petitioners to execute
sale deeds in respect of the properties under attachment.  If such
reliefs are granted before disposing of the main case, the very
purpose of the attachment order would be frustrated.  For
withdrawal of the order of attachment, the petitioners have to
establish that they have acquired the property under attachment
by lawful means, by adducing evidence.  For one reason or the
other, the first petitioner did not choose to come into witness box
to dislodge the case of the prosecution that he procured the
properties under attachment with ill-gotten money.  Likewise, the
second petitioner also did not choose to come into witness box, to
establish that she purchased the properties under attachment with
legitimate source of income. When the petitioners themselves have
failed to adduce evidence in accordance with the provisions of
Section 5 of the Ordinance, the question of granting of any relief
much less the relief of release of the documents with a
consequential direction to the Sub-Registrars to permit the
petitioners to execute the sale deeds in favour of third parties does
not arise.  The reliefs sought by the petitioners are misconceived.
30.     Any person aggrieved with the orders passed by the learned
Special Judge under Sections 4, 6, 8 and 9 of the Ordinance, he
has to prefer an appeal under Section 11 of the Ordinance, within
30 days from the date of the order.  When a specific provision is
made under a Statute for redressal, the aggrieved person has to
resort to the same.  The petitioners filed the petition under
Sections 4 and 8 of the Ordinance.  If really they are aggrieved by
the order passed under Sections 4 and 8, the remedy available to
them is to file an appeal by invoking Section 11 of the Ordinance.
Filing of the criminal petition under Section 482 Cr.PC is nothing
but circumventing the procedure contemplated under the
provisions of the Ordinance, which is not permissible under law.
Viewed from this angle also, the criminal petition is not
maintainable.
31.     In the light of the above discussion, I am of the considered
view that it is not a fit case to quash the order dated 18.10.2016
passed in Crl.M.P.No.457 of 2016 in C.C.No.5 of 2016 on the file of
the Court of the Principal Special Judge for SPE & ACB Cases-
cum-IV Additional Chief Judge, City Civil Court, Hyderabad.
32.     In the result, the criminal petition is dismissed.
Miscellaneous petitions, if any pending in this criminal petition
shall stand closed.     
__________________________  
T.SUNIL CHOWDARY, J.    
January 05, 2017

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