2017 (5) TMI 1117 - HC - Indian Laws

NDPS Act: Exhaust Statutory Remedy First! Appeal Within 3 Weeks. Show Cause Notices Dismissed. Decisions in 4 Months.

Dev Shankar Mishra, Amit Kumar Mishra And Others, Matapher And Others Versus Union of India And Others

The court held that the writ petitions challenging the forfeiture and consequential orders under the NDPS Act were not maintainable as the petitioners had ... Offences under Sections 8/15/18/19 NDPS Act - petitioners have been asked to surrender possession of the properties mentioned in the order within 30 days of the service of the order - Held that:- The remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ, if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power, if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. Thus it is apparent that the petitioners have rushed directly to this Court and have by-passed the statutory alternative remedy, which is not permissible in view of the aforesaid settled position. It may be noted that when an alternative and equally efficacious statutory remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the extra ordinary jurisdiction of the High Court to issue a prerogative writ as the writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum. SCN issued under Section 68H(1) of the NDPS Act, 1985 whereby the petitioners were required to indicate the source of income , earnings or assets out of which or by means of which they have acquired or possessed or has interest in the property - Held that:- The writ petitions against the show cause notice are not maintainable. Issuance of show cause notice is a statutory provision subject to limitation. The purpose of its issuance is to seek a reply for the proposed actions thereunder, before initiation of adjudication proceedings. In other words, show cause notice is merely answerable and not questionable in a writ proceeding. Therefore, afore-captioned writ petitions are not maintainable and are liable to be dismissed. Issues Involved:1. Challenge to the forfeiture order under Section 68-I(1) & (3) of the NDPS Act.2. Challenge to the consequential order under Section 68-U of the NDPS Act.3. Non-exhaustion of alternative statutory remedy under Section 68-O of the NDPS Act.4. Legality of the show cause notice under Section 68H(1) of the NDPS Act.Detailed Analysis:1. Challenge to the forfeiture order under Section 68-I(1) & (3) of the NDPS Act:The petitioners challenged the order dated 16.03.2017, where properties were forfeited to the Central Government. The properties were identified as illegally acquired under Section 68-E of the NDPS Act. The petitioners contended that during the pendency of the criminal appeal, they could not be considered finally convicted, and hence, the properties should not be forfeited or frozen as per Section 68-Z of the Act.2. Challenge to the consequential order under Section 68-U of the NDPS Act:The petitioners also contested the order dated 17.03.2017, which required them to surrender possession of the properties within 30 days. The argument was based on the pending appeal against the conviction, asserting that they could not be deemed convicted persons until the appeal was decided.3. Non-exhaustion of alternative statutory remedy under Section 68-O of the NDPS Act:The respondents raised a preliminary objection regarding the maintainability of the writ petitions, emphasizing that the petitioners had not availed the statutory remedy provided under Section 68-O of the NDPS Act. The court highlighted that under Article 226 of the Constitution, the High Court typically refrains from exercising its jurisdiction if an effective statutory remedy is available. The court cited various judgments, including Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State of Orissa, which reinforce the principle that statutory remedies must be exhausted before invoking the writ jurisdiction.4. Legality of the show cause notice under Section 68H(1) of the NDPS Act:In other writ petitions, the petitioners sought to quash the notice issued under Section 68H(1) of the NDPS Act. The court referred to the Supreme Court's decision in Union of India v. Vicco Laboratories, which held that writ petitions should not interfere at the stage of issuance of show cause notices unless the notice is issued without jurisdiction or constitutes an abuse of process. The court emphasized that the purpose of a show cause notice is to provide an opportunity to respond before adjudication, and interference at this stage should be rare.Conclusion:The court concluded that the writ petitions challenging the forfeiture and consequential orders were not maintainable due to the non-exhaustion of the alternative statutory remedy. The court dismissed the writ petitions but allowed the petitioners to file an appeal before the appellate authority within three weeks. The court also dismissed the writ petitions against the show cause notices, stating that such petitions are not maintainable and are rendered infructuous by the final order dated 16.03.2017. The court directed that the appeal, if filed, should be decided on merits within four months.