TaxTMI 
TaxTMI 
2017 (5) TMI 1117
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....r dated 17.03.2017 passed under Section 68-U of the NDPS Act, whereby the petitioners have been asked to surrender possession of the properties mentioned in the order within 30 days of the service of the order. It is said that the petitioner-Dev Shankar Mishra was arrested on 05.03.2003 by the Officials of Narcotics Department, Lucknow at his house situates in Village Kharsatiya, Police Station Haidargarh, District Barabanki in connection with the offences under Sections 8/15/18/19 of NDPS Act. According to the prosecution case, the petitioner was arrested from his house on the basis of secret information and after search about 1109.540 Kg. Poppy Husk kept in 47 Bags as well as about 20 Kg. opium along with about Rs. 2.89 lac cash from the house and Rs. 29,100/- from the counter of Dhaba situates in Village Kharsatiya along with about 318.650 Kg. Poppy Husk was recovered and after recovery of the alleged Poppy Husk, Opium and cash amount, the petitioner-Dev Shankar Mishra was arrested on 05.03.2003 by the officers of Narcotics Department, Lucknow. The Investigating Officer prepared list of the Property of Schedule identifying as illegally acquired properties of the petitioner....
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....ted 12.11.2003, which was confirmed by the Competent Authority, Lucknow on 10.12.2003 under Section 68-F (2) NDPS Act. Hence all provision as contained in Chapter V-A of NDPS Act are applicable upon him. The Competent Authority issued show cause notice along with recorded "reason of believe" on 01.07.2004 in F. No. Lko/CA/NDPS/27/2003/195 to 220, calling him to submit his reply within a period of 30 days, to explain that why all or any properties mentioned in the enclosed schedule of the list of the properties should not be declared to be illegally acquired properties and forfeited to Central Government. It is well settled preposition of law that a criminal appeal preferred by a person against any conviction is continuation of trial. Therefore, during pendency of criminal appeal filed by Petitioner-Dev Shanker Mishra before this Court, neither he can be said to be finally convicted person for the charges levelled against to him nor he can be deemed to be a person otherwise until and unless the appeal preferred by him is not being decided by High Court. Learned Counsel for the petitioners Sri A.P.Mishra has vehemently argued that against the order of conviction, the appeal pre....
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....g an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm or set aside the order appealed against. (3) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches consisting of three members and constituted by the Chairman of the Appellate Tribunal. (4) Notwithstanding anything contained in sub-section (3), where the Chairman considers it necessary so to do for the expeditious disposal of appeals under this section, he may constitute a Bench of two members and a Bench so constituted may exercise and discharge the powers and functions of the Appellate Tribunal. Provided that if the members of a Bench so constituted differ on any point or points, they shall state the point or points on which they differ and refer the same to a third member (to be specified by the Chairman) for hearing of such point or points and such point or points shall be decided according to the opinion of that members. (5) The Appellate Tribunal may regulate its own procedure. (6) On application to the Appellate Tribunal and on payment of the prescribed fee, the Tri....
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.... observed as under: "It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Company v. Hawkesford : 141 ER 486 in the following passage: "... There arc three classes of cases in which a liability may be established founded upon a statute.......Hut there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.....The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Company Ltd and Secy, of State v. Mask and Company; (1....
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....be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy." In United Bank of India Vs. Satyawati Tondon and others; (2010)8 SCC 110 the Apex Court while dealing with the issue whether the alternative statutory remedy available under the Act can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked, observed in paragraph 55 as under:- " 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with great caution, care and circumspection. In the case of Kanhaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others, (2011) 2 SCC 782 the Hon'ble Supreme Court on the question of alternative remedy/exhaustion of remedies held that Articles 22....
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....ay that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency / instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Hon'ble Apex Court recently in case of Commissioner of Income Tax v. Chhabil Dass Agrawal[(2014) 1 SCC 603 has held that when the statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring statutory dispensation subject to certain exceptions. The Hon'ble Apex Court further opined that non-entertainment of petitions under the writ jurisdiction by the High Courts where efficacious or alterna....
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....(1) Crimes 224 is also of no avail to petitioners as in that case legality and validity of the detention order under the provisions of COFEPOSA was challenged whereas in the instant case, in is an admitted fact that the petitioner has been convicted by the competent court under Sections 8/15/18/19 NDPS Act. Coming to the case at hand, it is not contended by the learned counsel for the petitioner that the Competent Authority/Administrator has no jurisdiction to pass the impugned order under the Act. Neither it is pleaded nor asserted that there has been violation of principles of natural justice. It is also not the case where the petitioner seeks to enforce any fundamental rights. The only ground of challenge in this writ petition is that the evidence collected is insufficient to come to the conclusion as arrived by the Competent Authority. In view of the above legal position, this Court comes to the conclusion that writ petition Nos. 8391 and 7953 of 2017 (M/B) are not maintainable. The writ petitions are dismissed. However, the petitioners are at liberty to file an appeal before the appellate authority and agitate all grounds taken in the writ petition. It is further provide....