cri-wp-2791-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2791 OF 2009 Mr. Bhanudas More .. Petitioner Vs. 1. Appellate Tribunal for Forfeited Property,New Delhi and ors. .. Respondents Mr. Atul Sarpande for petitioner. Mr. Mandar Goswami with Mr. D.N. Salvi for respondent nos.1 to 3. Mr. A.S. Gadkari, APP for respondent no.4-State. CORAM: B. H. MARLAPALLE & SMT. ROSHAN DALVI, JJ. JULY 15, 2010. P.C. 1. Heard Mr. Sarpande the learned counsel for the petitioner. Mr. Goswami with Mr. Savli, the learned counsel, appears for respondent nos.1 to 3. Mr. Gadkari, the learned APP, appears for respondent no.4. 2. The petitioner was accused no.3 in NDPS Special Case No. 49 of 2001. On 7/4/2006 the case resulted in an order of conviction and sentence and the petitioner was sentenced to suffer RI for 10 years and to pay a fine of Rs.1,00,000/-. 3. The petitioner, along with two others, was treated as the persons covered under Section 68-A(2)(a) of the NDPS Act, 1985 and a show cause notice was issued on 24/5/2007 under Section 68-H of the said Act, thereby proposing the forfeiture of the following properties: Sr. No. Description of Properties Owner of the property Present Value 1 Cash Rs.50,000/- deposit under agreement of Leave & Licence paid on 30.06.2000 to Shri Jitender Singh of Saidhara Building, Near Sanpada Railway Station, Plot No. 14, Sector-30, Vashi, Navi Mumbai towards Plot No.V-9, MIDC, Taloja. Shri Sridhar Laxman Chennuri Rs. 50,000/- 2 Flat No. 13, Tejas, Kopar Road, Shashtri Nagar, Dombivli (W), Mumbai. Shri Sridhar Laxman Chennuri Rs.6,60,000/- 3. M/s. Ruxma Textile Industries (I) Ltd. Plot No. 18, Diwan & Shaw Inds (I) Ltd., Mahim Village, Tal-Palghar, Dist. Thane Shri Bhanudas Vasantrao More and Mirza Qamar Haider Rs.7,00,000/- (Approx.) 4 M/s. Mega Polymers, Plot No.84, SINo.891, Village Aliyali, Deewan & Sons, Udyog Nagar, Tal-Palghar, Dist. Thane Shri Bhanudas Vasantrao More and Mirza Qamar Haider Rs.12,00,000/- (Approx.) 4. So far as the petitioner is concerned, he claimed his title over the property at Sr. No.3 i.e. M/s. Ruxma Textile Industries (I) Ltd., Plot No. 18, Diwan & Shaw Inds. (I) Ltd., Mahim Village, Tal-Palghar, Dist. Thane. The competent authority passed an order on 17/12/2007 and forfeited the said property and at that time the petitioner was undergoing sentence. A copy of the said order was served on the petitioner on 8/1/2008. Consequent to the order passed by this court in Criminal Application No. 1381 of 2006, the petitioner came to be released on bail on 21/3/2008. He approached the Appellate Tribunal for forfeited property at Delhi by filing an appeal on 5/11/2008 and by the impugned order dated 8/5/2009 the Tribunal rejected the application for condonation of delay. 5. The Tribunal referred to the proviso below Section 68-O of the NDPS Act and held that it could have the powers for condonation of delay only if the appeal was filed within the time stipulated in the proviso thereunder. 6. It was submitted by the learned counsel for the petitioner that while he was in jail, he addressed a letter dated 18/8/2007 for being heard before the competent authority under the NDPS Act and during the proceedings for the forfeiture of the subject property and despite the said letter having been received on 20/8/2007 he did not hear anything from the competent authority till he received a copy of the order dated 17/12/2007 on 8/1/2008 while in the jail. He further submitted that though he was released on bail on 21/3/2008, it took sufficiently long time for him to recover from the mental shock after he came out of the jail and, therefore, he could not approach the Appellate Tribunal before 5/11/2008. The learned counsel for the petitioner has relied upon the decision in the case of State of W.B. And ors. vs. Sujit Kumar Rana [2004 SCC (Cri) 984] and more particularly paragraphs 27 to 29 therein which read as under: “27. Against an order of confiscation, an appeal is provided and only an order of the appellate court, who is a judicial officer becomes final and binding but attaching finality to an order of the appellate court would not preclude a person aggrieved to move the High Court in judicial review. 28. The question safeguards both substantive and procedural have, thus, been made against an arbitrary exercise of power. 29. The question as regards the power of the High Court to release a vehicle in exercise of its power under Section 482 of the Code of Criminal Procedure is required to be considered having regard to the aforementioned aspects in view.” 7. It was, therefore, urged before us that the petitioner has made out a fit case for judicial review so as to quash and set aside the order passed by the Appellate Tribunal and to hear and decide his appeal on merits by the said Tribunal. 8. Admittedly, the order dated 17/12/2007 was received by the petitioner on 8/1/2008, he did not take steps to file an appeal either through the jail or by engaging an Advocate within the stipulated period under the proviso below Section 68-O of the NDPS Act. After he was released on bail on 21/3/2008, he waited for almost seven and half months to file an appeal before the Appellate Tribunal and the explanation furnished for such inordinate delay does not impress us. 9. We have also noted from the record that the subject property stands in the name of Shri Tejmal Agarwal and the competent authority had issued notice to the said person and he did not respond. The record also indicates that the petitioner’s father was aware of the forfeiture proceedings. Even otherwise, if the pending appeal i.e. Criminal Appeal No. 555 of 2006 is decided in favour of the petitioner, his right to the forfeited property, in case he has one, is re-established and, therefore, as of now it cannot be said that he has lost the subject property finally. The submissions made before us to invoke the inherent powers under Section 482 of Cr. P. C. are devoid of merits and the petitioner must suffer the lethargy and casualness he demonstrated in approaching the Appellate Authority. 10. Hence, this petition must fail at the threshold and the same is hereby rejected. (SMT. ROSHAN DALVI,J.) (B. H. MARLAPALLE, J.)