Case: Yogendra Kumar Jaiswal &amp; Others Vs. State of Bihar &amp; Others

an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case. The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property. The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts. 159. We have at the beginning had mentioned that both the Orissa Act and the Bihar Act are almost similar and, wherever required we have adverted to the same while dealing with the Orissa Act. Barring the same, we do not find there is any distinction between the two enactments and, therefore, analysis made by us as regards the Orissa Act will apply to the Bihar Act. 160. It is significant to note here that before the High Court of Patna the validity of a Rule was assailed but the application was not pressed and the High Court has made certain observations. We intend to put the controversy to rest. Rule 12 of the 2010 Rules provides for Special Courts to follow summary procedure. Rule 12(a) and (f) read as under :- (a) On institution of a case or transfer of pending proceeding to the Special Courts, trial shall be held in summary manner. (f) The delinquent public servant shall be put on trial and shall be afforded opportunity to lead evidence in support of his defence. If the special court, on the evidence of delinquent public servant is, prima facie, satisfied that he has been able to discharge his onus, the prosecution shall be called upon to lead its evidence to prove the charges against the delinquent public servant. 161. When the Bihar Act provides to follow the warrant procedure prescribed by the Code for trial of cases before a Magistrate, the 2010 Rules could not have prescribed for summary procedure. The rules have to be in accord with the Act. The rules can supplement the provisions of the Act but decidedly they cannot supplant the same. Therefore, we declare that part of Rule 12 which lays down that the learned Special Judge shall follow summary procedure, is ultra vires the Bihar Act. 162. In view of the foregoing analysis, we proceed to summarise our conclusions :- (i) The Orissa Act is not hit by Article 199 of the Constitution. (ii) The establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution. (iii) The provisions pertaining to declaration and effect of declaration as contained in Section 5 and 6 of the Orissa Act and the Bihar Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness. (iv) The Chapter III of the both the Acts providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution. (v) The procedure provided for confiscation and the proceedings before the Authorised Officer do not cause any discomfort either to Article 14 or to Article 20(3) of the Constitution. (vi) The provision relating to appeal in both the Acts is treated as constitutional on the basis of reasoning that the power subsists with the High Court to extend the order of stay on being satisfied. (vii) The proviso to Section 18(1) of the Orissa Act does not fall foul of Article 21 of the Constitution. (viii) The provisions contained in Section 19 pertaining to refund of confiscated money or property does not suffer from any kind of unconstitutionality. (ix) Sub-rules (a) and (f) Rule 12 of the 2010 Rules being violative of the language employed in the Bihar Act are ultra vires or anything contained therein pertaining to the summary procedure is also declared as ultra vires the Bihar Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]38. In our considered opinion, the authorities cited by the learned counsel for the appellants do not render much assistance, for the introduction of a bill, as has been held in Mohd. Saeed Siddiqui (supra), comes within the concept of irregularity and it does come with the realm of substantiality. What has been held in the Special Reference No. 1 of 1964 (supra) has to be appositely understood. The factual matrix therein was totally different than the case at hand as we find that the present controversy is wholly covered by the pronouncement in Mohd. Saeed Siddiqui (supra) and hence, we unhesitatingly hold that there is no merit in the submission so assiduously urged by the learned counsel for the appellants43. The present Orissa Act which specifically deals with offences under Section 13(1)(e) and provides for Special Courts for the trial of the said offences has got the assent of the President. It is to be understood that under the 1988 Act the State had the authority to appoint special Judges in respect of all the offences. Presently, one part of the offence has been carved out and after obtaining assent Special Courts have been established. In view of the fact situation, it does not violate Article 247. That apart, the language employed in Article 247 does not take away the jurisdiction of the State legislature for constitution of courtsOn a scrutiny of the judgment of the High Court, it is manifest that on behalf of the State certain communications were placed on record from which the High Court was satisfied that the assent had been properly obtained. In the course of hearing, we have also found that the entire Bill was sent for the assent with the aforesaid forwarding letter and there has been correspondence thereafter. On a perusal of the communication and the finding recorded by the High Court and keeping in view the purpose of communication and taking note of the fact that the entire Bill was sent to the President for obtaining assent, it can safely be concluded that the President was apprised of the reason when the assent was sought. The assent has been given in general terms so as to be effective for all purposes. It cannot be said that the general assent by the President was not obtained. Thus, we are of the considered opinion that the provisions of the Orissa Act are definitely not repugnant to the 1988 Act, the Code of Criminal Procedure, 1973 and the Criminal Law Amendment Ordinance, 194477. We have analysed the scheme under the Prevention ofg Act, 2002. It is clearly demonstrable that the offences under the said Act are different from an offence under the 1988 Act. The offence under the Orissa Act which has been carved out is the offence under Section 13(1)(e) of the 1988 Act and the Orissa Act provides for establishment of Special Courts and also provides for provisions pertaining to confiscation at an interim stage. The entire Prevention ofg Act, 2002, if keenly scrutinized, clearly reveals that it deals with different situations altogether; a different offence which has insegregable nexus with money laundering. True it is, in 2009 an amendment was brought incorporating the 1988 Act in Part B of the Schedule, and the said Part B has been totally deleted in 2013. In view of the same, the submission of the learned counsel for the State is that after deletion of Part B the issue has become academic. Be that as it may, Part B of the Prevention ofg Act, 2002 enumerated offences under the Indian Penal Code, The Narcotic Drugs and Psychotropic Substances Act, 1985; The Explosive Substances Act, 1908; The Unlawful Activities (Prevention) Act, 1967; The Arms Act, 1959; The Wildlife (Protection) Act, 1972; etc. There was a purpose behind the same. There could be offences under the Prevention of78. In view of the aforesaid analysis and keeping in view the law pertaining to repugnancy we have hereinbefore referred to, we are unable to accept the submission of the learned counsel for the appellants that there is repugnancy between the two Acts and the Orissa Act is invalid as no assent was obtained in respect of the Prevention ofg Act, 2002. We may hasten to clarify that we have not addressed the issue on the impact of the deletion of Part B of the Schedule in 2013 as the legislature may have deleted it in its own wisdom83. The stand of the learned counsel for the appellants is that Section 5 of the Orissa Act confers uncanalised and unfettered discretion on the State Government to make a declaration as a consequence of which the delinquent officer will have to face the prosecution in the SpecialNo guidance has been provided and in the absence of any guidance, the exercise of power would be arbitrary and the State Government is at liberty to pick and choose any person as it desires. The impugned judgment would show that the State Government had filed an affidavit on 23.7.2010 and the High Court has quoted certain paragraphs from the said affidavit. The relevant part of the affidavit shows that in the event there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa as defined under the Act and the Rules, the State Government shall mandatorily make a declaration to that effect and the State Government does not have any discretion on the subject. It has also been asserted that the role of the State Government is limited to be satisfied that the ingredients of Section 5(1) of the Special Courts Act are existent and if the ingredients of Section 5(1) of the Special Courts Act are in existence, the State Government is bound to make a declaration to that effect. Placing reliance on the said affidavit, the High Court has repelled the submission urged on behalf of the petitioners therein. We must say without any reservation that the approach of the High Court is erroneous. Constitutionality of a provision has to be tested within the constitutional parameters. An affidavit filed by an officer of the State Government cannot change the interpretation if it is textually and contextually not permissible137. In the case at hand, the entire proceeding is meant to arrive at the conclusion whether on the basis of the application preferred by the Public Prosecutor and the material brought on record, the whole or any other money or some of the property in question have been acquired illegally and further any money or property or both have been acquired by the means of the offence. After arriving at the said conclusion, the order of confiscation is passed. The order of confiscation is subject to appeal under Section 17 of the Orissa Act. That apart, it is provided under Section 19 where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or the where the person affected is acquitted by the special court, the money or property or both shall be returned to the person affected. Thus, it is basically a confiscation which is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is al punishment and, accordingly, we repel the said submission140. We have already held that confiscation is not a punishment and hence, Article 20(1) is not violated144. The next aspect we shall address towhether the procedure for confiscation as envisaged under Section 13 to Section 15 suffers from any lack of guidance.We have already opined that the State Government is only required to scrutinise the offence and authorises the Public Prosecutor for the purpose of filing an application for confiscation. The Public Prosecutor, as mandated under Section 13(2) is required to file an application indicating the reasons on the basis of which the State Government believes that the delinquent officer has procured the property by means of the offence. Thus, reasons have to be stated in the application and it has to be clearly averred that the property has been acquired by means of the offence as defined under the Orissa Act. The authorised officer is a judicial officer and is required to afford reasonable opportunity of hearing to the accused or any other person operating the property on his behalf. Discretion is also conferred on the authorised officer to record a finding whether all or any other money or property in question have been acquired illegally. The said authority can drop the proceedings or direct confiscation of all or some properties. Affording of a reasonable opportunity of hearing is not confined only to file affidavits. We are inclined to think that when the delinquent is entitled to furnish an explanation and also put forth his stand, he certainly can bring on record such material to sustain his explanation. Confiscation proceeding as provided under(3) of Section 15 is subject to appeal. In view of the scheme of the Orissa Act, there can be no shadow of doubt that there is ample guidance in the procedure for confiscation. It is not a proceeding where on the basis of launching of prosecution, the properties are confiscated. Therefore, the proceedings relating to confiscation cannot be regarded as violative of article 14 because conferment of unchecked power or lack of guidance145. Learned counsel for the appellants have laid emphasis on the phraseology used in Section 15(3) of the Orissa Act. The said provision stipulates that where the authorised officer records a finding under the Section that any money or property or both have been acquired, by means of the offence, he shall make a declaration subject to the provisions of the Act, then they stand confiscated to the State Government free from all encumbrances. It is submitted that once the property stands confiscated to the State Government free from all encumbrances, the right, title and interest of the person concerned is extinguished. The said submission, in our consideration, is on a very broad canvass. As the scheme of the Orissa Act would show, the confiscation is interim in nature. It does not assume the character of finality. Same is the position in Bihar Act. The accused is entitled to get return of the property or money in case he succeeds in appeal before the High Court against the order passed by the authorised officer or in the ultimate eventuality when the order of acquittal is recorded152. Tested on the aforesaid enunciation of law, it can be stated with certitude that the right conferred on an accused under Article 20(3) is not violated. We reiterate that whatever is produced before the authorised officer is not to be looked into by the trial court and neither the prosecution nor the defence can refer to the same. That is the statutory command. Therefore, the submission astutely canvassed by the learned counsel for the appellants is sans substanceCriticizing the said provision, it is urged by them that by virtue of the provision pertaining to confiscation the delinquent officer/accused is compelled to face a situation where he will be disposed from his dwelling house, the so called protection given under the proviso is an illusory one.It is argued that when the money is confiscated, it is well nigh impossible on his part to deposit the market rent to occupy even for a limitedargument, if we permit ourselves to say so, suffers from a fundamental fallacy. Under the scheme of the Orissa Act, the confiscation does not take place immediately on lodging of an. A detailed procedure has been stipulated which is contain adequate safeguards and thereafter the order is given effect to. The proviso appended to Section 18(1) of the Orissa Act is an exception to give protection to the concerned officer to remain in possession of the house where he resides for a certain period. The person concerned is given protection subject to certain terms. It is to be borne in mind that the confiscation is associated with the property accumulated from theIt is urged that though proviso gives protection, it actually mocks at Article 21 of the. We do not think so. The property is confiscated by way of an interim measure by taking recourse to law which we have held to be constitutionally valid. The submission that the man will be in the streets is an argument in frustration but not founded on reason. Be that as it may, when by determination of the authorised officer for the purpose of confiscation, the plea that he will be ousted from the dwelling house which would play foul of Article 21 of the Constitution, really does not commend acceptance. A person cannot be allowed to indulge in corruption and conceive of protection to his dwelling house after a finding is recorded in the proceeding for confiscation that it is constructed or purchased by way of corrupt means. The person concerned can satisfy the authorised officer or in appeal that the dwelling house where he is residing is acquired from his known sources of income. In such a situation, we are afraid that we cannot accept the submission advanced by the learned counsel for the appellants and, accordingly, the same stands rejected158. The language employed in Section 19 of the Orissa Act has to be appreciated regard being had to the scheme of the said Act. The legislative intent is to curb corruption at high places and requires the accused persons to face trial in the Special Court constituted under the Orissa Act in a speedier manner and also to see that the beneficiaries ofor money do not enjoy the property or money during trial. That apart, the intention is also clear that the Government should not appropriate the money or the property to itself in any manner. Confiscation, we have already opined, is done as an interim measure. The words free from all encumbrances have been given a restricted meaning by us as it follows from the language used in the Orissa Act. Section 19 clearly lays down return of the confiscated money or property or both. It conceives of three situations, namely, modification of the order of confiscation, or annulment of confiscation, or the eventual acquittal. In these conditions, the money or property or both are required to be returned. The words, which we have underlined in Section 19, seem to us, cannot be conferred a wide meaning. They cannot be allowed to convey that the State will not return the property. The key words are in case it is not possible and for any reason. It will be an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case.The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property.The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts.