Safiya Malik

The High Court of Jammu & Kashmir and Ladakh has dismissed an appeal challenging the seizure of a vehicle allegedly used for transporting arms, ammunition, and narcotics under the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act). The court ruled that procedural lapses in notifying the Designated Authority within the stipulated time frame did not render the seizure unlawful. The appellants’ request for the vehicle's release was also denied, with the court holding that its retention was necessary for the ongoing proceedings.

The appeal was filed by Mohammad Amin Sheikh and Khalida Begum, residents of Hajinar, Tehsil Karnah, District Kupwara, against orders passed by the Divisional Commissioner, Kashmir, on August 29, 2021, and the Additional Sessions Judge, Baramulla (NIA Court), on December 17, 2022. The case pertained to the seizure of a vehicle (Registration No. JK01AJ/0219) under FIR No. 57/2020, registered at Police Station Karnah under Sections 13, 16, 18, and 38 of the UA(P) Act, Sections 8/21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, and Section 7/25 of the Arms Act.

The police had seized the vehicle on July 26, 2020, allegedly after discovering arms, ammunition, and narcotics inside. Subsequently, the Designated Authority, i.e., the Divisional Commissioner, Kashmir, confirmed the seizure. The appellants contested this confirmation order and later challenged the dismissal of their appeal by the NIA Court.

The appellants argued that the investigating officer had failed to comply with Section 25 of the UA(P) Act, which mandates informing the Designated Authority of a seizure within 48 hours and obtaining confirmation or revocation within 60 days. They contended that the investigating officer referred the matter to the Designated Authority nearly ten months after the seizure, thereby violating statutory requirements.

Further, the appellants maintained that retaining the vehicle served no purpose and that its value would diminish over time. They sought its release on the grounds that it was mortgaged and could not be classified as "proceeds of terrorism" under the UA(P) Act.

The division bench, comprising Chief Justice Tashi Rabstan and Justice Puneet Guptha, dismissed the appeal, affirming the orders of the Designated Authority and the NIA Court. The court recorded that procedural delays in informing the Designated Authority did not render the seizure invalid.

"The information though required to be communicated within 48 hours of the seizure, the delay, if any, caused will not by itself be fatal. The time line given to inform the Designated Authority of seizure or attachment is not mandatory one keeping in view the fact that the seizure has been made under the stringent provisions of law," the court stated.

The court further observed that the UA(P) Act does not prescribe automatic lapsing of proceedings if the Designated Authority fails to issue a decision within 60 days.

"Similarly, if the Designated Authority fails to make its order within 60 days confirming or revoking the seizure, the delay, if any, caused by the said Authority cannot be the reason to overturn the order on that basis only. It is not made out from the provision that in case the Authority fails to pass order within the period of 60 days, the proceedings initiated by the Investigating Officer regarding the seizure shall lapse."

The court held that the appellants had been given an opportunity to make representations before the Designated Authority, and thus, they could not claim procedural infirmities.

Addressing the appellants' plea for the release of the vehicle, the court ruled that its continued retention was justified given the nature of the allegations. The court recorded: "The vehicle under discussion is stated to have been used for illegal purposes as the arms and ammunition and narcotics have been recovered from the vehicle in question. Every procedural lapse cannot invalidate the proceedings."

The court rejected the argument that the vehicle’s mortgaged status precluded its seizure under the UA(P) Act.

"The vehicle is alleged to have been used for terrorist purposes. The vehicle even if mortgaged is no ground to accept the argument of the appellants that the vehicle could not be seized by the police. The vehicle being used for illegal purpose is sufficient reason to seize the vehicle and proceed under the Act."

On the issue of depreciation in the vehicle’s value, the court observed that its retention was necessary for the trial proceedings.

"Otherwise also, retention of the vehicle will serve no purpose to the prosecution. The alleged purpose for which the vehicle has been used does not call for its release. The identity of the vehicle may also be required to be established during the trial. The owner of the vehicle can be duly compensated later on in case the trial court finally determines that the vehicle is required to be forfeited."

The court dismissed the appeal, stating:

"As the argument of the counsel for the appellants mainly pertains to the procedure adopted in the case and this Court having held that the procedural lapse, if any, is not fatal in the case, the appeal is held to be without any merit and is, accordingly, dismissed."

Case Title: Mohammad Amin Sheikh & Anr. v. Divisional Commissioner, Kashmir & Ors.
Case Number: Crl A (D) No. 10/2023
Bench: Chief Justice Tashi Rabstan and Justice Puneet Guptha

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