S.68F NDPS Act | Kerala HC Quashes Scooter Confiscation Under NDPS Act; Seizure Needs Inquiry-Based ‘Reason to Believe’ Backed by Credible Material
Isabella Mariam
The High Court of Kerala, Single Bench of Justice V.G. Arun set aside a police notice proposing to confiscate a scooter as property allegedly derived from narcotics proceeds under the NDPS Act. The Court held that any action of seizure or freezing under Chapter V A of the Act must be preceded by an inquiry and supported by a recorded “reason to believe” founded on credible material linking the property to illicit drug-related income. Observing that the vehicle had been purchased years before the alleged offence and that the accused was a minor at that time, the Court found the mandatory statutory conditions unsatisfied. It stated that the authority’s belief cannot rest on assumptions or presumptions and must emerge from tangible inquiry or investigation.
The first petitioner was the registered owner of a Honda scooter purchased and registered in November 2020, while the second petitioner was his wife. A notice was later issued by the Station House Officer of Cherpulassery Police Station proposing to confiscate the scooter under Section 68F of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The notice alleged that the vehicle had been acquired using proceeds from narcotics transactions conducted by the petitioners’ son, who was an accused in a later-registered NDPS case.
The petitioners challenged the notice, contending that their son was only 14 years old at the time of the scooter’s purchase and 19 years old when the NDPS crime was registered, making it impossible for the vehicle to have been bought with any illicit proceeds. They argued that the confiscation proposal lacked any evidentiary foundation and that no prior inquiry or “reason to believe,” as required under the Act, had been established before the issuance of the notice.
The Public Prosecutor submitted that the investigating officer was empowered under Section 68F to act if there was reason to believe that a property under inquiry was illegally acquired. The Court examined Sections 68E and 68F, which collectively require the officer to be satisfied, based on information and supported by recorded reasons, that the property was derived from illicit drug proceeds, following inquiry, investigation, or survey.
Documents produced in the case included the registration certificate of the vehicle, the First Information Report from the NDPS offence, and the confiscation notice. The petitioners maintained ownership of the scooter, while the respondents were the State and the Station House Officer. The Court’s consideration focused on whether the statutory prerequisites under Chapter VA of the NDPS Act—particularly the presence of cogent material linking the property to the alleged narcotics proceeds—had been met before initiating confiscation proceedings.
The Court examined the scope of authority under Sections 68E and 68F of the Narcotic Drugs and Psychotropic Substances Act, stating that “before initiating action for seizure or freezing a property, the officer concerned should first be satisfied about the information received regarding the holding of illegally acquired property by the person to whom Chapter VA applies.” It recorded that “on reaching such satisfaction, the officer should proceed to take all steps necessary for tracing and identifying the property, after recording the reasons for doing so.” The Court noted that these steps include “inquiry, investigation or survey in respect of any person, place, property, assets, documents etc.”
The Bench stated that such inquiry or investigation “has to be carried out in accordance with the directions or guidelines of the competent authority.” Only after completing this process can the officer act under Section 68F, and “make an order for seizing or freezing such property, if he has reason to believe that the property is likely to be concealed, transferred or dealt with in any manner which will result in frustrating the proceeding relating to forfeiture of that property.”
It recorded that “it is thus beyond cavil that the power to seize or freeze a property can be exercised only if there is reason to believe, based on inquiry, investigation or survey, that the property is illegally acquired.” The Court further stated that “the ‘reason to believe’ should be based on cogent materials and not mere assumptions.” Referring to the definition of “illegally acquired property,” the judgment noted that “for a property to be illegally acquired, it should have been acquired wholly or partly or by means of any income, earnings or assets derived or obtained from or attributable to the contravention of the provisions of the NDPS Act.”
Citing the decision in Aslam Mohammod Merchant v. Competent Authority and Others [2008 14 SCC 186], the Court stated that “in order to forfeit a property in terms of Chapter VA of NDPS Act, a direct nexus/link is necessary between the property sought to be forfeited and the properties illegally acquired.”
Addressing the facts before it, the Court recorded that “by no stretch of imagination can the scooter purchased by the petitioners in 2020, when their son was aged only 14 years, be termed as illegally acquired property by reason of he being arraigned as an accused in an NDPS crime in the year 2025.” It stated that “the Investigating Officer cannot have a case that the petitioners’ son had derived income by contravening the provisions of the NDPS Act way back in the year 2020.”
The Court concluded that the legal requirements for exercising the power of seizure had not been fulfilled, recording that “in such circumstances, the initiation of proceedings for forfeiture by issuing Annexure - C notice is an abuse of process and hence, liable to be interfered with.”
“For the aforementioned reasons, the Criminal M.C is allowed and Annexure-C, quashed.”
Advocates Representing the Parties
For the Petitioners: Shri. Mohanan M.K., Advocate; Shri. Steewaugh Shaji Cherian, Advocate.
For the Respondents: Sri. Vipin Narayanan, Public Prosecutor;
Case Title: Usman Kunju & Rahiynath v. State of Kerala & The Station House Officer, Cherpulassery Police Station
Neutral Citation: 2025: KER:74419
Case Number: Crl.M.C. No. 7306 of 2025
Bench: Justice V.G. Arun
