Court sets aside order of attachment of property of the then Deputy Director, J&K Economics & Statistics


Jammu, Aug 12: Special Judge Anti-corruption Kashmir CL Bavoria set-aside the passed by Commissioner/ Secretary to Government General Administrative Department (Designated Authority under sub section 1(a) of Section 2 of prevention Act Samvat, 2006 whereby attachment of the property of the then Deputy Director, J&K Economics & Statistics in terms of Order No. SSP/ACB/FIR-18/2019-3707 dated 19.10.2020 passed by respondent No. 1 has been confirmed and upheld.
Special Judge Anticorruption Kashmir CL Bavoria while setting-aside the order, observed that the order impugned when tested in the light of the legal position and within para meter of the judicial pronouncement as cited supra I do not hesitate to state that the Designated Authority has not functioned with independence and impartiality. The impugned order appears an outcome of unfair procedure. The designated Authority seems to have considered the case of the investigating officer and placed an exclusive reliance on the material produced by him which action of the designated authority cannot be said beyond the act of it an arbitrary and discriminatory taken in utter violation of the principle of natural justice being passed without making a full and fair enquiry into the matter in controversy before him and adequate opportunity of being heard to the appellant to rebut the evidence to meet the case against him and which action of the designated authority vitiate the whole enquiry conducted by him. The enquiry had prospect of affecting the appellant civilly and he had a right to answer the allegation by producing evidence and defend his property. The appellant had a right to confront the evidence so produced by the IO and show that it was neither credible nor relevant to the matter in issue. He had also the right to produce evidence in support of his right to the property and in negation of the evidence produced by the investigating officer.
The brief facts of the case are that a case FIR No. 18/2019 U/S 5(1)(e) r/w 5(2) of J&K P.C. Act Samvat, 2006 was registered in police station ACB, Kashmir against the Noor Mohammad Wani the then Deputy Director, J&K Economics & Statistics with the allegations that during preliminary enquiry it was surfaced that he has accumulated assets disproportionate to his known source of income by indulging in corrupt and illegal practices. During investigation, search warrant was obtained from the court and the searches of the residential house of the accused/ appellant at Kanipora and old house/two school buildings at Haknipora Budgam was conducted by the ACB. During search various incriminating documents were affected and seized.
During investigation the IO came to the conclusion that the accused/appellant has acquired properties disproportionate to his known source of income and the IO having reason to believe that the property under investigation has been acquired by the accused by resorting to acts of commission and omission which constitute an offence of criminal misconduct u/s 5(1)(e) r/w 5(2) of the Act and that there is every likelihood that accused may alienate the alleged therein or otherwise deal with these properties to defeat the prosecution of the case, the IO respondent - SSP invoked the provision of section 8(B) of the Act passed the attachment order vide no. SSP-ACB-FIR-18/2019-3707 dated 19.11.2020, therein prohibiting the appellant not to sell or transfer the property viz two storied buildings which stand constructed on land measuring 1 Kanal and 13 Marlas under survey No. 1385 at Haknipora, Budgam. The value of the land when purchased in 1989 was Rs. 88,400/- and the value of two buildings at Rs. 40.00 lacs (approx.) as per the assessment of engineer experts. The IO on obtaining the approval submitted report to the Designating Authority (Commi-ssioner Secretary GAD, Govt. of J&K) for confirmation/affirmation as same being the requirement of law as envisaged in Sec. (B) of P.C. Act. The Designated Authority issued summon to the appellant, asking him to submit objection/representation viz-a-viz the order passed by the respondent-SSP. The appellant was asked to appear in person before the Designated Authority on 26.11.2020 and pursuant to the said notice, the appellant appeared before the Designated Authority and filed his detailed written objection/reply seeking setting aside/vacation of the prohibitory order issued by respondent - SSP. Designated Authority did not find the plea of the accused appellant plausible and agree with the prohibitory order dated 19.10.2020 issued by the IO reasonable and does not suffer from any vice or infirmity passed in exercise of power conferred by section 8-B of the Act, the Designated Authority confirm the prohibitory order of the IO SSP on dated 18.01.2021. JNF

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