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Confiscation and Forfeiture of Properties in India

Introduction:

Meaning of Confiscation of Property:

Confiscation has been derived from the Latin word confiscare which means “to consign to the fiscus” in simple words which mean “transfer to the treasury.” It is a legal form of seizure by any public authority or government.

Meaning of Forfeiture of Property:

In simple words, forfeiture means the loss or giving up something for wrongdoing. And it occurs when an individual or person delivers money, privileges or property to compensate for the losses which have been resulted from a legal obligation.

In other words, we can say that forfeiture is a legal method or process to transfer the ownership of property forcibly from one person to the government. This is done because to prevent the crime or wrong which is been done in the property or such property which is used for some criminal or wrong purpose.

There are different provisions of confiscation and forfeiture of properties given under different Acts such as the Criminal Procedure Code, 1973, NDPS Act and so on.

Criminal Procedure Code, 1973:

Criminal Procedure Code, 1973 provides the concept of confiscation and forfeiture of property. The criminal court can make an order as it thinks fit for the custody of property which is produced before it. Criminal Procedure Code, 1973 contains section 451 which enables a magistrate to provide for interim custody. This Act also mentions that immovable property cannot be seized by a police officer under section 102 and another section 451 of this Act says that even a magistrate cannot pass any order.

When in any criminal court trial is concluded, the court can make an order for the disposal, by confiscation or delivery or transferring to an individual or any person who is claiming to be entitled to possession.

Criminal Procedure Code, 1973 contains section 457 which further says that any property which was seized by the police during an investigation can be released by them if they find that the seizure was unjustified. Section 458 of the Act has great importance in its application. It explains that when the possession or title to the property is proved and the person or an individual who is the owner of the property is unable to show that the property belongs to him or his own then the property may be forfeited to the government.

NDPS Act, 1985:

NDPS Act, 1985 gives the concept of confiscation and forfeiture of illegally acquired properties. This Act applies to any person who is convicted of an offence or any person convicted of a similar offence by a competent court of criminal jurisdiction outside India and so on. Every officer has the power to trace and identify the illegal properties on receipt of information under section 53 of this Act and every police officer is also empowered under this Act to trace and identify the illegally acquired properties.

Cases:

  1. “In Criminal Appeal No.139 Of 1999: vs Thiu. H.M. Pandey on 12 January 2016, Madras High Court.”

“Criminal Appeal under Section 374 (2) of Cr.P.C., against the judgment passed by the Special Judge No.1/XI Additional Judge, Chennai – 1, in Special C.C.No.3 of 1999 dated 02-03-2001 sentencing the appellant to four years of R.I. and imposing a fine of Rs.1 lac which was paid on 02-03-2001 and ordering that an amount of Rs.1,01,32,107/- shall be forfeited to Government under Sec 13 (3) of Criminal Law Amendment Ordinance 1944 and ordering the Dt. Collector to recover the said amount by the provisions contemplated under the Revenue Recovery Act after the appeal time is over, for an offence under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 and prays to set aside the judgment and conviction and order of forfeiture.

Criminal Appeal under Section 454 of Cr.P.C., to direct confiscation of the properties proved to have been acquired by the respondent/accused totally disproportionate to the known sources of his income. The appellant also prays this Honourable Court to set aside the Trial Court order of forfeiture of the value of Rs.1,01,32,107/- and instead direct confiscation of all the assets and pass orders.

It is a settled principle of law that as per Section 452 of the Code of Criminal Procedure, 1973, the Trial Court is having unfettered power of confiscation. 

Considering the aforesaid factual circumstances, this Court is of the view that subject to the charge created in favour of the petitioner found in Crl.M.P.No.2384 of 1998, properties mentioned in the Annexure can be confiscated.

Crl.A.No.304 of 2001 is allowed to the extent of the relief sought therein. The immovable properties mentioned in the concerned Annexure are confiscated to the State Government subject to the charge created in favour of the petitioner found in Crl.M.P.No.2384 of 1998 in Crl.O.P.No.9 of 1997.

 Since an order of confiscation has been passed subject to the charge of the petitioner in Crl.M.P.No.2384 of 1998, Crl.A.No.139 of 1999 is dismissed.”

  • Kannepogu Ramulu vs The State Of A.P. Through Sho, … on 21 August 2014, Andhra High Court.”

“Brief facts are that the petitioner is the owner of the auto bearing No.AP 20 TB 6112 and the same was seized by the Khanapuram Haveli police in connection with a case in Crime No.275 of 2014 under cover of panchanama dated 28.04.2014 for the offence punishable under the above section of law for which the accused No.1 being the owner of the vehicle filed the petition in Crl.M.P.No.1235 of 2014 under Section 457 Cr.P.C praying to release the vehicle.

When there is a special provision in a statute, the general provision in Cr.P.C yields to the special provision to prevail over the Cr.P.C to say the authorities under the special provision of the Act alone got exclusive jurisdiction and it debars the jurisdiction of the authorities under the general provisions of Cr.P.C in that area (vide G.V.Sudhakar Rao (supra) of the Apex Court that was also followed in the later expression in State of West Bengal V. Sujit Kumar and in some of the decisions of the Apex Court referred therein in a Forest offence relying upon State of A.P. V. P.K.Mohd and referred Mohd. Yaseen V. F.R.O regarding exclusive jurisdiction of Forest Department officials for confiscation once property seized brought to them under the A.P. Forest Act);

 Having regard to the above, though Swarupa (supra) was not referred and all these aspects were not considered by the learned Magistrate and even the vehicle is not produced before the Excise officials and even for arguments sake, no confiscation proceedings initiated and even for arguments sake with Form No.66 there is intimation about the vehicle with police or other officials of its seizure for production before the Magistrate, the Magistrate has no jurisdiction under Section 457 or 451 Cr.P.C under Chapter XXXIV Cr.P.C, but for the Deputy Commissioner concerned of the Excise or Prohibition Act in such offences.

In the result, the revision is dismissed holding that the impugned order by dismissing the petition for interim custody of the vehicle for want of jurisdiction dt.14.05.2014 passed by the learned Magistrate in Crl.M.P.No.1235 of 2014 in Crime No.275/2014 of Khanapuam Haveli Police Station no way requires interference by sitting against. Consequently, the miscellaneous petitions pending, if any, shall stand closed. It is needless to say the remedy of the Petitioner is to approach the Deputy Commissioner concerned for any constitutional remedy.”

Conclusion:

The concept of confiscation and forfeiture along with some provisions are discussed above.  There are different provisions of confiscation and forfeiture of properties given under different Acts such as the Criminal Procedure Code, 1973, NDPS Act and so on. There are different cases relating to confiscation and forfeiture pending in the courts and many other cases are lodged every year. So, it is better to consult with an expert in this field to get relief or fair justice.

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