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| Law,
Provisions and procedure regarding forfeiture of
property of drug traffickers/ smugglers |
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| Introduction |
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The drug trade
in India and indeed throughout the world is dominated
by organized crime. Criminals operate for the
sole purpose of financial gains and power that
goes with it. Illicit trade in drugs generates
huge profits and wealth. This not only hampers
and affects legitimate trade and commerce but
also results in links with other crimes. Narco
crime and Narco-terrorism are not new words for
investigating officers of drug enforcement agencies. |
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| Amendment
of the Law |
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A Bill was introduced
in Parliament on 29 th November, 1988 to strengthen
the NDPS Act. One of the major reasons for amendment
was to provide for forfeiture of property and
prescribe a detailed procedure for the same. The
NDPS (Amendment) Act, 1988 came into force on
29 th May, 1989. Under the Amendment, a new Chapter
V-A “Forfeiture of Property derived from
or used in illicit Traffic “was incorporated.
Thus, the NDPS Act, 1985 as amended has now twin
enforcement programme containing elaborate provisions
for prosecution of drug related offences and more
important for forfeiture of assets of drug traffickers.
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| Reasons
for Amendment Background |
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The International
and National background resulting in formulation
of law on forfeiture of property are given below: |
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| International
Level |
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The Commission
of Narcotic Drugs of United Nations in
February, 1988 adopted a resolution on
forfeiture of proceeds of drugs. It was
felt that depriving drug traffickers of
their proceeds, specially money power,
would be an effective means of reducing
illicit traffic in drugs. Ultimately in
1988, a new Convention was adopted by
United Nations Plenipotentiary Conference
providing for identification, tracing,
freezing, seizure and confiscation of
property related to drugs. |
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| National
Level |
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India
is a signatory to the 1988 convention
and by virtue of Article 253 of Indian
Constitution is under obligation to implement
the same. In order to implement the provisions
of the Convention, Government of India
amended the NDPS Act in 1988 to incorporate
suitable provisions for forfeiture of
illicit property of drug traffickers.
These provisions are contained in Chapter
VA of NDPS Act. 1988(Section 68A TO 68Z).
The provisions of Chapter VA have been
generally borrowed from “The Smugglers
and Foreign Exchange Manipulators (Forfeiture
of Property) Act. 1976 (SAFEMA) and Article
5 of United Nation Convention of 1988.
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| Salient
Features |
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The salient features
of Chapter V-A relating to Forfeiture of Property
are as follows : |
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| Application
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The law relating to forfeiture
of property is applicable to certain specified
class of persons mentioned in Sec.68A. Briefly,
these
persons are: |
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Those convicted
for an offence punishable for a term
of ten years or more under the Act.
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Those convicted for
similar offence by a competent court
outside India. |
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Those detained under
the PITNDPS Act, 1988 or J&K PITNDPS
Act, 1988 provided their detention
is not set aside/revoked. |
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Certain relatives or
associates of persons mentioned in
(i) to (iii) above. |
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Arrested / against whom warrant or authorisation of arrest has been issued for offence under NDPS Act whether in India or abroad. |
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Any holder of any property,
which has been transferred by such
persons unless the transfer was in
good faith and for adequate consideration
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| However, the property can also be seized / freezed of the aforesaid person. |
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| Limitation |
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The forfeiture
provisions apply to all property acquired before
a period of six years from the date on which he/she
was arrested/ detained for an offence relating
to illicit trafficking in drugs. |
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| A
note of caution |
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Investigating
officers should not forget to investigate
the property of relatives and associates,
mentioned in Sec.68A. |
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Under Sec. 68J, the burden
of proving that any property for which
notice is issued is not illegally acquired,
shall be on the person affected. |
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| Definitions
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Certain terms
used in Chapter V-A of the NDPS Act, 1985, such
as, associate. Competent Authority, freezing illegally
acquired property, relative, tracing etc. have
been defined in Sec.68B. These terms, therefore,
wherever used in Chapter V-A shall have the meaning
assigned to them as indicated in the definition.
Some of the definitions have been borrowed from
SAFEMA and United Nations Convention of 1988. |
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