Nomination of Competent Authority
 
Under Sec. 68D of the NDPS Act, 1985. the Central Government is empowered to nominate officers of the rank specified in the said Section to perform the functions of the Competent Authority.
Prohibition of holding illegally acquired property
Section 68C of NDPS Act states that it shall not be lawful for any person to hold any “illegally acquired property” as defined in Section 68B(g), ibid. Any illegally acquired property is liable to be forfeited to the Central Government in accordance with the provisions of Chapter V-A of the NDPS Act. However, no property can be forfeited if the property was acquired before a period of six years from the date on which a person is arrested/detained for an offence relating to illicit trafficking in drugs.
Identification, seizure and freezing of illegally acquired property
Sections 68 E and F contain provisions for identification, tracing and freezing/ seizing of proceeds and property illegally acquired. It is one of the most important part of investigation by drug enforcement agency. The legislative scheme envisages that officers authorized u/s. 53 should trace and identify illegally acquired property and either freeze or seize it before initiation of detailed investigation and formal for feiture. The aim of these measures is to prevent transfer, concealment etc. of the property during the pendency of proceedings of forfeiture of property and prosecution launched under the Act.
The tracing and identification may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of accounts in any bank or financial institutions or any other relevant matter. The inquiry or investigation or survey for tracing and identification of any property illegally acquired shall be carried out in accordance with any directions or guidelines issued by the Competent Authority in this behalf.
Freezing or seizing of illegally acquired property
Whenever any officer conducting enquiry or investigation under Sec. 68 E has a reasonable belief that the properties which is the subject matter of investigation is likely to be concealed, transferred or otherwise dealt with in a manner which would frustrate forfeiture under Chapter V-A, he may make an order for seizing such property and where it is not possible, he may make an order to the effect that the property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order or the Competent Authority. A copy of this order should be served on the person concerned and also sent to the Competent Authority within 48 hours of its being made.
 
Proceedings by the Competent Authority
 
1. Coformation of ceizing /freezing
 
No order made under Section 68 F (1) shall have any effect unless it is confirmed by order of the Competent Authority within a period of 30 days of its being made. This is a statutory requirement under the law. If the Competent Authority does not confirm the freezing order within the stipulated period, such order is automatically rendered ineffective and the trafficker can do whatever he likes with the property.
 
2. Issue of show cause notice U/S 68 H of NDPS Act
 
After the offender is convicted for ten years are more or he/she is detained under PIT N.D.P.S.1988 & the competent authority has reason to belive (the reason for such belive to be recorded in writing) on the basis of a report from investigating offcer, that all or any of such propreties are illgally acqired properties, he may issue a notice upon such person (affected person) calling upon him /her within a period of thirty days to indicate the sources of his/her income earnings or asstes to prove the legal acuqisition of the properties and to show couse why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government. A copy of show cause notice are also issued to the relatives/associates of the affected person.. However, in case of persons arrested under NDPS Act 1985 who have neither been convicted nor detained under PIT N DPS ACT 1988, notice of forfeiture under section 68 H of NDPS Act can not be issued but their properties shall remain still seized/freezed.
 
Afording apportunity of personal hearing
 
Before final order of forfeiture/release is passed by the Competent Authority, the affected person is given opportunity a personal hearing in the interest of natural justice and to enable to him/her to submit the proof/ evidence of legal source of acquisition of the properties.
 
Order of forfeiture/release of property U/S 68 I of NDPS Act
 
The Competent Authority may, after sonsidering the explanation, if any, to the show cause notice issued under section 68 H, and the materials available before if and after giving to the person affected (and in case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties.
 
Service of any notice or order
Section 68X requires that any notice or order issued under Chapter V-A shall be served by sending it by Registered post with acknowledgement due to the person for whom it is intended or to his agent. If the notice cannot be served in the aforesaid manner, it should be affixed in a conspicuous place in the property in relation to which the notice or order is issued. This section does not require effective service on the person receiving it. The notice can also be served by pasting in a conspicuous place of the premises in which the person for whom it is intended is known to have last resided or carried out business or personally worked for gain.
Meaning of the term ‘property’
Property has been defined in Chapter V-A to include assets of description whether corporeal or in corporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, oninterest in, such property or assets, derived from or used in, the illicit traffic. Trusts have also been defined. Besides, the property of a person charged for an offence, the property of certain relatives, associates and trusts have also to be included. Movable properties may include vehicles, conveyances, live stock, cash, gold, diamond, jewellery of all description, fixtures, furniture, consumer durables like TV, fridge, VCR etc, bank deposits, investments of all types including fixed deposits, shares and debentures, deposits with the public and private companies, bank accounts, deeds and instruments including any advance or loans made etc. Immovable property, besides land and buildings, would include trees and crops attached to the ground.
Management of seized/forfeited property
Under Section 68G, Administrators are required to receive and manage the seized or forfeited property. Presently, the Competent Authorities have also been designated as Administrators. The illegally Acquired property (Receipt, Management and Disposal) Rules, 1989 have been framed for better management and disposal of property. These rules lay down the manner of storage of valuables, other property, management of land and building, procedure for disposal of livestock, perishables etc.