Welcome to Govt. Of India

ACTS

INTRODUCTION

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.

AMENDMENT OF THE LAW

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.

Reasons for Amendment Background
The International and National background resulting in formulation of law on forfeiture of property are given below:

INTERNATIONAL LEVEL

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.

NATIONAL LEVEL

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.

SALIENT FEATURES

The salient features of Chapter V-A relating to Forfeiture of Property are as follows :
Application The law relating to forfeiture of property is applicable to certain specified class of persons mentioned in Sec.68A. Briefly, these persons are:
• Those convicted for an offence punishable for a term of ten years or more under the Act.
• Those convicted for similar offence by a competent court outside India.
• Those detained under the PITNDPS Act, 1988 or J&K PITNDPS Act, 1988 provided their detention is not set aside/revoked.
• Certain relatives or associates of persons mentioned in (i) to (iii) above.
• Arrested / against whom warrant or authorisation of arrest has been issued for offence under NDPS Act whether in India or abroad.
• Any holder of any property, which has been transferred by such persons unless the transfer was in good faith and for adequate consideration
However, the property can also be seized / freezed of the aforesaid person.

LIMITATION

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.

A NOTE OF CAUTION

• Investigating officers should not forget to investigate the property of relatives and associates, mentioned in Sec.68A.
• 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.

DEFINITIONS

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.