Question 1 : What is asset forfeiture under NDPS Act, 1985?

Answer : Asset forfeiture is the act of seizing/freezing and forfeiting illegally acquired properties of drug traffickers and their relatives/associates under specific provisions of NDPS Act 1985.

(Chapter VA of the NDPS Act 1985)

Question 2 : What properties can be termed illegally acquired property?

Answer :  Under NDPS Act 1985 any property which has been either partly or fully acquired from earning made through an activity which is an offence under the Act is illegally acquired property. Also a property, which has been acquired partly or fully from any amount, which can be linked with the illegal property, as described in last sentence is also illegal property. For example if a drug trafficker X has a car, a house and some agricultural land which have been acquired by him, partly or fully through his earning made from drug trafficking, the car, house and agricultural land are illegally acquired property. X might also have made some earning from the house and land after their acquisition from illegal income. This earning is also illegal and if any property has been acquired from this earning that would also be illegally acquired property. Similarly if X sells his house and buys another house from the sale proceeds the new house would continue to remain illegally acquired property for being derivative of an illegally acquired property.

However, if the property was acquired six years prior to the arrest of the accused or issue of authorization of arrest or warrant against him/her, the property is not hit by forfeiture related provisions under chapter VA of the Act.

(Sub Section ‘g’ of Section 68 B of the NDPS Act 1985)

Question 3 : What are tainted properties?

Answer : The term tainted property is sometimes used in place of illegally acquired property. The basic concept for alleging a property, as illegally, acquired property is that it has been derived partly or fully from an income, which has taint of having been earned from drug related offences. The term, tainted property is also therefore used interchangeably with illegally acquired property.

(Sub Section ‘g’ of Section 68B of the NDPS Act 1985)

Question 4 : If a person, not connected in anyway with drug trafficking, buys a property, which is an illegally acquired property of a drug offender, will this property be also treated as illegally acquired property?

Answer :   The property will not be treated as illegally acquired property only if it has been bought in good faith with adequate consideration. Only if these two criterions are satisfied, the taint of illegal acquisition of property gets washed away, otherwise the taint remains and it is liable to forfeiture.

(Sub Section ‘g’ of Section 68 B of the NDPS Act 1985)

Question 5 : Whether the assets of every person involved in drug related offences have to be forfeited?

Answer : The NDPS Act provides for forfeiture of tainted assets of such offenders.

• Who have been convicted with imprisonment for ten years or more.

• Who have been detained under PIT NDPS Act 1988/JK PIT NDPS Act 1988 or an order of detention under any of these two Acts has been issued.

• Against whom an arrest warrant has been issued/ has been arrested for commission of an offence punishable with an imprisonment for more ten years or more by a court in India or outside.

• Against whom a conviction order has been passed by any competent court outside India.

• Relatives and associates of persons, I, II and IIV above.

• Any holder of illegally acquired property if the property has not been bought for adequate consideration in good faith.

(Sub Section ‘2’ of Section 68 A of the NDPS Act 1985)

Question 6 : So, conviction/possibility of conviction with imprisonment for ten or more than ten years appears to be the principal criteria for a person to be hit by asset forfeiture provisions of the NDPS Act 1985. What are the offences under the Act which attract imprisonment for ten years or more?

Answer : The punishment under the Act depends upon the quantity of drugs/narcotic substances involved. It is only in cases where quantity of drugs is classifiable as small, the punishment is imprisonment for less than ten years. For almost all cases where quantity involved is more than small quantity, the punishment is imprisonment for ten years or more. Thus the persons who have been involved in offences where quantity of drugs is more than small are the persons whose tainted assets are to be forfeited.

(Chapter IV of the NDPS Act 1985 read with MOF, DOR Notification S.O. 527 (E) dated 16.7.1996)

Question 7 : What relatives and associates of a drug offender, covered as person under chapter VA of the NDPS Act, are hit by asset forfeiture provisions under the chapter?

Answer : The list of relatives and associates is a very large list covering almost all possible relatives/associates of the persons who may either be actively involved in the activities of the drug offender or may be getting monetary benefits from his. It starts from the spouse of the person, their children, their parents, their in laws, their brothers, sisters and their relatives. The schematic diagram showing the complete family tree, mentioned in Chapter IV of this manual may be seen. Similarly associates would include business partners, managers, accountants, co residents etc. Details may be seen in chapter IV.

(Sub Section ‘b’ & ‘i’ of Section 68 B of the NDPS Act 1985)

Question 8 : The relatives and associates may have their own source of income and may have acquired properties through such income. Whether all properties of relatives and associates are hit by the forfeiture related provisions?

Answer : No, the Chapter VA is concerned with the forfeiture of illegally acquired properties only. Only such properties of relatives and associates, which have been acquired from illegal income derived from drug offences under the NDPS act or are held by them on behalf of a drug offender are hit by forfeiture related provisions.

(Section 68 C of the NDPS Act, 1985)

Question 9 : Does this mean that ancestral property or property acquired from legal sources of relatives and associates of the drug offender are out of purview of the forfeiture provisions.?

Answer : Yes, if the ancestral properties were acquired through legal source of the ancestors or the property acquired by relative/associate are from legal sources, they are out of purview of the forfeiture provisions.

(Section 68 C of the NDPS Act 1985)

Question 10 : What are the assets which are to be forfeited?

Answer :  The term asset or property as defined under the Act covers almost everything, which can be acquired with money. It includes land, house, vehicles, companies, bank accounts, fixed deposits etc. Details can be seen in Quick Reference section of this chapter.

(Sub Section ‘h’ of Section 68 B of the NDPS Act 1985)

Question 11 : How is the asset forfeiture proceeding initiated?

Answer : The asset forfeiture proceeding is started with the action of identification and tracing of illegally acquired assets of the persons who are hit by forfeiture provisions under the Act.

(Section 68 E of the NDPS Act 1985)