HC quashes sessions judge’s order as appellate authority under UAPA

Srinagar, Oct 17: The High Court of J&K and Ladakh on Tuesday set aside an order of Sessions Judge, Udhampur as appellate authority under Unlawful Activities (Prevention) Act (UAPA) and remanded back to him an appeal filed by aggrieved persons against two orders of Divisional Commissioner Jammu as designate authority under the Act.

In their petition G M Bhat and Mohsin Mahuf Bhat had challenged the orders dated 30.06.2008, 17.11.2008 passed by the Divisional Commissioner Jammu as designate authority under UAPA and order 30.06.2009 passed by Sessions Judge Udhampur as appellate authority .

In their plea the petitioners submitted that the properties seized from their two residential houses/accommodation located in Delhi and Hyderpora, were not proceeds of crime and sought release of the same.

The appellate authority in the instant case had concluded that the order passed by the Designated Authority was without any reasoning and rendered it back to the said authority for considering the case afresh.

As per the appellate authority, the designated authority must have recorded a finding as to how he was satisfied with the view taken by the investigating officer that the seized property/ items particularly items like passport, identity cards, cash memos, represent the proceeds of terrorism. 

In its Judgment, the Court observed In the instant case, once the appellate authority had come to a conclusion that the order passed by the Designated Authority was without any reasoning, then the authority ought to have exercised the power of giving a finding whether the seized property is proceeds of crime or not.  “According to the finding recorded by the appellate authority in the order of appeal, which is impugned in the instant petition, the said issue has not been adjudicated by the Designated authority while discharging the duty of considering the representation of the effected persons and exercising his power of confirming the seizure,” the Court said.

“As per the appellate authority, the designated authority must have recorded a finding as to how he is satisfied with the view taken by the investigating officer that the seized property/ items particularly items like passport, identity cards, cash memos, represent the proceeds of terrorism,” the Court said, adding, “ the appellate authority was of the view that such onerous power and duty cannot be said to have been discharged by the designated authority by rejecting the explanation without assigning any reason, thereto.”

Once, the appellate authority, the court said, was convinced that the order passed by the designated authority was bereft of any reasoning, then the appellate authority ought to have exercised the power under section 25 (6) by revoking such order of the designated authority and releasing the property “The appellate authority instead of acting in conformity with the provisions of Section 25(6), has remanded the case back to the designated authority for reconsideration and passing fresh order, which in a way is tantamount to extending the period of limitation of sixty days, provided under section 25(3) of the Unlawful Activities Prevention Act, 1967, which is not permissible under law”.

 “This Court is of the view that once, the Appellate authority was of the considered opinion that order passed by the Designated authority was not in consonance with law, as the said order has been passed without assigning any reason, then the only course which was available to the Appellate authority was to revoke such order in toto or else could have decided the case on its own merits,” a bench of Justice Wasim Sadiq Nargal said, while allowing the petition.

 While the court held that the appellate authority couldn’t have remanded the case back to the Designated authority to act in derogation to the mandate and spirit of Section 25(3) of the Unlawful Activities (Prevention) Act, it said the order passed by the Appellate authority was in flagrant violation of the statutory provisions as envisaged under Section 25 of the Act.

Quashing the order dated 30.06.2009 passed by the Appellate authority, the Court remanded back to the authority the appeal of the petitioners and asked it to consider it afresh strictly in conformity with provisions of Section 25 of the Unlawful Activities (Prevention) Act. “ It is, however, made clear that the Appellate authority before initiating proceedings afresh, shall issue notice to all the parties concerned and decide the appeal expeditiously, as per law after providing an opportunity of being heard to all the concerned,” the Court said.