NASREEN MOHSIN CHOUDHARY vs NATIONAL INVESTIGATION AGENCY
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 9th July, 2024
+ CRL.A. 391/2022 & CRL.M.A. 16414/2022
NASREEN MOHSIN CHOUDHARY …..Appellant
Through: Mr. Talha Abdul Rahman, Mr Adnan Yosuf, Mr. Imtiyaz, Mr Shaz Khan, Advs. (M: 8130500766)
versus
NATIONAL INVESTIGATION AGENCY …..Respondent
Through: Ms. Shilpa Singh, SPP for NIA with
Insp. Mahesh Kumar, P.S. Dabri.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
CRL.A. 391/2022 and CRL.M.A. 16414/2022 (for grant of stay of auction)
2. The present appeal under Section 21 of the National Investigation Agency Act (hereafter, NIA) has been filed challenging the impugned order dated 22nd September, 2021 (hereinafter, impugned order) passed by the Learned Special Judge, NIA Court Patiala House, New Delhi by which the attachment of property bearing no. Flat no.3, Manisha Complex, First Floor, Survey No.49, Meetha Nagar, Kondhwa Khurd, Pune-411048 which is stated to be a 2 BHK flat admeasuring 900 sq ft, was not interfered with by the Learned Trial Court.
3. The present application has been filed by the Appellant, seeking a status quo order in respect of the subject property.
4. The case of the Appellant is that the attached property i.e., the flat in question situated in Pune is jointly owned by her and her husband, who has now been declared as a Proclaimed Offender. It is stated that the Appellant is not an accused and the property in question was purchased much prior to the alleged offence was committed. The husband of the Appellant i.e., Mohsin Choudhary is stated to be absconding since 2008 and the property in question was purchased in the year 2006. According to the Appellant, she along with her minor children were residing in the said property.
5. According to the ld. Counsel for the NIA, the original sections under Chapter VI of Cr.P.C were invoked which permit attachment of properties of persons absconding. The subject property was attached vide attachment order dated 11th February, 2014, since the whereabouts of the Appellants husband were not coming to the knowledge of the NIA, thus the NIA exercised its power.
6. Thereafter, objections were filed by the wife i.e., the Appellant, who claimed to be the joint owner of the subject property. In respect of the said objections, the Special Court recorded that the subject property was initially purchased on the basis of a loan from Ratnakar Bank Ltd., Pune Branch. Some instalments of the property have also been stated have been paid. The Appellant was stated to be living in the said property and after the attachment order was passed, she was dispossessed.
7. The learned Trial Court records that there are contesting claims for ownership of the property. The NIAs case is that the subject property is exclusively owned by the accused, and the Appellant was merely made a co-owner of the subject property as she is the wife of the accused.
8. However, it is the case of the Appellant that she had taken some money after selling jewellery for paying the consideration.
9. The learned Trial Court also recorded that no evidence was furnished as to the source of savings etc. The learned Trial Court finally concluded that the question was only whether the Appellant has any interest in the property and that since the said interest is not severable and there is no clarity as to the amount of share that the Appellants owned, the attachment is not liable to be interfered with.
10. The submission on behalf of the Appellant is that the Appellant and her family may be allowed to reside in the said property and the property may remain attached with NIA being the receiver. This proposition is also opposed by the NIA on the ground that the property has not been sold, it has merely been attached.
11. The second ground raised is that the Appellants belongings including household items are lying in the said property. This fact is disputed by the NIA.
12. On the other hand, NIA has challenged the maintainability of the appeal on the ground that the impugned order is an interim order and it is not appealable under Section 21 of the NIA Act, 2008.
13. The Court has considered the matter. The objections of the Appellant, who claims to be the joint owner have been finally dismissed and thus, insofar as the maintainability is concerned, prima facie, the appeal is maintainable.
14. However, insofar as the second relief sought by the Appellant that she should be given possession of the property, the Court is not inclined to accept this prayer, in view of the fact that the husband of the Appellant is clearly a proclaimed offender. These special provisions are invoked by the NIA under the Cr.P.C. to compel appearance of Appellants husband.
15. Under such circumstances, permitting the Appellant to reside in the said property would go contrary to the spirit of the said special provisions under the NIA Act. However, insofar as any remedy that may be available under Section 84(4) Cr.P.C. are concerned, the Appellant is free to avail of any such remedies.
16. In the meantime, however, it is made clear that without further directions of the learned Trial Court, the sale of the property shall not be carried out and the property shall continue to remain attached with the NIA.
17. It is made clear that if there are any belongings of the Appellant or her family lying in the subject property, the property shall be opened under the supervision of the NIA officials and all the belongings would be permitted to be removed by the Appellant.
18. The application Crl. M.A. 16414/2022 is disposed of in the above terms.
19. List the appeal in due course.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
JULY 9, 2024/tp/bh
CRL.A. 391/2022 Page 2 of 2