NDPS | Right to Property Can’t Be Frozen Without a Voice: P&H High Court Orders Revival of Appeal Against Property Forfeiture

“Fair Access to Appeal Cannot Be Denied for Practical Impossibilities Faced by Prisoners”, In a significant decision safeguarding substantive justice over procedural technicalities, the Punjab and Haryana High Court set aside the dismissal of an appeal by the Appellate Tribunal for Forfeited Property, where the appeal was rejected solely on account of a defect caused by the petitioner’s judicial custody. The Division Bench of Chief Justice Sheel Nagu and Justice Sanjiv Berry held that when the cause of procedural default is beyond a litigant’s control, tribunals must ensure adjudication on merits rather than resort to hyper-technical dismissals.

The High Court observed,
“When the remedy of appeal is provided under Section 68(O) of the NDPS Act and the petitioners have already filed the appeal before the designated forum, the Appellate Authority ought to have decided the appeal on merits, rather than throwing it away on account of the aforesaid defects especially when the removal of same was not within the control of the petitioner No.2, being lodged in jail.”

The case revolved around property freezing orders issued under Section 68(F) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), in the backdrop of an NDPS FIR against the petitioners registered at Rajpura, Punjab. The petitioners had approached the Appellate Tribunal challenging confirmation of freezing orders. However, the Tribunal dismissed the appeal on 7th January 2025 on the ground that the second petitioner could not file a signed affidavit due to his incarceration.

Counsel for the petitioners apprised the Court that they had made attempts to have the affidavit attested but the Jail Superintendent declined without specific court orders, leaving them unable to comply despite best efforts.

The Court took a pragmatic and rights-conscious approach, holding that the Tribunal’s dismissal of the appeal merely for non-removal of this defect was unjust. Justice Sanjiv Berry, authoring the judgment, ruled:
“Procedural difficulties caused by incarceration of a litigant should not be permitted to override the right to substantive adjudication, particularly in cases involving property rights and liberty under the NDPS Act.”

Noting that neither side disputed the factual scenario, the Court set aside the dismissal order and laid down a mechanism for curing the defect. It directed the Jail Superintendent to facilitate execution and attestation of the required affidavit, stating:
“The concerned Superintendent of Jail is directed to get it signed from the petitioner No.2 in his presence and also get the affidavit duly attested from the Oath Commissioner.”

The Court granted the petitioners liberty to file the attested affidavit and revive their appeal within a period of fifteen days thereafter. The Appellate Tribunal was directed to consider and decide the appeal afresh, strictly on merits, untainted by the earlier dismissal order.

In conclusion, the High Court once again affirmed the pre-eminence of fair hearing, remarking,
“Administrative dismissals cannot be a substitute for justice, particularly where failure to comply stems from factors beyond the petitioner’s control.”

The judgment ensures that prisoners or those in custody are not deprived of appellate remedies merely due to logistical hurdles, upholding the principle that access to justice must not be compromised by incarceration.

Date of Decision: 15th July 2025