Section 68A: Application

1, 2[68A. Application.– (1) The provisions of this Chapter shall apply only to the persons specified in sub-section (2).

(2) The persons referred to in sub-section (1) are the following, namely:–

(a) every person who has been convicted of an offence punishable under this Act with imprisonment for a term of 3[ten] years or more;

(b) every person who has been convicted of a similar offence by a competent court of criminal jurisdiction outside India;

(c) every person in respect of whom an order of detention has been made under the Prevention of IIicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988), or under the Jammu and Kashmir Prevention of IIicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988;

4[(cc) every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act with imprisonment for a term of ten years or more, and every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of a similar offence under any corresponding law of any other country.]

Provided that such order of detention has not been revoked on the report of the Advisory Board constituted under the said Acts or such order of detention has not been set aside by a court of competent jurisdiction;

(d) every person who is a relative of a person referred to in clause (a) or clause (b) or clause (c) 4[or clause (cc);]

(e) every associate of a person referred to in clause (a) or clause (b) or clause (c) 4[or clause (cc);]

(f) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously held by a person referred to in clause (a) or clause (b) or clause (c) 4[or clause (cc);] unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.]

1 Ins. by Act 2 of 1989, s. 19 (w.e.f. 29-5-1989).

2. Subs. by Act 16 of 2014, s. 19, for “FORFEITURE OF PROPERTY DERIVED FROM, OR USED, IN ILLICIT TRAFFIC” (w.e.f. 1-5-2014).

3. Subs. by Act 9 of 2001, s. 31, for “five” (w.e.f. 2-10-2001).

4. Ins. by s. 31, ibid. (w.e.f. 2-10-2001).

Simplified Explanation

This section is the foundation for the forfeiture of property provisions under the NDPS Act. It specifies who is subject to the forfeiture regime and related actions under the chapter dealing with the confiscation of properties derived from or used in illicit trafficking of narcotic drugs and psychotropic substances.

Key Points of Section 68A

1. Applicability (Subsection 1):
   • This chapter applies only to specific categories of persons mentioned in Subsection (2).
2. Categories of Persons Covered (Subsection 2): The law targets individuals directly or indirectly involved in drug trafficking or those associated with such individuals. These include:
   (a) Convicted persons:
   • Persons convicted of an offense under the NDPS Act where the punishment is imprisonment for ten years or more.
3. (b) Foreign convictions:
   • Persons convicted of similar offenses by a competent foreign court.
4. (c) Detained under preventive laws:
   • Persons subjected to detention orders under:
     • The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, or
     • The Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
     • Proviso: This applies only if the detention order has not been:
       • Revoked by the Advisory Board, or
       • Set aside by a competent court.
5. (cc) Persons arrested or under warrant:
   • Those arrested or issued an arrest warrant for offenses punishable under the NDPS Act with imprisonment for ten years or more, or for similar offenses under the laws of another country.
6. (d) Relatives of the above:
   • Relatives of persons covered under clauses (a), (b), (c), or (cc).
     • This includes immediate family and extended family members, though “relative” may be interpreted based on specific circumstances.
7. (e) Associates of the above:
   • Individuals who are associates of persons covered under clauses (a), (b), (c), or (cc).
     • “Associates” can mean business partners, accomplices, or others linked through criminal enterprise.
8. (f) Holders of property once owned by offenders:
   • Current holders of property that was previously held by individuals mentioned above unless they can prove:
     • The transfer was in good faith, and
     • It was for adequate consideration (i.e., a fair and genuine transaction).

Purpose and Rationale

Section 68A is designed to:

1. Dismantle financial networks involved in drug trafficking by targeting not only individuals but their property and financial interests.
2. Deter others from assisting or associating with known offenders.
3. Address the use of fronts or proxies (relatives, associates, or third-party holders) to conceal illicitly derived assets.

Practical Implications

• Wide net of accountability:
  This provision extends the law’s reach to relatives, associates, and property holders, ensuring that traffickers cannot shield assets by transferring them to third parties.
• Forfeiture proceedings:
  The government can initiate forfeiture of properties linked to drug-related crimes, even if they are not directly in the offender’s possession.
• Burden of proof:
  For individuals in clauses (d), (e), or (f), the onus is on them to prove their innocence or establish that their property acquisition was legitimate.

Safeguards

1. Due process:
   Forfeiture cannot be arbitrary. It must follow legal procedures under the Act and offer the affected parties a chance to present their case.
2. Good faith transfers:
   The law acknowledges legitimate transactions where property may have changed hands without knowledge of its illicit origin.

Related Provisions

• Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988:
  This Act provides for preventive detention of individuals involved in drug trafficking.
• Forfeiture of Illicit Property (Chapter V-A):
  Sections related to forfeiture detail the procedures and legal framework for seizing assets under this chapter.