By TIOL News Service

NEW DELHI, MAR 01, 2019: THE petitioner impugns the order passed by the Appellate Tribunal for Forfeited Property.

By this order, the Appellate Tribunal has rejected the petitioner's appeal on the ground that it was filed beyond the period as prescribed under Sub-section (1) of Section 68-O of the NDPS Act (the appeal having been filed with a delay of 457 days).

The petitioner had also filed an application seeking direction from the Appellate Tribunal to permit it to approach the High Court for seeking condonation of delay, however, that prayer was also rejected.

The principal question that falls for consideration of the High Court is whether the Appellate Tribunal can entertain an appeal from an order of a Competent Authority, which is filed after expiry of sixty days from the receipt of the order. And, further, as to whether the Court can condone the delay in exercise of its powers under Article 226 of the Constitution of India.

The petitioner stated that its authorized representative left the services without informing the petitioner the status of the said proceedings and that it received a notice dated 23.04.2018 u/s 54 of the Prevention of Money Laundering Act, 2002 regarding the aforementioned properties and, on further inquiries, the petitioner became aware of the order dated 30.03.2017 passed by the Competent Authority. Therefore, the delay.

Sub-Section (1) of Section 68-O [Appeals] of the NDPS Act reads -

(1) Any person aggrieved by an order of the competent authority made under section 68F, section 68-I, sub-section (1) of section 68K or section 68L, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal:

Provided  that the Appellate Tribunal may entertain an appeal after the said period of forty-five days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

The High Court considered the submissions and observed –

+ The Appellate Tribunal has no jurisdiction to entertain an appeal which is filed beyond a period of sixty days from the date on which the order passed by the Competent Authority is served on the appellant.

+ The contention that the petitioner has any inherent right to file an appeal against the order of the Competent Authority, is flawed. It is well settled that an appeal is a creature of the statute and there is no inherent right of appeal.

+ If the right of appeal is a creature of statute, it would be open for the legislature to curtail the said right as well.

+ The Parliament has provided a right of appeal against an order of the Competent Authority, albeit, subject to the condition that the same be preferred within the specified period.

+ It has expressly curtailed the power of the Appellate Tribunal to entertain an appeal which is filed beyond the specified period. Thus, a person aggrieved by an order of the Competent Authority has no right to an appeal if the same is not preferred within the prescribed period.

Relying upon the apex court decision in  Singh Enterprises -   2007-TIOL-231-SC-CX,  and a plethora of similar decisions, the High Court noted that the decision of the Single Judge of the Madras High Court in  M/s Madhucon Granites Ltd. W.P. (C) 22973/2018 relied upon in support of their contention that the High Court has the power to condone the delay in filing an appeal is contrary to the authoritative view of the apex Court.

It was further observed - "This Court is unable to concur with the view that if the right of an Appellate Authority to entertain an appeal beyond a stipulated period has been curtailed by the legislature, the Courts in exercise of powers under Article 226 of the constitution of India can overcome the said statutory limitation. It is well settled that the remedy under Article 226 of the Constitution of India is available to enforce a legal right."

The High Court, therefore, concluded thus –

++ If the petitioner has no statutory right to file an appeal, the question of issuing directions under Article 226 of the Constitution of India to provide the same, contrary to the statute, would not arise.

++ Since, the right to appeal is a statutory right, this court is not persuaded to accept that relief can be granted to the petitioner who has lost such a right on account of delay.

The petition was dismissed.

(See 2019-TIOL-501-HC-DEL-NDPS)