Allahabad High Court
Smt. Laxmi Yadav @ Laxmi Yadav vs State Of U.P. Thru. Prin. Secy., Home ... on 5 August, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:53262 Reserved on 18.07.2024 Delivered on 05.08.2024 Court No. - 16 Case :- MATTERS UNDER ARTICLE 227 No. - 449 of 2024 Petitioner :- Smt. Laxmi Yadav @ Laxmi Yadav Respondent :- State Of U.P. Thru. Prin. Secy., Home Deptt., Lucknow And 2 Others Counsel for Petitioner :- Ravindra Shukla Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.
1. Pleadings in the case have been exchanged between the parties.
2. Heard Sri Ravindra Shukla, learned counsel for the petitioner as well as Ms. Ankita Tripathi, learned A.G.A. for the State.
3. This petition under Article 227 of the Constitution of India has been filed with a prayer for quashing of the judgment and order dated 16.12.2023 passed by the Court of Additional District and Session Judge/F.T.C. Ist Special Judge Gangster Act, Sultanpur in Misc. Gangster Case No. 11/2023:State of U.P. Vs. Ram Sagar Yadav, under Section 16 (1) of the U.P.Gangsters and Anti Social Activities (Prevention) Act, 1986 and order dated 24.12.2022 passed by District Magistrate Sultanpur, District Sultanpur in Case No. 3081 of 2022 Computerized Case No. D202204680003081 State of U.P. Versus Ram Sagar Yadav Police Station Chanda, District Sultanpur as well as order dated 30.09.2022 passed by District Magistrate Sultanpur, District Sultanpur in Case No.2886 of 2022 Computerized Case No. D202204680002886: State of U.P. Versus Ram Sagar Yadav Police Station Chanda, District Sultanpur against the petitioner and with a prayer to direct the opposite parties, namely, opposite party No.3 to release the tractor Swaraj 744XT, Chassis No. MBNBU53AAMTH23411 Engine No. EZ2001SDH29920, which is registered as Registration No. U.P. 44BH8353 in favour of the petitioner.
4. Learned counsel for the petitioner submits a case bearing Case Crime No. 206 of 2016 under Section 2/3 (1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station Chanda, District Sultanpur was lodged against the husband of the petitioner,namely, Ram Sagar and he was released on bail and since 2016 there is no case against the husband of the petitioner.
5. Learned counsel for the petitioner further submits that the petitioner has purchased a Tractor. The cost of which was Rs. 7,20,000/- out of which she has deposited cash money Rs. 3,70,000/- and for remaining amount she has taken loan from the Bank of Baroda, Branch Dostpur, District Sultanpur.
6. Learned counsel for the petitioner further submits that the vehicle of the petitioner was registered on 10.10.2022 from Transport Department, Sultanpur bearing Registration No. U.P. 44 BH 8353.
7. Learned counsel for the petitioner further submits that on 30/09/2022 District Magistrate Sultanpur-opposite party No.2 passed an order Under Section 14 (1) U.P. Gangster Act in Case No. 2886 of 2022 whereas he directed to confiscate the tractor Swaraj 744XT, Chechis No. MBNBU53AAMTH23411, Engine No. EZ2001SDH29920 which is registered as Registration No. U.P. 44BH8353 and purchased by the petitioner.
8. Learned counsel for the petitioner further submits that the petitioner on 15/10/2022 moved an Application Under Section 15 (1) U.P. Gangster Act for release of aforesaid tractor before the opposite party No.2.
9. Learned counsel for the petitioner further submits that the opposite party no. 2 vide order dated 24.12.2022 rejected the application moved by the petitioner without any reason and send the record before the learned Special Judge Gangster Act and proceed the case under according under section 16 of U.P. Gangster Act.
10. Learned counsel for the petitioner further submits that the being aggrieved by the order dated 24.12.2022 passed by the opposite party no. 2, the petitioner filed Crl. Misc. Writ Petition No. 1023 of 2023 Laxmi Yadav Vs. State of U.P. &others before this Hon'ble Court and this Hon'ble High Court vide order dated 06/02/2023 finally disposed of the petition with the direction to the District Magistrate to refer the claim of the petitioner under section 16 (2) of Gangster Act to the court concerned within a fortnight from today and further directed that the petitioner may also approach the court concerned by moving an appropriate application under Sub section (2) of section 16 of the Gangster Act.
11. Learned counsel for the petitioner further submits that incompliance of the order dated 06/02/2023 the petitioner move an application under the provision of under section 16 (2) U.P. Gangster Act on 17/06/2023 before the court concern for release the tractor of the petitioner Swaraj 744XT, Chechis No. MBNBU53AAMTH23411, Engine No. EZ2001SDH29920.
12. Learned counsel for the petitioner further submits that vide order dated 16.12.2023 the trial court rejected the application of the applicant with the finding that there is 22 criminal cases are pending against the husband of the petitioner in District Sultanpur, Sonbhadra, Jaunpur, Lucknow, Azamgarh and Ambedkar Nagar since the year 2007 but the court concerned has accepted this fact that the husband of the petitioner has not been convicted in the above cases and the applicant has not filed any document that the attached property has been acquired by her from her income.
13. Learned counsel for the petitioner further submits that the petitioner is the elected Pradhan of the Gram Panchayat Gorai and she was elected on 02/05/2021. The petitioner has also sold her buffalo for Rs. 2,00,000/- and Rs. 46,200/- by selling milk and she has also obtained honorarium of Rs. 49,000/- as such after accumulating Rs. 3,70,000/- she deposited for purchasing the tractor. The petitioner has barrowed Rs. 3,65,000/- from the bank of Baroda, Branch- Dostpur, District- Sultanpur. In support of his argument petitioner has enclosed Bank Statement as Annexure No.8 to this petition.
14. Learned counsel for the petitioner further submits that the arrear of the petitioner's tractor loan issued by the Bank of Baroda, Dostpur branch, Sultanpur Account No. 06200600001956. She has incurred a total interest of Rs. 82,396/- on the same. Currently the net outstanding is of Rs. 3,77,589/- as on 18/12/2023. In support of her argument petitioner has enclosed Bank Statement as Annexure No.9 to this petition.
15. Elaborating the submissions, learned counsel for the petitioner further submits that the attached property, the reference of which is given above has been acquired by her from her income.
16. Learned counsel for the petitioner further submits that the District Magistrate, Sultanpur/opposite party no. 2 vide order dated 30.09.2022 has wrongly and incorrectly attached the movable property (Tractor) of the petitioner on the wrong presumption that the said Tractor has been acquired by the accused Ram Sagar Yadav (husband of the petitioner) in the name of his wife as a result of committing a crime as a Gangster.
17. Clarifying the position, it has been urged by the learned counsel for the petitioner that as a matter of fact the petitioner is the elected Pradhan of the Gram Panchayat Gorai and she was elected on 02/05/2021. The petitioner has also sold her buffalo for Rs. 2,00,000/- and Rs. 46,200/- by selling milk and she has also obtained honorarium of Rs. 49,000/- as such after accumulating Rs. 3,70,000/- she deposited for purchasing the tractor. The petitioner has barrowed Rs. 3,65,000/- from the bank of Baroda, Branch- Dostpur, District- Sultanpur. In this regard, the petitioner has submitted bank statement. The copies of receipts of the same are annexed as Annexure nos. 8 and 9 to this petition. The aforesaid receipts fortify the fact that the petitioner had purchased the tractor. However, the concerned authorities without considering all these relevant facts and documentary evidence, passed the impugned orders on wrong premise with oblique motive.
18. Learned counsel for the petitioner further submits that the impugned order dated 30.09.2022 passed by the District Magistrate, Sultanpur does not reveal that the District Magistrate, Sultanpur had "reason of believe" that the tractor in question was acquired by the petitioner as a commission of an offence under the Gangster Act rather the aforesaid order is passed on mere suspicion, surmises and conjectures and the appellate courts has also passed the order dated 24.12.2022 and 16.12.2023 in cursory manner without analysing the documents of the petitioner. Thus the impugned orders are not sustainable in the eye of law.
19. Per contra, Ms. Ankit Tripathi, learned AGA has argued that the learned trial court has correctly appreciated the material on record before passing the impugned orders. The District Magistrate, Sultanpur has passed the impugned order dated 30.09.2022 after being fully satisfied that the said Tractor has been acquired by the accused Ram Sagar Yadav (husband of the petitioner) in the name of his wife as a result of committing a crime as a Gangster, as such there is no illegality, infirmity or perversity in the impugned orders. Moreover, the competent authority has passed the order after considering the report of the Superintendent of Police Sultanpur as also the report of Station House Officer, Police Station Dostpur and as such it is wrong to say that the impugned orders of attachment passed by the competent authority suffers from infirmities.
20. Learned AGA has further submitted that the learned trial court pointed out that the petitioner was also not able to show the source of income from which the petitioner has acquired the properties attached by the learned District Magistrate, Sultanpur. Thus the learned courts below after considering the entire material including the documentary evidence available on record have passed the impugned orders in correct perspectives and they need no interference.
21. I have heard learned counsel for the appellant, learned AGA for the opposite parties and gone through the impugned orders passed by the trial court.
22. It seems to be just and expedient to refer to the relevant provisions of the Gangster Act which are as under :-
"2. Definitions- In this Act,- (a) "Code" means the Code of Criminal Procedure, 1973;
(b) "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely-
(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code, or (ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or
(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims, for title or possession of immovable property whether in himself or any other person, or
(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or
(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or
(vi) offences punishable under Section 3 of the Public Gambling Act, 1867, or
(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or
(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or
(ix) offences punishable under Section 171-E of the Indian Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or
(x) inciting others to resort to violence to disturb communal harmony, or
(xi) creating panic, alarm or terror in public, or
(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or
(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or
(xiv) kidnapping or abducting any person with intent to extort ransom, or (xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;
*(xvi) offences punishable under the Regulation of Money Lending Act, 1976;
(xvii) illegally transporting and/or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960;
(xviii) human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities; (xix) offences punishable under the Unlawful Activities (Prevention) Act, 1966;
(xx) printing, transporting and circulating of fake Indian currency notes;
(xxi) involving in production, sale and distribution of spurious drugs;
(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention of Sections 5, 7 and 12 of the Arms Act, 1959;
(xxiii) felling or killing for economic gains, smuggling of products in contravention of the Indian Forest Act, 1927 and The Wildlife Protection Act, 1972;
(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;
(xvv) indulging in crimes that impact security of State, public order and even tempo of life,"
(c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities;
(d) "public servant" means a public servant as defined in Section 21 of the Indian Penal Code or any other law for the time being in force, and includes any person who lawfully assists the police or other authorities of the State, in investigation or prosecution or punishment of an offence punishable under this Act, whether by giving information or evidence relating to such offence or offender or in any other manner;
(e) "member of the family of a public servant" means his parents or spouse and brother, sister, son, daughter, grandson, granddaughter or the spouses of any of them, and includes a person dependent on or residing with the public servant and a person in whose welfare the public servant is interested;
(f) words and phrases used but not defined in this Act and defined in the Code of Criminal Procedure, 1973, or the Indian Penal Code shall have the meanings respectively assigned to them in such Codes.
3. Penalty-(1) A gangster, shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:
Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees.
(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any Court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine".
23. The issue involved in the present case may be resolved with the help of the consideration of provisions of sections 14, 15 and 17 of the Gangsters Act, which read as under:
"14. Attachment of property.-(1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall mutatis mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.
15. Release of property .- (1) Where any property is attached under Section 14, the claimant thereof may, within three months from the date of knowledge of such attachment, make a representation to the District Magistrate showing the circumstances in and the sources by which such property was acquired by him.
(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section (1) he shall forthwith release the property from attachment and thereupon such 6 property shall be made over to the claimant.
16. Inquiry into the character of acquisition of property by court .-
(1) Where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2) of Section 15 he shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act.
(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property.
(3) (a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case.
(b) On the date so fixed or on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case.
(4) For the purpose of inquiry under sub-section (3), the Court shall have the power of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act No. V of 1908), in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) requiring the discovery and production of documents;
(c)receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office ;
(e) issuing commission for examination of witnesses or documents;
(f) dismissing a reference for default or deciding it ex parte;
(g) setting aside an order of dismissal for default or ex parte decision.
(5) In any proceedings under this section, the burden of proving that the property in question or any part thereof was not acquired by a gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act, 1872 (Act No. 1 of 1872), notwithstanding.
17. Order after inquiry.- If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise."
24. It is now well settled that property being made subject matter of an attachment under Section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act. The District Magistrate has to record its satisfaction on this point. The satisfaction of the District Magistrate is not open to challenge in any appeal. Only a representation is provided for before the District Magistrate himself under Section 15 of the Act and in case he refuses to release the property on such representation, in that case the person aggrieved has to make a reference to the Court having jurisdiction to try an offence under the Act. The Court, while dealing with the reference made under sub-section (2) of Section 15 of the Act has to see whether the property was acquired by a gangster as a result of commission of an offence triable under the Act and has to enter into the question and record his own finding on the basis of the inquiry held by him under Section 16 of the Act. If the Court comes to the conclusion that the property was not acquired by the gangster as a result of commission of an offence triable under the Act, the Court shall order for release of the property in favour of the person from whose possession it was attached.
The object behind providing the power of judicial scrutiny under Section 16 of the Code is to check arbitrary exercise of power by the District Magistrate in depriving a person of his property and to restore the rule of law, therefore a heavy duty lies upon the Court to hold a formal enquiry to find out the truth with regard to the question, whether the property was acquired by or as a result of the commission of an offence triable under the Act. The order to be passed under Section 17 of the Act must disclose reasons and the evidence in support of finding of the Court. The Court is not empowered to act as a post office or mouthpiece of the State or the District Magistrate. If a person has no criminal history during the period the property was acquired by him, how the property can be held to be a property acquired by or as a result of commission of an offence triable under the Act is a pivotal question which has to be answered by the Court. Besides, the aforesaid question, the other important question to be considered by the Court is whether the property which was acquired prior to the registration of the case against the accused under the Act or prior to the registration of the first case of the Gangster chart can be attached by District Magistrate under Section 14 of the Act.
The provisions of Section 14 of the Act, referred to above, empowers the District Magistrate to attach the property acquired by the Gangster as a result of commission of an offence triable under this Act. The District Magistrate may appoint an Administrator of any property attached, to administer such property in the best interest thereof but there must be reason to believe that any property whether moveable or immovable in possession of any person, has been acquired by a Gangster as a result of commission of an offence, triable under this Act but the District Magistrate in its order has not recorded his satisfaction having reason to believe with regard to the property attached that it was acquired by appellant as a result of commission of an offence triable under Gangster Act, even though while deciding the reference under Section 16 of the Act, the court below does not appreciate the evidence and in a mechanical manner passed the impugned order relying upon the observations made by the District Magistrate which is illegal and an unjustified approach.
25. A Coordinate Bench of this Court in the case of Smt. Maina Devi versus State of U.P. 2013(83) ACC 902 in paras-8, 9 and 10 has been pleased to held as under:-
"8. Considering the facts, circumstances of the case, submissions made by the learned Counsel for the appellant and the learned A.G.A. and from the perusal of the record it appears that the issue involved in the present case may be resolved with the help of the consideration of the provisions of section 14, 15 and 17 of the Gangsters Act, which read as under:
15. Release of property.--(1) Where any property is attached under section 14, the claimant thereof may within three months from the date of knowledge of such attachment make a representation to the District Magistrate showing the circumstances in and the sources by which such property was acquired by him.
(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section (1) he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant.
17. Order after inquiry--If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.
9. In light of above mentioned provisions of the Gangster Act the District Magistrate is empowered to attach movable or immovable properties in possession of any person acquired by a gangster as a result of the commission of an offence triable under this Act. But for exercising such powers there must be the reason to believe to the District Magistrate that such property was acquired by a gangster as a result of the commission of an offence triable under this Act. The words reason to believe are stronger than the word "satisfied", it must be passed on reasons which are relevant and material. In the present case, from the perusal of the lower Court record it appears that only on the basis of the police report submitted by the officer incharge of P.S. Sarai Lak-hansi, District Mau, the District Magistrate, Mau has attached two houses of the appellant, no material was supplied to the District Magistrate to have a reason to believe that the property in question was acquired by the gangster Raj Bahadur Singh as a result of commission of an offence triable under this Act. It vitiates the subjective satisfaction of the District Magistrate also. The learned District Magistrate was having no material in support of the police report that both the houses of the appellant were acquired by his son Raj Bahadur Singh. The learned District Magistrate rejected the application under section 15 of the Gangsters Act moved by the appellant for releasing the attached houses. The application was moved well within the time, the application was a representation to the District Magistrate, Mau, it was having all the details disclosing the sources by which both the houses were acquired by the appellant. But learned District Magistrate did not consider the sources disclosed by the appellant and rejected the application vide order dated 29.12.2008. The explanation of all the sources by which the appellant acquired the houses has not been properly considered. Therefore, impugned order dated 29.12.2008 has become illegal. The learned Special Judge (Gangsters Act), Azamgarh rejected the application moved by the appellant under section 17 of the Gangsters Act without considering the provisions of the section 14 of the Gangsters Act and the 'relevancy of the reasons' recorded by the District Magistrate to believe that both the attached houses were acquired by a gangster Raj Bahadur Singh son of the appellant as a result of commission of an offence triable under this Act. The order dated 17.3.2009 passed by learned Special Judge (Gangsters Act)/Additional Sessions Judge, Azamgarh in Criminal Misc. Application No. 2 of 2009 is also illegal.
10. In view of the above discussion, the order passed by District Magistrate, Mau under section 14(1) of the Gangsters Act attaching two houses of the appellant the order dated 29.12.2008 passed by District Magistrate, Mau by which the application under section 15(1)(2) of the Gangster Act has been rejected and the order dated 17.3.2009 passed by learned Special Judge (Gangster Act), Additional Sessions Judge, Azamgarh in Criminal Misc. Application No. 2 of 2009 are illegal, the same are hereby set aside and the District Magistrate, Mau is hereby directed to release both the houses No. 204-D/8 and 205-D/9 situated in Mohalla Chandmari, Imiliyan, P.S. Sarai Lak-hansi, District Mau in favour of the appellant forthwith."
26. Further, another Coordinate Bench of this Court in the case of Smt. Shanti Devi wife of Sri Ram versus State of U.P. 2007(2) ALJ 483 (All) in paras-9, 10 and 11 has been pleased to held as under:-
"9. The conjoint reading of these sections shows that first it has to be proved that gangster or any person on his behalf is or has been in possession of the property, and such property has been acquired by the commission of any offence triable under this Act, only then the District Magistrate acquires jurisdiction to proceed in the matter and to attach the property. Only when the initial burden is discharged, the onus shifts to the gangster or such person, to account for the same satisfactorily. But if it is found that the concerned person was not a gangster and did not acquire the property in commission of any offence triable under this Act, it has to be released as provided in Section 17. In other words the initial burden is on the prosecution to show that the concerned person is a gangster and has acquired property on account of his criminal activity as triable under the Act.
10. Therefore, in order to proceed under section 14 there must be materials for objective determination of the District Magistrate that the person is either a member, leader or organiser of a gang and has acquired any property in commission of any offence under the Act. There must be a nexus between his criminal acts as enumerated therein and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words what is necessary to find is whether, his acquisition of property was a result of commission of any offence enumerated in the Act being a member, leader or organiser of a gang. One might have committed several offences but if the property acquired by him was with the aid of his earning from legal resources no action under Section 14 of the Act can be taken against him.
11. In the case of Badan Singh alias Baddo v. State of U.P., 2002 Cri LJ 1392 : 2001 All LJ 2852 it has been held by this Court that Section 14 of the Act is a harsh provision that affects one's right to property, which is a fundamental right under the Constitution. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that a gangster acquired the properties as a result of commission of any offence. It has also been held in this case that the Act does not provide that the aggrived person seeking release of the properties from attachment must prove the source of income for acquisition thereof."
27. Further, another Coordinate Bench of this Court in the case of Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986 in paras 16 and 18 has been pleased to held as under:-
" 16. A conjoint reading of the aforesaid two definitions what appears is that for taking action under Section 14 against a person, there must be materials for objective determination of the District Magistrate that he either as a member, leader or organizer of a gang acquired any property as a result of commission of any offence under the Act. There must be nexus between his criminal act and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words, what is necessary to find is whether his acquisition of property was as a result of commission of any offence enumerated in the Act being a member, leader or organizer of a gang. One might have committed several offences, but if the property acquired by him was with the aid of his earning from legal source, no action under Section 14 of the Act can be taken against him.
18. Section 14 of the Act is a harsh provision that affects one's right to property which is a constitutional right under the Constitution. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that petitioner Rajbir Singh Tyagi being a gangster acquired the properties as a result of commission of any offence. That was however, not done. So, complaining the attachment order to be illegal, a move was made by the petitioners by filing a representation for release of the properties. The said prayer was rejected with the observation that the petitioners could not establish the source of income to build the house and acquire the movables. This approach of the District Magistrate, in my opinion, has no sanction under law. The Act does not provide that-aggrieved person seeking release of the properties from attachment must prove the source of income for acquisition thereof. So, on a conspectus of the relevant provisions of the Act, I am of the considered opinion that the order of attachment passed by the District Magistrate, Muzaffar Nagar is illegal, arbitrary and against the weight of the materials on record."
28. Keeping in view the aforesaid settled proposition of law and the judgments rendered by this Court in the case of Smt. Maina Devi versus State of U.P. 2013(83) ACC 902 and Smt. Shanti Devi wife of Sri Ram versus State of U.P. 2007(2) ALJ 483 (All), and Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986, this Court is of the view that the Tractor, which was attached, were acquired by the petitioner herself with the aid of her earning from legal resources and not by commission of any offence triable under the Act as it is settled law that the properties being made subject matter of attachment under Section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act and also the impugned orders were not passed on reasons which are relevant and material.
In the present case from the perusal of the impugned order dated 30.09.2022 and record it appears that only on the basis of the police report, the District Magistrate has attached the property in question, no material was supplied to the District Magistrate to have reasons to believe that the property in question was acquired by the present petitioner, who is an elected Village Pradan, as a result of commission of any offence triable under this Act. It vitiates the subjective satisfaction of the District Magistrate also from the record. It appears that the District Magistrate has no material in support of the police report that the property in question was acquired by the present petitioner being gangster even though the proceedings were not followed as per the provisions of the Act.
It appears that the petitioner was having enough source of income from her business from which she has purchased the tractor and the impugned order of attachment was passed in mechanical manner without application of mind and is arbitrary. Thus the impugned order dated 30.09.2022 passed by the District Magistrate, Sultanpur and the impugned order dated 24.12.2022 passed by District Magistrate Sultanpur, District Sultanpur and order dated 16.12.2023 passed by the Court of Additional District and Session Judge/F.T.C. Ist Special Judge Gangster Act, Sultanpur are illegal and the same are liable to be quashed.
29. In view of above facts and circumstances of the case, the impugned orders passed by the courts below cannot be said to be passed in correct perspectives as they are not sustainable in the eye of law and require interference by this Court, the prosecution has failed to establish that the provisions of Sections 2 and 3 of the Gangster Act are attracted in the case of appellant, and further the appellant's property is also not attached in accordance with law, as the prosecution has failed to establish that the property in question acquired and owned by the appellant has been earned from the income indulging in anti social activities. The enquiry under Section 16 was not done in accordance with the Act, the provisions of Sections 14, 15 & 17 were also not followed in accordance with the Act, thus the entire proceeding initiated in pursuance thereof is vitiated.
30. Accordingly, the present appeal is allowed. The impugned orders 30.09.2022 passed by District Magistrate Sultanpur, District Sultanpur in Case No.2886 of 2022 Computerized Case No. D202204680002886: State of U.P. Versus Ram Sagar Yadav Police Station Chanda, District Sultanpur; and order dated 24.12.2022 passed by District Magistrate Sultanpur, District Sultanpur in Case No. 3081 of 2022 Computerized Case No. D202204680003081 State of U.P. Versus Ram Sagar Yadav Police Station Chanda, District Sultanpur and order dated 16.12.2023 passed by the Court of Additional District and Session Judge/F.T.C. Ist Special Judge Gangster Act, Sultanpur in Misc. Gangster Case No. 11/2023:State of U.P. Vs. Ram Sagar Yadav, under Section 16 (1) of the U.P.Gangsters and Anti Social Activities (Prevention) Act, 1986 are hereby quashed.
31. The District Magistrate, Sultanpur/opposite party no.2 is directed to release the tractor Swaraj 744XT, Chassis No. MBNBU53AAMTH23411 Engine No. EZ2001SDH29920, which is registered as Registration No. U.P. 44BH8353 in favour of the petitioner, attached vide order dated 30.09.2022 passed by District Magistrate, Sultanpur in favour of petitioner, forthwith.
32. No order as to costs.
Order Date :- 05.08.2024 Arvind (Shamim Ahmed, J.)