Allahabad High Court
M/S Balmokand Faqir Chand vs State Of U.P. And 5 Others on 29 March, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 28.02.2023 Delivered on 29.03.2023 In Chamber. Case :-CRIMINAL MISC. WRIT PETITION No.-3238 of 2023 Petitioner :-M/S Balmokand Faqir Chand Respondent :- State of U.P. and 5 Others Counsel for Petitioner :- Ram Prakash Dwivedi, Pranshu Dwivedi, Sr. Advocate Counsel for Respondent :- G.A. Hon'ble Anjani Kumar Mishra,J.
Hon'ble Gajendra Kumar,J.
(Per Hon'ble Gajendra Kumar, J.)
1. Heard learned counsel for the petitioner and learned AGA for the State-respondents.
2. The instant writ petition has been filed with the following prayer:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.01.2023 passed by the District Magistrate, Agra in Case No.11270 of 2022 (State Vs. Mohd. Shan alias Sanno) (Annexure No.11 to the writ petition).
(b) Issue a writ, order or direction in the nature of Mandamus commanding the District Magistrate, Agra to appoint an Administrator under Section 14(3) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 in respect of the shop in the name of M/s. Balmokand Faqir Chand, 3/43-A, Kacheri Ghat, Police Station-Chhatta, District-Agra within a period of time specified by this Hon'ble Court.
(c) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to direct the Administrator appointed to realize the rent of the shop in question from the petitioner month to month and deposit the same in the public exchequer.
(d) Issue any other writ, order or direction which this Hon'ble Court may deem fit in the facts and circumstances of the case.
(e) To award the cost of the writ petition to be paid to the petitioner.
3. The facts of the case as emerging from the impugned order are that on the basis of police report of SHO, P.S.-Mantola, District-Agra dated 27.9.2022 which was forwarded and recommended by the Senior Superintendent of Police, Agra vide order dated 03.10.2022, the respondent no.6 was reported to be a criminal, who had amassed huge property by indulging in cheating hapless persons and was also indulging in anti-social activities. Petitioner is a partnership firm in the name and style of M/s. Balmokand Faqir Chand, 3/43-A, Kacheri Ghat, duly registered under the Partnership Act, 1932 and is dealing the business of Edible Oils. Counsel for the petitioner has contended that the District Magistrate has passed the impugned order on the report prepared by respondent no.4 and approved by the Senior Superintendent of Police, Agra (respondent no.3) on 20.01.2023. The said property has been attached on the ground that the same was acquired by money earned out of criminal activity, whereas the petitioner or its partner is not the accused in the Gangster Act and the First Information Report has been registered against respondent no.6 (Mohd. Shan), who has purchased the building in question, in which, shop is situated from successors of Gopi Nath Agarwal on 11.02.2019, whereas the tenancy is from 1948. It is further contended that there is rent receipts in favour of the Firm available on record. It is further contended that successor of Late Gopi Nath Agarwal by sale deed dated 11.02.2019, has transferred the aforesaid House/shop Nos.3/43, 3/43-A, 3/43-A/1 in favour of respondent no.6 (Mohd. Shan) having total area of 161.62 sq. meters, out of which, 17.82 sq. meter is commercial shop, for which, petitioner is continuously paying rent to respondent no.6 @ Rs.2000/- per month, copies of receipts issued by respondent no.6 have been annexed as Annexure-6 to the writ petition. Thereafter, petitioner had moved a representation claiming himself to be the bona fide tenant before the District Magistrate, Agra, but the same was rejected by the District Magistrate, Agra considering the fact that petitioner is not a bona fide tenant and he does not come within the purview of Section 15(1) of the Act. It is further submitted that finding recorded by the District Magistrate, Agra that petitioner is not a bona fide tenant is misconceived as the District Magistrate has omitted to consider the affidavit as well as the license granted by the Department which is renewed from time to time and also payment of GST regularly paid by the petitioner's firm, which clearly proves that the petitioner-firm is the tenant of the shop in question and the business was being run therein. Under such circumstances, the impugned order is liable to be quashed.
4. On the other hand, learned A.G.A. opposed the contention aforesaid and submitted that petitioner is neither owner nor claimant of the aforesaid property and as a tenant he is not entitled to get the property released in his favour or to get the Administrator appointed for the said purpose as on the satisfaction of the District Magistrate, Agra that attached properties had been acquired as a result of commission of an offence triable under the Act. Therefore, order passed by the District Magistrate, Agra is in accordance with law and does not suffer from any infirmity.
5. In order to appreciate the rival submissions, it seems to be just and expedient to refer to the relevant provisions i.e. sections 14, 15, 16 and 17 of the Act.
"14. (1) If the District Magistrate has reason to believe that any property , whether moveable or immoveable, 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. (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.
16. (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 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. 5 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 orj office;
(e) issuing commission or examination of witness 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. 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. "
6. It is now well settled that the 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 his 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, he is 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. If the conclusion of the court is otherwise, it may pass 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. This power has been conferred on the Court under section 17 of the Act. In other words, the attachment made under section 14 of the Act can be upset by the court after an inquiry under section 16 of the Act and in that situation the court has power to release the attached property in favour of the person from whose possession the property was attached.
7. The power of the Court to hold an inquiry under section 16 on the reference made by the District Magistrate is not an empty formality, which has a purpose behind it. The object behind providing the power of judicial scrutiny under section 16 of the Code is to check arbitrary exercise of the power by the District Magistrate in depriving a person of his properties and to restore the rule of law. Therefore, a heavy duty lies on the court to hold a thorough inquiry 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. This order to be passed under section 17 of the Act must disclose reasons and the evidence in support of the finding of the court. The Court is not expected 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 gang chart, can be attached by the District Magistrate under section 14 of the Act.
8. In the instant case, the petitioner claims itself to be the statutory tenant of the shop since 1948, therefore, interest in the shop in question has been claimed. The aforesaid shop has been attached by the District Magistrate, Agra, thereafter, a representation was made by the petitioner for appointment of the Administrator, but the same was declined by the District Magistrate, Agra holding that petitioner is neither owner nor the claimant of the aforesaid shop. From the above provisions mentioned under sections 14 to 17 of the Act, it is apparent that on receipt of the reference, the Court shall fix a date for enquiry and give notices thereof and also to any other person whose interest appears to be involved in the said property after due enquiry under the Act. The Court shall make delivery to any other person entitled to the possession thereof or otherwise. As such, the order dated 20.01.2023 passed by the District Magistrate, Agra appears to be correct and does not warrant any interference by this Court.
9. So far as prayer made by the counsel for the petitioner regarding appointment of Administrator in respect of aforesaid property is concerned, this aspect has not been dealt with by the District Magistrate, Agra in his order dated 20.01.2023. In case, the petitioner avails the aforesaid statutory remedy available to him, the same should have been considered by the concerned District Magistrate and will pass the order in the light of the provisions contained in Section 14(3) of the aforesaid Act.
10. In above terms, as statutory remedy is available to him, the present petition deserves to be dismissed on this ground alone and it is accordingly dismissed.
Order Date :-29.03.2023 Ashutosh (Gajendra Kumar, J.) (Anjani Kumar Mishra, J.)