Allahabad High Court
Najmi Begum vs State Of U.P. Thru. Addl.Chief ... on 14 February, 2023
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 15 AFR Case :- CRIMINAL APPEAL No. - 2070 of 2021 Appellant :- Najmi Begum Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Home And 3 Ors Counsel for Appellant :- Nadeem Murtaza, Anjani Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.
1. Pleadings have already been exchanged between the parties and are on the record. The case is ripe up for final hearing.
2. Heard Sri Nadeem Murtaza, learned counsel for the appellant along with Sri Wali Nawaz Khan and Ms. Snidha Singh and Sri Manoj Singh, learned A.G.A. for the State and perused the material available on record.
3. Perused the lower court record.
4. The present appeal under Section 18 of U.P. Gangster and Anti Social (Prevention of Activities) Act, 1986 (herein after referred to as, 'Gangster Act') has been preferred by the appellant, namely, Najmi Begum against the judgment and order dated 30.10.2021 passed by the court of Special Judge, Gangster Act/Additional Sessions Judge Court No.5, Sitapur in Criminal Misc. Case No. 122 of 2021, Najmi Begum Vs. State, arising out of Case Crime No. 3 of 2021, under Section 2/3 of the Gangster Act, Police Station Kotwali, District Sitapur, whereby the learned trial court has rejected the application under Section 15(1) of Gangster Act moved on behalf of appellant and confirmed the order dated 22.02.2021 passed by the District Magistrate, Sitapur, directing attachment of property of appellant.
5. In Short facts of the case are that initially a first information report dated 01-01-2021 was lodged by Shri Tej Prakash Singh, Incharge Inspector of Police Station Kotwali, District Sitapur bearing Case Crime No. 0003 of 2021 against the husband of appellant and 2 others alleging therein that accused persons are involved in anti social activities and on account of fear created by them in the locality no one has dare to adduce evidence against them. They are involved in the illegal activities against Chapter 16, 17 and 22 of Indian Penal Code.
6. Learned Counsel Mr. Nadeem Murtaza submits that on implication of husband of the appellant in Case Crime No. 0003 of 2021, under Section 2/3 of U.P. Gangster and Anti Social (Prevention of Activities) Act, registered at Police Station Kotwali, District Sitapur, the husband of the appellant and and co-accused Ahmad Husain @ Chhannu, approached this Hon'ble Court for quashing of FIR and this Hon'ble Court was much pleased to stay the arrest of the husband of the appellant and co-accused Ahmad Husain @ Chhannu in Misc. Bench No. 410 of 2021 vide order dated 08-01-2021.
7. Learned Counsel of the appellant further submitted that in furtherance of the FIR bearing Case Crime No. 003/2021 registered at Police Station Kotwali, District Lucknow, Respondent No. 2 proceeded to exercise his powers under Section 14(1) of the UP. Gangsters and Anti-Social Activities (Prevention) Act, 1986 and passed an order for attaching the immovable properties of, inter alia, the Appellant and her husband on 02.01.2021. Further, another order dated 02.01.2021 was passed by Respondent No. 2, whereby, automobile vehicles of the Appellant and her husband were attached under Section 14(1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.
8. That being aggrieved of the aforesaid attachment orders dated 02.01.2021 passed by Respondent No.2, representations dated 03.02.2021 and 05.02.2021 were preferred before Respondent No. 2 under Section 15 (1) of the Gangsters Act seeking release of the Appellant's properties from attachment. However, the aforesaid representations were dismissed vide a common order dated 22.02.2021 of Respondent No. 2. While passing the aforesaid order dated 22.02.2021 Respondent No 2 referred the case to the Ld. Gangsters Court under Section 16 (1) of the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986 in respect of properties which were not released by him; and, the Ld. Gangsters Court, thereafter, proceeded to pass the impugned order dated 30.10.2021 in exercise of its powers under Section 17 of the Gangsters Act.
9. That Learned Counsel for the appellant further pointed out that Ld. Court of Special Judge Gangster Act/ Additional Sessions Judge Court No. 5. Sitapur vide its order dated 27/08/2021 was pleased to release the properties of Mujeeb Ahmed (Appellant's husband) which were attached by Respondent No. 2 under Section 14 (1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 in furtherance of the same criminal case, i.e., FIR bearing Case Crime No. 0003/2021 registered at Police Station Kotwali, Dsitrict Sitapur. It was further pointed out that the Appellant's husband (Mujeeb Ahmed) is an accused in the aforesaid FIR but the Appellant is not the accused in the aforesaid F.I.R.
10. Learned Counsel for the appellant further pointed out that State had filed an Appeal under Sec 378(3) Cr.P.C. by means of Government Appeal no. 1000112 of 2021, against the judgement and order dated 27.08.2021 passed by the learned Special Judge, Gangster Act/Additional District and Session Judge, Court No.5, Sitapur in Criminal Misc. Case No. 121 of 2021, Mujeeb Ahmad Vs. State of U.P., under Section 16(2) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 2016 Police Station Kotwali Nagar. District Sitapur, releasing the seized property in favour of the accused husband namely Mujeeb Ahmad. However, the Application for leave to Appeal in Government Appeal no. 1000112 of 2021 was rejected and the appeal was dismissed at the stage of admission itself. vide order dated 14.12.2022.
11. Learned Counsel for the appellant further submits that the District Magistrate has wrongly and incorrectly attached the property and vehicle of the appellant on the wrong presumption that the said properties have been made from the income earned by the appellant involving in anti social activities, whereas the appellant is not named in the F.I.R. she has just been implicated in the present case for being the wife of accused Mujeeb Ahmad, whose property has already been released by the learned court below, appellant is neither Gangsters nor she has earned these properties from involving in anti social activities. It has further been argued that the some of the property and the vehicle in dispute are not existing in the names of appellant, but it has been presumed by the District Magistrate in its order dated 02-01-2021 that the same has been earned by her from involving in anti social activities.
12. Learned Counsel for the appellant further submits that the learned trial court while passing the impugned order, without properly perusing the contents of application and documents annexed with the said application have wrongly and incorrectly rejected the said application by presuming that the property in question have been earned from the income indulging in anti social activities without going through documentary evidence filed on behalf of appellant and wrongly interpreting that appellant has not filed any documents to prove that the said property in question have not been earned from the income indulging in anti social activities.
13. Learned Counsel for the appellant further submits that the learned trial court had erred in law while rejecting the application of appellant for release of property in dispute, learned counsel submits that the appellant had explained the completed details of the property in application, the reference of the same is reproduced herein below :-
I. That plot no. 263, village Saraibhat tehsil Sitapur measuring 0.336 hectares was purchased by the appellant on 06.03.2009 from one Richa manglani in lieu of Rs.1,25,000 by means of registered sell deed it is been pointed out that plot no. 263 village Saraibhat tehsil Sitapur the appellant has alienated some portion by registered sell deed dated 13.07.2011 in favour of her sister- in -law namely Smt. Rizwana does the appellant by means of the instant appeal has sought release of plot no. 263 village Saraibhat tehsil Sitapur only in so far as she owns it.
II. That Plot No. 264, Village Saray Bhat. Tehsil Sitapur admeasuring 0.845 hectares was purchased by the Appellant on 06.03.2009 from one Manik Kailash Chandra in lieu of Rs. 3,20,000/- by means of a registered sale deed.
III. That Plot No. 265, Village Saray Bhat, Tehsil Sitapur admeasuring 0.312 hectares was purchased by the Appellant on 06.03.2009 from one Manik Kailash Chandra in lieu of Rs. 1,10,000/- by means of a registered sale deed.
IV. That Plot Nos. 263, 264 and 265, Village Saray Bhat, Tehsil Sitapur were purchased by the Appellant on 06.03.2009 by means of registered sale deeds. And, the money which was given in consideration for the aforesaid lands was transferred by the brother in law of the Appellant, namely, Sattar Ali on 04.03.2009. It is further submitted that Rs. 14,00,000/- were transferred to the bank account of the Appellant and the same was used by her to Purchase the aforesaid land. The Appellant has already annexed her bank statement with the memo of the criminal appeal as Annexure No. 12.
V. That Plot Nos 263, 264 and 265, Village Saray Bhat, Tehsil Sitapur are being used by the Appellant to hurt and operate a brick field in the name and style of M/s F.I.T. Brickfield. It is further submitted that M/s FIT. Brickfield has been operating since the year 2009-10. Relevant documents pertaining to the commencement of M/s FIT. Brickfield and other relevant documents which fortify the fact that the same have already been annexed with the memo of criminal appeal as Annexure No. 14 VI. That House No. 447, Batsganj, Sitapur it is submitted that the plot of land on which the aforesaid house is built was purchased by her from her brother in law, namely. Ekhlaak Ahmed for Rs. 1,25,000/- on 16.01.2008 by means of registered sale deed After purchasing the aforesaid land, the Appellant took loan amounting to Rs. 12,00,000/- from the Union Bank of India in year 2009 and started the construction of her house. Later on in the year 2014 and 2017 money amounting to Rs. 20,54,050/-, Rs. 15,00,000/- and Rs.20,00,000/- was taken on loan from State Bank of India for renovation of the house and causing alterations therein. Also, loan was taken by the husband of the Appellant (Mujeeb Ahmed) on Kisan Credit Card amounting to Rs. 13,38,176/- and the same was used for the purpose of renovation and alteration of the aforesaid house. It is further submitted that the Appellant had taken loan amounting to Rs. 68,54,050/- from the banks and used the same for the purpose of renovation and causing alterations in the aforesaid house: thus, the money used in the aforesaid house for the purpose of renovation and causing alterations comes from reasonable, well accounted and lawful sources. The documents pertaining to the aforesaid loans have already been annexed as Annexure No. 17 and 18 to the criminal appeal.
VII. Apart from the above, the Appellant had also borrowed money amounting to Rs 24,00,000/- Rs. 10,00,000/-, Rs. 14,00,000/-, Rs. 4,00,000/- Rs. 5,50,000/- Rs. 4,00,00/- Rs 4,50,000/- Rs. 75,000/- and Rs 2,50,000/- from her brother in law, namely, Sattar All which was transferred in her bank account on 24.10.2013, 28.07.2014, 11.08.2014, 12.08.2014, 05.09.2014. 06.09.2014, 30.09 2014 and 02.02.2015, respectively. In nut-shell, the Appellant had borrowed money amounting to Rs. 69,25,000/- from her brother in law, namely, Sattar All And, the aforesaid money was utilized by the Appellant for doing renovation of the House No. 447, Batsganj, Sitapur and for carrying out alterations in the aforesaid house. The brother in law of the Appellant, namely, Sattar All was an employee of The Saudi Arabian Oil Company (Saudi Aramco) and worked there till the year 2020, and, his annual salary was US Dollars 109,056,00/- (Rs 80,96,099.33/-). And, therefore, it is submitted that the money which was sent by Sattar Ali to the Appellant and further used for carrying out alterations in the House No. 447. Batsganj Sitapur was earned by legal means. Copies of the bank statement of the Appellant and as well as the documents relating to the pay scale of Sattar Ali (Appellant's brother in law) have been annexed as Annexure No. 19 and 20. respectively, to the memo of criminal appeal.
VIII. With respect to Plot No. 447A, Batsganj, Sitapur it is submitted that the same was purchased by the Appellant through sale deed dated 21.05.2013 from certain persons in lieu of Rs. 1,50,000/-. It is further submitted that certain portion of the same plot was bought by the Appellant's husband and the same has been released by competent court.
IX. With respect to Plot No. 485, Batsganj. Sitapur it is submitted that the same was purchased by the Appellant by one Abdul Salam on 11.05.2013 with her self-earned income.
X. With respect to Car bearing Registration No. U.P. 34 AV 0555 it is submitted that the same been purchased by the Appellant after obtaining loan from State Bank of India of which she is paying Equated Monthly Installments. The documents pertaining to car loan have been annexed as Annexure No. 23 to the memo of criminal appeal.
14. Learned Counsel for the appellant further submits that the order dated 22-02-2021 passed by the District Magistrate Sitapur does not reveal that respondent no.-2 had "reason of believe" that the properties in question were acquired by the Appellant as a commission of an offence under the Gangsters Act rather the aforesaid order is passed on mere suspicion, Surmises and conjectures.
15. Shri Manoj Singh, the learned A.G.A. has vehemently argued that the learned trial court has correctly appreciated the material on record before passing the impugned order. The District Magistrate, Sitapur has passed the order dated 02-01-2021 after being fully satisfied that appellant has acquired the properties in question by illegal means involving in anti social activities as prescribed under the Gangster Act, as such there is no illegality, infirmity or perversity in the impugned order. The learned trial court after considering the entire material including the documentary evidence available on record has passed the impugned judgment and order in correct perspectives and it needs no interference.
16. I have heard learned counsel for both the parties and gone through the impugned judgment and order passed by the court below.
17. 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.
18. The issue involved in the present case may be resolved with the help of the consideration of provisions of section 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.
19. 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.
20. 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.
21. 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 appellants 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.
22. 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.
23. 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.
24. 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."
25. Keeping in view the aforesaid settled proposition of law and the judgment 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 properties in question, which were attached, were acquired by appellant 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 property 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 seized property of the husband of the appellant namely Mujeeb Ahmad who is an accused in crime no. 0003 of 2021 was also released in favour of Mujeeb Ahmad by Learned Court below and the present appellant being the wife of co-accused in not even named in the F.I.R. but has only been implicated in the present case just for being the wife of co-accused. And also the impugned order was not passed on reasons which are relevant and material. In the present case from the perusal of the court orders and record it appears that only on the basis of the police report the D.M. 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 gangster the present appellant 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 appellant being gangsters even though the proceedings was not followed as per the provisions of the Act. While passing the impugned orders of attachment the order was passed in mechanical manner without application of mind and is arbitrary. Thus the order passed by learned Special Judge Gangsters Act / Additional Session Judge Court No.-5 Sitapur is also illegal and the same is also liable to be quashed.
26. In view of above facts and circumstances of the case, the impugned judgment and order of the learned court below cannot be said to be passed in correct perspectives as it is not sustainable in the eye of law and requires interference by this court, the prosecution has failed to establish that the provisions of Section 2 and 3 of the Gangster Act is attracted in the case of appellant, and further the appellants' property is also not attached in accordance with law, as the prosecution has failed to establish that the said property and vehicle acquired and owned by the appellant have 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 Section 14, 15 & 17 was also not followed in accordance with the Act, thus the entire proceeding initiated in pursuance thereof is vitiated.
27. Accordingly, the present appeal is allowed. The impugned judgment and order dated 30-10-2021 passed by the court of learned Special Judge, Gangster Act/ Additional Sessions Judge, Court No. 5, Sitapur in Criminal Misc. Case No. 122 of 2021, Najmi Begum Vs. State, arising out of Case Crime No. 0003 of 2021, under Section 2/3 of the Gangster Act, Police Station Kotwali, District Sitapur is hereby quashed.
28. Consequently the order dated 22-02-2021 passed by District Magistrate, Sitapur is also quashed.
29. The District Magistrate, Sitapur is directed to release the properties of the appellant attached vide order dated 02-01-2021 in favour of appellant, forthwith.
30. No order as to costs.
Order Date :- 14.2.2023 Arvind /-