Allahabad High Court
Mohd. Farhan vs State Of U.P. Thru. Prin. Secy. Home ... on 15 March, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:22821
Reserved on 31.01.2004
Delivered on 15.03.2024
Court No. - 16
Case :- CRIMINAL APPEAL No. - 999 of 2023
Appellant :- Mohd. Farhan
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lucknow
Counsel for Appellant :- Sayed Weqar Husain,Prashant Tiwari
Counsel for Respondent :- G.A.
Hon'ble Shamim Ahmed,J.
1. Heard Shri Prashant Tiwari, learned counsel for the appellant, Sri Ashok Kumar Srivastava, learned Additional Government Advocate for the State and perused the material available on record.
2. The present appeal under Section 18 of U.P. Gangster and Anti Social (Prevention of Activities) Act, 1986 (hereinafter referred to as the 'Gangster Act') has been preferred by the appellant, namely, Mohd. Farhan with a prayer to quash the judgment and order dated 30.06.2022 passed by the District Magistrate, Raebareli//opposite party no.2 in Case No. 845/2022 Computerized Case No. D202210580000845 (State Vs. Mohd. Faizan) under section 14(1) of the Gangster Act.
The appellant has also prayed for quashing of the impugned judgment and order dated 14.10.2022 passed by the District Magistrate, Raebareli, rejected the representation of the appellant and also to quash the order dated 15.02.2023 passed by the Additional District and Sessions Judge Gangster Act, Raebareli in Case No. 7482/2022 arising out of F.I.R. No. 812/2021, Police Station Kotwali, District Raebareli: State Vs. Mohd. Faizan and others, whereby the appellate court dismissed the appeal and confirmed the impugned order dated 14.10.2022 passed by the District Magistrate, Reabareli.
3. Learned counsel for the appellant submits that on the report dated 06.06.2022 of the Inspector, Police Station- Mill Area, District- Raebareli the Superintendent of Police, District- Raebareli forwarded its report dated 23.06.2022 to District Magistrate, District- Raibareli and the District Magistrate, Raebareli vide its order dated 30.06.2022 attached the properties of-
(1) Mohammad Faizan Ahmad son of Late Mohammad Salman R/o Vilayat Ali Khan Building, Ghana Ghar, Chak Ahmadpur Nazul P.S. Kotwali Nagar, District Raebareli owner of newly constructed House No. 09 and House No. 13 (2) Naseem Fatma (Father's Sister) Fufi of Mohammad Faizan Ahmad, owner of House No. 11 (as recorded in records) situated at Vilayat Ali Khan Building, Ghanta Ghar, Chak Ahmadpur Nazul P.S. Kotwali Nagar, District Raebareli.
(3) Smt Zeba W/0 Mohammad Faizan Ahmad r/o Vilayat Ali Khan Building, Ghanta Ghar, Chak Ahmadpur Nazul P.S. Kotwali Nagar, District Rae bareli, registered owner of Car Registration number U.P. 33 BR 0859.
4. Learned counsel for the appellant further submits that being aggrieved by the aforesaid attachment order dated 30.06.2022 passed by the District Magistrate, Raebareili, the appellant along with Naseem Fatima preferred a Writ Petition before this Hon'ble High Court, bearing Criminal Misc. Writ Petition No. 5325 of 2022 : Smt. Naseem And Anr. Vs state of U.P. and others, in which this Hon'ble High Court vide order dated 27.07.2022 was pleased to dispose off the writ petition with following direction-
"Heard learned counsel for the petitioners as well as learned Additional Government Advocate appearing on behalf of the State.
The petitioners herein have challenged an order/notice under Section 14(1), U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.
The issues raised are factual and will have to be raised before the District Magistrate under section 15(1) which he is bound to consider point-wise, based on the evidence which may be adduced before him by the petitioner, who claim that the property is ancestral and that the Gangster has nothing to do with it. In this view of the matter we relegate the petitioners to the remedy aforesaid, with the observation that whatever points are raised by the petitioners before the District Magistrate under section 15 of the Act 1986 and evidence is led by them in support of their contentions, they shall be considered threadbare and point-wise by the District Magistrate and a decision shall be taken accordingly, but with expedition, say within 10 weeks. With these observations/directions this writ petition is disposed of."
5. Learned counsel for the appellant further submits that in compliance to the order of Hon'ble High Court, the appellant presented an application on 06.08.2022, under section 15(1) of UP. Gangster Act Anti-Social Activities (Prevention) Act, 1986, before the learned District Magistrate, District- Raibareli for release of his share of the attached property; House No.9 and 13(Land No.41 मि०, 930.70), Vilayat Ali Khan Building Ghantaghar chak Ahmadpur, Nazool, P.S. Kotwali Nagar, District Raibareli.
6. Learned counsel for the appellant further submits that the District Magistrate Raebareili vide its order dated 14.10.2022 rejected the various representation made under Section 15 (1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, presented by Mohammad Faizan, Smt Zeba Faizan, Smt Naseem Fatima, Mohammad Farhan (appellant), Smt Sarwati Bano, Smt Khurseeda Bano, Smt Nadira Bano, Abhisek Traders proprietor Abhishek Agarwal, Ankit Soni and Suman Gupta, against the attachment order dated 30.06.2022 and confirmed the attachment order dated 30.06.2022.
7. Learned counsel for the appellant further submits that the appellant filed his representation before the Additional District and Session Judge/Gangster Act, Raibareli under section 15(1) of UP. Gangster Act Anti-Social Activities (Prevention) Act, 1986, in compliance to the reference made to the court from the court of Learned District Magistrate, Raebareili under section 16(1) of U.P. Gangster Act Anti-Social Activities (Prevention) Act, 1986.
8. Learned counsel for the appellant further submits that on 15.02.2022, the Additional District and Session Judge/Gangster Act, Raibareili without properly considering the representation of the appellant and the evidences filed by the him, and without considering the fact that the appellant is neither named in police report nor in gang chart, confirmed the order dated 14.10.2022 passed by the District Magistrate, Raibareili.
9. Learned counsel for the appellant further submits that the appellant is neither an accused nor has any criminal history as per the police reports and gang charts produced by the police officials.
10. Learned counsel for the appellant further submits that the appellant was neither named in the proceedings initiated under section 14(1) of the U.P. Gangster Act Anti-Social Activities (Prevention) Act, 1986 nor in the FIR or the gang chart prepared by the police authorities, but the District Police, District- Raibareli and Inspector, Police Station- Mill Area, District- Raibareli were ignorant of the fact that one accused Imran named in the F.I.R. and gang chart is the servant of Faizan (brother of the appellant) and since his father name is identical to that of the appellant's father, the police wrongly impersonated the appellant as the brother of Faizan and attached the property of the appellant on his behalf. The appellant is not dependant on his brother Faizan.
11. Learned counsel for the appellant further submits that at the time of seizing of the properties of the appellant, the appellant and his family members were not provided any time to get their documents from the space and hence they used the available documents to prove their innocence.
12. Learned counsel for the appellant further submits that due to wrong and illegal orders of the concerned authorities, the properties of the appellant were wrongly attached and hence the appellant lost his source of income and resultantly facing financial hardship situations.
13. Learned counsel for the appellant further submits that due to the illegal attachment of the property and the gun shop, the guns of hundreds of customers who submitted their guns for different purposes, which were safely stored inside the gun shop's premises, are sealed inside the shop causing infringement to the interest of the customers and harassment and mental torture to the appellant.
14. Learned counsel for the appellant further submits that no illegal money or money accumulated by illegal means was used in construction or beautification of the attached property. The Magistrate committed grave error while attaching the share of the property of the appellant and the learned Session Judge also erred while confirming the order of the District Magistrate.
15. Learned counsel for the appellant further submits that the following are the sons and daughters of the father of the appellant :-
a. Faizan (son) b. Rehan (son) c. Farhan (son) d. Urus Furina (daughter) e. Tazenama (daughter) f. Sharmeen Fatime (daughter) g. Tahmeen Fatima (daughter)
16. Learned counsel for the appellant further submits that the attached properties are undisputedly, parental property of the appellant and are belonging to his father, Mohd Sabman and on 03.05.2008 the father of the appellant divided the property by way of a written family settlement between his three sons and one wife and all were living peacefally in their respective portions allotted as per the settlement prior to the attachment of the property and in the financial year 2004-2005, the father of the appellant took home loan and commercial loan from bank and other sources respectively, for the construction/modification of the house no, 9 and 13, and since he was ill from a long time, so he prepared a agreement dated 29.05.2009 in his lifetime in which, with other family settlements, he also delegated the responsibility of paying the remaining amounts of the loans, to all three sons in order to get their respective share in property. The photocopy of the agreement has been annexed as Annexure No. 10.
17. Learned counsel for the appellant further submits that in compliance of the agreement dated 29.05.2009, the loans (Home Loan and Commercial Loan, Loan Account No. NPA- 537 and NPA-540) taken from Allahahad Bank, were repaid and respectively No Dues Certificates were issued by the banks on 15.05.2020 and 05.11.2022. The photocopy of the No dues Certificate has been annexed as Annexure No.11.
18. Learned counsel for the appellant further submits that the father of the appellant wanted to reconstruct his old and weak property in a new complex and since in the process he had to visit and appear before various authorizes and courts and also he suffered a paralysis attack, hence in order to overcome the obstacles, he executed a power of attorney to his elder son, Faizan. The photocopy of the registered Power of Attorney dated 01.09.2010 has been filed as Annexure No. 12.
19. Learned counsel for the appellant further submits that the in compliance to the objective of the power of attorney, Faizan entered into an agreement with a Builder, Malik Anwar son of Malik Kamal Ahmad for construction and beautification of the property of his father, in which it was specifically mentioned that the construction of the property will be done by the builder and it will be the profit, which will be shared between them in accordance to the agreement. The photocopy of the agreement dated 10.10.2010 has been annexed as Annexure No. 13.
20. Learned counsel for the appellant further submits that the appellant utilized his allotted space in the property by renting to various companies in order to repay the loan amount as per the agreement dated 29.05.2009 prepared by his father, and accordingly has paid income tax returns, and electricity bills on time.
Sr. No. Detail Time period Location (H.No.9)
1. Branch office of Dena Bank 1985-2010 Ground and Ist Floor
2. Aryan Shopping Centre 2007-2010 Ground Floor
3. Adidas 2010-2013 Ground Floor 4 Shoe Hub 2013- Present time Ground Floor
5. M/S S Vilayat Ali and Sons Arms and Ammunition Shop 1820- Present time Lower Ground Floor
21. Learned counsel for the appellant further submits that the appellant is partner in M/S S Vilayat Ali and Sons Arms and Ammunition Shop which is ancestral arms shop of the appellants existing since 1820, which was authorized to sell, repair and store bullets and guns which is evident by mere perusal of the license issued by the DM and currently the license is valid till 2023. The photocopy of the Form 11, Form 13, Form 14 in connection to the arms shop has been annexed as Annexure 16.
22. Learned counsel for the appellant further submits that the Income Tax Returns of M/S S- Vilayat Ali and Sons Arms and Ammunition Shop were always duly filed by the brother /partner Sheikh Mohd. Rehan every year. The photocopies of the ITR's of different year has been annexed as ANNEXURE No.17.
23. Learned counsel for the appellant further submits that since 2012. no re-construction or beautification work of the attached properties had been done, but it has been wrongly observed by the trial court without appreciating the evidences available on record that the "construction and beautification work was solely done by the Main accused Mohd Faizan and it was done in his guidance and supervision with his money"
24 Learned counsel for the appellant further submits that the impugned order dated 30.06.2022 passed by the District Magistrate, Raebareli does not reveal that the District Magistrate, Raebareli had "reason of believe" that the property in question was acquired by the appellant 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 court has also passed the order dated 15.02.2023 in cursory manner without analysing the documents of the appellant. Thus both the impugned orders are not sustainable in the eye of law.
25. Per contra, Sri Ashok Kumar Srivastava, learned AGA, has argued that the learned appellate court has correctly appreciated the material on record before passing the impugned order. The District Magistrate, Raebareli has passed the impugned order dated 30.06.2022 after being fully satisfied that appellant has acquired the property in question by illegal means involving himself in anti social activities as defined under the Gangster Act, 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, Raibareli as also the report of Station House Officer and as such it is wrong to say that the impugned order of attachment passed by the competent authority suffers from infirmities.
26. Learned AGA-1 has further submitted that the learned trial court pointed out that the appellant was also not able to show the source of income from which the appellant has acquired the properties attached by the learned District Magistrate, Raebareli and the trial court 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.
27. I have heard learned counsel for the appellant, learned AGA-1 for the opposite parties and gone through the impugned orders passed by the trial court.
28. It seems to be just and expedient to refer to the relevant provisions of the Gangster Act for better adjudication of the case, 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".
29. The issue involved in the present case may be resolved with the help of the consideration of provisions of sections 14, 15, 16 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."
30. 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.
31. 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."
32. 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."
33. 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."
34. 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 properties, which were attached, were acquired by the appellant with the aid of his earning from legal resources and given by his father 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 30.06.2022 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 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 gangster even though the proceedings were not followed as per the provisions of the Act. It appears that the appellant was having enough source of income from his business, from which the appellant had acquired the properties and also got his share from his father; the appellant was neither named in the proceedings initiated under section 14(1) of the U.P. Gangster Act Anti-Social Activities (Prevention) Act, 1986 nor in the FIR or the gang chart prepared by the police authorities, but the District Police, District- Raibareli and Inspector, Police Station- Mill Area, District- Raebareli were ignorant of the fact that one accused Imran named in the F.I.R. and gang chart is the servant of Faizan (brother of the appellant) and since his father name is identical to that of the appellant's father, the police wrongly impersonated the appellant as the brother of Faizan and attached the property of the appellant on his behalf. The appellant is not financially dependant on Mohd. Faizan and the impugned order of attachment was passed in mechanical manner without application of mind and is arbitrary. Thus the impugned order dated 30.06.2022 passed by the District Magistrate, Raebareli and the impugned order dated 15.02.2023 passed by passed by the Additional District and Sessions Judge Gangster Act, Raebareli are illegal and the same are liable to be quashed.
35. In view of above facts and circumstances of the case, the impugned orders passed by the trial court 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.
36. Accordingly, the present appeal is allowed. The impugned order dated 30.06.222 and 14.10.2022 passed by the District Magistrate, Raebareli in Case No. 845/2022 Computerized Case No. D202210580000845 (State Vs. Mohd. Faizan) under section 14(1) of the Gangster Act and the impugned order dated 15.02.2023 passed by the Additional District and Sessions Judge Gangster Act, Raebareli in Case No. 7482/2022 arising out of F.I.R. No. 812/2021, Police Station Kotwali, District Raebareli: State Vs. Mohd. Faizan and others are hereby quashed.
The District Magistrate, Raebareli/opposite party no.2 is directed to release all the properties of the appellant attached vide order dated 30.06.2022 in favour of appellant, forthwith.
No order as to costs.
Order Date :- 15.03.2024 Arvind