Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1524 (ALL)

Jaibun Nisha v. State of U. P. And Ors.

2010-05-10

IMTIYAZ MURTAZA, NAHEED ARA MOONIS

body2010
Hon'ble Naheed Ara Moonis, J.:- Challenge in this petition is to the order dated 8.2.2010 passed by respondent no.2 i.e. District Magistrate, Allahabad whereby representation of the petitioner preferred under section 15 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 was disallowed. 2. The facts as culled out from the record is that the District Magistrate Allahabad attached the properties of the husband of the petitioner namely Shabbir Hussain Qureshi under section 14 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. Aggrieved by the said attachment order, the petitioner preferred Reference before the District Magistrate which culminated in being rejected. 3. The learned counsel appearing for the petitioner has canvassed that the proceedings before the District Magistrate are impaired inasmuch as he did not record any finding that he had reasonto believe that the properties in possession of the husband of the petitioner had been acquired as a result of commission of an offence triable under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. Earlier the petitioner had also filed a writ petition in this Court and the said writ petition ended up in being disposed by the order dated 22.12.2009 by the Division Bench consisting of Hon. Yatindra Singh and Hon. S.K.Tripathi, JJ which is excerpted below as is relevant. 4. "In the circumstances of the case it would be appropriate that the petitioner's application dated 5.11.2008 may be decided by the concerned respondent at an early date, and if possible, within two months from the date of receipt of certified copy of this order. The petitioner alongwith certified copy of this order will also file a copy of his aforesaid representation, other necessary documents and a duly stamped self addressed envelope. The concerned respondent after taking decision will communicate the same to the petitioner. 5. With these observations, the writ petition is disposed of." 6. In observance of the above order, the petitioner filed an application for release of the properties but as the luck would have it, the said application met with rejection by the order impugned herein. 7. We have heard learned counsel for the petitioner and also Sri A.K.Sand learned A.G.A and perused the materials on record. 8. The learned counsel has focussed his arguments relying mainly upon the provisions of section 14 of the Act which envisages "recording of reasons to believe". 7. We have heard learned counsel for the petitioner and also Sri A.K.Sand learned A.G.A and perused the materials on record. 8. The learned counsel has focussed his arguments relying mainly upon the provisions of section 14 of the Act which envisages "recording of reasons to believe". To prop up his stand, the learned counsel for the petitioner placed credence on a decision of the Apex Court in M/S Ganga Saran & sons Pvt Ltd Calcutta v. The Income Tax Officer and others reported in AIR 1981 SC 1363 . 9. Be that as it may, the properties of the husband of the petitioner were attached by the order dated 1.10.2008 in which finding has been recorded that the husband of the petitioner had acquired properties by committing the offences provided for under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. Thereafter the petitioner had approached District Magistrate for release of the properties but the said application was rejected by the impugned order. It brooks no dispute that the impugned order is appealable under section 18 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 and the order passed by the District Magistrate has not attained finality as the District Magistrate has forwarded the Reference before the Special Judge (Gangsters Act). 10. As a result of foregoing discussion, and regard being had to the fact that the Reference has been preferred by the District Magistrate before the Special Judge and also to the fact that the petitioner has got alternative remedy of preferring appeal, it would be but appropriate that she may file appeal before the Special Judge (Gangsters Act). 11. In view of the above, the petition is not maintainable and is accordingly dismissed as not maintainable. However, it is provided that in case the appeal is filed or if the Reference forwarded by the District Magistrate is pending before the Special Judge aforesaid, the same shall be decided expeditiously if possible within a period not exceeding three months from the date of filing of appeal.