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2024 DIGILAW 181 (ALL)

Vikram Singh v. State of U. P.

2024-01-17

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : 1. In the present criminal appeal the judgment and order dated 5.11.2022 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh in Criminal Misc. Case No. 330 of 2022, which is a reference made to the court under Section 15(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "Act") whereby the orders of the District Magistrate, Aligarh dated 13.8.2021 seizing/attaching the vehicle of appellant under Section 14 of the Act as well as order dated 23.5.2022 dismissing the objection moved by the appellant have been affirmed, has been questioned. 2. The facts of the case, in brief, are that the District Magistrate, Aligarh passed an order under Section 14(1) of the Act seizing/attaching the vehicle of the appellant on the basis of report of in-charge Inspector, Police Station Pisawa, District Aligarh dated 29.7.2021, submitted through S.S.P., Aligarh. It was mentioned in the report that during investigation of Case Crime No. 88 of 2021 under Section 2/3 of the Act, it was found that appellant owned a vehicle Scorpio bearing registration no. UP 81-BL2333 which was purchased with illegally earned money as gangster in the year 2016. 3. Against the aforesaid attachment/seizure order, the appellant made a representation under Section 15(1) of the Act to the District Magistrate, Aligarh, who dismissed the same and affirmed the order of attachment dated 13.8.2021. Simultaneously, he referred the matter to the Court of Additional Sessions Judge, Gangster Act under Section 16(1) of the Act vide order dated 23.5.2022. The appellant approached the competent Court at Aligarh but his application was rejected by the Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh vide order dated 5.11.2022. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellant before this Court. 4. Heard Shri Anil Kumar Pathak, learned counsel for the appellant, Shri Nitesh Kumar Srivastava, learned A.G.A. and perused the record. 5. It is submitted by the learned counsel for the appellant that the appellant has been falsely implicated in two criminal cases i.e. Case Crime No. 71 of 2021 under Sections 420, 272, 273, 120-B IPC and 60(1) Excise Act, P.S. Pisawa, District Aligarh and Case Crime No. 72 of 2021 under Sections 420, 272, 273, 467, 468, 471, 120-B IPC and 60(1) Excise Act, P.S. Pisawa, District Aligarh. On the basis of pendency of the aforesaid two cases, proceeding under the Act was initiated by the Station House Officer, P.S. Pisawa, district Aligarh against the appellant. It is also submitted that the Scorpio vehicle said to be in his possession was purchased with the money earned by him. He took a loan of Rs. 12,50,000/- from Canara Bank, S.M.E. Branch, Aligarh on 31.5.2016 and repaid the same by way of EMI for Rs. 20,255/-. He had filed income tax return showing his income in the years 2015-16 as Rs. 10,15,504/-, 2016-17 as Rs. 6,23,497/-, 2017-18 as Rs. 09,39,162/-, 2018-19 as Rs. 03,18,350/-, 2019-20 as Rs. 03,01,350/-. It is further submitted that he had paid the cash money of Rs. 03,06,200/- from the earning of agricultural products. It is further submitted that the District Magistrate, Aligarh did not consider the plea of appellant and arbitrarily confirmed his order of attachment while rejecting his representation and holding that the vehicle was procured by illegally earned money by a gangster as a result of commission of an offence triable under the Act and referred the case to Special Judge Gangster Act, Aligarh. It is further submitted that the Additional Sessions Judge, Court no. 4, Aligarh passed the order dated 5.11.2022, under challenge in this appeal, upholding the orders of the District Magistrate dated 13.8.2021 and 23.5.2022 and dismissed the application of the appellant which is illegal and against the mandate of law. 6. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that the Court concerned after examining all the facts and evidence on record passed the impugned order and there is no illegality in the same. 7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully. 8. Before examining the arguments advanced by the learned counsel for the parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: "2(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- ....... ....... 2(c). "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- ....... ....... 2(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;" 9. On a conjoint reading of Section 2(b) and 2(c) of the Act, it appears that for taking action under Section 14 of the Act against a person, there must be material for objective determination of the District Magistrate that he either, as a member, leader or organiser 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, as it is necessary to find out whether his acquisition of property was a result of commission of any offence enumerated in the Act being a gangster. Further, one might have committed several offences but if the property is acquired by him with the aid of his earning from legal source, no action under Section 14 of the Act can be taken against him. 10. Section 14 of the Act reads 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. (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.” This Court had an opportunity to go through the various judgments of this Court viz. Smt. Rashida Bano vs. State of U.P. and others, 2014 6 ADJ 575 , Badan Singh @ Baddo vs. State of U.P. and others, (2001)10 AHC CK 0033, Smt. Maina Devi vs. State of U.P., 2013 9 ADJ 542 , Waseem Khan vs. State of U.P., 2023 LawSuit (All)751 and Criminal Appeal No. 2130 of 2021 (Abrar vs. State of U.P. and another), decided on 23.10.2021 propounding legal dictums on the subject and a co-joint reading of the same leads to draw a conclusion that Section 14 clearly provides that the order of the District Magistrate attaching one's property, must be based on reason and not arbitrary. The expression "reason to believe" appearing therein has some intent and purpose. It puts fetter in the arbitrary exercise of power of attachment to deny a person of his right to any property. Law requires that there must be reason to believe that the property sought to be attached, has been acquired by a ''gangster' as a result of commission of any offence under the Act. The expression "reason to believe" contemplates an objective determination based on intelligent care and deliberation involving judicial review, as distinguished from purely subjective consideration. There must be rational and intelligible nexus between ''reason' and ''belief'. The word ''believe' is a much stronger word than ''suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. According to the said definition, a person is said to have ''reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as the ''suspicion' or ''doubt' and mere seeing also cannot be equated to believing. According to the said definition, a person is said to have ''reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as the ''suspicion' or ''doubt' and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. The Court, of course, cannot investigate into the adequacy or sufficiency of the reasons examined by the authority in coming to the believe, but the Court can certainly examine whether the reasons are relevant and have a bearing in the matter in regard to which it is required to entertain the belief. 11. To add further, it is to be kept in mind that initial burden is always upon the State to satisfy the District Magistrate with necessary materials that the appellant being a gangster acquired the properties as a result of commission of any offence mentioned in Section 2 of the Act. So far as the present case is concerned, this has not been done by the State. It is also to be kept in mind that the appellant/aggrieved is not liable to establish the source of income to acquire the property in question. It is no requirement of law that the aggrieved person seeking release of properties from attachment must prove the source of income for acquisition thereof. There must be a nexus between the commission of any offence and the acquisition of the property. It reflects from the perusal of the impugned order passed by the District Magistrate concerned that he being influenced by the report of the police, hastened to exercise power under the Act and attached the property in question in absence of any material to show that the said property was acquired as a result of commission of any offence triable under the Act. 12. This fact cannot lose sight of that prior to the year 2021, there was no criminal case lodged against the appellant and the property in question was purchased by him prior to the year 2021 but in the year 2016 and thus, at that point of time he was not a gangster and in this situation the requirement of law does not fulfil at all. If the appellant was not a gangster at the time of acquiring the property, he could not commit an offence under the Act. If the appellant was not a gangster at the time of acquiring the property, he could not commit an offence under the Act. It is an admitted case that the vehicle in question was purchased by the appellant in the year 2016 when he was having no criminal history to his credit and he was not a gangster. 13. Sub-sections (3) and (5) of Section 16 of the Act, which are relevant, are as under: "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 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. (5) In any proceedings under this Section the burden of proving that the property in question or any part thereof was not acquired by 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 notwithstanding." 14. 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. Sub-section (3)(b) of Section 16 of the Act provides that the Court shall hear the parties, receive evidence produced by them and take such further evidence as it considers necessary to decide whether the property was acquired by a gangster as a result of the commission of an offence triable under the Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case. In the present case the appellant has shown before the Court concerned the source of money whereby he purchased the aforesaid vehicle (i) from the loan of Rs. 12,50,000/-taken from Canara Bank, Aligarh, (ii) Rs. 2,00,000/- from the earning of agricultural products of ancestral properties, and (iii) from the earning of his three shops allotted to him as excise contractors for which Rs. 01,06,200/- has been paid as income tax by him in the financial year 2016-17. In the impugned order, the Court concerned while dealing with the matter has observed that the appellant had leased out his agricultural land for two years and received Rupees Two Lakhs and made down payment in respect of the said car but he did not prove it by presenting the person to whom he had leased his agricultural land. It is true that the appellant has not presented the person to whom he had leased his agricultural land before the Court but sub-section (3)(b) of Section 16 of the Act empowers the Court to take such further evidence as it considers necessary to decide the issue. It was held in State of U.P. vs. Manoj Kumar Pandey, 2010 (69) ACC 1 that “For the purpose of enquiry, the Court is empowered to take any evidence and to summon any person as a witness as it considers necessary.” But in the matter in hand such power has not been exercised by the Court. If the Court concerned was of the view that the person, to whom land was given on lease, ought to have been presented before the Court, he could very well be summoned by the Court itself but instead of proceeding in this direction, the Court concerned acted in a hasty manner and did not consider this aspect of the matter. The District Magistrate concerned has also not considered the fact that at the time of procuring the vehicle the appellant was not a gangster and rejected his representation. The District Magistrate concerned has also not considered the fact that at the time of procuring the vehicle the appellant was not a gangster and rejected his representation. 15. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the vehicle, which was attached, was acquired by the appellant with the aid of his earning from legal resources and it was not a result of commission of any offence triable under the Act and the impugned orders are not reasoned orders. It appears that only on the basis of the police report, the District Magistrate has attached the vehicle in question and no relevant material was supplied to the District Magistrate to have reason 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 the Act though it was incumbent upon the State to initially prove that the appellant was a gangster who has allegedly acquired the property by way of commission of offence and after its proof burden lies on claimant to prove in negative. It vitiates the subjective satisfaction of the District Magistrate also. From the perusal of record it also appears that the District Magistrate had no relevant material in support of the police report with regard to that the vehicle in question was acquired by the present appellant being gangster. It also appears that the appellant was having enough source of income from which he had procured the vehicle and even the said vehicle was procured by him much prior to the registration of criminal cases and imposition of provisions of Act against him, which was invoked in the year 2021 and the impugned order of attachment was passed in mechanical manner without application of mind and was arbitrary. The enquiry under Section 16 of the Act was not performed in accordance with the proceedings and object of the Act and the provisions of Sections 14, 15 & 17 of the Act were also not followed in true spirit. Hence, the entire proceeding initiated in pursuance thereof is vitiated. 16. In view of the discussions made above, in my view the impugned judgment and order dated 5.11.2022 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh in Criminal Misc. Hence, the entire proceeding initiated in pursuance thereof is vitiated. 16. In view of the discussions made above, in my view the impugned judgment and order dated 5.11.2022 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh in Criminal Misc. Case No. 330 of 2022, which is a reference made to the court under Section 15(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, the orders of the District Magistrate, Aligarh dated 13.8.2021 seizing/attaching the vehicle of appellant under Section 14 of the Act as well as order dated 23.5.2022 are liable to be quashed and the appeal is liable to be allowed. Accordingly the aforesaid orders are quashed and the appeal is allowed. The property vehicle ‘Scorpio’ attached in the matter shall be released from attachment forthwith. 17. Copy of this judgment be transmitted to the Court/District Magistrate concerned for necessary compliance.