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2024 DIGILAW 226 (ALL)

Vaishali Kapoor v. State of U. P.

2024-01-19

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : Nalin Kumar Srivastava, J. 1. In the present criminal appeal the judgment and order dated 10.2.2023 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh in Criminal Misc. Case No. 535 of 2021, which is a reference made to the Court under Section 16(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "the Act") whereby the orders of the District Magistrate, Aligarh dated 15.9.2021 for attachment of a flat in the joint name of the appellants under Section 14 of the Act as well as order dated 28.10.2021 dismissing the objection moved by the appellants have been affirmed, has been questioned. 2. The facts of the case, in nutshell, are that the District Magistrate, Aligarh passed an order dated 15.9.2021 under Section 14(1) of the Act for attachment of the properties (i) firm ‘Vardhan & Ink Solvents Private Limited’ in the name of appellant no.2, and (ii) a flat in the joint names of the appellants on the basis of report of in-charge Inspector, Police Station Gandhi Park, District Aligarh dated 22.8.2021, submitted through Senior Superintendent of Police, Aligarh. It was mentioned in the report that during investigation of Case Crime No. 334 of 2021 under Section 2/3 of the Act, it was found that a factory ‘Vardhan & Ink Solvents Private Limited’ was established and operated by taking land on lease in Talanagri Sector 1 D-133 Industrial Area in the name of Vijendra Kapoor -appellant no.2 and a flat no. 301 on the third floor of Plot No. 19 in a multi story residential complex constructed in the name of Vaishno Tower Residential Complex, Vidhyanagar over field nos. 1247/2, 1248/2, 1249/2, 1234 and a part of land no. 1234 minjumla in the joint name of appellants was purchased with illegally earned money as gangster. 3. 301 on the third floor of Plot No. 19 in a multi story residential complex constructed in the name of Vaishno Tower Residential Complex, Vidhyanagar over field nos. 1247/2, 1248/2, 1249/2, 1234 and a part of land no. 1234 minjumla in the joint name of appellants was purchased with illegally earned money as gangster. 3. The District Magistrate, Aligarh relying upon the police report, above mentioned, based upon the criminal history of the appellant no.2 – Vijendra Kapoor, the husband of the appellant no.1, and the fact that in the said factory taken on lease by the appellant no.2, they have accumulated methyl alcohol in unlimited quantities and the said methyl alcohol was being used to make adulterated liquor and along with gang leader/liquor mafia Anil Chaudhary the appellant no.2 Vijendra Kapoor was involved in commission of the criminal acts and activities such as selling and distributing the said adulterated liquor in the whole district and submissions made therein that the aforesaid two properties had been acquired by the gangster Vijendra Kapoor, appellant no.2 as a result of the commission of an offence triable under this Act, passed the aforesaid order for attachment dated 15.9.2021 of both the properties under Section 14(1) of the Act. 4. Against the aforesaid attachment order, the appellants made a representation under Section 15(1) of the Act to the District Magistrate, Aligarh only against the flat acquired by them in their joint names, who dismissed the same and affirmed the order of attachment dated 15.9.2021. Simultaneously, he referred the matter to the Court of Special Judge, Gangster Act under Section 16(1) of the Act vide order dated 28.10.2021. The appellants approached the competent Court at Aligarh but the application was rejected by the Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh vide order dated 10.2.2023. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellants before this Court. 5. Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Devesh Kumar Shukla, learned counsel for the appellants, Shri Nitesh Kumar Srivastava, learned A.G.A. for the State and perused the record. 6. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellants before this Court. 5. Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Devesh Kumar Shukla, learned counsel for the appellants, Shri Nitesh Kumar Srivastava, learned A.G.A. for the State and perused the record. 6. It is submitted by the learned Senior Counsel appearing for the appellants that the appellant no.2 Vijendra Kapoor has been falsely implicated in two criminal cases i.e. Case Crime No. 188 of 2021 under Sections 272, 273, 304, 420, 467, 468, 471, 120-B, 201/34 IPC and 60(A) Excise Act, P.S. Jawa, District Aligarh and Case Crime No. 165 of 2021 under Sections 272, 273, 307, 304, 420, 467, 468, 471, 120-B IPC and 60(A) Excise Act, P.S. Lodha, 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. Gandhi Park, district Aligarh against the appellant no.2 -Vijendra Kapoor. It is also submitted that the flat said to be in their possession was purchased with the money earned by them in the year 2015 i.e much prior to initiation of first case against the appellant no.2 in the year 2021. They took a loan of Rs. 32,00,000/-/-from Punjab National Bank, Aligarh and repaid the same by way of EMI for Rs. 31,413/-. They had filed income tax return showing their income in the years 2015-16 to 2019-20. It is further submitted that the appellants are Directors in ‘Vardhan & Ink Solvents Private Limited’. It is also submitted that Rs. 7,00,000/-was obtained from the account of the said Company as the provisions of the Company enabled the salaried Directors to take interest free loan from the account of the Company. It is also submitted that the said amount i.e. Rs. 3,50,000/-each credited in the accounts of appellant no.1 and appellant no.2 respectively and the appellants paid the full consideration of sale deed through cheque to vendor. It is further submitted that the appellant no.1 Vaishali Kapoor has no criminal history to her credit. She is neither a gangster nor she has earned the aforesaid flat on account of her involvement in any anti social activities. It is further submitted that the appellant no.1 Vaishali Kapoor has no criminal history to her credit. She is neither a gangster nor she has earned the aforesaid flat on account of her involvement in any anti social activities. It is further submitted that the District Magistrate, Aligarh did not consider the plea of appellants and arbitrarily confirmed his order of attachment while rejecting their representation and holding that the flat was procured by illegally earned money earned by appellant no.2 Vijendra Kapoor 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 10.2.2023, under challenge in this appeal, upholding the order of the District Magistrate dated 28.10.2021 dismissing the application of the appellants which is illegal and against the mandate of law. 7. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellants 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. 8. I have considered the rivals submissions made by the learned counsel for the parties and have gone through the entire record carefully. 9. 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). "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;" 10. "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;" 10. 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 a 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. 11. 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. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.” 12. This Court had an opportunity to go through the various judgments of this Court viz. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.” 12. 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 dictum 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. "Reason to believe" is a higher level of state of mind. "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. 13. 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, the State has utterly failed to do so. It is also to be kept in mind that the appellant/aggrieved is not liable to establish the source of income to acquire the properties 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. 14. This fact cannot lose sight of that prior to the year 2021, there was no criminal case lodged against the appellant no.2 and the property in question was purchased by him prior to the year 2021 in the joint name of appellant nos.1 and 2, in the year 2015 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 no.2 was not a gangster at the time of acquiring the property, he could not commit an offence under the Act. If the appellant no.2 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 flat in question was purchased by the appellants in the year 2015 when the appellant no.2 was having no criminal history to his credit and he was not a gangster. 15. Sub-sections (3) and (5) of Section 16 of the Act, which are relevant in the facts of the case in hand, read as under: "3 (a) On receipt of the reference under subsection (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." 16. While dealing with the reference made under subsection (1) of Section 16 of the Act the Court 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. In the present case the appellants have shown before the Court concerned the source of money whereby they purchased the aforesaid flat, firstly, from the loan of Rs. In the present case the appellants have shown before the Court concerned the source of money whereby they purchased the aforesaid flat, firstly, from the loan of Rs. 32,00,000/-/-from Punjab National Bank, Aligarh and they repaid the same by way of EMI for Rs. 31,413/-, and, secondly, from the interest free loan of Rs. 7,00,000/-from the account of Firm ‘Vardhan & Ink Solvents Private Limited’. The relevant documents have been furnished as Annexure-8 on record. In the impugned order, the Court concerned while dealing with the matter has observed that the appellant in his application has stated that he had paid Rupees Eight Lakhs through cheque from his bank account for purchasing the flat in question but has not mentioned any legal source for acquiring the said property nor any oral or documentary evidence has been filed in this regard. From the perusal of the record it reveals that the appellants were the Directors of the said Company and the licence thereof was issued by the Government of Uttar Pradesh. They had filed income tax return showing their income since the Assessment Years 2015-16 to 2019-20 as Annexure-1 to the affidavit. Since there was no rebuttal thereto and appellants had shown their income therein, there was no need to prove the same by way of evidence, either oral or documentary. 17. To establish the business activities of the firm ‘M/s Vardhan & Ink Solvents Private Limited’ several documents viz. Registration certificate, licence Form 25-D, Form 26-E, GST registration, papers regarding Directorship, renewal of license etc. have also been furnished as Annexure-2 to the affidavit which go to show that the said firm was solvent and money could be taken from the account of the said firm by the appellants as its Directors. For their own source of money, it has been deposed in para 26 of the affidavit that they are salaried Directors of the firm, hence, the finding given by the Court concerned that the appellants have not shown any source of income of their own, is incorrect. The said fact has not been specifically controverted in the counter affidavit filed by the State. 18. As per record, the appellants paid the full consideration of sale deed through cheque to the vendor. The said fact has not been specifically controverted in the counter affidavit filed by the State. 18. As per record, the appellants paid the full consideration of sale deed through cheque to the vendor. Though it is settled that the appellants/aggrieved are not obliged to furnish the source of income to acquire the property in question and there must be a nexus between the commission of any offence and the acquisition of the property but in the case in hand they have shown the source of their income as well for the total value of the flat i.e. Rs. 40,00,000/-. Since in the present matter the flat in question was acquired in the year 2015 and the first criminal case was lodged against the appellant no.2 in the year 2021 it cannot be said that at that time he was a gangster and the property was acquired by him as a member, leader or organiser of a gang as a result of commission of any offence under the Act. The impugned orders passed by the Court concerned and the District Magistrate fail to show any nexus between his criminal act and the flat acquired by him. It is also clear that the appellant no.1 has no criminal history even today. The District Magistrate concerned has also not considered the fact that at the time of procuring the flat the appellants were not gangster and rejected their representation. 19. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the flat, which was attached, was acquired by the appellants with the aid of their 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. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the flat, which was attached, was acquired by the appellants with the aid of their 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 flat 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 appellant no.2, as a result of commission of any offence triable under the Act though it was incumbent upon the State to initially prove that appellant no.2 was a gangster at the time of acquiring the property in question who had allegedly acquired the property in question by way of commission of any offence triable under the Act and after its proof onus shifts upon the 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 the fact that the flat in question was acquired by the present appellant being a gangster. It also appears that the appellants were having enough source of income by which they had procured the flat and even the said flat was procured by them much prior to the registration of criminal cases and imposition of provisions of Act against the appellant no.2, 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. 20. In view of the discussions made above, in my view the impugned judgment and order dated 10.2.2023 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. 20. In view of the discussions made above, in my view the impugned judgment and order dated 10.2.2023 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Aligarh in Criminal Misc. Case No. 535 of 2021, which is a reference made to the court under Section 16(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, the orders of the District Magistrate, Aligarh dated 15.9.2021 so far it relates to attachment of flat of appellants under Section 14 of the Act as well as order dated 28.10.2021 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 ‘flat’ attached in the matter shall be released from attachment forthwith. 21. Copy of this judgment be transmitted to the Court/District Magistrate concerned for necessary compliance.