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2024 DIGILAW 364 (ALL)

Ashok Kumar v. State of U. P.

2024-02-02

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : Nalin Kumar Srivastava, J. 1. In the present criminal appeal the judgment and order dated 9.8.2023 passed by Special Judge (SC/ST Act)/Gangster Act, Sonebhadra in Criminal Misc. Case No. 245 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 order of the District Magistrate, Sonebhadra dated 31.8.2021 dismissing the objection moved by the appellant has been affirmed, has been questioned. 2. The facts of the case, in brief, are that the District Magistrate, Sonebhadra passed an order under Section 14 (1) of the GANGSTERS ACT attaching the vehicles of the appellant on the basis of report of in-charge Inspector, Police Station Shahganj, District Sonbhadra dated 16.12.2020, submitted through Superintendent of Police, Sonebhadra. It was mentioned in the report that During investigation of Case Crime No. 19 of 2019 under Section 3 (1) of the Act, it was found that appellant owned vehicle ‘Bolero’ and a ‘Tractor’ which were purchased with illegally earned money by his father Rajendra Patel as gangster. 3. The District Magistrate, Sonebhadra relying upon the police report, above mentioned, based upon the criminal history of Rajendra Patel, the father of the appellant, and submissions made therein that the two vehicles, detailed below, had been acquired by the gangster Rajendra Patel as a result of the commission of an offence triable under this Act, passed the aforesaid order for attachment dated 28.12.2020 of both the vehicles under Section 14 (1) of the Act, detailed as hereunder : (i) Vehicle ‘Tractor’ bearing registration No. UP64-AH 9894 (total value Rs. 5,00,000/-). (ii) Vehicle ‘Bolero’ bearing registration No. UP64-AL 0349 (total value Rs. 13,00,000/-). 4. Against the aforesaid attachment order, the appellant made a representation under Section 15 (1) of the Act to the District Magistrate, Sonebhadra, who dismissed the same and affirmed the order of attachment dated 28.12.2020. Simultaneously, he referred the matter to the Court of Special Judge, Gangster Act under Section 16 (1) of the Act vide order dated 31.8.2021. The appellant approached the competent Court at Sonebhadra but his application was rejected by the Special Judge Gangster Act, Sonebhadra vide order dated 9.8.2023. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellant before this Court. 5. The appellant approached the competent Court at Sonebhadra but his application was rejected by the Special Judge Gangster Act, Sonebhadra vide order dated 9.8.2023. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellant before this Court. 5. Heard Shri Rakesh Chandra Tiwari, learned counsel for the appellant, Shri Nitesh Kumar Srivastava, learned A.G.A. and perused the record. 6. It is submitted by the learned counsel for the appellant that no criminal case is lodged/pending against the appellant in the district Sonebhadra. On the basis of pendency of the following criminal cases, in which the father of the appellant had been falsely implicated, proceeding under the Act was initiated by the Station House Officer, P.S. Shahganj, district Sonebhadra against the father of the appellant. (i) Case Crime No. 144 of 2018, under Sections 392, 34, 411, 419, 420, 467, 468, 471 IPC, P.S. Karma, district Sonebhadra. (ii) Case Crime No. 501 of 2018, under Section 392 IPC, P.S. Robertsganj, district Sonebhadra. (iii) Case Crime No. 712 of 2018, under Sections 392, 411 IPC, P.S. Robertsganj, district Sonebhadra. (iv) Case Crime No. 74 of 2018, under Sections 323, 392, 341, 389, 504, 506, 411 IPC, P.S. Shahganj, district Sonebhadra. (v) Case Crime No. 142 of 2018, under Sections 392, 411 IPC, P.S. Karma, district Sonebhadra. (vi) Case Crime No. 14 of 2019, under Section 13(1) Gangster Act, P.S. Raipur, district Sonebhadra. It is also submitted that the appellant lives with his grandfather. He is neither a gangster nor has procured the aforesaid vehicles on account of his involvement in anti social activities. It is also submitted that the vehicles said to be in his possession were purchased with the money earned by him. It is also submitted that the said vehicles were purchased partly from the income generated by him as LIC advisor and partly from the amount arranged by way of loan taken from the Lage Laden Financial Services India Private Limited, Swatantra Micro Finance Company Limited and Cholamandalam Inv. & Fin. Co. Ltd. and rest amount he managed from his friends and relatives. It is also submitted that regular EMI towards loan amount has been paid from the earning of the appellant. It is also submitted that the appellant also owns a cosmetics and general merchant shop for earning of his livelihood. & Fin. Co. Ltd. and rest amount he managed from his friends and relatives. It is also submitted that regular EMI towards loan amount has been paid from the earning of the appellant. It is also submitted that the appellant also owns a cosmetics and general merchant shop for earning of his livelihood. It is further submitted that the District Magistrate, Sonebhadra did not consider the pleas taken by the appellant and arbitrarily confirmed his order of attachment while rejecting his representation and holding that the vehicles were procured by illegally earned money by the father of the appellant, referred the case to Special Judge, Gangster Act, Sonebhadra. It is further submitted that the Special Judge Gangster Act, Sonebhadra passed the order dated 9.8.2023, under challenge in this appeal, upholding the order of the District Magistrate dated 31.8.2021 and dismissing the application of the appellant which is illegal and against the mandate of law. 7. 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. 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. ....... 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. 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 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, this primary burden has not been discharged by the State satisfactorily. 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. 14. A limb of argument as advanced by the learned counsel for the appellant is that this fact cannot lose sight of that no criminal case has ever been lodged against the appellant and the vehicles in question were purchased by him in the year 2018 and 2020 and thus, he was not a gangster and in this situation the requirement of law does not fulfil against him at all. If the appellant was not a gangster at the time of acquiring the vehicles and there was no gang chart mentioning his name therein, he could not commit an offence under the Act. It is an admitted case that the vehicles in question were purchased by the appellant in the year 2018 and 2020 and at no point of time he was having any criminal history to his credit nor had been declared a gangster. It is an admitted case that the vehicles in question were purchased by the appellant in the year 2018 and 2020 and at no point of time he was having any criminal history to his credit nor had been declared a gangster. But to counter the aforesaid plea, the learned AGA has submitted that since at the time of purchasing the vehicle ‘Tractor’ five criminal cases were pending against the father of the appellant and on the basis of the aforesaid criminal antecedent, he was declared gangster in the year 2019, i.e. prior to purchase of the second vehicle ‘Bolero’ which was purchased in the year 2020, by virtue of provisions of Section 2 (b) of the Act, the appellant himself very well comes within the clutches of the Act. 15. It is trite law that the District Magistrate shall direct attachment of any property after having been satisfied that the property in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under the Act. The relevant provisions require that there must be a reason to believe on the part of the District Magistrate that the conditions for an action under Section 14 of the Act do exist. Thus, the satisfaction portion should not only indicate that the property sought to be attached was acquired by a gangster but it should also indicate that such acquisition has been made by commission of an offence under the Act. It is also settled that the satisfaction of the District Magistrate must not be arbitrary and must be based on the legal conditions indicated in Section 14 of the Act. (vide : (Smt.) Kahkashan Parveen vs. State of U.P., 1999 (2) ACC 719 (All.) and (Smt.) Afzal Begum @ Akhtari vs. State of U.P., Criminal Appeal under Section 374 CrPC No. 3809 of 2008). 16. In the case in hand, from the perusal of the record it is evident that the District Magistrate, Sonebhadra directed for attachment of the vehicles of the appellant upon his satisfaction that the said vehicles were acquired by gangster Rajendra Patel, father of the appellant in the name of his son, the appellant, as a result of the commission of offences triable under the Act. The said satisfaction has been recorded by the District Magistrate, Sonebhadra considering the huge criminal antecedent of the father of the appellant and also finding that no valid source of income was available with the appellant to purchase the relevant vehicles. But it is always under judicial scrutiny that while directing for attachment of the vehicles of the appellant, whether the District Magistrate, Sonebhadra has complied with the legal requirements as enumerated under Section 14 of the Act. 17. The primary issue raised by the learned counsel for the appellant is that the appellant has no criminal history to his credit. He has sufficiently explained his source of income to show his capability to purchase both the vehicles which were attached by the District Magistrate, Sonebhadra in an arbitrary manner and making a despotic finding that the said vehicles were acquired by a gangster and that too by commission of an offence under the Act. 18. Rebutting to that, it has been vehemently submitted by the learned State Counsel that the appellant being the son of gangster Rajendra Patel comes within the purview of definition of ‘gang’ provided under Section 2 (b) of the Act. Referring to the definition of ‘gang’ as given under Section 2 (b) of the Act it has been impressed upon that if any undue, temporal, pecuniary, material or other advantage is gained by a gangster for himself or for any other person, the provisions of the Act would completely apply. So far as the attachment of the property of a gangster in the case in hand is concerned, the appellant Ashok Kumar is the son of Rajendra Patel, who was a gangster having criminal antecedents since the year 2018 i.e. prior to acquiring of second vehicle ‘Bolero’ and at the time of procuring the first vehicle ‘Tractor’ he was having criminal history of five criminal cases. His other criminal antecedents of several criminal cases have been shown in the counter affidavit submitted by the State. The Court is mindful to note that the first vehicle was acquired by the appellant in the year 2018 and at that time his father Rajendra Patel was having criminal history of five criminal cases to his credit. His other criminal antecedents of several criminal cases have been shown in the counter affidavit submitted by the State. The Court is mindful to note that the first vehicle was acquired by the appellant in the year 2018 and at that time his father Rajendra Patel was having criminal history of five criminal cases to his credit. The District Magistrate having been satisfied with the gang chart, the criminal history and criminal acts of the said Rajendra Patel, on the basis of material on record and the report given by the police passed the impugned order. The order passed by the District Magistrate, Sonebhadra dated 31.8.2021 also takes note and considers the objections raised by the present appellant and his father Rajendra Patel. The source of income as disclosed by the appellant in his objection has also been considered in the said order dated 31.8.2021 passed by the District Magistrate, Sonebhadra and the papers produced by the appellant in the form of evidence were also found not maintainable and reliable after consideration. 19. The Special Judge, Gangster Act, Sonebhadra has also enquired into the matter and has taken into account the source of income to purchase the aforesaid two vehicles by the appellant and it has been found that the evidence adduced in respect of the source of income to purchase the said vehicles by the appellant is not reliable at all. In State of U.P. vs. Manoj Kumar Pandey , 2010 (69) ACC 1 it has been held that the Court on receipt of the reference by the District Magistrate or on an application under sub-section (2) shall make enquiry after fixing date and giving notice to the person making the application or to the person making representation and to the State Government and also to any other person interested in the case. From the perusal of the impugned judgment and order passed by the Special Judge, Gangster Act, Sonebhadra it is evident that the Court concerned while making enquiry under Section 16 of the Act proceeded to take evidence of CW-1 Inspector Devendra Pratap Singh, CW-2 Ishwar Prasad, CW-3 Dudhnath Singh, CW-4 Avadhnath, CW-5 Brajbhushan Pandey and CW-6 Akhilesh Kumar and took relevant documents produced by the appellant on record and thus made an effort to comply with the requirements of the said Section. 20. 20. The appellant has come forward with a case that to purchase the Tractor in question, out of the total amount of Rs. 6,65,000/-, the appellant paid Rs. 3,90,000/- as advance and Rs. 3,90,000/- was taken as loan from the Lage Landen Financial Services India Limited which was repaid in five instalments within two months. The appellant has shown the source wherefrom he was able to manage the aforesaid Rs. 3,90,000/- which was paid by him in advance. He had borrowed Rs.50,000/- from his uncle Doodnath, and got Rs. 1,00,000/- from one Awadh Nath, the proprietor of M/s Patel Hardware and Machinery Store by cheque. He had received Rs. 32,241/- as commission from L.I.C. and had also taken loan of Rs. 33,643/- from Swatantra Micro Finance and he borrowed Rs. 75,000/- from his friend Akhilesh Patel. Thus out of the aforesaid amount of Rs. 3,90,000/-, the appellant had paid Rs. 2,58,643/- from the money arranged as aforesaid and Rs. 1,31,116/- was paid from his personal savings. He repaid the aforesaid loan amount from the income of agricultural products. All the relevant papers, khatauni in the name of his father Rajendra Patel, statement of account of Awadh Nath and Akhilesh, affidavit of Dudh Nath, papers relating to Swatandra Micro Finance etc. have been appended as Annexures A-5 to A-10 to the affidavit. Moreover, six C.W.s have also been examined by him before the Court. 21. The said Tractor was purchased on 22.10.2018 and the appellant had filed his income tax return of the Assessment Years 2019-20 and has shown his income as Rs. 2,99,200/- (annexure-13 to the affidavit). 22. So far as the second vehicle ‘Bolero’ is concerned, the total cost thereof was Rs. 8,72,000/- and out of the total amount, Rs. 3,22,000/- was paid by him in advance and Rs. 5,50,000/- was taken loan from Cholamandalam Inv. & Fin. Co. Ltd. To manage the rest amount of Rs. 3,22,000/-, he had borrowed Rs. 1,54,000/- from one Brajbhushan Pandey and in this regard the statement of account has been filed as annexure-14 to the affidavit. The appellant had received Rs. 19,903/- from L.I.C. and has submitted his statement of account as annexure-15 to the affidavit and another amount of Rs. 5,704/- was also obtained by him from L.I.C. It also appears that for the payment of advance, Rs. 1,54,000/- was borrowed by him and Rs. The appellant had received Rs. 19,903/- from L.I.C. and has submitted his statement of account as annexure-15 to the affidavit and another amount of Rs. 5,704/- was also obtained by him from L.I.C. It also appears that for the payment of advance, Rs. 1,54,000/- was borrowed by him and Rs. 1,68,000/- was paid by him from his savings from Ashok Cosmetics and General Store and statements of account in this regard which are annexures 16 and 17 to the affidavit were also submitted. The said Bolero vehicle was purchased on 19.1.2020 in the financial year 2019-20 and has filed his income tax return for the Assessment Years 2020-21 showing his total income as Rs. 4,68,490/- (annexure-19 to the affidavit). Balance sheet as on 31.3.2020 to show his income and financial status has also been submitted as annexure-20 to the affidavit. 23. The District Magistrate, Sonebhadra while passing the order dated 31.8.2021 and the learned Special Judge, Gangster Act, Sonebhadra in the judgment and order dated 9.8.2023 have discussed all the relevant circumstances, source of income of the appellant, criminal history of the father of the appellant, his terror in the society and anti social activities wherein he was indulged but the impugned orders passed by the District Magistrate, Sonebhadra and the Special Court itself are not conclusive to find a nexus between the criminal acts of the gangster Rajendra Patel as enumerated therein and the vehicles acquired by him in the name of his son, the appellant. The source of income for purchase of the properties, as claimed by the appellant, has not been found worthy of credit by both the authorities but these findings were not in consonance with the evidence adduced by the appellant which is available on record. In fact the evidence enumerated by the appellant through affidavits and oral evidence and annexures have not been properly appreciated with a judicial eye by both the authorities. It appears that the impugned orders have been passed with a preoccupied mind which are not sustainable under law. In fact the evidence enumerated by the appellant through affidavits and oral evidence and annexures have not been properly appreciated with a judicial eye by both the authorities. It appears that the impugned orders have been passed with a preoccupied mind which are not sustainable under law. A perusal of the record reveals that there was no reason to believe for the District Magistrate, Sonebhadra that the properties attached in this case were acquired by a gangster as a result of commission of any offence under the Act and the objective determination of the District Magistrate, Sonebhadra was not based on intelligent care and deliberation involving judicial review and it appears that he had mere suspicion or doubt regarding the nexus between the illegal activities committed by the gangster Rajendra Patel to acquire the vehicles in question in the name of his son Ashok Kumar, the appellant. It was not proper to reject the claim of the appellant only on the ground of criminal background and the status of the father of the appellant, who had shown his independent financial solvency and status and income as well which had nothing to do with the criminal status of his father, Rajendra Patel. 24. In fact the claim that the vehicles have not been acquired by commission of any offence or that it was acquired from lawful means can be established only by appraisal of cogent evidence and the aforesaid discussion leads the Court to draw a conclusion that the evidence of a particular standard which was required in this case was in fact adduced by the appellant. Since the question whether the vehicles attached have been acquired by a gangster as a result of commission of an offence under the Act is a pure question of fact, to adduce reliable evidence in this regard is always required. The District Magistrate, Sonebhadra has failed to arrive at an objective determination to find out the nexus between the criminal act of the gangster Rajendra Patel and the vehicles allegedly acquired by him in the name of his son Ashok Kumar, the appellant. The State has discharged its initial burden to prove that Rajendra Patel, father of the appellant, was a gangster but could not sufficiently show that he had acquired the vehicles in question by way of commission of offence in the name of his son, the appellant. The State has discharged its initial burden to prove that Rajendra Patel, father of the appellant, was a gangster but could not sufficiently show that he had acquired the vehicles in question by way of commission of offence in the name of his son, the appellant. From the perusal of the record it appears that the said burden remained upon the State and the onus did not shift upon the claimant to prove that the properties were not acquired by him as gangster as a result of commission of any offence under the Act which is a legal requirement as enumerated under Section 16 (5) of the Act even then he has discharged his burden by adducing cogent and reliable evidence. 25. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the prosecution miserably failed to show that the vehicles, which were attached, were acquired by gangster Rajendra Patel, father of the appellant, in the name of his son, the appellant by way of commission of offence triable under the Act and there existed a nexus between the criminal act of the father of the appellant and the vehicles acquired by his son, the appellant and the impugned orders do not fall under the category of ‘reasoned orders’. It also appears that relevant materials were not supplied to the District Magistrate to have reason to believe that the vehicles in question were acquired by the gangster, Rajendra Patel, father of the present appellant, as a result of commission of any offence triable under the Act and the initial burden upon the State to prove that the vehicles were acquired by Rajendra Patel as gangster as a result of commission of any offence under the Act has not been discharged sufficiently. From the perusal of record it also appears that the District Magistrate had not been provided relevant materials in support of the police report with regard to that the vehicles in question were acquired by the father of the present appellant being gangster in the name of the appellant. It also appears that the appellant was having enough source of income from which he could procure the properties under reference. It also appears that the appellant was having enough source of income from which he could procure the properties under reference. The enquiry under Section 16 of the Act was not performed in accordance with the mandate and object of the Act and the provisions of Sections 14 , 15 & 17 of the Act were also not followed in true spirit. 26. In view of the discussions made above, in my view the impugned judgment and order dated 9.8.2023 passed by Special Judge Gangster Act, Sonebhadra in Criminal Misc. Case No. 245 of 2021, which is a reference made to the said Court under Section 16 (1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, the order passed by the District Magistrate, Sonebhadra dated 28.12.2020 so far it relates to attachment of the vehicles of appellant under Section 14 of the Act as well as order dated 31.8.2021 are liable to be quashed and the appeal is liable to be allowed. Accordingly the aforesaid orders are quashed and the appeal is allowed. Both the vehicles attached in the matter shall be released from attachment forthwith. 27. Copy of this judgment be transmitted to the Court/District Magistrate concerned for necessary compliance.