Criminal Misc. Writ Petition No. 8053 of 2015. Case: Jangali Pasi Vs State of U. P. Thru. Secy. High Court of Allahabad (India)

Case NumberCriminal Misc. Writ Petition No. 8053 of 2015
CounselFor Petitioner: R. S. Shukla, Adv.
JudgesAmreshwar Pratap Sahi, J. and Mrs. Vijay Lakshmi, J.
IssueU.P. Gangsters and Anti-Social Activities (Prevention) Act (7 of 1986) - Sections 15, 16, 17, 18
Citation2015 CriLJ 3321
Judgement DateApril 16, 2015
CourtHigh Court of Allahabad (India)

Judgment:

1. The petitioner who is a member of the scheduled caste, has come up before this Court questioning the order of the District Magistrate, Kaushambi dated 18. 12.2014 arising out of proceedings of attachment and refusal to release a truck that had been seized invoking the provisions of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. The background in which this seizure was made is to the effect that the petitioner was implicated in three other criminal cases, namely, Case Crime No.117 of 2012 under Section 379, IPC r/w Section 136 of the Indian Electricity Act, Case Crime No.140 of 2012 under Section 379, IPC r/w Section 136 of the Indian Electricity Act and the third case being Case Crime No.146 of 2012 under Sections 399/401, IPC.

2. It appears from the record that the truck in question bearing registration No. U.P 70 N 9212 is registered in the name of the petitioner and the same came to be seized in the aforesaid criminal cases. Learned counsel for the petitioner submits that the petitioner has been bailed out in the said criminal cases, but on the strength of the same cases the petitioner has been booked under Section 2/3 of the 1986 Act, where also he has been bailed out on 14.8.2013 by the competent court.

3. The truck was seized in Case Crime No.146 of 2012. A release application was filed where it was noticed that the said truck was also subject matter of seizure in Case Crime Nos.140 of 2012 and 117 of 2012 as noted above. The truck had already been released in the said cases on 15.5.2013. Consequently, a release order was also passed on 22.1.2014 in relation to Case Crime No.146 of 2012. The said orders have been filed on record.

4. However, since the petitioner had been booked under the Gangster Act, the said truck became subject-matter of detention after putting the petitioner to notice on the ground that this truck appears to have been purchased from sources that have its genesis in the cases of theft registered against the petitioner. An ex parte order was passed against the petitioner on the basis of a police report on 30.7.2014 attaching the said truck under the provisions of the 1986 Act. The petitioner filed his objection that is on record whereafter the impugned order has been passed by the District Magistrate observing that since the petitioner has not been able to give effective details with regard to the source of his earnings from where he has acquired this truck and the information given is unclear, his objection deserves to be rejected.

5. The case of the petitioner was that he had received a reimbursement against the insurance policy of his son who had died, and that money had been utilized by him that was transacted through a Post Office and a Bank account whereafter it was ultimately utilized for the purchase of the truck through a finance company.

6. The learned District Magistrate has opined that from the said Post Office transaction is not clear as to whether the amount had been received by the applicant or not and how much further amount had been financed by the private finance company referred to in the objection. Similarly, the transaction through the State Bank of India in relation to the said reimbursement of the policy amount is also not clear. It is this order that is assailed herein.

7. Having heard Sri. Shukla, learned counsel for the petitioner, and Sri. A.K. Sand, learned A.G.A., the prayer made by Sri. Shukla in this petition is to the effect that if the District Magistrate Kaushambi was refusing to release the attached property, which is a truck, in terms of Section 15 read with Section 16 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 then he ought to have referred the matter to the Court of the Special Judge for determination and having failed to do so, the impugned order is vitiated as it does not comply with the provisions of Section 16(1) of the Act.

8. Sri Shukla, learned counsel for the petitioner, submits that the District Magistrate was under a legal obligation to do so and having failed to exercise his jurisdiction, the impugned order deserves to be quashed with a direction to the District Magistrate to adopt the procedure under Section 16 for deciding the issue of release as per the provisions aforesaid.

9. Sri A. K. Sand, learned A.G.A., contends that this petition is absolutely premature, inasmuch as, even if the District Magistrate has not referred the matter to the learned Special Judge, the petitioner ought to have moved an application in terms of the aforesaid provision for a reference to the special court. Apart from this, he also contends that after an order is passed by the court of competent jurisdiction under Section 17 of the Act then there is a further remedy to the petitioner of filing an appeal in terms of Section 18 of the Act, hence there should be no interference.

10. At the outset it may be mentioned that the validity of the Act has been upheld by this Court in the case of Ashok Kumar Dixit v. State, AIR 1987 Alld. 235 and considered by the Apex Court in the case of Dharmendra Kirthal v. State of U.P., 2013 (8) SCC 368: (AIR 2013 SC 2569). Unfortunately no rules appear to have been framed by the State of U.P. as desired in spite of a query raised by this court vide order dated 28.11.2011 in Criminal Misc. Bail Application No.26805 of 2011, Akbar v. State of U.P., 2012 (76) ACC Page 187.

11. In order to appreciate the aforesaid controversy, it would be appropriate to put on record that the 1986 Act was framed by the legislature to make special provisions for the prevention of and for coping with gangsters and anti social activities and for matters connected therewith or incidental thereto. In the instant case, we are concerned with the procedure to be adopted for attachment and release of the property of an alleged gangster in terms of Sections 14 to 17 of the Act and further as to whether an appeal would be maintainable as urged by the learned A.G.A. under Section 18 if an order is passed by the court in terms of Section 16(3)(b) of the Act.

12. To appreciate the controversy the provisions of Sections 14 to 18 of the Act are extracted hereinunder:-

14. Attachment of property.- (1) If the District Magistrate has 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 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 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 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.5 of 1908), in respect of the following matters, namely:-

(a) summoning and enforcing the atten-

dance 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 witness or documents;

(f) dismissing a reference for default or deciding it ex parte:

(g)...

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