Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 7457 of 2021 Petitioner :- Afsar Ali Pankhiya Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sikandar Raza Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Ram Krishna Gautam,J.
1. This writ petition under Article 226 of Constitution of India has been filed by Afsar Ali Pankhiya, with a prayer for issuing a writ, order or direction in the nature of certiorari quashing the order dated 12.3.2021, passed by District Magistrate, Budaun (State Vs. Afsar Ali Pankhiya), under Section 14(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as 'Act'), with a further prayer for issuing writ, order or direction in the nature of mandamus commanding the respondents, not to physical attachment under Section 14(1) of the Act, in pursuance of the impugned order dated 21.3.2021.
2. Learned counsel for the petitioner argued that in the present case, officer in-charge of Police Station Hazratpur, District Budaun, through Superintendent of Police, Buduan, submitted a report to District Magistrate, Budaun, under Section 14(1) of the Act, with a contention that petitioner, having an organized gang and performing criminal activities had acquired land of Khata No. 83, over which house was constructed. Beside this, he had purchased a motorcycle in the name of his wife Asha Begum through the money so fetched, out of criminal activities. A show cause notice dated 9.11.2020, was served over the petitioner. Objection dated 27.1.2021 was filed, with a prayer for setting aside notice dated 9.11.2020. But District Magistrate, Budaun, without application of judicial mind and adopting judicial procedure, in arbitrary manner passed impugned order dated 12.3.2021, wherein, house constructed over Khata No.83, of estimated value of Rs. 10,4000/-, and motorcycle Splendor with registration No. UP-24/0441, in the name of Asha Begum, of estimated value of Rs. 35000/-, was attached. Whereas, land in question, whereupon house is constructed, was purchased through legal sale deed, dated 29.6.2015, in the name of petitioner and his brothers Israr, Sadiq Ali, Amjad Ali, for a consideration of Rs.2,16,000/-, and the share of petitioner was 1/4th, amounting value of Rs. 54000/-, which was from legal sources of petitioner. Motorcycle was also purchased from the legal sources. The property movable or immovable, being said to be acquired by gangster, may be attached under Section 14(1) of the Act, but the condition precedent is that it should be obtained as a result of offences committed by gangster, but no such evidence was there. Hence, the satisfaction of District Magistrate, Buduan, for attaching above property, vide impugned order, ought to be an objective satisfaction. Section 14 of the Act provides that after attachment of property, opportunity is to be given under Section 15 of the Act, but it was not complied with by District Magistrate, Budaun. Rather, a combined order of attachment as well as reference to competent Court was made vide impugned order. Learned counsel for the petitioner has also placed reliance to the judgement of co-ordinate Bench of this Court in the case of Jangali Pasi Vs. State of U.P. and another, 2015 (89) ACC 911 and judgment of learned Single Judge in Writ Petition No. 1017 (M/B) of 2011 (Indra Bahadur Singh @ Pappu Singh and another Vs. State of U.P.). Hence, this petition with above prayer.
3. Sri Avnendra Kumar Singh, learned A.G.A. has vehemently opposed with this contention that impugned order dated 12.3.2021, under Section 14(1) of the Act, was passed by District Magistrate, Budaun, after hearing both sides, over report submitted by S.H.O., Police Station Hazratpur, forwarded by Senior Superintendent of Police, Buduan. Hence, with regard to attachment order under Section 14(1) of the Act, there is no illegality or irregularity committed by District Magistrate, Budaun. But it is admitted that vide impugned order, prayer for release from attachment was referred to competent Court of Special Session Judge, U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Buduan, under Section 16(1) of the Act. Whereas, as per Section 15 of the Act, which deals with release of property, where any property is attached under Section 14 of the Act, 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 and the sources by which such property was acquired by him and if the District Magistrate is satisfied about the genuineness of the claim made under Sub-Section 1 of Section 15 of the Act, he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant and in case property is not released by District Magistrate or no representation being made within the stipulated period, as above, under sub-Section 1 of Section 15 of the Act, District Magistrate shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act, under Section 16(1) of the Act. But in the present case, a combined order has been passed and attachment, side-by-side reference to competent Court, has been made. Hence, the very statutory provision has been deviated.
4. Having heard learned counsel for both sides and gone through the material placed on record as well as provisions of Section 14, 15 and 16 of the Act, it is apparent that attachment of property is to be made by District Magistrate, in case he 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 and in case of such attachment under Section 14 of the Act, the application/representation for release of property is to be made within three months from the date of knowledge of such attachment by claimant of the property under Section 15(1) of the Act and under Section 15(2) of the Act if, District Magistrate is satisfied with the ground and reason given under Section 15(1) of the Act, he shall forthwith release the property from attachment and thereupon, such property shall be made over to the claimant. But when no such release is being made by District Magistrate or no representation within stipulated period of three months is being made by claimant, the matter is to be referred to Court having jurisdiction to try an offence under this Act, under Section 16(1) of the Act. But in the present case, no such compliance is there. Hence, so far as the order with regard to attachment under Section 14(1) of the Act as well as appointment of administrator is concerned, the same is with no illegality or irregularity. Hence, for this portion of impugned order neither it is being assailed nor it is with any defect. Hence, this much is intact.
5. So far as the representation or application for release under Section 15(1) of the Act, is concerned, the same has yet not been moved by petitioner and a discretion or decision under Section 15(2) of the Act by District Magistrate, Budaun, has yet not been taken. Hence, for this portion as well as for making reference to competent Court having jurisdiction is certainly deviation of the provision of Act, requiring the petition to be allowed in part and thereby, relegation or remand to District Magistrate, Budaun, for providing an opportunity to petitioner within stipulated period of three months, for hearing the application/representation for release of attached property under Section 15(1) of the Act. Then after, a decision is to be made under Section 15(2) of the Act, at an expedient and in case of no release or no prayer for release by way of application/representation within above stipulated period is there, then the matter is to be referred to Court of Special Session Judge, U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Buduan, under Section 16(1) of the Act, onward.
6. Hence, this petition is being finally disposed of with above finding.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 20.9.2021 Kamarjahan