1. Heard learned counsel for the petitioner, learned A.G.A for the State and perused the material available on record.
2. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 31.-07.2019 which is passed in Gangster Criminal Misc. Case No. 08/2018 bearing name Hakimuddin Vs. State of U.P. under Section 14 (1) U.P. Gangster Act by Additional District Judge, Court No. 10/Special Judge Gangster Act, District Sultanpur as well as order dated 25.07.2018 which is passed by District Magistrate District Amethi in Case No.00590/2018, under Section 14 (1) U.P. Gangster Act as contained in Annexure No. 1 and 2 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite party no. 2 to 4 to release the seized vehicle No. U.P. 44 AA/7287 forthwith in favour of the petitioner."
3. Brief facts of the case are as follows:
4. The S.H.O, Kothwali Amethi in his report dated 15.05.2018 has mentioned that the petitioner being a gang member had acquired several property by means of anti-social activities and acquired the Indica Vista Car No. UP 44 AA 7287 without disclosing the source of income. According to police report, he had no source of income. The above motor vehicle prima facie held to be proceed of crimes under the Act, 1986 and liable to be attachment thus requested to the Superintendent of Police to initiate attachment proceedings under Section 14(1) Gangsters Act, 1986. Consequently, Superintendent of Police Amethi wrote a letter dated 18.05.2018 to District Magistrate, Amethi for initiating a proceeding for attachment of aforesaid motor vehicle under Section 14(1) Gangsters Act, 1986.
5. Learned counsel for petitioner has submitted that the District Magistrate, concerned on receipt of said letter, initiated seizure proceeding of the vehicle of the petitioner vide order dated 26.06.2018. The petitioner on 02.07.2018 filed an objection by way of representation by disclosing the source of income and acquisition of motor vehicle and also requested to release his vehicle. The plea of the petitioner was rejected under Section 14 (1) of the Gangster Act, 1986 on 25.07.2018 on the ground that a petitioner is a history sheeter and four offences shown in Gang-chart against him and no material evidence of purchasing of said vehicle with valid source of income has been produced.
6. Further submission is that the learned District Magistrate concerned declined to release the vehicle vide order dated 25.07.2018 with the order of attachment and referred the matter to Special Judge (Gangsters Act) under Section 16 (1) of U. P. Gangsters Act, 1986. Thereafter the petitioner made a representation before learned Special Judge (Gangsters Act)/Additional Sessions Judge, Sultanpur. The petitioner requested that aforesaid Vehicle was purchased by earnings of his agricultural sources, pension of father, who was posted in Army and his wife is Gram Pradhan, but the all submissions of the petitioner was rejected regarding the purchasing of the vehicle and dismissed the application for releasing vehicle on 31.07.2019 on the ground that the concerned case is at the premature stage and the evidence of witnesses is yet to be recorded to reach the final conclusion. So releasing the aforesaid vehicle at this stage is contrary to provisions enshrine under Section 16 (3) of the Gangster Act.
7. Learned counsel for petitioner has submitted that vehicle no. UP 44 AA 7287 was purchased by the petitioner on 25.10.2013 from Anany Motor Private Limited for a sum of Rs. 7,04,144/- and the said vehicle was financed with Mahindra & Mahindra Finance Service Limited with 23 equal installments of Rs.18,990/- and sale letter is annexed as Annexure No. 3. Further submission is that at the time of purchase, his wife was Gram Pradhan and father was posted in Army Department and was receiving pension a sum of Rs. 21,300/-, and the petitioner has sufficient agricultural land and his annual earning is Rs.1,00,000/- also. In support of his submission, he filed copy of bank account of his father as Annexure No. 5 and copy of his bank account as Annexure No. 6. Learned counsel for petitioner has further submitted that the petitioner had paid all installments with the help of earning of his family members and finally submitted that at present the vehicle is lying abandoned in police station and the petitioner is ready to give surety and personal bond regarding the vehicle and he will not sell the vehicle during the disposal of the case finally before the court concerned. Thus the petitioner is legally entitled to release the vehicle in his favour. Learned counsel for petitioner has next submitted that the petitioner has no other alternative and efficacious remedy than to invoke jurisdiction of this Court under Article 226 of the Constitution. Learned counsel for petitioner has also relied upon a judgment of this Court in the case of Rajbir Singh Tyagi Vs. State of U.P. and others passed by this Court in Criminal Misc. Writ Petition No. 17245 of 2009 wherein Ganster Court conducted inquiry under Section 16 in reference to order passed by District Magistrate and after due enquiry learned Gangster Court passed the final order of attachment and the claim of the petitioner was rejected and High Court by means of writ under Article 226 of the Constitution allowed the writ of the petitioner and quashed the order of the learned trial court and released the attached property.
8. Learned A.G.A. for the State has opposed the submissions made by learned counsel for petitioner and submitted that the inquiry is pending before the Gangster Court and the Gangster Court had not arrived at any final conclusion regarding the alleged motor vehicle. He further submitted that the prayer made in the writ petition is prima facie at this stage is liable to be dismissed.
9. Being aggrieved by the aforesaid orders, this writ petition has been filed.
10. To deal with the issue involved in the present writ petition, the discussion of provisions of Act, 1986, Section 14 to 18 is essential and same is reproduced as under:-
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 subsection (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 subsection (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 attendance 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) setting aside an order of dismissal for default or ex parte decision.
(5) In any proceedings under this section, the burden of proving that the property in question or any part thereof was not acquired by a 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, 1872 (Act No. 1 of 1872), notwithstanding.
17. Order after inquiry. - If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.
18. Appeal. - The provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgment on order of a Court passed under the provisions of this Act.
11. The aforesaid provision has clearly envisages that on receiving the reference from the District Magistrate under Section 16 (1) of the Act, the Court shall fix date for inquiry and Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary. In the case in hand, Special Judge (Gangsters Act) came to hold that the evidence of concerned parties and interested witnesses is yet to be recorded to reach final conclusion. Even the notice is not served to them at this stage, so releasing the aforesaid property is contrary to the settled provisions under the Act. In view of the matter, proceedings regarding the determination of the claim of the parties is still to be decided by the court concerned after recording evidence of respective parties.
12. Although in support of his submission, learned counsel for petitioner has relied upon a judgment of this Court in the case of Rajbir Singh Vs. State of U.P. passed in Criminal Misc. Writ Petition No. 17245 of 2009. but the fact of this case is quite different from the facts of the present case. In Rajbir Singh's case, the trial court finally determined the rights of the petitioner under Section 17 of the Gangster Act. In the present case, no final order has been passed by the competent gangster court and enquiry proceedings is still pending under Section 16 of the Gangster Act.
13. The learned Special Judge (Gangsters Act) has not arrived at any final conclusion regarding release of alleged property under Section 17 of the Gangster Act. Since no final order was passed by the court of Gangster Act, so at this stage, the present writ petition is not maintainable. If any grievance left to the petitioner after arriving any conclusion by Gangster Court under Section 17 of the Act then he may file appeal under Section 18 of the Gangster Act before this court.
14. In view of the aforesaid statutory provisions of law, there is no ground to entertain this petition. Accordingly, the petition is disposed of. However, it is desirable by the learned Special Judge Gangster Act to conclude the inquiry and pass the appropriate orders under Section 17 of the Gangsters Act, 1986 expeditiously preferably within a period of one month, if there is no legal impediment.
Order Date: 22.09.2021 Virendra