Hon'ble V.C. Gupta,J.
Heard Sri Manish Bajpai, learned counsel for the petitioners and the learned A.G.A. for the State of U.P.
This petition has been filed by the petitioners Indra Bahadur @ Pappu and Smt. Neelam Singh, wife of Indra Bahadur Singh with the following prayers:
1) issue a writ, order or direction in the nature of certiorari and quash the impugned order dated 4.1.2011 passed by the District Magistrate Gonda in case No. 05 of 2011, State Versus Indra Bahadur Singh alias Pappu Singh under section 14(1) of the U.P. Gangsters and Anti Social Activities( Prevention) Act P.S. Umri Begum Ganj Gonda as contained in Annexure-1 to the writ petition and every proceeding arising out of the same.
2) issue a writ, order or direction in the nature of mandamus declaring section 14 of U.P. Gangster and Anti Social Activities( Prevention) Act( U.P. Act No. 7 of 1986) as constitutional and ultravirus.
3) issue a writ order or direction in the nature of mandamus commanding the opposite parties not to proceed for physical attachment under section 14 of U.P. Gangster and Anti Social Activities( Prevention) Act, in pursuance of the impugned order dated 14.7.2010.
4) issue a writ order or direction in the nature of mandamus directing and commanding the opposite parties not to give effect to the impugned order contained in Annexure-1 to the writ petition.
5) issue any other writ order or direction which may deem fit just and proper in the facts and circumstance of the case.
The above mentioned prayer has been sought on the following grounds:-
A) Because no case under the provisions of U.P.Gangsters Act stands made out against the petitioners from the perusal of the F.I.R.
B) Because it is settled principle of law that any property whether moveable or immovable in possession of any person has been acquired by a gangster as a result of commission of the offence triable under the Act can be attached but the condition precedent for attachment of the property is that it must have been acquired as a result of commission of an offence triable under the Act.
C) Because there is not even an iota of evidence that the petitioners have acquired any property as a result of commission on offence even then without following the procedure established by law, the District Magistrate, Gonda has passed the order impugned for attachment of the properties of petitioner no.2, who herself is a well to do lady and income tax assessee, doing her own business.
D) Because the order passed by the District Magistrate is arbitrary and does not base on reasons and there is no material on record to suggest that the property in question has been acquired as a result of commission of any offence of the Act. The involvement in any offence is not sufficient unless and until there is a finding that there is any nexus with the crime, the same cannot be attached.
E) Because the satisfaction recorded by the District Magistrate just be an objective satisfaction i.e. there is a sufficient material for reason to believe that the property in question has nexus with the crime.
F) Because Section 14 of the Act is unconstitutional with regard to procedural reasonableness as prior to attachment of the property no opportunity is afforded.
G) Because no one could be deprived of his property without due process of law as enshrined under Article 300A of the Constitution of India, but the provisions enshrined in Section 14 of the Act abolishes the requirement of hearing and same is unreasonable and violative of Article 21 of the Constitution of India.
H) Because a Panel Law which is so vague and uncertain that gives no notice to the person before passing the order u/s 14 of the Act, it could not be reasonable from the substantive point of law.
I) Because the authority of law cannot be utilized in an arbitrary manner on the whims of administrative authorities, but in the case in hand the impugned order of attachment passed by District Magistrate, Gonda does not fulfil the requisite condition enshrined Under section 14 of the Act as it requires satisfaction of the District Magistrate to the extent of reason of believe, which is much stronger then suspicion or doubt and mere seeing also cannot be equated to belief.
J) Because the police has no evidence to the effect that any property moveable or immovable in possession of any person has been acquired by a Gangster as a result of commission of the offence triable under this Act can be attached but the condition precedent for attachment of property is that it must have been acquired as a result of commission of an offence triable under the Act.
K) Because the order passed by the District Magistrate is arbitrary and does not base on reasons and there is no material on record to suggest that the property in question has been acquired as a result of commission of any offence of the Act. It is also submitted that in the impugned order it must have been disclosed that there was any nexus between the crime alleged and the property acquired. It is not sufficient to attach the property on mere involvement in any offence. The property cannot be attached unless and until there is a finding that there is any nexus with the crime and acquiring the property.
L) Because by the impugned order, the State Authorities including District Magistrate has not discharged the burden lies upon them that the property they attached is result of commission of an offence and now the petitioners are asked to discharge the onus that the property belongs to him based on his earning from legal sources.
M) Because the order of attachment is panel in nature and no appeal is provided against the impugned order and the impugned order does not exhibit any reasoning for attachment of property which might be a live link between the decision taken and material placed.
N) Because no one can be judge/appellate authority against his own judgment but in case in hand the right of appeal against quasi judicial order ( impugned in the writ petition) is not available.
It is submitted by the learned counsel for the petitioners that the provisions of section 14 of U.P. Gangster and Anti Social Activities(Prevention) Act, 19869 (hereinafter referred to as Gangster Act) empowers the District Magistrate to attach the property acquired by the Gangster as a result of the commission of an offence triable under this Act. The District Magistrate may appoint an Administrator of any property attached, to administer such property in the best interest thereof but there must be reason to believe that any property whether moveable or immoveable in possession of any person, has been acquired by a Gangster as a result of commission of an offence, triable under this Act but in the impugned order the District Magistrate, has not recorded his satisfaction having reason to believe with regard to the property attached that it was acquired by petitioner no.1 as a result of commission of an offence triable under Gangster Act.
It is further submitted that without affording an opportunity of hearing to the petitioners, impugned order has been passed. The impugned order has been passed without applying proper mind and without having any material to show that it was acquired by any Gangster, the impugned order has been passed in an arbitrary manner, by depriving the petitioners from their rights enshrined under Article 300-A of the Constitution of India and it is violative of the Article 21 of the Constitution of India. The impugned order has been passed without issuing notice to the petitioners and it has been passed against the spirit of section 14 of the U.P. Gangster and Anti Social Activities( Prevention) Act, 1986 therefore, the impugned order may be set aside and the property attached may be released in favour of the petitioners.
In reply to the above contention it is submitted by the learned A.G.A. that the District Magistrate, Gonda has passed the impugned order in exercise of the power conferred under section 14(1)(3) of U.P. Gangster and Anti Social Activities( Prevention) Act, 1986. The impugned order is well reasoned order, the petitioner no.1 Indra Bahadur Singh @ Pappu Singh is having criminal antecedents, against him 15 criminal cases have been registered, the petitioners have not moved any application/representation before the District Magistrate. Gonda to release the property in their favour, which has been specifically provided under section 15 of the Gangster Act. It has also been provided under section 16 of the Gangster Act, whether any representation is made within a period specified under sub section (1) of section 15 of the Gangster Act and the District Magistrate does not release the property under section(2) of section 15, he shall refer the matter with his report to the court having jurisdiction to try the offence under this Act on which the court shall fix a date for enquiry, gave notice thereof to the person making application under sub-section(2) or as the case may be to the person making representation under section 15 of the State Government and also in other person whose interest appears to be involved in the case and the provisions of section 17 of the Act empowers the court to release such property after holding such enquiry the order passed under section 17 of the Act are appealable under section 18 of the Act. The petitioners without following proper procedure and without availing remedy available directly challenged the impugned order before this court, which is not proper, the impugned order has been challenged ignoring the statutory provisions provided under the Act itself to seek the remedy. The impugned order is not suffering from any illegality or irregularity. The present writ petition is devoid of merits, the same may be dismissed.
Considering the facts, circumstance of the case submissions made by the learned counsel for the petitioners, learned A.G.A. for the State of U.P. and the provisions of U.P. Gangster and Anti Social Activities( Prevention) Act, 1986 we feel it proper that to deal with the issue involved in the present writ petition, the discussion of the provisions of sections 14,15,16, 17 and 18 of the Act, is required which read 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 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.
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 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.
(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. V 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 witnesses 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 or order of a Court passed under the provisions of this Act."
The impugned order dated 4.1.2011 has been passed by the District Magistrate Gonda in exercise of the power conferred under section 14(1) of the Act to attach the property and the S.D.M. Tarabganj Gonda has been appointed as Administrator under section 14(3) of the Act, in case the petitioners were having the grievance against the impugned order, the same would have been raised before the District Magistrate, Gonda by moving a representation under section 15 of the Act. In case the representation moved by the petitioners was rejected, it would have been challenged in the court of Special Judge( Gangster) Act, if the petitioners were aggrieved from the order passed by the Special Judge(Gangster) Act, it would have been appealed before the appropriate court. By challenging the impugned order by way of filing the present writ petition under Article 226 of the Constitution of India, the petitioners have bypassed the provisions of section 15 of the Act. The powers conferred under Article 226 of the Constitution of India are too exhaustive but such powers may not be exercised ignoring the statutory provisions available, to seek the remedy. In the present case, the petitioners were having another forum to seek remedy as provided by sections 15,16,17 and 18 of the U.P. Gangster and Anti Social Activities(Prevention) Act, 1986, but the same has not been availed, in such circumstance, the prayer sought may not be considered by issuing the writ petition in the nature of certiorari, therefore, the prayer sought without entering into the merits of the case, is refused.
However, considering the facts and circumstance of the case it is directed that the petitioners may move a representation before the District Magistrate, Gonda against the impugned order dated 4.1.2011 within within a period of 30 days from today alongwith an application under section 5 of the Indian Limitation Act to condone the delay in filing the representation. In case, a representation is moved alongwith an application supported by an affidavit, the same shall be heard and disposed of expeditiously by the District Magistrate, Gonda, in accordance with law.
With the above direction this petition is finally disposed of.
Dt. 16.7.2014 NA