1. Heard Mr. D.S. Mishra, learned counsel for the appellant Smt. Afzal Begum @ Akhtari and learned AGA for the State and perused the record.
2. By this appeal under section 18 of the U.P. Gangsters and Anti Social Activities (Prevention) Act (hereinafter referred to as 'the Act') read with sections 374(2) and 389 of the Code of Criminal Procedure Code (hereinafter referred to as 'the Code'), the appellant Smt. Afzal Begum @ Akhtari has impugned the judgment and order dated 03.06.2008 rendered by Sri Shiv Prasad, the then Special Judge (Gangster Act), Varanasi in Criminal Reference Case No. 2 of 2006, State vs. Smt. Afzal Begum @ Akhtari, whereby the learned Special Judge has confiscated the attached properties of the appellant in favour of the State of Uttar Pradesh and rejected her prayer for quashing the attachment made by the District Magistrate Varanasi under section 14 of the Act.
3. The relevant facts necessary for the decision of this appeal are that the appellant was accused under section 3(1) of the Act vide the crime no. 281 of 2005, police station Maduadeeh, district Varanasi. That case was registered on the basis of her criminal antecedents of the case crime no. 274/2005, under sections 3/5/6/9 of The Immortal Traffic (Prevention) Act read with sections 323/504/506 Indian Penal Code, police station Maduadeeh, district Varanasi. It is also alleged that the appellant's husband Late Rahmat Khan was also a gangster within the meaning of the aforesaid Act and he had following cases against him:
(1)Case crime no. 159/2005, under sections 3/5/6/9/14/15/17 of the Immortal Traffic (Prevention) Act, police station Maduadeeh, district Varanasi, (2)Case crime no. 105/1997, under sections 3/5/7/8 of the Immortal Traffic (Prevention) Act, police station Maduadeeh, district Varanasi, (3)Case crime no. 166/1997, under sections 323/504/506 IPC, police station Maduadeeh, district Varanasi, (4)Case crime no. 186/1997, under sections 286/326 IPC, police station Maduadeeh, district Varanasi, (5)Case crime no. 147/1998, under sections 294 IPC, police station Maduadeeh, district Varanasi, (6)Case crime no. 331/1998, under sections 323/504/506 IPC, police station Maduadeeh, district Varanasi., (7)Case crime no. 21/1999, under sections 504/506 IPC, police station Maduadeeh, district Varanasi, (8)Case crime no. 27/1999, under sections 332/504 IPC, police station Maduadeeh, district Varanasi, (9)Case crime no. 37/2000, under sections 323/504/506 IPC, police station Maduadeeh, district Varanasi, (10)Case crime no. 54/2000, under sections 232/504 IPC, police station Maduadeeh, district Varanasi, (11)Case crime no. 74/2000 (NCR), under sections 232/504 IPC, police station Maduadeeh, district Varanasi, (12)Case crime no. 132/2000, under sections 323/504/506 IPC, police station Maduadeeh, district Varanasi, (13)Case crime no. 163/2000, under sections 3/4 U.P. Control of Goondas Act, police station Maduadeeh, district Varanasi, (14)Case crime no. 79/2001, under section 294 IPC, police station Dashashwamedh, district Varanasi, (15)Case crime no. 279/2002, under sections 3/4 U.P. Control of Goondas Act, police station Maduadeeh, district Varanasi, (16)Case crime no. 4/2003(NCR), under sections 323/504 IPC, police station Maduadeeh, district Varanasi, (17)Case crime no. 89/2003, under section 110 Cr.P.C., police station Maduadeeh, district Varanasi, (18)Case crime no. 438/2003, under sections 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, police station Maduadeeh, district Varanasi, (19)Case crime no. 270/2005, under section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, police station Maduadeeh, district Varanasi, (20)Case crime no. 159/2005, under the Immoral Traffic (Prevention) Act, police station Bhelupur, district Varanasi, (21)Case crime no. 274/2005, under the Immortal Traffic (Prevention) Act, police station Maduadeeh, district Varanasi, (22)Case crime no. 300/2005, under sections 3/5/6/9/14/15 of The Immortal Traffic (Prevention) Act, police station Maduadeeh, district Varanasi, (23)Crime no. 305/2005, under section 307 Indian Penal Code, police station Maduadeeh, district Varanasi, (24)Crime no. 306/2005 under section 25 Arms Act, police station Maduadeeh, district Varanasi.
4. It is also alleged that the appellant as also her husband had formed a gang within the meaning of the U.P. Gangsters and Anti Social Activities (Prevention) Act, and had earned a lot of money by committing the offences under the Immoral Traffic (Prevention) Act, therefore, their moveable and immovable properties, which had been acquired from the earnings so made, were liable to be attached under section 14 of the Act. The police of Bhelupur police station district Varanasi submitted the report dated 16.12.2005 alongwith recommendation letter dated 17/18-12-2005 of the Senior Superintendent of Police, Varanasi, to the District Magistrate, Varanasi for attaching the moveable and immoveable properties of the appellant and her husband under section 14 of the Act. The District Magistrate, Varanasi, keeping in view the facts and circumstances of the case, passed the order dated 28.12.2005 attaching the following moveable and immovable properties acquired by the appellant and her husband and required her to move her representation, if any, within three months from the date of the service of the order:
(A) Detailf of attached moveable properties (1) Appellant's S.B. Account No. 6338 of Allahabad Bank, Maduadeeh, Varanasi, (2) Appellant's S.B. Account No. 24 of Merchantile Co-operative Bank, Vidyapeeth Road, Varanasi, (3) Rahmat's S.B. Account no. 4643 of Allahabad Bank, Maduadeeh, Varanasi, (4) Rahmat's S/B/ Account no. 68 of Merchantile Co-operative Bank, Vidyapeeth Road, Varanasi, and (5) Post Office Account no. 547866.
Details of attached immovable properties (1) Land of Khata no. 44, plot no. 220/7 area 260 Sq. fit purchased on 7.10.1977 in the name of the appellant and her husband, on which a house has been constructed;
(2) Land of khata No. 1803, plot No. 220/7, area 690 Sq. fit purchased on 16.2.1990 in the name of the appellant and her husband, on which a four storied building has been constructed;
(3) Land of khata No. 103, plot No. 312/1, area 660 Sq. fit purchased on 8.9.2005 in the name of the appellant and her husband, on which a one storied building has been constructed, (4) Land of khata No. 2067, plot No. 344, area 1088 Sq. fit purchased on 15.9.1991 in the name of the appellant and her husband, on which two rooms and boundary wall have been constructed , (5) Land of khata no. 2067, plot no. 344, area 1700 sq. fit, purchased by sale deed dated 24.8.1997 in the name of the appellant and her husband, on which a one storied building has been constructed, (6) Land of khata No. 1367, plot No. 345, area 644 Sq. fit purchased by sale deed dated 20.12.1995 in the name of the appellant and her husband, on which a two storied building has been constructed, (7) Land of khata No. 606, plot No. 220/7, area 1754 Sq. fit purchased by sale deed dated 2.11.2004 in the name of the appellant and her husband, on which a four storied building has been constructed, (8) Land of khata No. 2067, plot No. 344, area 1088 Sq. fit purchased by sale deed dated 30.9.1993 in the name of the appellant and her husband, on which only boundary wall has been constructed.
5. Thereafter in pursuance of the said notice the appellant filed written objection dated 31.1.2006 before the District Magistrate, Varanasi, who after hearing both the parties found the objection baseless and, therefore, rejected the same and referred the matter to the Special Judge under section 16(1) of the Act for appropriate decision. The learned Special Judge issued notice to the appellant who filed her objection dated 7.3.2008 stating that the attachment order was passed ex-parte as she was neither given any notice nor was provided any opportunity to put up her case. She further set up the defence that she and her two sisters Afsana and Naseem Bano were doing the job of dance and music and thereafter they used to earn a lot and properties attached had been acquired on the basis of such earnings. Her husband was a cloth merchant and was also involved in the business of sale and purchase of land and had adequate income therefrom, therefore,the properties acquired by her husband were also not acquired out of earnings by committing any offence under the Act. It was further submitted that the valuation of property has been shown very excessive which was not commensurate with the market rate.
6. The State of U.P. Examined PW-1 Ram Nath Gupta and PW-2 P.C. Pandey, who stated that the appellant and her husband had been involved in committing the offences under the U.P. Gangsters and Anti Social Activities (Prevention) Act and the Immoral Traffic (Prevention) Act and have earned huge money by committing such offences .
7. The appellant examined DW-1 Afzal Begum, DW-2 Arun Kumar Singh, DW-3 Shafiq Ahmad and DW-4 Sohan Lal and filed few documents in support of her case.
8. The learned trial court was of the view that the properties attached were acquired by the appellant and her husband out of the earnings made by them by committing the offences under the Act. The learned trial court further held that the burden was on the appellant to show that the attached properties were not so acquired but she failed to discharge the burden.
9. Mr. D.S. Mishra appearing for the appellant submitted that the appellant was made accused under section 3(1) of the Act vide the crime no. 281/2005 of police station Maduadeeh district Varanasi on the basis of a solitary case crime no. 274/2005 under sections 3/5/6/9 of Immoral Traffic (Prevention) Act and sections 323/504/506 IPC, police station Maduadeeh, district Varanasi and she had no criminal history prior to the registration of the said two cases, therefore, any property acquired by the appellant prior to registration of the said cases, could not be said to be a property acquired by her as a result of commission of an offence triable under the Act. Mr. Mishra next submitted that the husband of the appellant was made accused under section 3(1) of the Act for the first time in the year 2003 vide crime no. 438/2003, police station Maduadeeh, district Varanasi. The other case under section 3(1) of the Act was lodged against him at the same police station in the year 2005 vide the crime no.27/2005. Mr. Mishra next submitted that the list of cases shown in the gang chart discloses the fact that the oldest case lodged against the husband of the appellant was crime no. 105/1997 under sections 3/5/7/8 of the Immoral Traffic (Prevention) Act, police station Maduadeeh, district Varanasi, and the remaining cases mentioned in the gang chart were registered thereafter and those cases pertain to the year 1998, 1999, 2000, 2001, 2002, 2003 and 2005. The appellant's husband had no criminal history of any case prior to registration of case no. 105/1997, therefore, the properties acquired prior to registration of the case crime no.105/1997 could not be said to be the properties acquired as a result of commission of an offence triable under the Act. Mr. Mishra next submitted that most of the immoveable properties acquired by the appellant's husband were acquired prior to the year 1997, therefore, those properties could not be attached and confiscated. Mr. Mishra lastly submitted that five saving bank accounts have also been attached and confiscated on the ground that the outstanding amounts in the banks/post office were unaccounted money and had been earned by committing offences triable under the Act. In this connection, Mr. Mishra submitted that the learned Special Judge did not try to find out when each of the said accounts was opened and what was the money deposited in the accounts from time to time. If any money was deposited prior to registration of the first case lodged against the husband of the appellant or the appellant, as the case may be, that amount could not be taken into account for the purposes of section 14 of the Act.
10. Learned AGA, on the other hand, submitted that the learned Special Judge has held an elaborate inquiry and arrived at the conclusion that the attached properties had been acquired as a result of commission of an offence triable under the Act, therefore, order of the Special Judge was perfectly correct.
11. In order to appreciate the rival submissions, it seems to be just and expedient to refer to the relevant provisions i.e. sections 14, 15, 16 and 17 of the Act.
"14. (1) If the District Magistrate has 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 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. (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. (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 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 orj office;
(e) issuing commission or 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. 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. "
12. The learned counsel for the appellant placed reliance on Smt. Kahkashan Parveen and another vs. State of U.P. (1999 U.P.Cr.R. - 810) in support of his submission. In that case a Division Bench of this Court held:
"An analysis of the different words used in Section 14 suggests that it is within the authority of the District Magistrate upon his satisfaction that any 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, to direct attachment of the property notwithstanding the question of absence of cognizance by any Court. The provision requires 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 did exist and the conditions are that certain property in possession of any person must have been acquired by a gangster and that too by commission of an offence under the Act. 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. This satisfaction of the District Magistrate is not open to be challenged in any appeal. Only a representation is provided for before the District Magistrate himself under Section 15 and in case he refuses to release the property on such representation, he is to make a reference to the court having jurisdiction to try an offence under the Act. Thus, so far as the District Magistrate is concerned, the satisfaction must not be arbitrary and must be based on the legal conditions indicated in section 14 of the Act."
13.It is now well settled that the property being made subject matter of an attachment under section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act. The District Magistrate has to record his satisfaction on this point. The satisfaction of the District Magistrate is not open to challenge in any appeal. Only a representation is provided for before the District Magistrate himself under section 15 of the Act and in case he refuses to release the property on such representation, he is to make a reference to the court having jurisdiction to try an offence under the Act. The Court, while dealing with the reference made under sub-section (2) of Section 15 of the Act has to see whether the property was acquired by a gangster as a result of commission of an offence triable under the Act and has to enter into the question and record his own finding on the basis of the inquiry held by him under section 16 of the Act. If the court comes to the conclusion that the property was not acquired by the gangster as a result of commission of an offence triable under the Act, the court shall order for release of the property in favour of the person from whose possession it was attached. If the conclusion of the court is otherwise, it may pass 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. This power has been conferred on the Court under section 17 of the Act. In other words, the attachment made under section 14 of the Act can be upset by the court after an inquiry under section 16 of the Act and in that situation the court has power to release the attached property in favour of the person from whose possession the property was attached.
14. The power of the Court to hold an inquiry under section 16 on the reference made by the District Magistrate is not an empty formality, which has a purpose behind it. The object behind providing the power of judicial scrutiny under section 16 of the Code is to check arbitrary exercise of the power by the District Magistrate in depriving a person of his properties and to restore the rule of law, therefore, a heavy duty lies on the court to hold a thorough inquiry to find out the truth with regard to the question, whether the property was acquired by or as a result of the commission of an offence triable under the Act. The order to be passed under section 17 of the Act must disclose reasons and the evidence in support of the finding of the court. The Court is not expected to act as a post office or mouthpiece of the State or the District Magistrate. If a person has no criminal history during the period the property was acquired by him, how the property can be held to be a property acquired by or as a result of commission of an offence triable under the Act is a pivotal question which has to be answered by the Court. Besides the aforesaid question, the other important question to be considered by the Court is whether the property which was acquired prior to the registration of the case against the accused under the Act or prior to the registration of the first case of the gang chart, can be attached by the District Magistrate under section 14 of the Act.
15. In the present matter, the learned Special Judge has overlooked the aforesaid important questions nor recorded any specific finding thereon. It was obligatory on his part to consider the aforesaid questions while considering the main question whether the property attached by the District Magistrate was acquired by or as a result of the commission of an offence triable under the Act.
16. In the present matter, four saving bank accounts lying in banks and one saving bank account lying in the post office have been attached and confiscated. It is not clear as to when these accounts were opened. It is also not clear as to what were the exact date of deposit and the actual amount deposited in each account from time to time. It is also not clear as to whether these five accounts were opened and the moneys therein were deposited after the appellant or her husband became a gangster and their criminal histories started. If any of the money lying in the aforesaid accounts had been deposited prior to the appellant and her husband became for the first time as accused of committing an offence triable under the Act, it could not be attached and confiscated, therefore, these important aspects were required to be given due consideration but have been overlooked by the learned Special Judge.
17. The immoveable properties shown at serial nos. 1, 2, 4, 6 and 8 had been acquired even prior to the registration of the first criminal case shown in the gang chart against the appellant and her husband. The immoveable properties shown at sl. no. 5 was acquired on 24.8.1997. The properties shown at sl. no. 3 and 7 were acquired on 8.9.2005 and 2.11.2004 respectively. It is alleged that the appellant and her husband had formed a gang and both of them acted as gangsters and were involved in committing offences under the Immoral Traffic (Prevention) Act and acquired the aforesaid properties out of the earnings made by them by committing such offences. This was the case of the State before the Special Judge, therefore, out of 24 cases shown in the criminal history extracted in para 3 of the judgment, cases shown at sl. no. 3 to 12, 14, 16 and 23 were not the cases under the Immoral Traffic (Prevention) Act and as such those cases were not made as a basis by the State either to attach or to confiscate the moveable and immoveable properties of the appellant. Therefore, the cases shown at serial no. 3 to 12, 14, 16 and 23 had no relevancy in the present matter. The cases shown at sl. no. 13, 15, 17 and 24 do not come within the purview of the Act, therefore, they were also not relevant. The cases shown at sl. nos. 1, 2, 18, 19, 20, 21 and 22 registered against the husband of the appellant and both the cases registered against the appellant could only be taken to be relevant for the purposes of the present matter. As such it was to be seen whether any of the properties of the appellant attached by the District Magistrate was acquired either by the appellant or her husband or both by committing any of the offences relating to the cases referred to at serial no. 1, 2, 18, 19, 20, 21 and 22 of the gang chart specified in para 3 of the judgment and also relating to both the cases launched against the appellant and if so whether those offences were triable under the Act. In the present matter, the learned Special Judge has overlooked these material aspects of the case and as such did not consider the case in its correct perspective, therefore, the impugned judgment and order confiscating the appellant's properties can not be upheld. The matter has to go back to the learned Special Judge for a fresh decision in accordance with law.
18. The appeal is allowed. The impugned judgment and order is quashed. The case is remanded to the Special Judge for reconsideration of the matter in the light of the observations made herein before. The learned Special Judge is directed to decide the matter afresh in accordance with law after providing a reasonable opportunity of hearing to the parties including the opportunity to adduce additional evidence, if any.
Order Date: 29.11.2011 RKSh