Hon'ble Ramesh Sinha,J.
Heard Sri Anoop Trivedi, learned counsel for the petitioner, Sri Shambhu Chopra, learned counsel for the Election Commission, and Sri M.S. Pipersenia, learned Standing Counsel for the State.
This writ petition was filed by the Uttar Pradesh Udyog Vyapar Pratinidhi Mandal because of the harassment that was being meted out by the police party under the garb of compliance of the order of the Election Commission.
Sri Shambhu Chopra, Advocate, who appears for the Election Commission, has filed a short counter affidavit on behalf of respondent No.2, Election Commission of India, today sworn by Sri Alok Kumar, District Magistrate, Allahabad in his capacity as District Election Officer, Allahabad, which is taken on record.
This short counter affidavit points out that two Circulars dated 29.12.2011 and Amended Circular dated 15.1.2012 were issued by the Election Commission of India. The said Circulars noted the concerns that were being expressed about the inconvenience being caused to the general public, small time traders and farmers regarding seizure of cash by the flying squads/surveillance teams, while performing their duties to check flow of illegal/unaccounted cash in the on going Assembly elections.
The Standard Operating Procedure (SOP) for flying squads and surveillance teams was set up, which provided that:
(i)If the said teams found the cash as having links with any political party or a candidate and criminality was suspected that it could be used for distributing among the electors, then the cash was to be seized by the flying squads/surveillance teams irrespective of the amount.
(ii)If the cash upto Rs.2.5 lacs, with no links to any candidate or political party and no suspicion of criminality or wrongful misuse as above where the cash was being carried with proper documents as regards its source and/or end-use, then the cash was not to be seized. But the evidence as to the identity of the person/PAN Card, proof of residence/office/business address, explanation about the source of the cash like the copy of the bank withdrawal slip, passbook etc., purpose for which the cash was being carried and any proof thereof, was to be taken and forwarded to the Income Tax Department for further verification.
For cash above Rs.2.5 lacs with no links to any candidate or political party and no suspected criminality, the Income Tax Authorities were to be involved in such cases before release of the cash and the Income Tax Authorities were to take speedy action in this regard.
By the Amended Circular dated 15.1.2012, it was also provided that:
(i) The entire operation of Static Surveillance Teams (SST) was to be done in the presence of an Executive Magistrate and was to be video graphed. The video record was to be deposited with the R.O. on the next day for verification.
(ii)A protection was to be given to the public by giving them a power of demand for a copy on payment of Rs.300/- of the DVD regarding which an information was to be advertised by the District Election Officer (DEO) of each District.
(iii)The purses held by ladies was not to be checked. The SST was to be polite, decent and courteous, while checking the baggage.
(iv)The requirement showing source in the case of amount upto Rs.2.5 lacs, which was mentioned in the Circular dated 29.12.2011, was done away in the Circular dated 15.1.2012. Only when the amount was more than Rs.2.5 lacs with no links to any candidate or any political party and no suspected criminality, then Income Tax Authority were to be involved before release of the cash.
(v)However, even the cash was not to be seized where a person was carrying cash from the business place to the bank for the purpose of depositing the same in the bank, it was not to be seized in case he submits documents like Pan Card, Business Registration Certificate, Bank passbook/statement etc. However, a declaration in the format (Annexure-A) along with the copies of the above documents was to be obtained before release of the cash.
(vi)If no criminality was suspected and no links with any political party was suspected, the cash carried had been withdrawn on the same, then the seizure was not to be effected provided the person submitted a declaration in the format (Annexure-A).
(vii)If a person carrying cash for the purpose of medical treatment was not to be seized if he provided declaration in the format (Annexure-A) along with the proof of medical admission/medical treatment.
(viii)If a person made a declaration (Annexure-A) along with documents like marriage invitation, Kalyan Mandap, booking etc., jewellery/bullion carried for personal use/marriage purpose, the same was not to be seized.
(ix)In case of seizure by the SST or Income Tax Department, the Appellate Authority was to be the SDM/ADM of the district and the Joint Director of Income Tax (inv.), who could take steps for redressal of the grievance.
Learned counsel for the petitioner pointed out that these informations have not been widely circulated.
Learned counsel for the Election Commission pointed out that the Circular itself shows that the information regarding the same has already been forwarded to all the DEOs, SSPs, all officials engaged in Flying Squad/Static Surveillance Teams and officials of the Income Tax Department. Copies were also sent to the Chairman, CBDT and other superior officers of the Income Tax Department and IG, Police of the State, where the election was being carried out.
We are also pleased to note the sensitivity of the Election Commission in giving a reply to the representation dated 10.1.2012 sent by the Uttar Pradesh Udyog Vyapar Pratinidhi Mandal, which shows that the Election Commission has promptly responded to the grievances of the persons who are genuinely aggrieved.
In the District Magistrate's short counter affidavit it is pointed out that specific instances have not been brought to the notice of the Election Officers and the concerned District Election Officers of police harassment. It was also pointed out that consequent to the steps being taken by the Election Commission, 4050 pcs. of illegal weapons, 6290 pcs. of cartridges, 2,23,120 Litres of illicit liquor and 32.64 Crores of unaccounted cash have been detected in U.P. itself and apart from this substantial amount, opium, smack, drug capsules were recovered during the checking in Punjab Therefore, such measures of checking cash and other objects are clearly taken by the Election Commission for ensuring that the elections are held on a free and fair manner.
It may be noted that under Article 324, the Election Commission has been given wide powers for superintending the election process and that if the authorities of the Election Commission arrived at a subjective satisfaction for taking several steps for seizuring unaccounted cash, ordinarily there should be no interference with the exercise of the said powers in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. However, even though the petitioner conceded that no malafide whatsoever could be imputed to the Election Commission in exercise of its power by the Election Commission, before parting we may mention that the police and other subordinate authorities must ensure that due compliance is given to the Circular dated 29.12.2011 and the Amended Circular dated 15.1.2012 and that no harassment to the innocent member of the public is caused.
With these observations, the writ petition is disposed of accordingly.
Order Date :- 7.2.2012 NS