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HIGH COURT OF ALLAHABAD
S.K.Phaujdar, K.D.Shahi
KAHKASHAN PARVEEN
Versus
STATE OF U P
Decided On : 10 August 1999
Criminal Misc. Writ Petition Nos. 3983 and 3669 of 1999;
U. P. GANGSTERS AND ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, 1986 - SECTION 14 - ATTACHMENT OF PROPERTY - CONDITIONS - SATISFACTION OF DISTRICT MAGISTRATE - MUST BE BASED ON LEGAL CONDITIONS - ORDER OF ATTACHMENT MUST INDICATE EXISTENCE OF CONDITIONS.
Fact of the Case:
Two writ petitions challenging the attachment of properties under Section 14 of the U. P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (the Act) by the District Magistrates of Bareilly and Allahabad. The petitioners argued that the attachment orders were illegal as they did not satisfy the conditions laid down in Section 14 of the Act.
Finding of the Court:
The Court held that the attachment orders were not tenable in law as they did not indicate that the District Magistrates were satisfied that the properties were acquired by gangsters as a result of the commission of offences triable under the Act, which is a condition precedent for attachment under Section 14.
Issues: 1. Whether the attachment orders were illegal for not satisfying the conditions laid down in Section 14 of the Act? 2. Whether the District Magistrates had exceeded their powers under Section 14 of the Act?
Ratio Decidendi: 1. Section 14 of the Act empowers the District Magistrate to attach property if he has reason to believe that it was acquired by a gangster as a result of the commission of an offence triable under the Act. 2. The satisfaction of the District Magistrate is not open to challenge in any appeal, but he must make a reference to the Court having jurisdiction to try an offence under the Act if he refuses to release the property on representation. 3. The attachment order must indicate the existence of the conditions for attachment under Section 14, including that the property was acquired by a gangster through the commission of an offence under the Act.
Final Decision: Both the impugned attachment orders were quashed as they did not satisfy the conditions laid down in Section 14 of the Act.
2. In Writ Petition No. 3983 of 1999 an action under Section 14 of the U. P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short, the Act) by the District Magistrate, Bareilly is under question whereby the District Magistrate directed attachment of certain properties indicated in the order, dated 30-6-1999 under the purported exercise of his powers under Section 14 of the said Act.
3. In the Writ Petition No. 3669 of 1999 also an action purporting to be under Section 14 of the Act as taken by the Dis trict Magistrate, Allahabad, has been under challenge.
4. Although the learned counsel for the parties raised a point touching the vires of Section 14 of the Act as violative of the right guaranteed under Article 21 of the Constitution of India, it was contended on behalf of the Slate that the constitu tional validity of the provisions of the Act stood upheld by the Full Bench of this Court in the case of Ashok Kumar Dikshit. As a counter point, the petitioners urged that in Ashok Kumar Dikshits case, the Court had really engaged itself on the point of legislative competence of the State legislature to enact the concerned Act and the vires of the individual provisions of the Act was not at all probed into. In view of the contents of notice themselves, we feel that we need not go to this question in these two cases at all as would be indicated in the further para graphs of this order.
5. Objections were also taken on the legality of the action of the D. M. in locking the premises of the petitioners and in not following the provisions of attachment as envisaged under Section 83 of the Cr. P. C. This point again may not be gone into for the reasons indicated above.
6. The Act was passed by the U. P. legislature in 1986 and the preamble indi cates that it was an Act to make special provisions for the prevention of and for coping with gangsters and anti-social ac tivities and for matters connected there with or incidental thereto. The Act defines what is a gang and who is a gangster and provides for a penalty for being a gangster. Section 14 provides for attachment of property and clause (1) thereof reads as follows:-
"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, mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any properly attached under su b-section (1) and the Administrator shall have all the powers to administer such property in the best interest there of.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property. "
7. 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 ac quired 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 ac tion under Section 14 of the Act did exist and the conditions are that certain proper ty in
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