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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUBHASH CHANDRA SHARMA, J.
Abrar – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Appeal No. 2130 of 2021
Decided On : 23-10-2021
U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 - Section 14 and 16 - Gangster Act - Anti-Social Activities - Attachment of property - District Magistrate have passed an order under Section 14(1) of Act attaching house of appellant on basis of report of in-charge Inspector, Police Station, District, submitted through S.S.P. Bijnor - It was mentioned in report that During investigation of Case Crime under Section 2/3 of Act, it was found that appellant owned one house which was constructed with illegally earned money as gangster.
Finding of the Court:
It is evident that the order of the District Magistrate attaching one's property should be based on reasons and not arbitrary. The expression “reason to believe” appearing therein has some intent and purpose. It puts check on the arbitrary exercise of power of attachment by denying him of his right to any property. What the law requires is that there must be reason to believe that the property sought to be attached has been acquired by a ‘gangster’ as a result of commission of any offence under the Act - No direct nexus has been established between acquisition of this property by the accused Abrar and the source of income generated for purchasing this property by indulgence in commission of offences under the Act as a gangster. It is also not reflected from the impugned order as to whether a detailed enquiry has been conducted by the Court below as is contemplated under Section 16 of the Act, which was statutory duty cast upon the Court below.
Result: Appeal is allowed.
JUDGMENT :
SUBHASH CHANDRA SHARMA, J.
1. This criminal appeal has been filed against the judgment and order dated 19.12.2000 passed by Additional Sessions Judge, Gangster Act, Court No. 5, Bijnor in Misc. Application No. 278 of 2020 (Abrar vs. State of U.P.) which is as reference made to the court under Section 16 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as “Act”) whereby the order of the District Magistrate, Bijnor dated 19.10.2020 attaching the house of appellant under Section 14 of the Act dated 2.9.2020 as well as order dated 19.10.2020 dismissed the objection moved by the appellant have been affirmed.
2. The facts of the case in brief are that the District Magistrate, Bijnor have passed an order under Section 14(1) of the Act attaching the house of the appellant on the basis of report of in-charge Inspector, Police Station Mandawar, District Bijnor dated 07.07.2020, submitted through S.S.P. Bijnor. It was mentioned in the report that During investigation of Case Crime No. 232 of 2020 under Section 2/3 of the Act, it was found that appellant owned one house measuring 90 m2 amounting to cost for Rs. 10,00,000/- (ten lacs) which was constructed with illegally earned money as gangster.
3. Against the aforesaid attachment order, the appellant had filed objection on 14.09.2020. The District Magistrate, Bijnor dismissed the objection of the appellant and affirmed the order of attachment dated 02.09.2020. Simultaneously, he made reference to the court of Additional Sessions Judge, Gangster Act under Section 16 of the Act.
4. Specific case of appellant before the District Magistrate/Additional District Judge concerned was that the house said to be in his possession was constructed with the money earned by him and members of his family. He purchased the land measuring 90 m2 by registered sale deed in the year 2004 for Rs. 23,000/- on which house was constructed. Money for construction of the house was taken from the Punjab and Sind Bank as loan amounting to Rs. 40,000/-. In the year 2019, he took loan of Rs. 40,000/- from Sairin Credit Care Network Limited in the name of his wife. In the year 2018, he took loan of Rs. 80,000/- from Bandhan Bank, Bijnor. His son who works in Kuwait sends money in the account of his parents in the Punjab National Bank. His son Istakhar went to Kuwait where he lived for two years thereafter three months vacation, he again went there in July 2019. He got Rs. 70,000/- as salary. His other son Ikrar works at furniture house and earns Rs. 30,000/- per month. Except the house under attachment, he has no any other property. He is a poor labour having three young daughters and being his house under attachment is compelled to live under the open sky. No any case of cow slaughter was registered against him. In the year 2010 a single case under cow slaughter Act was registered which was false, thereafter in the year 2019 two cases shown in the gang chart were registered on the basis of which this case under Section 2/3 of the Act was lodged.
5. Learned Additional Sessions Judge, Court No. 5, Bijnor passed the order dated 19.12.2020, under challenge in this appeal, upholding the order of the District Magistrate dated 19.10.2020 dismissed the reference. It has been recorded by the court that appellant neither disclosed any source of his income nor produced any evidence which could prove that the house under attachment was constructed with the money earned by him. Therefore, he found no ground to make interference in the order passed by the District Magistrate, Bijnor dated 19.10.2020 and accordingly, rejected the application filed on behalf of appellant.
6. Learned District Magistrate, Bijnor did not consider the plea of appellant and arbitrarily confirmed his order of attachment while rejecting his representation and holding that it was constructed with illegally earned money and referred the case to Special Judge Gangster Act, Bijnor. Learned trial judge after inviti
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