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IN THE HIGH COURT OF ALLAHABAD
SHAMIM AHMED, J.
Sushil Kumar Jaiswal And Anr. – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No.1099 of 2021
Decided on : 03-02-2023
Code of Criminal Procedure, 1973 - Narcotic Drugs and Psychotropic Substances Act, 1985 - U.P. Excise Act, 1910 - Suppression of Immoral Traffic in Women and Girls Act, 1956 - Public Gambling Act, 1867 - Section 3 - U.P. Gangster and Anti Social (Prevention of Activities) Act - Section 3(1) - Section 14(1) and 16(2) – Indian Penal Code,1860 - Sections 420 and 171-E - Regulation of Money Lending Act, 1976 - Prevention of Cruelty to Animals Act, 1960 - Unlawful Activities (Prevention) Act, 1966 - Arms Act, 1959 - Sections 5, 7 and 12 - Essential Commodities Act - Section 3/7 - U.P. Gangster and Anti Social (Prevention of Activities) Act, 1986 has been preferred by the appellants – Cheating and dishonesty - Cruelty to Animals - Application under Section 16(2) of Gangster Act moved on behalf of appellants and confirmed the order District Magistrate – Held, Attracted in the case of of appellants, and further the appellants' property is also not attached in accordance with law, as the prosecution has failed to establish that the said property and vehicle acquired and owned by the appellants have been earned from the income indulging in anti social activities - Enquiry under Section 16 was not done in accordance with the Act - Appeal is allowed
Based on the provided legal document, the key points regarding the case are as follows:
The appeal was filed against an order that confirmed the attachment of the appellants' properties under the Gangster Act, which was based on the District Magistrate's belief that the properties had been acquired through illegal activities involving a gangster. The court found that the attachment was made without proper legal basis, as the prosecution failed to establish that the properties were earned from income obtained through anti-social activities or criminal conduct (!) (!) (!) .
The order for attachment was issued solely on the basis of police reports without sufficient material to support the belief that the properties were acquired as a result of criminal activities. The satisfaction of the District Magistrate was not supported by relevant reasons or evidence, rendering the attachment unlawful. The Court emphasized that the attachment of property requires a clear nexus between the property and criminal activity, which was not demonstrated in this case (!) (!) (!) .
The properties in question, including land and vehicles, were inherited or registered in the names of family members of the appellants, not directly in their names. The Court noted that the properties were not proved to have been acquired through illegal means by the appellants themselves, and the mere involvement in criminal cases does not automatically justify attachment of property unless it is shown to be derived from criminal income (!) (!) .
The proceedings under the Gangster Act, specifically the inquiry and attachment process, were found to be conducted in a mechanical manner without proper application of legal provisions. The Court highlighted that the law requires a formal inquiry to establish whether the properties were acquired as a result of criminal activity, and such inquiry was not properly conducted here (!) (!) .
The Court reaffirmed that the burden of proof lies with the prosecution to establish that the properties were obtained through criminal activities. Since this burden was not satisfied, the attachment and subsequent orders were deemed illegal and liable to be quashed (!) (!) .
As a result, the Court allowed the appeal, quashed the impugned orders of attachment, and directed the release of the properties, including the vehicles and shops, to the appellants. The Court emphasized that the orders were passed without proper legal basis and that the properties were not acquired through criminal means (!) (!) .
The Court underscored the importance of following the correct legal procedures, including proper reasons and evidence for attachment and inquiry, and held that any deviation renders the orders invalid. The proceedings initiated in this case were found to be arbitrary and in violation of statutory provisions (!) (!) .
In summary, the court found that the attachment of the properties was unlawful due to lack of sufficient evidence linking the properties to criminal activities, improper procedure, and failure to follow statutory requirements, leading to the quashing of the attachment orders and the direction to release the properties to the appellants.
JUDGMENT :
1. Pleadings have already been exchanged between the parties and are on the record. The case is ripe up for final hearing.
2. Heard Ms. Shubhangi Singh, Advocate, holding brief of Shri Abhishek Kumar Singh, the learned counsel for appellants, Shri Diwakar Singh, the learned A.G.A. for the State-opposite party and perused the material available on record.
3. Perused the lower court record.
4. The present appeal under Section 18 of U.P. Gangster and Anti Social (Prevention of Activities) Act, 1986 (herein after referred to as, 'Gangster Act') has been preferred by the appellants, namely, Sushil Kumar Jaiswal and Kamal Kishore Jaiswal against the judgment and order dated 10.03.2021 passed by the court of learned Special Judge, Gangster Act/ Additional Sessions Judge, Court No. 5, Unnao in Criminal Misc. Case No. 94 of 2021, Sushil Kumar Jaiswal Vs. State, arising out of Case Crime No. 336 of 2017, under Section 3(1) of the Gangster Act, Police Station Hasanganj, District Unnao, whereby the learned trial court has rejected the application under Section 16(2) of Gangster Act moved on behalf of appellants and confirmed the order dated 01.01.2021 passed by the District Magistrate, Unnao, directing attachment of property of appellants.
5. In Short facts of the case are that initially a first information report dated 06.09.2017 was lodged by Shri Hanuman Prasad Pandey, Incharge Inspector of Police Station Hasanganj, District Unnao bearing Case Crime No. 0336 of 2017 against the applicants alleging therein that when on 06.09.2017 along with other police personnel were present were making round of Hasanganj and Kureel village, then some villagers informed him that Sushil Kumar Jaiswal along with his son Kamal Kishore Jaiswal has made an organized gang, they are involved in the work of mixing kerosene and nickel converting it into diesel and by adulterating petrol they are earning illegal money, on account of which State Exchequer is suffering from huge revenue and for their conduct a case was earlier got lodged against them bearing Case Crime No. 132/17, under Sections 420 I.P.C. read with Section 3/7 of Essential Commodities Act at Police Station Hasanganj, District Unnao, wherein after investigation charge sheet has already been submitted before the court concerned against them. Accused-Sushil Kumar Singh is involved in anti social activities and on account of fear created by him in the locality no one has dare to adduce evidence against him. He is involved in the illegal activities against Chapter 16, 17 and 22 of Indian Penal Code.
6. Learned Counsel Ms. Shubhangi Singh submits that on implication of appellants in Case Crime No. 336 of 2017, under Section 3(1) of U.P. Gangster and Anti Social (Prevention of Activities) Act, registered at Police Station Hasanganj, District Unnao, wherein they have already been enlarged on bail, the District Magistrate, Unnao by its order dated 22.09.2020 by exercising its power vested under Section 14(1) of the Gangster Act, attached two vehicles, i.e., U.P. 35 AJ 5623 Maruti Suzuki Ertiga Car and Pickup Dala No. UP 35T 4181 as well as five shops situated at Khasra No. 256, measuring 0.014 Hectare situated at Village Kurauli, Tehsil Hasangaj, District Unnao.
7. Ms. Shubhangi Singh submits that the said attachment was done without prior notice or knowledge to the appellants and on coming it to know the appellants made a representation under Section 15 of the Gangster Act before the concerned District Magistrate. On making their representation by the appellants only the vehicle bearing Registration No. UP 35 AJ 5623 Maruti Suzuki Ertiga Car has been ordered to be released by the concerned District Magistrate by its order dated 01.01.2021, but the shops/ land and other vehicle, i.e., Pickup Dala bearing Registration No. UP 35 T 4181 have not been released.
8. Ms. Shubhangi Singh further submits that the District Magistrate has wrongly and incorrectly attached the shops/land and vehicle of the appellan
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