Manzoora & Ors. v. State Of U.P & Ors.

1. Heard learned counsel for the petitioners and the learned Additional Government Advocate.

2. This petition has been filed for quashing an order dated 30-8-2008 passed by the respondent No. 2 (District Magistrate, Muzaffar Nagar) initiating proceedings and attaching the petitioners' properties under section 14 of the U.P Gangsters Act in Case No. 13/2008, State v. Manzoora and for a direction to release the movable and immovable properties attached in pursuance of the aforesaid order. Four submissions have been made by the learned counsel for the petitioners.

3. One, as the impugned order has been passed by the District Magistrate, Muzzafar Nagar only on the basis of the report of the in-charge Inspector, P.S Kairana dated 22-8-2008, it could not said to be in accordance with section 14.(1) of the U.P Gangsters and Anti Social Activities (Prevention) Act, 1986, (hereinafter referred to as the Gangsters Act or the Act), as on the basis of the police report alone, the District Magistrate could not have “reason to believe” that the movable and immovable properties in possession of the petitioners had been acquired as a result of commission of offences triable under the Gangsters Act, which is the requirement for initiation of proceedings under section 14 of the Act.

4. In this connection, he placed reliance on a decision of the Apex Court in Joti Prasad v. State of Haryana, 1993 Supp (2) SCC 497 : AIR 1993 SC 1167. As per this decision, according to the learned counsel, the term “reason to believe” requires a higher level of state of mind, than mere suspicion or doubt and that a person can be presumed to have a reason to believe something or a state of affairs only if he has sufficient cause to believe that such a thing or state of affairs exists. This is provided under section 26 of the I.P.C In substance it was submitted that what this means is that a person will have “reason to believe” something, if the circumstances are such that a reasonable man would, by probable reasoning view that such a state of affairs exists. Significantly, in the case of Joti Prasad the appellant, who was a licensed stamp vendor was found in possession of counterfeit stamps. The explanation offered by the appellant was that he used to purchase all his stamps from the treasury including the counterfeit ones. However when the appellant failed to produce the register maintained by him, nor made any effort to summon the treasury report, it could not render probable the defence plea raised by the appellant, that it was an innocent and bona fide purchase from the treasury. In those circumstances, it was inferred by the Apex Court that the appellant had knowledge and reason to believe that the stamps, which he had in possession and which he was offering for sale were counterfeit, and the conviction awarded by the subordinate courts was upheld.

5. In the present case the District Magistrate's satisfaction that the petitioners had acquired properties by commission of of fences punishable under the Gangsters Act was based not only on the police report, but also on the various documents attached with it and the approval of the S.S.P Muzaffar Nagar. On the said report, the District Magistrate in his detailed order has noted that the petitioners have been involved in a large number of cases since 1991 to 2007, relating to theft, murder, attempt to murder, kidnapping for ransom, N.D.P.S Act, U.P Control of Goondas Act and under the Gangsters Act etc. All the petitioners used to reside together. Fur thermore, the petitioners only had 22 bighas of ancestral land in their village Bhura, P.S Kairana upto 1997. However, they had pur chased 74 bighas of agricultural land and substantial properties which are detailed in the order running into crores of rupees, which could not have been acquired by the only source of livelihood viz. the 22 bighas of ancestral land inherited by them. In these circumstances, it could not said that the D.M could not have reason to believe that the said properties had been acquired as a result of commission of offences triable under the Gangsters Act.

6. In Badan Singh alias Baddo v. State of U.P, (1981) 3 SCC 143 : AIR 1981 SC 1363 (sic) it has been observed that the Court cannot investigate into the adequacy or sufficiency of the reasons which weighed with the authority for having reason to believe something, but the Court could only examine whether the reasons were relevant and have a bearing on the matter in regard to which it was required to entertain this belief. It could not be said that in the present case, the District Magistrate could have no reasons to believe that the said properties had been acquired as a result of the com mission of the offences triable under the Gangsters Act.

7. Two, it was next submitted that the precise nexus between each of the properties acquired and the commission of offences triable under the Act with respect to each property has not been established and the specific nexus between each property acquired and the commission of each offence under the Gangsters Act needs to be shown.

8. We are of the opinion that as held in Badan Singh alias Baddo's case above, the Court cannot go into the adequacy or sufficiency of the reasons which weighed with the authority for reaching the said belief and thus it is not for this Court to go into this question of facts and the source of acquisition of each property in a writ petition.

9. Three, it was submitted by the learned counsel that the order has been passed in a mala fide manner as there was rivalry between the petitioners and respondent No. 5, who was earlier a member of the Samajwadi party and now has shifted his loyalty to the Bahujan Samaj Party. We think that by merely raising allegations of mala fide, the orders passed by the said authority cannot be quashed as malice needs to be strictly proved. It has no where been denied by the petitioners that they had a long criminal history and therefore, in such circumstances, it could not be presumed that the District Magistrate has passed the impugned order for mala fide reasons only on account of the political pressure of the respondent No. 5. It would also be inappropriate for the writ Court to go into this questions of mala fide at this stage.

10. Four, it was stated that the right to hold property is a fundamental right and the petitioners cannot be dispossessed of their property for their mere involvement in criminal cases as that would amount to a violation of the fundamental right to acquire property.

11. It may be mentioned here that the fundamental right to property guaranteed under Article 19(1)(f) was omitted by the 44th Constitutional Amendment Act, 1978 and if a person is deprived of a property in accordance with any law, as provided under Article 300 A, (which was also introduced by the 44th Constitutional Amendment), the same cannot be struck down as unconstitutional. In the present case the properties of the petitioners are said to have been attached in accordance with the provisions of section 14 of the Gangsters Act, which is a valid law and therefore, it was a deprivation under law. Significantly Page: 558the petitioners have rightly not challenged the vires of section 14 of the Act.

12. It may be noted that if any property is attached under section 14(1), the claimant thereof may make a representation before the District Magistrate within three months showing the circumstances in and the sources by which the such property was acquired by him [vide section 15(1)]. If the District Magistrate is satisfied about the genuineness of the claim, then he is required to release the property from attachment (vide section 15(2)). Under section 16(1) of the Gangsters Act, it is provided that where no representation is made within three months of its attachment by the District Magistrate or the District Magistrate does not release the property under section 15(2) of the Act, he has to refer the matter to the Court having jurisdiction to try the offences under the Act.

13. A countervailing right has also been provided under section 16(2) to the State Government or to any person who is aggrieved to apply to the Court concerned against the refusal of the District Magistrate to attach a particular property under section 14(1) or where the D.M releases a property section 15(2), for inquiring as to whether the property was acquired by the gangster as a result of the commission of any offence triable under the Act.

14. Section 16(3) provides the mode of inquiry on the receipt of a reference from the District Magistrate under section 16(1), or for consideration of an application by the State Government or person aggrieved under section 16(2) in the event of the D.M's refusal to attach or on release of the attached property. The Court is required to fix a date for inquiry after giving notices, hear the parties and receive evidence on the point as to whether the properties were acquired as a result of commission of any offence triable under the Gangsters Act and thereafter to pass orders under section 17 for release of the property from attachment if the Court is of the view that the property was not acquired as a result of commission of any offence punishable under the Gangsters Act. In other cases where the Court is of the opinion that the properties were acquired as a result of commission of any offence triable under the Gangsters Act he is to pass orders for disposal of the property by attachment, confiscation or delivery to the person entitled to possession of the property. Significantly it may be noted that under section 16(5) of the Act it is provided that the burden of proving that the property has not been acquired by a gangster as a result of the commission of any offence triable under the Gangsters Act shall lie on the person making such a claim. Section 18 of the Act provides that the procedure prescribed in Chapter 29 of the Code of Criminal Procedure shall apply mutatis mutandis to an appeal against any judgment on an order of a Court passed under the Gangsters Act.

15. From this it is clear that any person who is aggrieved by an order of the District Magistrate attaching a property under section 14(1) of the Act, may make a representation to the District Magistrate within three months of the order of attachment, showing the sources by which the property was acquired by him as provided under section 15(1). The District Magistrate if he is satisfied by the genuineness of the claim of the claimant may pass an order releasing the property from attachment, whereupon the property shall be made over to the claimant in view of section 15(2) of the Act.

16. The order of attachment by the D.M is also not final, as he is required to refer the matter under section 16(1) to the Court entitled to try the offence under the Gangsters Act, which after conducting an inquiry as provided under section 16(3), passes appropriate orders under section 17 of the Gangsters Act. This order is also subject to an appeal to the Higher Court under section 18. Thus this writ petition must also fail on account of the availability of effective alter native remedies to the petitioners and because a complete code for dealing with such matters has been provided under the Gangsters Act.

17. Such a view has also been taken by the Division Bench in the case of Krishna Murari Agarwal v. District Magistrate, Jhansi, 2001 (1) JIC, 236 (All) which is to the effect that the Special Judge, Gangsters Page: 559Act is the appropriate authority to examine such questions of fact and that the Act and that a writ petition is not the appropriate forum for questioning such orders.

18. Paragraph 4 of the aforesaid judgment may be usefully extracted as under:-

“The question whether the property attached has been acquired by a gangster as a result of the commission of an offence under U.P Gangsters & Anti-Social (Activities) Prevention Act, 1986 is a pure question of fact. The claim of the petitioner that the property has not been acquired by commission of an offence or that it is an ancestral property can only be established by appraisal of the evidence. It will be open to the petitioner to lead oral and documentary evidence in support of his claim before the Special Judge (Gangsters Act), where the matter has been referred. Such appraisal of evidence is not possible in the present proceedings under Article 226 of the Constitution of India. The act provides a complete machinery as against the decision of the court an appeal lies under Section 18 of the Act.”

19. A similar view has been taken in an earlier Division Bench decision of this Bench in Tribhuwan Narayan Singh v. State of U.P Criminal Misc. Writ Petition No. 16205 of 2008, decided on 15.9.2008

20. However in case the petitioners make a representation to the District Magistrate under section 15(1) of the Gangsters Act, the District Magistrate shall pass appropriate orders therein expeditiously.

21. It may be noted that the observations made hereinabove have been made only for the purpose of disposal of this writ petition and the concerned authority under section 14 of the Gangsters Act and the Special Court shall decide the matter as per their own judicial discretion.

22. Subject to the aforesaid observations that writ petition has no force and it is dismissed.

23. Petition dismissed.