'Court Not A Post Office Or Mouthpiece Of State/District Magistrate': Allahabad HC Quashes Order Attaching Properties Under UP Gangster Act

The Allahabad High Court (Lucknow Bench), while ordering the release of the attached properties of one Wasim Khan under the UP Gangster Act, observed that the court is not empowered to act as a post office or mouthpiece of the State or the District Magistrate.

The bench of Justice Shamim Ahmed observed thus while quashing orders of the seizure (of the properties of the alleged gangster Wasim Khan) sanctioned by the District Magistrate, Lucknow and upheld by the Special Judge, Gangster Act, Lucknow.

The court concluded that in the case, the prosecution failed to establish that the provisions of Sections 2 and 3 of the Gangster Act were attracted in the case and further, it could not establish that the property in question, acquired and owned by the appellant, had been earned from the income indulging in anti-social activities so as to warrant attachment under the UP Gangster Act.

"In view of above facts and circumstances of the case, the impugned orders passed by the courts below cannot be said to be passed in correct perspectives as they are not sustainable in the eye of law and require interference by this Court...The enquiry under Section 16 was not done in accordance with the Act, the provisions of Sections 14, 15 & 17 were also not followed in accordance with the Act, thus the entire proceeding initiated in pursuance thereof is vitiated," the Court said.

The case in brief

The petition was filed against the seizure orders of the District Magistrate, Lucknow dated 13 April 2022, which was upheld by the Additional Sessions Judge, Gangster Act.

Essentially, the DM, by exercising powers under section 14(1) of the Gangster Act, attached certain properties of the appellant with the finding that he had purchased the house in question and land (immovable property) between 2012 to 2021 from the income earned by involving in anti-social activities.

For context, for the seizure of property under Section 14 of the UP Gangster Act, it must be shown that the same has been acquired by a gangster and that too by the commission of an offence triable under the Act and the District Magistrate has to record its satisfaction on this point

It was the petitioner's case that initially an FIR was registered against him and five others in a murder case in August 2012 and after that, four other criminal cases were registered against him due to enmity, and in the year 2021, a gangster case was registered against him.

It was his further case that the property of the appellant which was attached was acquired by the appellant much earlier to the imposition of the Gangster Act upon him being ancestral property.

High Court's observations

At the outset, the Court noted that the satisfaction of the District Magistrate under Section 14 of the Act to attach the property is not open to challenge in any appeal and only a representation is provided for before the District Magistrate himself under Section 15 of the Act, and in case he refuses to release the property on such representation, in that case the person aggrieved can make a reference to the Court having jurisdiction to try an offence under the Act.

The Court further observed that the Court, while dealing with the reference made under sub-section (2) of Section 15 of the Act, has to see whether the property was acquired by a gangster as a result of the commission of an offence triable under the Act and has to enter into the question and record his own finding on the basis of the inquiry held by him under Section 16 of the Act.

If the Court comes to the conclusion that the property was not acquired by the gangster as a result of commission of an offence triable under the Act, the Court shall order for release of the property in favour of the person from whose possession it was attached, the Court noted.

"The object behind providing the power of judicial scrutiny under Section 16 of the Code is to check arbitrary exercise of power by the District Magistrate in depriving a person of his property and to restore the rule of law, therefore a heavy duty lies upon the Court to hold a formal enquiry to find out the truth with regard to the question, whether the property was acquired by or as a result of the commission of an offence triable under the Act. The order to be passed under Section 17 of the Act must disclose reasons and the evidence in support of finding of the Court. The Court is not empowered to act as a post office or mouthpiece of the State or the District Magistrate," the Court further observed.

The Court also opined that if a person has no criminal history during the period the property was acquired by him, how the property can be held to be a property acquired by or as a result of the commission of an offence triable under the Act is a pivotal question which has to be answered by the Court.

Besides, the aforesaid question, the Court added, the other important question to be considered by the Court is whether the property which was acquired prior to the registration of the case against the accused under the Act or prior to the registration of the first case of the Gangster chart can be attached by District Magistrate under Section 14 of the Act.

Against this backdrop, the Court, while appreciating the facts of the case, noted that the District Magistrate, in its order, did not record his satisfaction having reason to believe with regard to the property attached that it was acquired by the appellant as a result of the commission of an offence triable under Gangster Act.

The Court further noted that while deciding the reference under Section 16 of the Act, the court below also did not appreciate the evidence and in a mechanical manner, it passed the impugned order relying upon the observations made by the District Magistrate, which, the court said, was an illegal and an unjustified approach.

"It appears that the District Magistrate has no material in support of the police report that the property in question was acquired by the present appellant being gangster even though the proceedings were not followed as per the provisions of the Act. It appears that the appellant was having enough source of income from his business at Mumbai as well as at his native place, from which the appellant had acquired the properties and even the properties were acquired by the appellant much prior to the registration of criminal cases and imposition of Gangster Act, which was invoked in the year 2021 and the impugned order of attachment was passed in mechanical manner without application of mind and is arbitrary," the Court held.

In view of this, the impugned order dated 13.04.2022 passed by the District Magistrate, Lucknow and the impugned order dated 5.1.2023 passed by the Additional Session Judge, Court No.8/Special Judge, Gangsters Act, Lucknow were quashed by the Court.

Hence, the District Magistrate, Lucknow was directed to release all the properties of the appellant attached vide order dated 13.04.2022 in favour of appellant, forthwith.

Case title - Waseem Khan vs. State Of U.P. Thru. Prin. Secy. Nyay Lko. And Another [CRIMINAL APPEAL No. - 203 of 2023]

Case Citation: 2023 LiveLaw (AB) 151

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