Smt. Kahkashan Parveen and Another vs State of U.P. and Others

S.K. Phaujdar and K.D. Shahi, JJ.—The two petitions relate to two different proceedings but were heard together as certain common questions of law were raised by Sri D.S. Misra, Learned Counsel for the petitioners in the first mentioned case and Sri U.N. Sharma, Learned Counsel for the Petitioner in the second mentioned case. We had heard Sri Amarjeet Singh, learned A.G.A. for the State in both the cases.

In Writ Petition No. 3983 of 1999, an action u/s 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 u/s 14 of the said Act.

In the Writ Petition No. 3669 of 1999 also, an action purporting to be u/s 14 of the Act as taken by the District Magistrate, Allahabad, has been under challenge.

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 State that the constitutional 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 Dikshit�s 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 paragraphs of this order.

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 u/s 83 of the Code of Criminal Procedure This point again may not be gone into for the reasons indicated above.

The Act was passed by the U.P. Legislature in 1986 and the preamble indicates that it was an Act to make special provisions for the prevention of and for coping with gangsters and anti-social activities and for matters connected therewith 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 :

Attachment of property.

(1) If the District Magistrate has reason to believe that any property, whether movable 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, mutatis mutandis, apply to every such attachment.

(3) Notwithstanding the provisions of the Code, the District Magistrate may appoint an administrator of any property attached under sub-section (1) and the administrator shall have all the powers to administer such property in the best interest thereof.

(4) The District Magistrate may provide police help to the administrator for proper and effective administration of such property.

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 acquired 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 action u/s 14 of the Act did exist and the conditions are that certain property in possession of any person must have been acquired by a gangster and that too by commission of an offence under the Act. Thus, the satisfaction portion should not only indicate that the property sought to be attached was acquired by a gangster but it should also indicate that such acquisition has been made by commission of an offence under the Act. This satisfaction of the District Magistrate is not open to be challenged in any appeal. Only a representation is provided for before the District Magistrate himself u/s 15 and in case he refuses to release the property on such representation, he is to make a reference to the Court having jurisdiction to try an offence under the Act. Thus, so far as the District Magistrate is concerned, the satisfaction must not be arbitrary and must be based on the legal conditions indicated in Section 14 of the Act.

In the attachment order recorded in W.P. No. 3983 of 1999, the attachment order indicates that certain police reports were received and perused by the District Magistrate and he was satisfied, as per the words used in the order, that the properties sought to be attached were acquired by Suhaib Ahmad illegally by anti-social activities and by commission of offences of murder, loot, assault, cheating, etc. and he had also seen the criminal history of Suhaib Ahmad. There is no mention in the order that he was satisfied that Suhaib Ahmad was a gangster and the properties sought to be attached were acquired by commission of offences triable under the Act. This, in our view, is certainly a major defect in the action of the District Magistrate as Section 14 gives him a power of attachment only under certain conditions and unless the order indicates the existence of these conditions he could not have recorded an attachment order. The order dated 30.6.1999, attaching the properties indicated in the order which is subject-matter of Writ Petition No. 3983 of 1999, is thus not tenable in law and is quashed.

So far the order purporting to be an order of attachment in Writ Petition No. 3669 of 1999, the order itself indicates that it was not at all an order of attachment as the District Magistrate had acquired the properties and the term �adhigriheet� has been used. Learned A.G.A. proposed to say that though the term �adhigriheet� was used, the District Magistrate wanted to mean that the property was attached. This liberty may not be given to the State or the District Magistrate as the terms �adhigriheet� or �adhigrahan� are also legal terms having a complete different connotation from the term attachment. In the circumstances, the District Magistrate had certainly overstepped his power u/s 14 of the Act. This order is also not sustainable.

In the result, both the impugned orders are quashed and both the writ petitions stand allowed. However, it will be open for the proper authorities to proceed according to law afresh notwithstanding the present order.