Chhote Lal vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 12846 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 917 of 2022
 

 
Appellant :- Chhote Lal
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And 2 Others
 
Counsel for Appellant :- Vipin Kumar Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard Mr. Vipin Kumar Mishra, learned counsel for the applicant, Mr. Vinay Kumar Shahi, learned AGA for the State and perused the material available on record.

2. By means of this criminal appeal under Section 18 of the U.P. Gangster & Anti-social Activities (Prevention Act), 1986, (hereinafter referred as Gangster Act) the appellant has challenged order dated 05.04.2021 passed by learned District Magistrate, Lucknow whereby the District Magistrate issued show cause notice to the appellant. The appellant prayed for release of vehicle in question but the District Magistrate Lucknow did not release the tractor and by means of order dated 11.09.2021 the District Magistrate, Lucknow referred the matter to the learned Special Judge Gangster Act/Additional Sessions Judge, Lucknow, which was registered as Criminal Misc. Case No. 659 of 2021 under Section 16 (2) of the Gangster Act. The appellant has further challenged the judgment and order dated 17.02.2022 passed by learned Special Judge Gangster Act/Additional Sessions Judge, Lucknow whereby the application, for release of the tractor in favour of the appellant, has been rejected. Being aggrieved with the aforesaid impugned orders, the appellant has preferred this criminal appeal.

3. Brief facts of the case are that the applicant is owner of Tractor No. U.P.32 LR 0454, Chassis No. MEA11FA1KK2271719, Engine No. S33411404, which was purchased on 21.02.2020 from Santosh Service Station, Sitapur Road, Itaunja, Lucknow to the tune of Rs.5,15,000/-. Prior to obtaining Tractor, the applicant had given Rs.1,00,00/- from his account in cash to Santosh Service Station, Sitapur Road, Itaunja, Lucknow on 21.02.2020 and for the remaining amount, equal instalment to the tnue of Rs.20,000/- per month was fixed and the same was repaid to the dealer. All the aforesaid amount was debited from Account No. 38937795036 of State Bank of India. It is further alleged that on 25.03.2021 the Station House Officer, Police Station Itaunja wrote a letter to S.P. Lucknow to attach the Tractor of appellant bearing No. U.P.32 LR 0454, Chassis No. MEA11FA1KK2271719, Engine No. S33411404 under Section 14 (1) of the U.P. Gangster Act. The S.P. Lucknow on 26.02.2021 forwarded the letter to the District Magistrate Lucknow for further direction to attach the said property of the appellant stating therein that four cases i.e. (i) Case Crime No. 10 of 2013, under Sections 402/211 IPC, (ii) Case Crime No. 133 of 2014, under Sections 457, 380 and 411 IPC, and (iii) Case Crime No. 176 of 2014, under Sections 457, 380, 411 IPC and (iv) Case Crime No. 95 of 2015, under Sections 2/3 of the U.P. Gangster Act are pending against the appellant. Consequently, on the basis of four cases, the District Magistrate, Lucknow took cognizance and issued a show cause notice to the appellant vide order dated 5.4.2021.

4. It is further submitted that earlier on 16.11.2019 the appellant sold the land bearing Gata No. 1727/1 measuring area 0.0400 hectare and land Gata No. 1727/2 measuring 0.9670 situated at Village Shivpuri, B.K.T. Lucknow to Alok Kumar Verma and he had received two cheques of Rs.12,00,000/-. The said amount was credited in the account of appellant on 21.11.2019 and 04.01.2020 by cheque No. 136176 and 136177. The aforesaid Tractor was purchased by the appellant by earning of the aforesaid amount.

5. Pursuant to show cause notice of District Magistrate, Lucknow, the appellant had submitted reply stating therein that the appellant the appellant had purchased the said Tractor UP32 LR 0454 from Santosh Service Station, Sitapur Road, Itaunja, Lucknow on 21.02.2020 and the same was registered on 04.09.2020. The tractor was purchased to the tune of Rs.5,15,000/- He had given Rs.1,00,000/- on 21.02.2020 in cash and for the remaining amount, equal installment to the tune of Rs.20,000/- per month was fixed and the same was repaid to the dealer. All the aforesaid amount was debited from Account No. 38937795036 of State Bank of India. Despite of it, learned District Magistrate, Lucknow passed the order of attachment of aforesaid Tractor vide order dated 11.09.2021 and seized the same in police station concerned. After seizing the vehicle in question, the appellant approached before the learned Special Judge, Gangster Act/Additional Sessions Judge, Lucknow by means of Criminal Misc. Case NO. 659 of 2021 under Section 14 (1) of the U.P. Gangster & Anti-social Activities (Prevention) Act, 1986 the learned trial court rejected the case of the appellant and affirmed the order of learned District Magistrate.

6. The contention of learned counsel for the appellant is that the appellant has been falsely implicated in the present case. The applicant regularly deposited the installment of the vehicle in question. Further contention is that the source from whom, the vehicle in question was purchased by the applicant, is explained by the appellant before the District Magistrate as well as before Special Judge, but without recording any finding, the impugned orders has been passed, which is illegal, improper and against the material available on record. Further contention is that the vehicle in question was purchased by the applicant with valid source, therefore, the provision of Section 14 (1) will not be applicable in the present case. Further contention is that from perusal of order passed by District Magistrate, Lucknow as well as the trial court, it is clear that the impugned orders have been passed without application of judicial minds as well as well as material available on record. Further contention is that during course of investigation, the investigating without collecting any cogent piece of evidence, directly link the applicant to the alleged crime, therefore, the impugned order is liable to be quashed. Further contention is that unless the seized vehicle is released in favour of the applicant, he will be seriously prejudiced and there is no useful purpose to keep the vehicle during pendency of trial, hence, the applicant is ready to give the sureties for releasing the vehicle.

7. Opposing the submissions advanced by learned counsel for the applicant, on the other hand, learned AGA vehemently opposed the prayer for release of the vehicle and has submitted that the District Magistrate as well as the trial court have rightly passed the impugned, which is just and proper and does not suffer from any illegality or infirmity.

8. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.

9. In the present case, the ownership of the said vehicle was not in dispute at all. The only dispute is that the source, from which the applicant purchased the vehicle in question explained by the applicant, has not been considered by the District Magistrate as well as Special Judge. Consequently, once the prayer before the court below was made for release of the said vehicle and the applicant has shown the source of income from which he purchased the vehicle in question, the Court should have considered only the question of entitlement of possession.

10. In the case of Badan Singh alias Baddo Vs. State of U.P. & others 2002 Crl. L.J. 1392, a learned Single Judge observed as follows:

"...... There must be nexus between his criminal act and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words, what is necessary to find is whether his acquisition of property was as a result of commission of any offence enumerated in the Act being a member, leader or organizer of a gang. One might have committed several offences, but if the property acquired by him was with the aid of his earning from legal source, no action under S. 14 of the Act can be taken against him."

11. The aforesaid view certainly support the contention of the learned counsel for the applicant that no useful purpose will be served in keeping the vehicle detained at the police station itself.

12. Prima facie, it comes out that the tractor purchased by the appellant has not been purchased from the sources acquired as a member of gangster and the appellant has fully established his source of money from where the aforesaid tractor has been purchased.

13. In view of the aforesaid discussion, the instant criminal appeal is hereby allowed. The trial court as well as District Magistrate Lucknow is hereby directed that the vehicle in question i.e., the tractor of appellant bearing No. U.P.32 LR 0454, Chassis No. MEA11FA1KK2271719, Engine No. S33411404 shall be released in favour of the appellant immediately subject to the following conditions:-

1. He shall produce the original registration certificate, insurance paper before the concerned Police Station which shall be verified properly and true attested copies thereof.

2. He shall execute a bond with two solvent sureties to the satisfaction of the Chief Judicial Magistrate concerned.

3. He shall keep the vehicle insured at all times till the conclusion of the trial and produce the Insurance Certificate before the Trial Court as and when required; he must satisfy the Court that he is the registered owner of the vehicle.

4. He shall not change the colour or any part of the engine and chassis number of the vehicle.

5. He shall produce the vehicle either before the Court or before such other authorities as the Court may direct.

6. He will not transfer the vehicle to anybody else nor possession of the same be parted with until disposal of the case.

7. He shall not allow the vehicle to be used in the commission of any offence.

Order Date :- 26.4.2023

Virendra