Ramchandra Mandal And Ors vs The State Of Bihar
2021 Latest Caselaw 1558 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                            CRIMINAL REVISION No.14 of 2019
      Arising Out of PS. Case No.-93 Year-2012 Thana- NAYA RAM NAGAR District- Munger
     ======================================================

1. Ramchandra Mandal, S/o Banarsi Mandal, Resident of Village -

Muzaffarganj, Panchayat Mudheri, P.S. - Haveli Kharagpur, District - Munger, Bihar Pin - 811213.

2. Aruna Devi, W/o Ramchandra Mandal, Resident of Village - Muzaffarganj, P.S. - Haveli Kharagpur, District - Munger.

3. Chandan Kumar @ Chandan Mandal, S/O - Ram Chandra Mandal, Resident of Village - Muzaffarganj, P.S. Haveli Kharagpur, District - Munger.

4. Neha Kumari, W/o Kundan Mandal, Resident of Village - Muzaffarganj, P.S.

- Haveli Kharagpur, District - Munger.

... ... Petitioner/s Versus

1. The State of Bihar

2. The Principal Secretary/Special Secretary, Home-cum-Designated Authority (under Unlawful Activity (Prevention) Act), Department of Home, Govt. of Bihar, Patna

3. Director General of Police, Govt. of Bihar, Patna ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sandeep Kumar, Advocate Mr. Arvind Kumar, Advocate Mr. Anil Kumar Roy, Advocate For the Respondent/s : Mr. Umanath Mishra, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date :22-03-2021

A brief backdrop of the case, leading to this

application under Section 397 read with Section 401 of the Code

of Criminal Procedure, is that the Station House Officer of Naya

Ram Nagar Police Station, on the basis of his self statement,

registered Naya Ram Nagar P.S. Case No. 93 of 2012 on

26.07.2012 for offences under Section 414 of the Indian Penal

Code, Sections 10/13 of the Unlawful Activities (Prevention)

Act, 1967 (hereinafter referred to as the "UAP Act") and Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Sections 25(1-AA)/(1-AAA), 26(2) and 35 of the Arms Act,

1959.

2. According to the prosecution case, accused

Kundan Mandal and other named persons were reported to be

moving in the area to supply arms and explosives to the Nuxals.

After making an entry in the station diary, the informant along

with the police team proceeded towards NH-80. Near Sweta

Bengal Sweets, the police put an ambush and noticed that a

vehicle was entering in the lane by the side of the aforesaid

Sweets shop. Looking at the police party, three persons from the

vehicle started fleeing and managed their escape. One of them

was identified as Kundan Mandal. One Dilip Kumar Sah and

Vishal Kumar were arrested by the police and they disclosed

that Kundan Mandal, Kundan Jha and another Vikash Kumar,

son of Kailash Tanti were the persons, who fled away. Nothing

was recovered from the physical possession of the arrested

persons. However, from the vehicle, a pistol along with other

accessories were recovered for which the arrested accused could

not show any paper. Besides that some Nuxal literature were

also seized from the vehicle and the arrested persons disclosed

that they used to supply arms to the Nuxals.

3. A seizure of the seized vehicle on which the Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

accused persons were travelling, the firearm and its accessories

and Nuxal literature was made. On the same day i.e. 26.07.2012,

the house of Kundan Mandal was searched from where laptop,

cash, ATM cards, Pan cards, 34 deposit bonds in Sahara India

Family, Pass Book of bank accounts in Punjab National Bank

and other banks including Gramin Bank were seized. On

26.08.2012, a third seizure was made in respect of the tractor

from the house of Kundan Mandal.

4. By letter dated 21.08.2012, the Investigating

Officer sought for approval of the seizure from the Designated

Authority under Section 25 of the UAP Act, 1967. On the same

day i.e. 21.08.2012, the Superintendent of Police, Munger wrote

a letter to the Director General of Police, Bihar, Patna for ex

post facto approval of the seizure made above, though, Section

25 of the UAP Act requires prior approval of the Director

General of Police by the Investigating Officer making seizure.

The seizure was confirmed by order dated 17.10.2012 in Case

No. 05 of 2012 by the Designated Authority-cum-Principal

Secretary, Government of Bihar vide order at Annexure P/6.

5. The petitioners challenged the aforesaid order

dated 17.10.2012 in Cr. Appeal No. 130 of 2012 filed under

Section 25(6) of the UAP Act before the learned Sessions Judge, Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Munger. The Appellate Court vide order dated 10.01.2013

dismissed the appeal on the ground that it has no jurisdiction to

entertain the appeal against the order of the Designated

Authority. Then the petitioners challenged the appellate court's

order before this Court in Cr.W.J.C. No. 1197 of 2012. In the

writ application, vide order dated 24.09.2013, this Court

directed the learned Sessions Judge to re-hear and decide Cr.

Appeal No. 130 of 2012 on merit. Thereafter, the aforesaid

criminal appeal was re-registered as Cr. Appeal No. 130A of

2012 and the appeal was dismissed on merit by the impugned

order dated 03.11.2018. Hence, this criminal revision

application.

6. Mr. Sandeep Kumar, learned counsel for the

petitioners contends that the entire exercise of action of seizure

from the house of accused Kundan Mandal and its confirmation

by the Designated Authority suffers from arbitrariness and

illegality. Section 25 of the UAP Act does not apply to offences

committed under Chapter III, rather it is specifically applicable

to offences committed under Chapter IV and Chapter VI of the

UAP Act. Chapter IV begins with Section 15 of the UAP Act

which defines Terrorist act and Chapter VI relates to Terrorist

Organizations. The learned Lower Appellate Court did not Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

consider the legal issue correctly while dismissing the appeal of

the petitioners.

7. Learned counsel for the petitioners further submits

that the petitioners herein are parents, brother and wife of

accused Kundan Mandal of the aforesaid case. The personal

property of these petitioners have been seized from their house

and the petitioners had disclosed the source of purchase of the

seized properties in their show cause filed before the Designated

Authority.

8. Mr. Umanath Mishra, learned counsel for the

respondents contends that the order of the Designated Authority

would reveal that he was satisfied on the basis of material

available on the record that seizure was fit to be confirmed.

Hence, the Revisional Court cannot look into the sufficiency of

material for such satisfaction. Therefore, this revision

application has got no merit.

9. For better appreciation of the rival contention of

the parties, it would be apt to reproduce Section 25 of the UAP

Act:-

"25. Powers of investigating officer and Designated

Authority and appeal against order of Designated

Authority. -- (1) If an officer investigating an offence Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

committed under Chapter IV or Chapter VI, has

reason to believe that any property in relation to

which an investigation is being conducted, represents

proceeds of terrorism, he shall, with the prior

approval in writing of the Director General of the

Police of the State in which such property is situated,

make an order seizing such property and where it is

not practicable to seize such property, make an order

of attachment directing that such property shall not

be transferred or otherwise dealt with except with the

prior permission of the officer making such order, or

of the Designated Authority before whom the

property seized or attached is produced and a copy of

such order shall be served on the person concerned.

(2) The investigating officer shall duly inform the

Designated Authority within forty-eight hours of the

seizure or attachment of such property.

(3) The Designated Authority before whom the

seized or attached property is produced shall either

confirm or revoke the order of seizure or attachment

so issued within a period of sixty days from the date

of such production:

Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Provided that an opportunity of making a

representation by the person whose property is being

seized or attached shall be given.

(4) In the case of immovable property attached by

the investigating officer, it shall be deemed to have

been produced before the Designated Authority,

when the investigating officer notifies his report and

places it at the disposal of the Designated Authority.

(5) The investigating officer may seize and detain

any cash to which this Chapter applies if he has

reasonable grounds for suspecting that--

(a) it is intended to be used for the purposes of

terrorism; or

(b) it forms the whole or part of the resources

of a terrorist organisation:

Provided that the cash seized under this sub-

section by the investigating officer shall be released

within a period of forty-eight hours beginning with

the time when it is seized unless the matter involving

the cash is before the Designated Authority and such

Authority passes an order allowing its retention

beyond forty-eight hours.

Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Explanation.--For the purposes of this sub-

section, "cash" means--

(a) coins or notes in any currency;

(b) postal orders;

(c) traveller's cheques;

1[(ca) credit or debit cards or cards that serve

a similar purpose;]

(d) banker's drafts; and

(e) such other monetary instruments as the

Central Government or, as the case may be,

the State Government may specify by an

order made in writing.

(6) Any person aggrieved by an order made by

the Designated Authority may prefer an appeal to

the court within a period of thirty days from the

date of receipt of the order, and the court may

either confirm the order of attachment of property

or seizure so made or revoke such order and release

the property."

10. It is evident that the Investigating Officer of the

case could exercise the power of seizure only if the offence

appears to have been committed as mentioned in Chapter IV or Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Chapter VI of the UAP Act. In this case, no offence under

Chapter IV or Chapter VI of the UAP Act is alleged against the

accused persons. Hence, the exercise entered into by the

Investigating Officer in making seizure of property from the

house of accused Kundan Mandal is wholly illegal and without

jurisdiction.

11. Furthermore, Section 25 of the UAP Act requires

that the Investigating Officer must have "reason to believe" that

any property in relation to which an investigation is being

conducted represents "proceeds of terrorism". "The reason to

believe" must be on the basis of specific, reliable and relevant

information. The police report submitted in the case does not

show, specially, the evidence collected till the date of making of

the prayer for confirmation of seizure that any specific reliable

or relevant information was there to form a believe that the

property seized from the house of the accused were proceeds of

terrorism. In absence of any connection between the act alleged

and the property recovered, it cannot be assumed that those

properties were acquired by the terrorist act. Moreover, the

Investigating Officer has not assigned any reason to believe the

aforesaid fact nor the authority who confirmed the seizure

applied its mind that there was no material to substantiate that Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

the seizure was consistent with the law contained in Section 25

of the UAP Act.

12. Therefore, the impugned order, evidently, suffers

from arbitrariness and illegality, hence, it cannot be sustained.

13. To attract the mischief of penalty for being

member of an unlawful association under Section 10 of the UAP

Act, it must be established that the association was declared

unlawful by a notification issued under Section 3 of the UAP

Act. In the case on hand, there is no evidence that to which of

the unlawful association the accused were supplying the arms.

Hence, it cannot be ascertained whether that association was

declared unlawful association or not. Likewise, Section 13 of

the UAP Act which provides punishment for unlawful activities

is, prima facie, not attracted in absence of identity of the

unlawful association.

14. The Investigating Officer has referred in the

request letter for confirmation of seizure that petitioner-Chandan

Kumar @ Chandan Mandal, who is full-brother of accused

Kundan Mandal, is an accused in connection with Sultanganj

P.S. Case No. 45 of 2011 registered under different sections of

the Indian Penal Code and the Arms Act as well as Sections

10/13 of the UAP Act. Even if it is assumed that Chandan Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

Kumar was accused in that case, the provisions of Section 25 of

the UAP Act is still not attracted in the facts and circumstances

of this case.

15. Since the Investigating Officer exceeded the

jurisdiction of search under Section 25 of the UAP Act and the

Designated Authority without applying its mind confirmed the

said seizure against the law, their action is arbitrary and illegal

one. The learned Lower Appellate Court did not consider the

aforesaid legal issue in correct perspective. Therefore, impugned

order is not sustainable in law.

16. In the result, entire seizure of property made from

the house of the petitioners on 26.07.2012 and 26.08.2012 was

illegally made, hence, the entire seizure exercise and its

confirmation as well as the order of the learned Lower Appellate

Court stands hereby set aside and this revision application is

allowed.

17. Let the seized property be released in favour of the

petitioners at the earliest preferably within ten days, failing

which rupees ten thousand compensation would be paid to the

petitioners for each day delay.

Petitioners would be at liberty to initiate

proceeding for damages against the erring opposite parties for Patna High Court CR. REV. No.14 of 2019 dt.22-03-2021

putting illegal seize over the property of the petitioners which

might have caused mental, physical and economic agony/loss to

the petitioners.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                AFR
CAV DATE                19.03.2021
Uploading Date          22.03.2021
Transmission Date       22.03.2021