Uttarakhand High Court
WPCRL/341/2022 on 10 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
10TH MARCH, 2022
CRIMINAL WRIT PETITION NO.341 of 2022
Between:
Mohan Singh and Six Others ...Petitioners
and
State of Uttarakhand and Others ...Respondents.
Counsel for the Petitioners : Mr. Sagar Kothari.
Counsel for the State : Mr. T.C. Agarwal, learned
Deputy Advocate General for
the State.
Hon'ble Alok Kumar Verma, J.
This Criminal Writ Petition has been filed under
Article 226 of the Constitution of India to issue a writ of
certiorari to quash the impugned order dated 24.03.2021,
passed by the District Magistrate, Dehradun, the respondent
no.2; and, a writ of mandamus directing the respondent no.2
to attach the properties of the respondent nos.4 to 9 under
the provisions contained in the Uttar Pradesh Gangsters and
Anti-Social Activities (Prevention) Act, 1986.
2. Heard Mr. Sagar Kothari, the learned counsel
appearing for the petitioners and Mr. T.C. Agarwal, the
learned Deputy Advocate General appearing for the State.
3. Mr. Sagar Kothari, the learned counsel appearing
for the petitioners, submitted that the respondent nos.4, 5
and 6 contacted the petitioners and other persons and offered
a scheme. The petitioners deposited a huge amount of money
under the said scheme. The respondent nos.4, 5 and 6
refused to return the money and jewellery, deposited by the
petitioners, and, other persons. The learned counsel
appearing for the petitioners submitted that three FIRs have
been registered against the respondent nos.4, 5 and 6 under
Sections 420, 406, 120B of the IPC and Section 3/4 of The
Prize Chits and Money Circulation Schemes (Banning) Act,
1978. The learned counsel appearing for the petitioners
further submitted that four complaint cases are also pending
against the respondent no.5 under Section 138 of the
Negotiable Instruments Act, 1881, and one case against the
respondent no.6 is pending under Section 138 of the N.I. Act.
The petitioners moved an application before the District
Magistrate, Dehradun under Section 14 of the Uttar Pradesh
Gangsters and Anti Social Activities (Prevention) Act, 1986 (in
short, "the Act, 1986"). The District Magistrate did not take
any action on the said application. Therefore, the petitioners
approached to this High Court. The Co-ordinate Bench of this
High Court directed the District Magistrate to decide the said
application, filed under Section 14 of the Act, 1986, within a
period of one month. The said application was not decided
within the stipulated period. Therefore, the petitioners moved
a contempt petition before this Court. During the pendency of
the said contempt petition, the impugned order has been
passed by the District Magistrate, Dehradun.
4. Mr. Sagar Kothari, the learned counsel appearing
for the petitioners, submitted that the said application has not
been decided in terms of Section 14 of the Act, 1986. He
further argued that while deciding the said application, the
District Magistrate, Dehradun observed that several criminal
cases are pending before the concerned court, therefore, it
will be appropriate that the application, filed under Section 14
of the Act, 1986, should be decided by the court itself. The
learned counsel appearing for the petitioners argued that the
said order is not passed as per law.
5. At this stage, it is necessary to refer to the
provisions of Sections 14, 15, 16, 17 and 18 of the Act, 1986.
Sections 14, 15, 16, 17 and 18 of the Act, 1986 read as
follow:-
"14. Attachment of property. - (1) If the District
Magistrate has reason to believe that any property,
whether moveable 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.
15. Release of property. - (1) Where any property
is attached under Section 14, the claimant thereof
may within three months from the date of
knowledge of such attachment make a
representation to the District Magistrate showing the
circumstances in and the sources by which such
property was acquired by him.
(2) If the District Magistrate is satisfied about the
genuineness of the claim made under sub-section
(1) he shall forthwith release the property from
attachment and thereupon such property shall be
made over to the claimant.
16. Inquiry into the character of acquisition of
property by Court. - (1) Where no representation
is made within the period specified in sub-section
(1) of Section 15 or the District Magistrate does not
release the property under sub-section (2) of
Section 15 he shall refer the matter with his report
to the Court having jurisdiction to try an offence
under this Act.
(2) Where the District Magistrate has refused to
attach any property under sub-section (1) of
Section 14 or has ordered for release of any
property under sub-section (2) of Section 15, the
State Government or any person aggrieved by such
refusal or release may make an application to the
Court referred to in sub-section (1) for inquiry as to
whether the property was acquired by or as a result
of the commission of an offence triable under this
Act. Such Court may, if it considers necessary or
expedient in the interest of justice so to do, order
attachment of such property.
(3) (a) On receipt of the reference under sub-section
(1) or an application under sub-section (2), the
Court shall fix a date for inquiry and give notices
thereof to the person making the application under
sub-section (2) or, as the case may be, to the
person making the representation under Section 15
and to the State Government, and also to any other
person whose interest appears to be involved in the
case.
(b) On the date so fixed or any subsequent date to
which the inquiry may be adjourned, the Court shall
hear the parties, receive evidence produced by them,
take such further evidence as it considers necessary,
decide whether the property was acquired by a
gangster as a result of the commission of an offence
triable under this Act and shall pass such order under
Section 17 as may be just and necessary in the
circumstances of the case.
(4) For the purpose of inquiry under sub-section (3)
the Court, shall have the power of a Civil Court while
trying a suit under the Code of Civil Procedure, 1908
(Act No. 5 of 1908), in respect of the following
matters, namely :-
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof
from any Court or office;
(e) issuing commission for examination of witness or
documents;
(f) dismissing a reference for default or deciding it ex
parte
(g) setting aside an order of dismissal for default
or ex parte decision.
(5) In any proceedings under this section, the
burden of proving that the property in question or
any part thereof was not acquired by a gangster as
a result of the commission of any offence triable
under this Act, shall be on the person claiming the
property, anything to the contrary contained in the
Indian Evidence Act, 1872 (Act No. 1 of 1872),
notwithstanding.
17. Order after inquiry. - If upon such inquiry, the
Court finds that the property was not acquired by a
gangster as a result of the commission of any
offence triable under this Act it shall order for release
of the property of the person from whose possession
it was attached. In any other case the Court may
make such order as it thinks fit for the disposal of
the property by attachment, confiscation or delivery
to any person entitled to the possession thereof, or
otherwise.
18. Appeal. - The provisions of Chapter XXIX of the
Code shall, mutatis mutandis, apply to an appeal
against any judgment or order of a Court, passed
under the provisions of this Act.
6. Section 14 of the Act, 1986 requires that there
must be a reason to believe on the part of the District
Magistrate that the condition for an action exists. However,
the said satisfaction must not be arbitrary and must be based
on the legal conditions as mentioned in Section 14 of the Act,
1986.
7. The Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 (as applicable in the State of
Uttarakhand) has been enacted 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. Therefore, the Act, 1986 provides a
complete procedure from the stage of passing of any order
under Section 14 of the Act to the further inquiry by the
court.
8. Section 14 stipulates that the District Magistrate is
required to record its satisfaction while considering the
application under Section 14 of the Act, 1986. The matter
must be decided by the District Magistrate. But, in the present
matter, the District Magistrate has not recorded any
satisfaction of its own and nor decided the said application
rather it has been mentioned that the matter should be
decided by the concerned Court itself.
9. Section 14 of the Act, 1986 stipulates that if the
District Magistrate has reason to believe that any property,
whether moveable or immovable, in possession of any person
has been acquired by a gangster as a result of the
commission of an offence triable under the Act, 1986, he may
order attachment of such property whether or not cognizance
of such offence has been taken by the Court.
10. During the arguments, the learned counsel
appearing for the State fairly conceded that the application,
filed under Section 14 of the Act, 1986, has not been decided
by the District Magistrate, Dehradun as per the provision of
Section 14 of the Act, 1986.
11. In the present matter, it transpires from the
impugned order that the District Magistrate has not exercised
his jurisdiction under Section 14 of the Act, 1986. Therefore,
the matter cannot be referred to the Court without taking
action in accordance with Section 14 of the Act, 1986, as a
result of which, the impugned order is not sustainable. The
impugned order is liable to be quashed.
12. Consequently, the impugned order dated
24.03.2021, passed by the learned District Magistrate
Dehradun/ respondent no.2 is quashed and the matter is
remitted back to the District Magistrate, Dehradun/the
respondent no.2 to decide the said application, filed by the
petitioners under Section 14 of the Act, 1986, afresh in
accordance with law after providing a reasonable opportunity
of hearing to the petitioners and all the persons concerned.
13. The learned counsel appearing for the State
submitted that two months time will be appropriate to decide
the said application.
14. The learned counsel appearing for the petitioners
is agree.
15. Therefore, the learned District Magistrate
Dehradun is further directed to decide the said application
within a period of two months from the date of the production
of the certified copy of this order.
__________________
ALOK KUMAR VERMA, J.
Dt: 10th March, 2022
Pant/
