- (1.) Heard Sri O.P.Singh, Senior Advocate, assisted by Sri Kamal Kishor Mishra, Sri A.N.Singh, learned counsel for the appellant, learned A.G.A.for the State of U.P.and perused the lower court record.
(2.) This appeal under section 18 of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 has been preferred by the appellant Smt. Maina Devi against the order dated 17.3.2009 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Azamgarh in Criminal Misc. Case No.2 of 2009 whereby the learned Special Judge ( Gangster Act) affirmed the order dated 14.7.2008 passed by District Magistrate, Mau by which the application under section 15(1)(2) of U.P.Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as ' the Gangster Act') moved by the appellant for releasing the house Nos. 204-D/8 and 205-D/9 situated in Mohalla Chandmari Emiliyan, Police Station Sarai Lakhansi, District Mau, has been rejected, with the prayer that the same may be quashed.
(3.) The present appeal has been filed on the following grounds : 1.That the impugned order dated 17.3.2009 passed by the learned Sessions Judge is illegal and is liable to be quashed by this Hon'ble Court. 2.That the learned Sessions Judge has wrongly and illegally failed to consider the evidence adduced by the appellant before the District Magistrate as well as the Sessions Judge and illegally held that the attached property was acquired by Raj Bahadur as a Gangster as result of the commission of an offence. 3.That the learned District Magistrate has wrongly and illegally relied upon the report of the concern police station and held that the property of the appellant belongs to Raj Bahadur who has acquired the same as a Gangster as result of commission of an offence. 4.That the learned Sessions Judge has wrongly and illegally failed to consider the order passed by the learned District Magistrate as well as failed to consider the report of concern police station upon which the order was passed. 5.That the Sessions Judge has wrongly and illegally approved the order of District Magistrate by which who has given the finding upon the report and held that the house was constructed by the money acquired by Raj Bahadur as a Gangster within 5 to 6 years. 6.That the learned Sessions Judge wrongly and illegally have approved the order passed by District Magistrate without considering the facts that the husband of the appellant was a Govt. employee and he was posted as a Constable and he was promoted as a Head Constable in P.A.C.in 1977 and in the year 1988 he was promoted as Platoon Commander, was getting the handsome salary. 7.That the learned District Magistrate and the learned Sessions Judge have not considered the material facts that the husband of the appellant have 11 Acres fertile land and have obtained the properties from the agricultural sources. 8.That the learned District Magistrate and the learned Sessions Judge has not considered the material facts that building which is subject matter of present controversy was purchased by the appellant on 10.3.1999 in Araji No. 438 and 18.6.2001 in Araji No. 438 in sum of Rs. 28,000/- and one lac ( Rs. 1,00,000/-) respectively from Smt. Vishwakarma Devi , w/o Murat and Satyadeo son of Ram Raj. 9.That the learned District Magistrate and the learned Sessions Judge has failed to consider that in year 1999 and 2001 the rate of the land was very low. 10.That the learned Sessions Judge as well as learned District Magistrate have failed to consider the facts that the husband of the appellant have withdraw Rs. 25,000/-, 40,000/-, 40,000/- and 50,000 on 5.6.1997, 26.5.200, 6.6.2002 and 21.7.2003 respectively from his G.P.F.Fund and house was constructed during the period of 7 to 8 years since 1999. 11.That the learned District Magistrate and the learned Sessions Judge has failed to consider the facts, Kamala Singh father in law of the appellant have sold the landed property Araji No. 84 Raqaba 34 decimal in the year 1992 in favour of Ram Kishun, the Raqaba No. 80, 97 decimal in favour of Banshi in the year 1993, Araji No. 138 Rakaba 22 decimal in favour of Suresh on 24.5.1989 and Araji No. 81 Raqaba 25 decimal in favour of Muneshwar on 14.3.1990 and sum of the total amount about Rs. 3 lacs was obtained by the appellant from her father in law. 12.That the learned Sessions Judge as well as District Magistrate failed to consider that Suman Devi the daughter in law of the appellant, her marriage was solemnised in the year 2002 has obtained the property from her parents who have no male issue, and that the money was also invested in construction of the Building. 13.That the learned District Magistrate as well as learned Sessions Judge has not considered the material facts that Raj Bahadur against who F.I.R under the Gangster Act was registered was also a Govt. Employee was recruited as a Constable in U.P.Police in year 1994 and since then his performing his duty with utmost satisfaction till his termination of the services in year 2007. 14.That the the learned Sessions Judge as well as District Magistrate has not given any finding that any property was acquired by the husband of appellant during his entire service period. 15.That the learned District Magistrate has given the own finding after taking into consideration of the evidence adduced by the concern police station that both the houses were constructed within the period of 5 to 6 years which itself falsify with effect that the house was constructed by Raj Bahadur from money acquired as a Gangster. 16.That the learned Sessions Judge as well as District Magistrate who has passed the impugned order relying upon the F.I.R.relating to case Crime No. 884 of 2007 under section 3(1) U.P. Gangster and Anti Social Activities ( Prevention) Act in which the 4 cases were shown against the appellant in which 2 cases are related to incident in year 2006 and rest of 2 cases are related to the incident in the year 2007. 17.That the learned Sessions Judge as well as District Magistrate has not considered the facts that the houses were constructed prior to the year 2006 and no any Criminal case showing indulgence of Raj Bahadur, in any Criminal Activities was lodged against him priof to year, 2006 18.That the impugned order is not sustainable in the eye of law and is liable to be quashed by this Hon'ble Court.;