SHASHI KANT CHAURASIYA Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal under Section 18 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "the Act") has been preferred by the appellants Shashi Kant Chaurasiya and Shrikant Chaurasiya, sons of Kanhaiya Chaurasiya with the prayer to set aside the order dated 09.06.2010 passed by the Special Judge (Gangsters Act), Varanasi in Misc. Application No.42 of 2009 (State Vs. Kanahiya Chaurasia and others), whereby the learned Special Judge (Gangsters Act) has rejected the application filed by the appellants under Section 16(2) of the Act for releasing the house and shop in question and affirmed the order dated 22.10.2009 passed by the District Magistrate, Ghazipur under Section 14(1) of the Act, by which the District Magistrate, Ghazipur refused to release the property of the appellants consisting a shop of general store and a residential house situated at village Gauspur, P.S. Mohammadabad, District Ghazipur.

(2.) Present appeal has been preferred by the appellants on the grounds that an FIR as case crime no.70 of 2008, under Section 3(1) of the Act was registered wrongly against the father of the appellants at P.S. Mohammadabad, District Ghazipur as the gang chart annexed with the said FIR does not constitute offence under Gangsters Act, even proceeding under Section 14(1) of the Act was started and the property has been attached against the provisions of the law; that there is no evidence at all and the prosecution has failed to prove that the properties which were attached by the District Magistrate, Ghazipur in proceeding under Section 14(1) of the Gangsters Act was result of outcome of income of gangster activity and without any basis the order of attachment has been passed and the leaned Special Judge (Gangsters Act), Varanasi has also refused to release the property without recording specific finding that it has been obtained by involvement under Gangsters Act; that the learned Special Judge (Gangsters Act), Varanasi has not made any inquiry into the matter nor the prosecution adduced any evidence to this effect that the property was earned by the father of the appellants after being involved under Gangsters Act; that the order of attachment has been passed mechanically on the basis of report submitted by the police, but the District Magistrate and the Special Judge (Gangsters Act), Varanasi have not considered the evidence adduced by the appellants and mechanically passed the order impugned and that the findings recorded by the trial court are against the evidence on record.

(3.) The brief facts of the case are that an FIR as case crime no.70 of 2008 was lodged against Kanhaiya Chaurasia, the father of the appellants under Section 3(1) of the Act at P.S. Mohammadabad, District Ghazipur. In the gang chart four separate offences were shown against him i.e. case crime no.241 of 1999, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur; case crime no.92 of 2000, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur; case crime no.708 of 2007, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur and case crime no.60 of 2008, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. On the basis of lodging of the said FIR against Kanhaiya Chaurasia, the father of the appellants under the Act, a report of P.S. Kotwali Mohammadabad was submitted on 07.06.2008 with the prayer that the property in question earned illegally by Kanhaiya Chaurasiya may be attached under Section 14(1) of the Act. In the said report of P.S. concerned it has been stated that the said Kanhaiya Chaurasiya entered in the world of crimes in 1988 against whom a case crime no.269 of 1988, under Section 60 of the Excise Act was registered. Earlier he was very poor having a Khaprail house in dilapidated condition in village Gauspur and was doing business of a little Parchoon shop and anyhow was earning his and his family members livelihood, but thereafter as many as 20 criminal cases were registered against him, in which mainly case crime no.63 of 1995, under Section 8/20 of the NDPS Act, case crime no.161 of 1996, under Section 8/20 of the NDPS Act, case crime no.241 of 1999, under Section 8/20 of the NDPS Act, case crime no.92 of 2000, under Section 8/20 of the NDPS Act, case crime no. nil of 2006, under Section 41/411 IPC, P.S. Mohammadabad, District Ghazipur and case crime no.65 of 2006, under Section 420/406 IPC at P.S. Peelkhana, District Kanpur were registered and case crime no.60 of 2008, under Section 8/20 of the NDPS Act was also recently registered against him. After investigation in the said matters, charge sheets have already been submitted and thereafter, after sanction of District Magistrate, case crime no.70 of 2008, under Section 3(1) of the Act was registered against him. It has also been mentioned in the said report that after 1988 he earned a lot having no legal source of income but has earned by sale of narcotic drugs.