UAPA- "In Absence Of Any Connection Between Alleged Act And Property Recovered, It Cannot Be Assumed That Property Was Acquired By Terrorist Act": Patna HC

The Patna High Court on Monday observed that in absence of any connection between the act alleged and the property recovered under the Unlawful Activities (Prevention) Act, it cannot be assumed that those properties were acquired by the terrorist act.

The observation came by a single judge bench comprising of Justice Birendra Kumar while dealing with a petition filed by the family members of an accused person challenging the order of Designated Authority allowing ex post approval under sec. 25 of UAPA with regards to seizure of certain properties which were not connected with the acts so alleged against the accused.

About the Case

The timeline of the case dates back to the year 2012 wherein a case was registered under sec. 414 of Indian Penal Code, sec. 10 and 13 of the Unlawful Activities (Prevention) Act and sec. (1-AA)/(1-AAA), 26 (2) and 35 of the Arms Act.

It was the case of the prosecution that the accused Kundan Mundal along with other persons were reported to supply arms and explosives to Naxals. The police then noticed a vehicle entering into the lane wherein three persons from the vehicle managed to flee after seeing them.

However, nothing was recovered from the physical possession of the arrested persons but a pistol along with other accessories was recovered for which the accused could not show any paper. The police also seized some Naxal literature from the vehicle which the arrested persons later disclosed that they used to supply arms to the naxals.

When the police searched the house of Mandal the very next day i.e. 26th July 2012, certain items including laptop, cash, ATM cards, Pan cards etc were seized. Subsequently a third seizure was made in the case on 26th August 2012.

Letters were written dated 21st August 2012 by IO and Superintendent of Police seeking ex post approval of the seizure from a designated authority under sec. 25 of UAPA which requires a prior approval of DGP by IO making seizure.

The order dated 17th October 2012 by the Designated Authority cum Principal Secretary, Government of Bihar vide which the seizure was confirmed was challenged before the Sessions Judge wherein the Court dismissed the appeal on the ground that it had no jurisdiction to entertain the appeal against the order of designated authority. Therefore, being aggrieved, the petitioners challenged the order before the High Court.

Observations of the Court

The Court observed that while it was evident that the IO could exercise the power of seizure only if the offence under Chapter IV of the UAPA Act appears to have been committed, the Court held that no such offence was alleged against the accused person in the matter. Therefore, the exercise entered into by the IO in making seizure of property was wholly illegal and without jurisdiction.

"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 Court observed at the outset.

In view of this, the Court observed that the police report submitted did not show any specific reliable or relevant information to form a believe that the property so seized 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." The Court held.

The Court observed thus:

"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."

Therefore, the Court set aside the seizure exercise, order of its confirmation and order of the lower appellate court and ordered the release of the seized property in favor of the petitioners within 10 days failing to which Rs. 10,000 compensation would have to be paid to the petitioners for each delay.

Click Here To Read Order