Pat HC | To attract penalty for being a member of an unlawful association, the association must be one declared unlawful by a notification under UAP Act, 1967; HC declares seizure exercise illegal and arbitrary

Patna High Court: Birendra Kumar, J., heard the instant revision application challenging the validity of ex-post facto approval of search and seizure operations effected by the police.

“…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.”

On 26-07-2012, the SHO of Naya Ram Nagar Police Station registered a case for offences under Section 414 of the Indian Penal Code, Sections 10/13 of the Unlawful Activities (Prevention) Act, 1967 and Sections 25(1-AA)/(1-AAA), 26(2) and 35 of the Arms Act, 1959 on the basis of self-statement.

The accused were reported to be moving to supply arms and explosives to the Nuxals. The police arrested the accused, though nothing was recovered from the physical possession of the accused. However, from the vehicle, a pistol along with other accessories was 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. Pursuant to the arrest of the house of Kundan Mundal, one of the accused was searched from where laptop, cash, ATM cards, Pan Cards and 34 deposit bonds were recovered. Additionally, a tractor was also seized without the approval of the Designated Authority which was a prerequisite under Section 25 of UAP Act, 1967. Interestingly, the Designated Authority granted ex post facto approval for the seizure made above and confirmed the same.

Noticing that the Investigating Officer could exercise power of seizure only if the offence had been committed under Chapter IV or Chapter VI of the UAP Act and no such offence was alleged to had been committed in the instant case In this case, the Bench remarked,

“…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. Section 25 of the UAP Act requires that the Investigating Officer must have “reason to believe”

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 did 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 belief that the property seized from the house of the accused were proceeds of terrorism. Thus,

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 Bench opined that 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 Act. In the case on hand, there was no evidence that to which of the unlawful association the accused were supplying the arms. Hence, it could not be ascertained whether that association was declared unlawful association or not.

Hence, the entire seizure exercise and its confirmation, as well as the order of the Lower Appellate Court, was set aside and the police officials were directed to release the property in favour of the petitioners at the earliest preferably within ten days. In case of default compensation of rupees ten thousand to the petitioners for each day delay was also granted.  [Ramchandra Mandal v. State of Bihar,  2021 SCC OnLine Pat 670, decided on 22-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

 For the Petitioner/s: Adv. Sandeep Kumar, Adv. Arvind Kumar and Adv. Anil Kumar Roy,

For the Respondent/s: A.P.P. Umanath Mishra

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.