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The Patna HC recently comprising of single bench of Justice Birendra Kumar heard the instant revision application challenging the validity of ex-post facto approval of search and seizure operations effected by the police.

“In the result, entire seizure of property made from the house of the petitioners on 26.07.2012 and 26.08.2012 was illegally made, hence, the entire seizure exercise and its confirmation as well as the order of the learned Lower Appellate Court stands hereby set aside and this revision application is allowed.”

The facts of the present case date back to 2012, when 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. Also, some Nuxal literature were seized from the vehicle and the arrested persons disclosed that they used to supply arms to the Nuxals. Conforming 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. Further, a tractor was also seized without the approval of the Designated Authority which was a prerequisite under Section 25 of UAP Act, 1967 and the Designated Authority also granted ex post facto approval for the seizure made above and confirmed the same.

The learned counsel for the petitioner contended that,

“…the 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. Section 25 of the UAP Act does not apply to offences committed under Chapter III, rather it is specifically applicable to offences committed under Chapter IV and Chapter VI of the UAP Act. Chapter IV begins with Section 15 of the UAP Act which defines Terrorist act and Chapter VI relates to Terrorist Organizations. The learned Lower Appellate Court did not the legal issue correctly while dismissing the appeal of the petitioners.”

On the other hand the counsel for the respondent contends that,

“…the order of the Designated Authority would reveal that he was satisfied on the basis of material available on the record that seizure was fit to be confirmed. Hence, the Revisional Court cannot look into the sufficiency of material for such satisfaction. Therefore, this revision application has got no merit.”

Taking into account the facts and circumstances of the present case the bench observed that,

“…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.”

The court further observed that,

“Since the Investigating Officer exceeded the jurisdiction of search under Section 25 of the UAP Act and the Designated Authority without applying its mind confirmed the said seizure against the law, their action is arbitrary and illegal one. The learned Lower Appellate Court did not consider the aforesaid legal issue in correct perspective. Therefore, impugned order is not sustainable in law.”

Also, it is well known 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 UAP Act. In the case on hand, there is no evidence that to which of the unlawful association the accused were supplying the arms.

Therefore, the court opined that,

“…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.”

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.

Case title: Ramchandra Mandal v. State of Bihar, 2021

Law point: Section 25 of UAP Act, 1967