# Abrar v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Criminal Appeal No. 2130 of 2021
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abrar-v-state-of-u-p-anr-46606
- **Pages:** 7

## Headnote

(A) Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 ,Section 14 - Attachment of
property , Section 15 - Release of property,
Section 16 - Inquiry into the character of
acquisition of property by Court, Section 17 -
Order after inquiry -
order
of
the
District
Magistrate attaching one's property should be
based on reasons and not arbitrary - puts
check on the arbitrary exercise of power of
attachment by denying him of his right to any
property - requirement of law - there must be
reason to believe that the property sought to
be attached has been acquired by a ''gangster'
as a result of commission of any offence under
the Act.(Para - 12)

(B) Words and Phrases - Indian Penal Code,
1860 - Section 26 - "reason to believe" - A
person is said to have ''reason to believe'' a
thing, if he has sufficient cause to believe that
thing but not otherwise - contemplates an
objective determination based on intelligent
care and deliberation involving judicial review
as
distinguished
from
purely
subjective
consideration - must be rational and intelligible
nexus between ''reason' and ''belief' - "Reason
to believe" is not the same thing as "suspicion"
or "doubt" and mere seeing also cannot be
equated to believing - "Reason to believe" is a
higher level of the state of mind. (Para-12,13)

District Magistrate passed an order under Section
14(1) of the Act - attaching house of appellant -
not considered the plea of appellant - arbitrarily
confirmed his order of attachment while rejecting
his representation - held - house was
constructed with illegally earned money - referred
the case to Special Judge Gangster Act - trial
judge after inviting objection and hearing the
parties confirmed the order dated 19.10.2020 -
aggrieved by these orders - criminal appeal has
been filed.(Para - 1 to 7)

HELD:- No direct nexus has been established
between acquisition of property by the accused
and
the
source
of
income
generated
for
purchasing property by indulgence in commission
of offences under the Act as a ''gangster'. Not
reflected from the impugned order as to whether
a detailed enquiry has been conducted by the
Court below as is contemplated under Section 16
of the Act, which was statutory duty cast upon the
Court below.(Para - 15 )

Criminal Appeal allowed. (E-7)

List of Cases cited:-

M/s. Ganga Saran & Sons Pvt. Ltd. Calcutta Vs
Income Tax Officer & ors., AIR 1981 SC 1363

## Text

11 All. Abrar Vs. State of U.P. & Anr.
539
----------
(2021)11ILR A539
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 2130 of 2021

Abrar ...Appellant
Versus
State of U.P. & Anr. ...Respondent

Counsel for the Appellant:
Sri Bhuvnesh Kumar Singh

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 ,Section 14 - Attachment of
property , Section 15 - Release of property,
Section 16 - Inquiry into the character of
acquisition of property by Court, Section 17 -
Order after inquiry -
order
of
the
District
Magistrate attaching one's property should be
based on reasons and not arbitrary - puts
check on the arbitrary exercise of power of
attachment by denying him of his right to any
property - requirement of law - there must be
reason to believe that the property sought to
be attached has been acquired by a ''gangster'
as a result of commission of any offence under
the Act.(Para - 12)

(B) Words and Phrases - Indian Penal Code,
1860 - Section 26 - "reason to believe" - A
person is said to have ''reason to believe'' a
thing, if he has sufficient cause to believe that
thing but not otherwise - contemplates an
objective determination based on intelligent
care and deliberation involving judicial review
as
distinguished
from
purely
subjective
consideration - must be rational and intelligible
nexus between ''reason' and ''belief' - "Reason
to believe" is not the same thing as "suspicion"
or "doubt" and mere seeing also cannot be
equated to believing - "Reason to believe" is a
higher level of the state of mind. (Para-12,13)

District Magistrate passed an order under Section
14(1) of the Act - attaching house of appellant -
not considered the plea of appellant - arbitrarily
confirmed his order of attachment while rejecting
his representation - held - house was
constructed with illegally earned money - referred
the case to Special Judge Gangster Act - trial
judge after inviting objection and hearing the
parties confirmed the order dated 19.10.2020 -
aggrieved by these orders - criminal appeal has
been filed.(Para - 1 to 7)

HELD:- No direct nexus has been established
between acquisition of property by the accused
and
the
source
of
income
generated
for
purchasing property by indulgence in commission
of offences under the Act as a ''gangster'. Not
reflected from the impugned order as to whether
a detailed enquiry has been conducted by the
Court below as is contemplated under Section 16
of the Act, which was statutory duty cast upon the
Court below.(Para - 15 )

Criminal Appeal allowed. (E-7)

List of Cases cited:-

M/s. Ganga Saran & Sons Pvt. Ltd. Calcutta Vs
Income Tax Officer & ors., AIR 1981 SC 1363

(Delivered by Hon'ble Subhash Chandra Sharma, J.)

1. This criminal appeal has been filed
against
the
judgment
and
order
dated
19.12.2000 passed by Additional Sessions
Judge, Gangster Act, Court No. 5, Bijnor in
Misc. Application No. 278 of 2020 (Abrar Vs.
State of U.P.) which is as reference made to the
court under Section 16 of U.P. Gangsters and
Anti-Social Activities (Prevention) Act, 1986
(hereinafter referred to as "Act") whereby the
order of the District Magistrate, Bijnor dated
19.10.2020 attaching the house of appellant
under Section 14 of the Act dated 2.9.2020 as
well as order dated 19.10.2020 dismissed the
objection moved by the appellant have been
affirmed.
540 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The facts of the case in brief are that the
District Magistrate, Bijnor have passed an order
under Section 14(1) of the Act attaching the
house of the appellant on the basis of report of
in-charge Inspector, Police Station Mandawar,
District Bijnor dated 07.07.2020, submitted
through S.S.P., Bijnor. It was mentioned in the
report that During investigation of Case Crime
No. 232 of 2020 under Section 2/3 of the Act, it
was found that appellant owned one house
measuring 90 m2 amounting to cost for Rs.
10,00,000/- (ten lacs) which was constructed
with illegally earned money as gangster.

3. Against the aforesaid attachment order,
the appellant had filed objection on 14.09.2020.
The District Magistrate, Bijnor dismissed the
objection of the appellant and affirmed the order
of attachment dated 02.09.2020. Simultaneously,
he made reference to the court of Additional
Sessions Judge, Gangster Act under Section 16
of the Act.

4. Specific case of appellant before the
District
Magistrate/Additional
District
Judge
concerned was that the house said to be in his
possession was constructed with the money earned
by him and members of his family. He purchased
the land measuring 90 m2 by registered sale deed
in the year 2004 for Rs. 23,000/- on which house
was constructed. Money for construction of the
house was taken from the Punjab & Sind Bank as
loan amounting to Rs. 40,000/-. In the year 2019,
he took loan of Rs. 40,000/- from Sairin Credit
Care Network Limited in the name of his wife. In
the year 2018, he took loan of Rs. 80,000/- from
Bandhan Bank, Bijnor. His son who works in
Kuwait sends money in the account of his parents
in the Punjab National Bank. His son Istakhar went
to Kuwait where he lived for two years thereafter
three months vacation, he again went there in July
2019. He got Rs. 70,000/- as salary. His other son
Ikrar works at furniture house and earns Rs.
30,000/- per month. Except the house under
attachment, he has no any other property. He is a
poor labour having three young daughters and
being his house under attachment is compelled to
live under the open sky. No any case of cow
slaughter was registered against him. In the year
2010 a single case under cow slaughter Act was
registered which was false, thereafter in the year
2019 two cases shown in the gang chart were
registered on the basis of which this case under
Section 2/3 of the Act was lodged.

5. Learned Additional Sessions Judge, Court
no. 5, Bijnor passed the order dated 19.12.2020,
under challenge in this appeal, upholding the order
of the District Magistrate dated 19.10.2020
dismissed the reference. It has been recorded by
the court that appellant neither disclosed any
source of his income nor produced any evidence
which could prove that the house under attachment
was constructed with the money earned by him.
Therefore, he found no ground to make
interference in the order passed by the District
Magistrate,
Bijnor
dated
19.10.2020
and
accordingly, rejected the application filed on
behalf of appellant.

6. Learned District Magistrate, Bijnor did
not consider the plea of appellant and arbitrarily
confirmed his order of attachment while
rejecting his representation and holding that it
was constructed with illegally earned money and
referred the case to Special Judge Gangster Act,
Bijnor. Learned trial judge after inviting
objection and hearing the parties confirmed the
order dated 19.10.2020.

7. Being aggrieved by these orders, this
criminal appeal has been filed before this Court.

8. Heard Shri Bhuvnesh Kumar Singh
learned counsel for the appellant, learned
A.G.A. and perused the record.

9. Learned counsel for the appellant
submitted that the land of the house in question
belonging to the appellant was purchased by him
11 All. Abrar Vs. State of U.P. & Anr.
541
in the year 2004 by registered sale deed,
thereafter he constructed the house with the
money taken on loan from several banks and
also with the money contributed by his sons. The
loan taken by him is in arrear. No any case
relating to Cow Slaughter was registered against
him except a single case in the year 2010. In the
year 2019 other cases under cow slaughter act
have been registered against him and on that
basis this F.I.R. under Gangster Act was lodged
in which his house has been attached without
any proof of the fact that it was constructed with
the money earned illegally as Gangster while
conducting business in slaughtering of cows.
There is no any material on record to show this
fact. The police sent a report assessing the
amount of the house Rs. 10,00,000/- (ten lacs).
District Magistrate has also not tried to verify
this fact but acted on the false report of police.
Even a report of Tehshildar which was taken by
the police inspector does not disclose the value
of house as Rs.10,00,000/-(ten lacs). Even
learned special judge has also not conducted the
inquiry as provided under Section 16 of the Act
but rejected the plea of appellant and affirmed
the order passed by learned District Magistrate
which is illegal and against the mandate of law.

10. Learned A.G.A. vehemently opposed
the contentions made by learned counsel for the
appellant.

11. In order to appreciate the rival
submissions, it seems to be just and expedient to
refer to the relevant provisions of the Gangster
Act which are as under:

14.Attachment of property.- (1) If the
District Magistrate has reason to believe that
any property, whether movable or immovable,
in possession of any person has been acquired
by a gangster as a result of the commission of
an offence triable under this Act, he may order
attachment of such property whether or not
cognizance of such offence has been taken by
any Court.

(2) The provisions of the Code shall
mutatis
mutandis
apply
to
every
such
attachment.

(3) Notwithstanding the provisions of
the Code the District Magistrate may appoint
an Administrator of any property attached
under sub-section (1) and the Administrator
shall have all the powers to administer such
property in the best interest thereof.

(4) The District Magistrate may
provide police help to the Administrator for
proper and effective administration of such
property.

15. Release of property .- (1) Where
any property is attached under Section 14, the
claimant thereof may, within three months
from
the
date
of
knowledge
of
such
attachment, make a representation to the
District Magistrate showing the circumstances
in and the sources by which such property was
acquired by him.

(2) If the District Magistrate is
satisfied about the genuineness of the claim
made under sub-section (1) he shall forthwith
release the property from attachment and
thereupon such property shall be made over to
the claimant.

16. Inquiry into the character of
acquisition of property by court .- (1) Where no
representation is made within the period
specified in sub-section (1) of Section 15 or the
District Magistrate does not release the
property under sub-section (2) of Section 15 he
shall refer the matter with his report to the
Court having jurisdiction to try an offence
under this Act.
542 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Where the District Magistrate has
refused to attach any property under sub-section
(1) of Section 14 or has ordered for release of
any property under sub-section (2) of Section
15, the State Government or any person
aggrieved by such refusal or release may make
an application to the Court referred to in subsection (1) for inquiry as to whether the property
was acquired by or as a result of the commission
of an offence triable under this Act. Such court
may, if it considers necessary or expedient in the
interest of justice so to do, order attachment of
such property.

(3) (a) On receipt of the reference under
sub-section (1) or an application under sub-section
(2), the Court shall fix a date for inquiry and give
notices thereof to the person making the application
under sub-section (2) or, as the case may be, to the
person making the representation under Section 15
and to the State Government, and also to any other
person whose interest appears to be involved in the
case.

(b) On the date so fixed or on any
subsequent date to which the inquiry may be
adjourned, the Court shall hear the parties, receive
evidence produced by them, take such further
evidence as it considers necessary, decide whether
the property was acquired by a gangster as a result
of the commission of an offence triable under this Act
and shall pass such order under Section 17 as may
be just and necessary in the circumstances of the
case.
(4) For the purpose of inquiry under sub-section (3),
the Court shall have the power of a Civil Court while
trying a suit under the Code of Civil Procedure, 1908
(Act No. V of 1908), in respect of the following
matters, namely:

(a)
summoning
and
enforcing
the
attendance of any person and examining him on oath ;

(b)
requiring
the
discovery
and
production of documents;

(c)receiving evidence on affidavits;

(d) requisitioning any public record or
copy thereof from any court or office ;

(e)
issuing
commission
for
examination of witnesses or documents ;

(f) dismissing a reference for default
or deciding it ex parte ;

(g) setting aside an order of dismissal
for default or ex parte decision.

question or any part thereof was not
acquired by a gangster as a result of the
commission of any offence triable under this Act,
shall be on the person claiming the property,
anything to the contrary contained in the Indian
Evidence Act, 1872 (Act No. 1 of 1872),
notwithstanding.

17. Order after inquiry .- If upon such
inquiry the Court finds that the property was not
acquired by a gangster as a result of the
commission of any offence triable under this Act
it shall order for release of the property of the
person from whose possession it was attached.
In any other case the Court may make such
order as it thinks fit for the disposal of the
property by attachment, confiscation or delivery
to any person entitled to the possession thereof,
or otherwise.

12. From the above provision it is evident
that the order of the District Magistrate attaching
one's property should be based on reasons and
not arbitrary. The expression "reason to believe"
appearing therein has some intent and purpose.
It puts check on the arbitrary exercise of power
of attachment by denying him of his right to any
property. What the law requires is that there
must be reason to believe that the property
sought to be attached has been acquired by a
''gangster' as a result of commission of any
11 All. Abrar Vs. State of U.P. & Anr.
543
offence under the Act. The expression ''reason to
believe' contemplates an objective determination
based on intelligent care and deliberation
involving judicial review as distinguished from
purely subjective consideration. There must be
rational and intelligible nexus between ''reason'
and ''belief'. The word ''belief' is very much
stronger word than ''suspect' and it involves the
necessity of showing that the circumstances
were such that a reasonable man must have felt
convinced in his mind that what has been
alleged is true. The expression ''reason to
believe' is defined in u/s 26 of the Indian Penal
Code as: A person is said to have ''reason to
believe'' a thing, if he has sufficient cause to
believe that thing but not otherwise. "Reason to
believe" is not the same thing as "suspicion" or
"doubt" and mere seeing also cannot be equated
to believing. "Reason to believe" is a higher
level of the state of mind. Similar words "reason
to believe" as appearing in the Act are also there
in the Income Tax Act.

13. Interpreting the said expression, the
Supreme Court in the case of M/s. Ganga Saran
and Sons Private Limited Calcutta vs. Income
Tax Officer and Others, AIR 1981 SC 1363,
observed that: words "has reason to believe" is
stronger than the words "is satisfied". The belief
entertained by the authority must not be based
on reasons which are relevant and material. The
Court, of course, cannot investigate into the
adequacy or sufficiency of the reasons which
weighed with the authority in coming to the
belief, but the Court can certainly examine
whether the reasons are relevant and have a
bearing in the matter in regard to which it is
required to entertain the belief.

14. It is now well settled that property
being made subject matter of an attachment
under sections 14 of the Act must have been
acquired by a gangster and that too by
commission of an offence triable under the Act.
The District Magistrate has to record its
satisfaction on this point. The satisfaction of the
District Magistrate is not open to challenge in
any appeal. Only a representation is provided for
before the District Magistrate himself under
section 15 of the Act and in case he refuses to
release the property on such representation, he is
to make a reference to the Court having
jurisdiction to try an offence under the Act. The
Court, while dealing with the reference made
under sub-section (2) of Section 15 of the Act
has to see whether the property was acquired by
a gangster as a result of commission of an
offence triable under the Act and has to enter
into the question and record his own finding on
the basis of the inquiry held by him under
section 16 of the Act. If the Court comes to the
conclusion that the property was not acquired by
the gangster as a result of commission of an
offence triable under the Act, the Court shall
order for release of the property in favour of the
person from whose possession it was attached. If
the conclusion of the Court is otherwise, it may
pass such orders as it thinks fit for the disposal
of the property by attachment, confiscation or
delivery to any person entitled to the possession
thereof or otherwise. This power has been
conferred on the Court under Section 17 of the
Act. In other words, the attachment made under
Section 14 of the Act can be upset by Court after
an inquiry under section 16 of the Act and in
that situation the Court has power to release the
attached property in favor of the person from
whose possession the property was attached. The
power of the Court to hold an inquiry under
Section 16 on the reference made by District
Magistrate is not a mere formality, but has a
purpose behind it. The object behind providing
the power of judicial scrutiny under section 16
of the Code is to check arbitrary exercise of
power by the District Magistrate in depriving a
person of his properties and to restore the rule of
law, therefore a heavy duty lies upon the Court
to hold a formal enquiry to find out the truth
with regard to the question, whether the property
was acquired by or as a result of the commission
544 INDIAN LAW REPORTS ALLAHABAD SERIES
of an offence triable under the Act. The order to
be passed under section 17 of the Act must
disclose reasons and the evidence in support of
finding of the Court. The Court is not
empowered to act as a post office or mouthpiece
of the State or the District Magistrate. If a
person has no criminal history during the period
the property was acquired by him, how the
property can be held to be a property acquired
by or as a result of commission of an offence
triable under the Act is a pivotal question which
has to be answered by the Court. Besides, the
aforesaid question, the other important question
to be considered by the Court is whether the
property which was acquired prior to the
registration of the case against the accused under
the Act or prior to the registration of the first
case of the Gangster chart can be attached by
District Magistrate under Section 14 of the Act.

15. In the instant case learned Special
Judge has completely overlooked to consider the
aforesaid important questions and he has not
recorded any specific finding thereon. It was
obligatory on his part to consider the aforesaid
questions while considering the main question
whether the property attached by the District
Magistrate was acquired by or as a result of the
commission of an offence triable under the Act.
The reasoning reflected from the impugned
order seems to be that the property which has
been attached is believed to have been acquired
by the accused Abrar in his name because the
Court below has expressed its agreement with
the opinion of the District Magistrate that
appellant did not have sufficient means/source
of income to purchase the property & construct
the house thereon. No direct nexus has been
established between acquisition of this property
by the accused Abrar and the source of income
generated for purchasing this property by
indulgence in commission of offences under the
Act as a ''gangster'. It is also not reflected from
the impugned order as to whether a detailed
enquiry has been conducted by the Court below
as is contemplated under Section 16 of the Act,
which was statutory duty cast upon the Court
below.

16. It is also apparent that no proper
appreciation has been made of the evidence
given by the appellant containing the details of
the source of income by which purchase and
construction of the property was made as has
been narrated above.

17. It was bounden duty of the Court below
to take into consideration the details of the
purchase made, sources of income disclosed for
making that purchase & construction and
whether they were not justified. No clear finding
has been recorded by the Court below as to how
this property which was purchased much prior to
initiation of first case against Abrar shown in the
gang chart, could have been linked to the income
generated through indulgence in commission of
offence under the Act. It was also required from
the Court below to record its findings as to
which of the cases out of the cases shown in the
gang chart were covered under the Gangster Act.
Meticulous detail has been provided by the
appellant regarding purchase of this property &
construction thereon as well as the source of
income. How the sources of income are
disbelieved, is not made clear. The learned
Special Judge has overlooked these material
aspects of the case and did not consider the
evidence on record in correct perspective,
therefore the impugned judgment and order in
respect of the appellant's property deserves to be
set aside and the matter needs to be remanded
back to the learned Special Session Judge for
deciding the matter afresh in accordance with
law in the light of observations made by this
Court as aforesaid.

18. The appeal is allowed. The impugned
judgment and order dated 19.10.2020 is set
aside. The case is remanded back to the Special
Judge for being considered afresh in the light of
11 All. Smt. Ram Shree Vs. State of U.P. & Ors.
545
the observations made by this Court herein
above. The learned Special Judge shall decide
the matter afresh in accordance with law as
expeditiously as possible within two months
after providing a reasonable opportunity of
hearing to all the parties, if required, even
opportunity of leading evidence would also be
given to them.

19. Copy of this judgment be transmitted
to
the
Court
concerned
for
necessary
compliance.
----------
(2021)11ILR A545
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Appeal U/s 372 Cr.P.C. No. 2945 of 2012

Smt. Ram Shree ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Chaubey, Sri R.K.S. Chauhan

Counsel for the Respondents:
A.G.A., Sri Apul Misra

(A) Criminal Law - Indian Penal Code, 1860 -
Section 302 read with Sections 34 and 201 -
The Code of criminal procedure, 1973 - Section
313 - appeal against acquittal - Scope of
appellate court - cardinal principle in criminal
jurisprudence - presumption of innocence of
the accused is reinforced by an order of the
acquittal -Appellate court, in such a case,
would interfere only for very substantial and
compelling
reason
-
If
two
reasonable
conclusions are possible on the basis of the
evidence on record, the appellate court should
not disturb the finding of acquittal recorded by
the trial court.(Para - 13)

Mother of deceased filed application to police station -
allegation - her son was married with the daughter of
accused - She further stated that she suspected that
accused and his daughter together killed her son.

HELD:- Only one prosecution witness P.W. -
5(maternal
uncle)
has
tried
to
support
the
prosecution version. There is no other prosecution
evidence which supports the case. The testimony of
P.W. -5 is wholly unreliable, being an outcome of
afterthought, consultation and legal advice. (Para -
10,12)

Criminal Appeal dismissed at the admission
stage. (E-7)

List of Cases cited:-

1. St. of U.P. Vs Surendra Singh, Govt. Appeal No.
511 of 2019

2. Sudershan Kumar Vs St. Of Himachal, (2014) 15
SCC 666

3. Dilawar Singh Vs St. Of Har.a, (2015) 1 SCC 737

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This is an appeal filed by Smt. Ram
Shree who is complaining against the acquittal
order dated 3 December 2010 passed by the
learned Additional Sessions Judge, Court No. 6,
Pilibhit in Sessions Trial No. 588 of 2009
arising out of Case Crime No. 675 of 2009
(State Vs. Bhai Lal), under Section 302 read
with Sections 34 and 201 I.P.C., Police Station
Bilsanda, District Pilibhit.

2. The factual matrix of the case is that
accused Bhai Lal had given an application to
Police Station Bilsanda on 25 June 2009
mentioning therein that he had married his
daughter Sunita with Bharat Lal. She had one
child from that wedlock and she died.
Thereafter, he married his second daughter,
namely, Surja Devi with Bharat Lal. Bhai Lal
had asked him to send Surja Devi to his house 78 days prior from the date of occurrence of the