# Babu Khan v. State of U.P

- **Citation:** (2024) 7 ILRA 1086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-03
- **Case number:** Criminal Appeal No. 1203 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-khan-v-state-of-u-p-52184
- **Pages:** 16

## Headnote

of Activities ) Act, 1986-Sectiosn 14, 16 &
18-If property being made subject matter of an
attachment u/s 14 of the Act- must have been
acquired by a gangster and that too by
commission of an offence triable under the ActThe District Magistrate has to record its
satisfaction on this point-The has to enter into
the question and record his own finding on the
basis of the inquiry held by him u/s 16 of the
Act. If 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 favor of the person in
Possession.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,957 of 48,586. This is a partial read: ask again with offset=39957 for what follows._

1086 INDIAN LAW REPORTS ALLAHABAD SERIES
47. Office/Registry is
directed to send the copy of this
judgment for necessary compliance
along with trial Court record to the
court concerned forthwith.

48. The Court records the
valuable assistance given by Ms.
Urmish
Shankar,
Research
Associate, attached with me in
drafting this judgment and finding
out case laws applicable in the
present case.
----------
(2024) 7 ILRA 1086
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1203 of 2023

Babu Khan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Satendra Nath Rai, Bajhul Quamar Siddiqui,
Mohd. Arshad Khan, Satendra Nath Rai

Counsel for the Respondent:
G.A.

U.P. Gangster and Anti Social (Prevention
of Activities ) Act, 1986-Sectiosn 14, 16 &
18-If property being made subject matter of an
attachment u/s 14 of the Act- must have been
acquired by a gangster and that too by
commission of an offence triable under the ActThe District Magistrate has to record its
satisfaction on this point-The has to enter into
the question and record his own finding on the
basis of the inquiry held by him u/s 16 of the
Act. If 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 favor of the person in
Possession.

Appeal allowed. (E-9)

List of Cases cited:

1. Smt. Maina Devi Vs St. of U.P., 2013(83) ACC
902

2. Smt. Shanti Devi wife of Sri Ram Vs St. of
U.P. 2007(2) ALJ 483(All)

3. Rajbir Singh Tyagi Vs St. of U.P. & ors.2018
SCC Online AII 5986

4. Smt. Maina Devi Vs St. of U.P. 2013(83) ACC
902

5. Smt. Shanti Devi wife of Sri Ram Vs St. of
U.P. 2007(2) ALJ 483 (All),

6. Rajbir Singh Tyagi Vs St. of U.P. & ors.2018
SCC Online AII 5986

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Pleadings in the case have been
exchanged between the parties.

2. Heard Sri Satendra Nath Rai,
learned counsel for the appellant as well as
Dr. V.K. Singh, learned Government
Advocate alongwith Sri Ashok Kumar
Singh, learned A.G.A.-1 for the State and
perused the material available on record.

3. The present appeal under
Section 18 of U.P. Gangster and Anti Social
(Prevention
of Activities) Act,
1986
(hereinafter referred to as the 'Gangster
Act') has been preferred by the appellant,
namely, Babu Khan, with a prayer to set
aside the judgment and order dated
03.03.2023 passed by the learned Addl.
Sessions Judge/Special Judge (Gangster
Act), Court No. 13, Lakhimpur Kheri, in
Criminal Misc. Case Nos. 210 of 2022 and
7 All. Babu Khan Vs. State of U.P.
1087
218 of 2022, titled Babu Khan v. State of
U.P., under section 16 of the U.P. Gangsters
and Anti Social Activities (prevention) Act,
1986, Case Crime No. 0243 of 2022, under
section 2/3 of the U.P. Gangsters and Anti
Social Activities (prevention) Act, 1986,
P.S. Pasgawan, District Lakhimpur Kheri. It
has
further
been
prayed
that
the
attachment-order dated 08.06.2022 passed
in Case No. 1158 of 2022 (Annexure-4 to
the application) and order dated 27.06.2022
(Annexure-5 to the application) passed in
Case No. 1349 of 2022 under Section 14(1)
of the U.P. Gangsters and Anti Social
Activities (prevention) Act, 1986, passed
by the District Magistrate, Lakhimpur
Kheri, whereby the District Magistrate
attached the following property of the
appellant including a house situated at
Town Mohammadi, with the finding that
the appellant has purchased the property-
movable and immovable- from the income
earned by involving in anti-social activities
:

"Case No.1158/22- 01 अदद
मोटर स इहकि सेधरों रहज० नां०-यू०पी० 31 ए0डी00102 कीमत करीब 50,000/-रू०, कस्ब
मोिम्मदी हस्थत मक न कीमत करीब 12,93,000/-
रू०, ग्र म बरैंची में अहियुक्त ब बू ख ां ि उसकी पत्नी
रुकस न बेगम के न म ग ट सां0 766क ि 767
कुि 110 िगुमी०, ग्र म बरैंची के न हमत ग ट सां0
1044, 1197, 1090ख, 1091, 507 कुि 6
हकत रकब 4.647िे0 हस्थत ग्र म सिजन ि िूहम
ग ट सां0 310 रकब 0.628िे0 कीमत करीब
28,57,400/-रू0 तथ ग्र म बरैंची में ग ट सां0
766क ि 767 कुि दो हकत पर बनी दुक नों की
कीमत 29,70,000/-रू०। उक्त चि ि अचि की
कुि कीमत करीब 71,70,400/-रू0 (इकित्तर
ि ख सत्तर िज र च र सौ रू०).
Case No. 1349/22- ग ट सां0
115/1.177 िे0 776 िगुमी0 कीमत मु0
73,69,600/-रू० ि मक न कीमत 21.73 ि ख
रू० ि ग ट सां0 352 रकब 1.619िे0 ग्र म कोट
कीमत 25,00,000/-रू०। उक्त अचि सम्पहत्त कुि
कीमत मु० 1,31,59,600/-रु0 (01 करो़ि 31
ि ख 59 िज र छः सौ रू०)."

4. In short, the facts of the case are
that in case No. 1158 of 2022, action was
started on report of the Inspector In-charge,
Police Station Mohammadi, dated 01-062022, which was approved by the Circle
Officer, Mohammadi, on 01-06-2022; by
the Addl. Superintendent of Police on 0406-2022
and
was
sent
by
the
Superintendent of Police alongwith his
recommendation on 06.06.2022. It was
mentioned in the police report that Babu
Khan S/o Irshad Khan, resident of village
Barainchi, P.S. Pasgwan, District Kheri
(appellant herein), who is an accused in
FIR No. 243/2022 Section-2B/3, U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act 1986, P.S. Pasgwan, has
the criminal history as follows:-

1- Case Crime No. 1868/11
Section-147/504/506/420/467/468
IPC, Police Station Mohammadi,
District Kheri;
2- Case Crime No. 445/18
Section
447,
IPC
and
2/3,
Prevention of Damage to Public
Property, Police Station Pasgwan,
District Kheri;
3- Case Crime No. 214/22,
Section-385/447/504/506
IPC,
Police Station Pasagwan, District
Kheri;
4- Case Crime No. 215/22,
Section-147/452/504/506
IPC,
Police Station Pasagwan, District
Kheri;
5- Case Crime No. 219/22
Section
447
IPC
and
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
2/3, Prevention
of
Damage
to
Public Property, Police Station
Pasgwan, District Kheri;
6- Case Crime No. 226/22
Section-447 IPC
7- Case Crime No. 243/22
Section-2B/3, UP Gangesters and
Anti-Social Activities (Prevention)
Act,
Police
Station
Pasgwan,
District Kheri.

5. It was mentioned in the police
report/records that Mehboob Khan son of
Shamshad
Khan,
resident
of
village
Barainchi, Majra Sisaura Nasir, police
station Pasgwan, district Kheri (gang
leader), whose members are Babu Khan S/o
Irshad Khan (Appellant), Dilshad Khan S/o
Shamshad Khan, Sarwar Khan S/o Irshad
Khan, Tufail Khan S/o Shamshad Khan,
Munna Khan S/o Shamshad Khan, Ejaz
Khan S/o Shamshad Khan, Shabban Khan
S/o Irshad Khan and Shabbir S/o Irshad
Khan, residents of village Barainchi, Majra
Sisaura Nasir, police station Pasgwan,
District Kheri, is an organized gang. The
accused, along with gang leader Mahboob
Khan and his associates, have committed
crimes under Chapters 16, 17 and 22 of the
Indian Penal Code to obtain financial,
material and infrastructural benefits for
their associates. Accused Babu Khan along
with his associates had acquired the
property- movable and immovable as stated
in
the
report,
amounting
to
Rs.
1,31,59,600/- (Rs 1 crore 31 lakh 59
thousand
six
hundred
rupees)
by
committing crime, which is punishable
under Section 14(1) U.P. Gangster and
Anti-Social Activities (Prevention), which
should be confiscated under Section 14(1)
of the Act 1986. A similar report of the
Incharge,
P.S.
Mohammadi,
dated
21.06.2022 for attachment of the movable
and immovable properties of the appellant
worth Rs. 1,31,59,600.00 (1 crore, 31 lacs,
59 thousand and 600 rupees only) was also
forwarded by the Superintendent of Police
vide letter dated 25.06.2022. On these
reports of the Superintendent of Police,
Kheri, the District Magistrate, LakhimpurKheri, passed the impugned orders dated
08.06.2022
and
27.06.2022
directing
attachment of the aforesaid properties of
the appellant.

6. Against these orders, the
appellant preferred Appeals/Criminal Misc.
Case Nos. 210 of 2022 and 218 of 2022,
titled Babu Khan v. State of U.P., under
section 16 of the U.P. Gangsters and Anti
Social Activities (prevention) Act, 1986,
before
the
learned
Addl.
Sessions
Judge/Special Judge (Gangster Act), Court
No. 13, Lakhimpur Kheri, but these cases
have been dismissed by the learned Addl.
Sessions Judge/Special Judge (Gangster
Act), Court No. 13, Lakhimpur Kheri vide
judgment and order dated 03.03.2023,
hence this appeal.

7. Learned counsel for the
appellant submits that the appellant is a
very little educated person. He does
agriculture work on his own land as well as
on the land of others on contract. He has
never been involved in any anti-social
activity nor has acquired any property by
involving in crimes. In early period of his
life he used to do milk-business. Thereafter,
in the year 2003 he purchased Gata No. 766
in Village Barainchi, Pargana Mohammadi,
District Kheri, in the name of his wife
Rukhsana, errected shops and house on this
land and started living there. The learned
counsel has further stated that the applicant
has been implicated in the aforesaid cases
due to enmity and the case under the
Gangster Act was imposed upon the
appellant in the year 2011, whereas the
7 All. Babu Khan Vs. State of U.P.
1089
property of the appellant which was
attached vide orders dated 08.06.2022 and
27.06.2022
passed
by
the
District
Magistrate, Lahimpur Kheri, under section
14 (1) of U.P. Gangster Act, was acquired
by the appellant much earlier to the
imposition of Gangster Act upon him being
ancestral property.

8. Elaborating the submissions,
learned counsel for the appellant has
submitted that the attached property, the
reference of which is given above, was in
fact ancestral and self-acquired property of
the appellant, not built up from the earnings
of the crime.

9. Learned Counsel of the
appellant
further
submitted
that
in
furtherance of the reports forwarded by the
Superintendent
of
Police,
Kheri,
aforementioned, the District Magistrate,
Lakhimpur Kheri proceeded to exercise its
power under Section 14(1) of the Gangster
Act and passed orders dated 08.06.2022
and 27.06.2022 for attaching the properties
of the appellant.

10. Being aggrieved by the
aforesaid
attachment
orders
dated
08.06.2022 and 27.06.2022 passed by
District Magistrate, Lakhimpur Kheri,
representations
dated
21.07.2022
and
04.08.2022 were preferred by the appellant
before District Magistrate, Lakhimpur
Kheri, under Section 15 (1) of the Gangster
Act seeking release of the appellant's
properties from attachment. However, the
aforesaid representations were dismissed in
a
cursory
manner
by
the
District
Magistrate, Lakhimpur Kheri, vide orders
dated 08.06.2022 and 27.06.2022. While
passing
the
impugned
orders
dated
08.06.2022 and 27.06.2022 the District
Magistrate, Lakhimpur Kheri, referred the
case to the learned Gangsters Court under
Section 16 (1) of the Gangster Act in
respect of properties which were not
released by him; and, the learned Gangsters
Court, thereafter, proceeded to pass the
impugned orders.

11. Learned counsel for the
appellant further submitted that the District
Magistrate, Lakhimpur Kheri, has wrongly
and incorrectly attached the movable and
immovable property including the house of
the appellant on the wrong presumption
that the said properties have been acquired
from the income earned by the appellant by
involving in anti social activities, whereas
the appellant is neither Gangster nor he has
earned these properties from involving in
anti social activities.

12. Clarifying the position, it has
been urged by the learned counsel for the
appellant that as a matter of fact the
appellant in the earlier days of his life used
to to the milk-work and agriculture work on
his own land as well as on the land of
others on contract. Thereafter, in the year
2003 he purchased Gata No. 766 in Village
Barainchi, Pargana Mohammadi, District
Kheri, in the name of his wife Rukhsana,
errected shops and house on this land and
started living there. Gata Nos. 20, 64, 206,
291; areas 0.3820, 0.0830, 0.4050, 1.2590
respectively in the name of the applicant's
father Irshad Khan S/o Ghoora Khan are
situated in Village Sisora Nasir, Pargana
and P.S. Pasgawan. The applicant's father
had purchased Tractor Swaraj-735 by
which he used to cultivate his land and the
land of others on contract. The applicant
got a fertilizer-licence and used to sell
fertilizer. To support the family, the
applicant
had
taken
loan
of
Rs.
14,02,684.00 from HDFC Bank, and Rs.
1,42,890.00 from Aryavrat Bank, total Rs.
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
15,45,574.00 much earlier even when no
criminal case was registered against him
and even before imposing the Gangster Act
upon
him.
However,
the
concerned
authorities without considering all these
relevant facts and documentary evidence,
passed the impugned orders on wrong
premise with oblique motive.

13. Learned counsel for the
appellant further submitted that the learned
trial court while passing the impugned
orders dated 03.03.2023, without properly
perusing the contents of applications and
documents annexed with the release
application has wrongly and incorrectly
rejected the same by presuming that the
property in question has been acquired by
the appellant from the income earned by
indulging in anti social activities without
going through documentary evidence filed
on behalf of appellant and wrongly
interpreting that appellant has not filed any
document to prove that the property in
question has not been acquired from the
income earned by indulging in anti social
activities. Thus the trial court erred in law
while rejecting the application of appellant
for release of property in question. The
learned counsel submits that the appellant
had given the complete detail of the
immovable property including the house
which has been attached vide orders dated
08.06.2022 and 27.06.2022 by the District
Magistrate, Lakhimpur Kheri.

14. Learned counsel for the
appellant further submits that the impugned
orders dated 08.06.2022 and 27.06.2022
passed
by
the
District
Magistrate,
Lakhimpur Kheri do not reveal that the
District Magistrate, Lakhimpur Kheri had
"reason of believe" that the property in
question was acquired by the appellant as a
commission of an offence under the
Gangster Act, rather the aforesaid order is
passed on mere suspicion, surmises and
conjectures and the appellate court has also
passed the orders dated 03.03.2023 in
cursory manner without analysing the
documents of the appellant. Thus both the
impugned orders are not sustainable in the
eye of law.

15. Per contra, Dr. V.K. Singh,
Government Advocate has argued that the
learned appellate court has correctly
appreciated the material on record before
passing the impugned order. The District
Magistrate, Lakhimpur Kheri has passed
the impugned orders dated 08.06.2022 and
27.06.2022 after being fully satisfied that
appellant has acquired the property in
question by illegal means involving himself
in anti social activities as defined under the
Gangster Act, as such there is no illegality,
infirmity or perversity in the impugned
orders. Moreover, the competent authority
has passed the order after considering the
report of the Superintendent of Police as
also the report of Station House Officer,
concerned and as such it is wrong to say
that the impugned orders of attachment
passed by the competent authority suffers
from infirmities.

16. Learned Government Advocate
has further submitted that the learned trial court
pointed out that the appellant was also not able
to show the source of income from which the
appellant has acquired the properties attached
by the learned District Magistrate, Lakhimpur
Kheri. Thus the learned courts below after
considering the entire material including the
documentary evidence available on record have
passed the impugned orders in correct
perspectives and they need no interference.

17. I have heard learned counsel
for the appellant, learned Government
7 All. Babu Khan Vs. State of U.P.
1091
Advocate for the opposite party and gone
through the impugned orders passed by the
courts below.

18. It seems to be just and
expedient to refer to the relevant provisions
of the Gangster Act which are as under :-

"2. Definitions- In this
Act,- (a) "Code" means the Code of
Criminal Procedure, 1973;
(b) "Gang" means a group
of persons, who acting either singly
or collectively, by violence, or
threat or show of violence, or
intimidation,
or
coercion
or
otherwise
with
the
object
of
disturbing public order or of
gaining
any
undue
temporal,
pecuniary,
material
or
other
advantage for himself or any other
person,
indulge
in
anti-social
activities, namely-
(i)
offences
punishable
under Chapter XVI, or Chapter
XVII, or Chapter XXII of the Indian
Penal Code, or (ii) distilling or
manufacturing
or
storing
or
transporting
or
importing
or
exporting or selling or distributing
any liquor, or intoxicating or
dangerous
drugs,
or
other
intoxicants
or
narcotics
or
cultivating
any
plant,
in
contravention
of
any
of
the
provisions of the U.P. Excise Act,
1910 or the Narcotic Drugs and
Psychotropic Substances Act, 1985
or any other law for the time being
in force, or
(iii) occupying or taking
possession of immovable property
otherwise than in accordance with
law, or setting-up false claims, for
title or possession of immovable
property whether in himself or any
other person, or
(iv)
preventing
or
attempting to prevent any public
servant
or
any
witness
from
discharging his lawful duties, or
(v)
offences
punishable
under the Suppression of Immoral
Traffic in Women and Girls Act,
1956, or
(vi)
offences
punishable
under Section 3 of the Public
Gambling Act, 1867, or
(vii) preventing any person
from offering bids in auction
lawfully
conducted,
or
tender,
lawfully invited, by or on behalf of
any Government department, local
body
or
public
or
private
undertaking, for any lease or rights
or supply of goods or work to be
done, or
(viii)
preventing
or
disturbing the smooth running by
any person of his lawful business,
profession, trade or employment or
any other lawful activity connected
therewith, or
(ix)
offences
punishable
under Section 171-E of the Indian
Penal Code, or in preventing or
obstructing any public election
being lawfully held, by physically
preventing
the
voter
from
exercising his electoral rights, or
(x) inciting others to resort
to violence to disturb communal
harmony, or
(xi) creating panic, alarm
or terror in public, or

(xii)
terrorising
or
assaulting employees or owners or
occupiers of public or private
undertakings
or
factories
and
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
causing mischief in respect of their
properties, or
(xiii)
inducing
or
attempting to induce any person to
go to foreign countries on false
representation
that
any
employment, trade or profession
shall be provided to him in such
foreign country, or
(xiv)
kidnapping
or
abducting any person with intent to
extort ransom, or (xv) diverting or
otherwise preventing any aircraft
or public transport vehicle from
following its scheduled course;
*(xvi) offences punishable
under the Regulation of Money
Lending Act, 1976;
(xvii) illegally transporting
and/or smuggling of cattle and
indulging in acts in contravention
of the provisions in the Prevention
of Cow Slaughter Act, 1955 and the
Prevention of Cruelty to Animals
Act, 1960;
(xviii) human trafficking
for
purposes
of
commercial
exploitation, bonded labour, child
labour, sexual exploitation, organ
removing and trafficking, beggary
and
the
like
activities;
(xix)
offences
punishable
under
the
Unlawful Activities (Prevention)
Act, 1966;
(xx) printing, transporting
and circulating of fake Indian
currency notes;
(xxi)
involving
in
production, sale and distribution of
spurious drugs;

(xxii)
involving
in
manufacture,
sale
and
transportation
of
arms
and
ammunition in contravention of
Sections 5, 7 and 12 of the Arms
Act, 1959;
(xxiii) felling or killing for
economic
gains,
smuggling
of
products in contravention of the
Indian Forest Act, 1927 and The
Wildlife Protection Act, 1972;
(xxiv) offences punishable
under
the
Entertainment
and
Betting Tax Act, 1979;
(xvv) indulging in crimes
that impact security of State, public
order and even tempo of life,"
(c) "gangster" means a
member or leader or organiser of a
gang and includes any person who
abets or assists in the activities of a
gang enumerated in clause (b),
whether
before
or
after
the
commission of such activities or
harbours any person who has
indulged in such activities;
(d) "public servant" means
a public servant as defined in
Section 21 of the Indian Penal
Code or any other law for the time
being in force, and includes any
person who lawfully assists the
police or other authorities of the
State,
in
investigation
or
prosecution or punishment of an
offence punishable under this Act,
whether by giving information or
evidence relating to such offence or
offender or in any other manner;
(e) "member of the family
of a public servant" means his
parents or spouse and brother,
sister, son, daughter, grandson,
granddaughter or the spouses of
any of them, and includes a person
dependent on or residing with the
public servant and a person in
whose welfare the public servant is
interested;
7 All. Babu Khan Vs. State of U.P.
1093
(f) words and phrases used
but not defined in this Act and
defined in the Code of Criminal
Procedure, 1973, or the Indian
Penal
Code
shall
have
the
meanings respectively assigned to
them in such Codes.
3. Penalty-(1) A gangster,
shall
be
punished
with
imprisonment of either description
for a term which shall not be less
than two years and which may
extend to ten years and also with
fine which shall not be less than
five thousand rupees:
Provided that a gangster
who commits an offence against the
person of a public servant or the
person of a member of the family of
a public servant shall be punished
with
imprisonment
of
either
description for a term which shall
not be less than three years and
also with fine which shall not be
less than five thousand rupees.
(2) Whoever being a public
servant renders any illegal help or
support in any manner to a
gangster, whether before or after
the commission of any offence by
the gangster (whether by himself or
through others) or abstains from
taking
lawful
measures
or
intentionally avoids to carry out the
directions of any Court or of his
superior officers, in this respect,
shall
be
punished
with
imprisonment of either description
for a term which may extend to ten
years but shall not be less than
three years and also with fine".

19. The issue involved in the
present case may be resolved with the help
of the consideration of provisions of
sections 14, 15, 16 and 17 of the Gangsters
Act, which read 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
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
under sub-section (1) he shall
forthwith release the property from
attachment and thereupon such 6
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.
(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 subsection (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 sub-section
(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.
7 All. Babu Khan Vs. State of U.P.
1095
(5) In any proceedings
under this section, the burden of
proving
that
the
property
in
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."

20. It is now well settled that
property being made subject matter of an
attachment under Section 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, in that case the person
aggrieved has 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 16 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.

21. 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
property 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 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
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
registration of the first case of the Gangster
chart can be attached by District Magistrate
under Section 14 of the Act.

22. The provisions of Section 14 of
the Act, referred to above, empowers the
District Magistrate to attach the property
acquired by the Gangster as a result of
commission of an offence triable under this
Act. The District Magistrate may appoint
an Administrator of any property attached,
to administer such property in the best
interest thereof but there must be reason to
believe that any property whether moveable
or immovable in possession of any person,
has been acquired by a Gangster as a result
of commission of an offence, triable under
this Act but the District Magistrate in its
order has not recorded his satisfaction
having reason to believe with regard to the
property attached that it was acquired by
appellant as a result of commission of an
offence triable under Gangster Act, even
though while deciding the reference under
Section 16 of the Act, the trial court does
not appreciate the evidence and in a
mechanical manner passed the impugned
order relying upon the observations made
by the District Magistrate which is illegal
and an unjustified approach.

23. A Coordinate Bench of this
Court in the case of Smt. Maina Devi
versus State of U.P., 2013(83) ACC 902 in
paras-8, 9 and 10 has been pleased to held
as under :-

"8. Considering the facts,
circumstances
of
the
case,
submissions made by the learned
Counsel for the appellant and the
learned A.G.A. and from the
perusal of the record it appears
that the issue involved in the
present case may be resolved with
the help of the consideration of the
provisions of section 14, 15 and 17
of the Gangsters Act, which read as
under:
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.
7. 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.
9.
In
light
of
above
mentioned
provisions
of
the
Gangster
Act
the
District
Magistrate is empowered to attach
movable or immovable properties
in
possession
of
any
person
acquired by a gangster as a result
of the commission of an offence
7 All. Babu Khan Vs. State of U.P.
1097
triable under this Act. But for
exercising such powers there must
be the reason to believe to the
District
Magistrate
that
such
property
was
acquired
by
a
gangster
as
a
result
of
the
commission of an offence triable
under this Act. The words reason to
believe are stronger than the word
"satisfied", it must be passed on
reasons which are relevant and
material. In the present case, from
the perusal of the lower Court
record it appears that only on the
basis of the police report submitted
by the officer incharge of P.S. Sarai
Lak-hansi,
District
Mau,
the
District
Magistrate,
Mau
has
attached
two
houses
of
the
appellant, no material was supplied
to the District Magistrate to have a
reason to believe that the property
in question was acquired by the
gangster Raj Bahadur Singh as a
result of commission of an offence
triable under this Act. It vitiates the
subjective
satisfaction
of
the
District
Magistrate
also.
The
learned District Magistrate was
having no material in support of
the police report that both the
houses of the appellant were
acquired by his son Raj Bahadur
Singh.
The
learned
District
Magistrate rejected the application
under section 15 of the Gangsters
Act moved by the appellant for
releasing the attached houses. The
application was moved well within
the time, the application was a
representation
to
the
District
Magistrate, Mau, it was having all
the details disclosing the sources by
which
both
the
houses
were
acquired by the appellant. But
learned District Magistrate did not
consider the sources disclosed by
the appellant and rejected the
application
vide
order
dated
29.12.2008. The explanation of all
the sources by which the appellant
acquired the houses has not been
properly
considered.
Therefore,
impugned order dated 29.12.2008
has become illegal. The learned
Special Judge (Gangsters Act),
Azamgarh rejected the application
moved by the appellant under
section 17 of the Gangsters Act
without considering the provisions
of the section 14 of the Gangsters
Act and the 'relevancy of the
reasons' recorded by the District
Magistrate to believe that both the
attached houses were acquired by a
gangster Raj Bahadur Singh son of
the appellant as a result of
commission of an offence triable
under this Act. The order dated
17.3.2009
passed
by
learned
Special
Judge
(Gangsters
Act)/Additional
Sessions
Judge,
Azamgarh
in
Criminal
Misc.
Application No. 2 of 2009 is also
illegal.
10. In view of the above
discussion, the order passed by
District Magistrate, Mau under
section 14(1) of the Gangsters Act
attaching
two
houses
of
the
appellant
the
order
dated
29.12.2008 passed
by
District
Magistrate, Mau by which the
application under section 15(1)(2)
of the Gangster Act has been
rejected and the order dated
17.3.2009
passed
by
learned
Special Judge (Gangster Act),
Additional
Sessions
Judge,
Azamgarh
in
Criminal
Misc.
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
Application No. 2 of 2009 are
illegal, the same are hereby set
aside and the District Magistrate,
Mau is hereby directed to release
both the houses No. 204-D/8 and
205-D/9
situated
in
Mohalla
Chandmari, Imiliyan, P.S. Sarai
Lak-hansi, District Mau in favour
of the appellant forthwith."

24. Further, another Coordinate
Bench of this Court in the case of Smt.
Shanti Devi wife of Sri Ram versus State
of U.P. 2007(2) ALJ 483 (All) in paras-9,
10 and 11 has been pleased to held as
under:-

"9. The conjoint reading of
these sections shows that first it has
to be proved that gangster or any
person on his behalf is or has been
in possession of the property, and
such property has been acquired by
the commission of any offence
triable under this Act, only then the
District
Magistrate
acquires
jurisdiction to proceed in the
matter and to attach the property.
Only when the initial burden is
discharged, the onus shifts to the
gangster or such person, to account
for the same satisfactorily. But if it
is found that the concerned person
was not a gangster and did not
acquire the property in commission
of any offence triable under this
Act, it has to be released as
provided in Section 17. In other
words the initial burden is on the
prosecution to show that the
concerned person is a gangster and
has acquired property on account
of his criminal activity as triable
under the Act.
10. Therefore, in order to
proceed under section 14 there
must be materials for objective
determination
of
the
District
Magistrate that the person is either
a member, leader or organiser of a
gang
and
has
acquired
any
property in commission of any
offence under the Act. There must
be a nexus between his criminal
acts as enumerated therein and the
property acquired by him. His mere
involvement in any offence is not
sufficient to attach his property. In
other words what is necessary to
find is whether, his acquisition of
property
was
a
result
of
commission
of
any
offence
enumerated in the Act being a
member, leader or organiser of a
gang. One might have committed
several offences but if the property
acquired by him was with the aid of
his earning from legal resources no
action under Section 14 of the Act
can be taken against him.
11. In the case of Badan
Singh alias Baddo v. State of U.P.,
2002 Cri LJ 1392 : 2001 All LJ
2852 it has been held by this Court
that Section 14 of the Act is a harsh
provision that affects one's right to
property, which is a fundamental
right
under
the
Constitution.
Therefore, initial burden was upon
the State to satisfy the District
Magistrate
with
necessary
materials that a gangster acquired
the properties as a result of
commission of any offence. It has
also been held in this case that the
Act does not provide that the
aggrived person seeking release of
the properties from attachment
7 All. Babu Khan Vs. State of U.P.
1099
must prove the source of income for
acquisition thereof."

25. Further, another Coordinate
Bench of this Court in the case of Rajbir
Singh Tyagi Vs State of U.P. and Others
2018 SCC Online AII 5986 in paras 16
and 18 has been pleased to held as under:-

"16. A conjoint reading of
the aforesaid two definitions what
appears is that for taking action
under Section 14 against a person,
there
must
be
materials
for
objective
determination
of
the
District Magistrate that he either
as a member, leader or organizer of
a gang acquired any property as a
result of commission of any offence
under the Act. There must be nexus
between his criminal act and the
property acquired by him. His mere
involvement in any offence is not
sufficient to attach his property.