# M/s Balmokand Faqir Chand v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Criminal Misc. Writ Petition No. 3238 of 2023
- **Bench:** Anjani Kumar Mishra, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-balmokand-faqir-chand-v-state-of-u-p-ors-49987
- **Pages:** 6

## Headnote

Law
-
Constitution
of
India,1950 - Article - 226 - U.P. Gangsters
and Anti Social Activities Prevention Act,
1986 - Sections 14, 14(3), 15, 15(1),
15(2), 16 & 17 - Writ Petition - for quashing
the order by which district magistrate directed
to appoint an Administrator under Gangster Act,
- sale deed - petitioner claims to be the
statutory tenant of the shop - interest in the
shop in question has been claimed - on the
basis of Police report and recommended by the
Senior Superintendent of Police - shop has been
attached by DM - Respondent no.6 was reported
to be a criminal, who had amassed huge
property by indulging in cheating hapless
persons and was also indulging in anti-social
activities - petitioner moved representation for
appointment of the administrator, but same was
declined by the district magistrate - held, Court
shall fix a date for enquiry and give notices
thereof and also to any other person whose
interest appears to be involved in said property
after due enquiry under Act - Court shall also
make delivery to any other person entitled to
possession thereof or otherwise - hence, Order
passed by District Magistrate to be correct and
does not warrant any interference - Petitioner
avails the statutory remedy available to him,
same should have been considered by the
concerned District Magistrate and will pass the
order in light of provisions contained in Section
14(3) of the aforesaid Act - in above terms,
Petition dismissed.

Writ Petition Dismissed. (E-11)

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES
to be a juvenile to make an inquiry for
determination of his age. As per Section 7A
of the Act at the time of enquiry the court
may take such evidence as it thinks
necessary, so as to determine the age of
such person and shall record a finding
whether the person is juvenile or not. In the
present case also, the Appellate Court has
clearly reached at a conclusion that at the
time
of
determination
of
age
the
complainant was not given a notice while at
the
time
of
appeal
the
revisionist
intentionally did not appear before the
court even after service by refusal and kept
absconding after the non bailable warrants
were issued against him by the court
concerned. The appellant court found the
statement of the revisionist under Section
313 Cr.P.C. and license of DBBL gun
issued in the name of revisionist before the
date of incident, to be an admission on the
part of the accused revisionist of being
major on the date of incident. Apart from
this, in this court again two agreement to
sale and one power of attorney have been
placed which bear the thumb impression of
the revisionist this again indicates that the
revisionist was major before the date of
incident as he was putting his thumb
impression
on
the
above
mentioned
documents independently and not under the
guardianship of any other person claiming
to be minor.

39. Thus, on the basis of judgement in
Ram Vijay Singh (supra) and in absence of
any document mentioned in Rule 12 (3a) of
Rules, 2007, the only document before the
trial court was the report of medical board
that was also found to be suspicious not
bearing the thumb impression of the
revisionist and in the absence of all
documents mentioned in Rule 12 above, in
the light of Section 7A of the Act, on the
basis of evidence produced before the
appellate court, the appellate court, in the
opinion of this court, has rightly reached at
a conclusion that the revisionist was not a
juvenile on the date of incident.

40. In the opinion of this court, the
appellate court has rightly placed reliance
on the evidence on record other than the
medical examination report of the accused
and has reached at a right conclusion.

41. The question whether in the
presence
of
the
report
of
medical
examination by the medical board the
appellate court could find the revisionist
major on the date of incident on the basis of
other evidence on record, is decided in
affirmative.

42. There is no illegality, irregularity
or
improprietary
in
impugned
judgment/order.

43. The revision having no force is
liable to be dismissed.

44. The revision is hereby dismissed.
----------
(2023) 4 ILRA 494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE GAJENDRA KUMAR, J.

Criminal Misc. Writ Petition No. 3238 of 2023

M/s Balmokand Faqir Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Prakash Dwivedi, Sri Pranshu Dwivedi,
Sri H.N. Singh, Sr. Advocate
4 All. M/s Balmokand Faqir Chand Vs. State of U.P. & Ors.
495
Counsel for the Respondents:
G.A.

(A)
Criminal
Law
-
Constitution
of
India,1950 - Article - 226 - U.P. Gangsters
and Anti Social Activities Prevention Act,
1986 - Sections 14, 14(3), 15, 15(1),
15(2), 16 & 17 - Writ Petition - for quashing
the order by which district magistrate directed
to appoint an Administrator under Gangster Act,
- sale deed - petitioner claims to be the
statutory tenant of the shop - interest in the
shop in question has been claimed - on the
basis of Police report and recommended by the
Senior Superintendent of Police - shop has been
attached by DM - Respondent no.6 was reported
to be a criminal, who had amassed huge
property by indulging in cheating hapless
persons and was also indulging in anti-social
activities - petitioner moved representation for
appointment of the administrator, but same was
declined by the district magistrate - held, Court
shall fix a date for enquiry and give notices
thereof and also to any other person whose
interest appears to be involved in said property
after due enquiry under Act - Court shall also
make delivery to any other person entitled to
possession thereof or otherwise - hence, Order
passed by District Magistrate to be correct and
does not warrant any interference - Petitioner
avails the statutory remedy available to him,
same should have been considered by the
concerned District Magistrate and will pass the
order in light of provisions contained in Section
14(3) of the aforesaid Act - in above terms,
Petition dismissed.

Writ Petition Dismissed. (E-11)

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard learned counsel for the
petitioner and learned AGA for the Staterespondents.

2. The instant writ petition has been
filed with the following prayer:-

"(a) Issue a writ, order or direction in
the nature of certiorari quashing the
impugned order dated 20.01.2023 passed
by the District Magistrate, Agra in Case
No.11270 of 2022 (State Vs. Mohd. Shan
alias Sanno) (Annexure No.11 to the writ
petition).

(b) Issue a writ, order or direction in
the nature of Mandamus commanding the
District Magistrate, Agra to appoint an
Administrator under Section 14(3) of the
U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986 in respect of the
shop in the name of M/s. Balmokand Faqir
Chand, 3/43-A, Kacheri Ghat, Police
Station-Chhatta, District-Agra within a
period of time specified by this Hon'ble
Court.

(c) Issue a writ, order or direction in
the nature of Mandamus commanding the
respondents to direct the Administrator
appointed to realize the rent of the shop in
question from the petitioner month to
month and deposit the same in the public
exchequer.

(d) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit in the facts and circumstances of
the case.

(e) To award the cost of the writ
petition to be paid to the petitioner.

3. The facts of the case as emerging from
the impugned order are that on the basis of
police
report
of
SHO,
P.S.-Mantola,
District-Agra dated 27.9.2022 which was
forwarded and recommended by the Senior
Superintendent of Police, Agra vide order
dated 03.10.2022, the respondent no.6 was
reported to be a criminal, who had amassed
huge property by indulging in cheating
hapless persons and was also indulging in
anti-social
activities.
Petitioner
is
a
partnership firm in the name and style of
M/s. Balmokand Faqir Chand, 3/43-A,
Kacheri Ghat, duly registered under the
Partnership Act, 1932 and is dealing the
496 INDIAN LAW REPORTS ALLAHABAD SERIES
business of Edible Oils. Counsel for the
petitioner has contended that the District
Magistrate has passed the impugned order
on the report prepared by respondent no.4
and approved by the Senior Superintendent
of Police, Agra (respondent no.3) on
20.01.2023. The said property has been
attached on the ground that the same was
acquired by money earned out of criminal
activity, whereas the petitioner or its
partner is not the accused in the Gangster
Act and the First Information Report has
been registered against respondent no.6
(Mohd. Shan), who has purchased the
building in question, in which, shop is
situated from successors of Gopi Nath
Agarwal on 11.02.2019, whereas the
tenancy is from 1948. It is further
contended that there is rent receipts in
favour of the Firm available on record. It is
further contended that successor of Late
Gopi Nath Agarwal by sale deed dated
11.02.2019, has transferred the aforesaid
House/shop Nos.3/43, 3/43-A, 3/43-A/1 in
favour of respondent no.6 (Mohd. Shan)
having total area of 161.62 sq. meters, out
of which, 17.82 sq. meter is commercial
shop, for which, petitioner is continuously
paying rent to respondent no.6 @ Rs.2000/-
per month, copies of receipts issued by
respondent no.6 have been annexed as
Annexure-6 to the writ petition. Thereafter,
petitioner had moved a representation
claiming himself to be the bona fide tenant
before the District Magistrate, Agra, but the
same
was
rejected
by
the
District
Magistrate, Agra considering the fact that
petitioner is not a bona fide tenant and he
does not come within the purview of
Section 15(1) of the Act. It is further
submitted that finding recorded by the
District Magistrate, Agra that petitioner is
not a bona fide tenant is misconceived as
the District Magistrate has omitted to
consider the affidavit as well as the license
granted by the Department which is
renewed from time to time and also
payment of GST regularly paid by the
petitioner's firm, which clearly proves that
the petitioner-firm is the tenant of the shop
in question and the business was being run
therein. Under such circumstances, the
impugned order is liable to be quashed.

4. On the other hand, learned A.G.A.
opposed the contention aforesaid and
submitted that petitioner is neither owner
nor claimant of the aforesaid property and
as a tenant he is not entitled to get the
property released in his favour or to get the
Administrator appointed for the said
purpose as on the satisfaction of the District
Magistrate, Agra that attached properties
had
been
acquired
as
a
result
of
commission of an offence triable under the
Act. Therefore, order passed by the District
Magistrate, Agra is in accordance with law
and does not suffer from any infirmity.

5. In order to appreciate the rival
submissions, it seems to be just and
expedient to refer to the relevant provisions
i.e. sections 14, 15, 16 and 17 of the Act.

"14. (1) If the District Magistrate has
reason to believe that any property ,
whether moveable or immoveable, 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
4 All. M/s Balmokand Faqir Chand Vs. State of U.P. & Ors.
497
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. (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. (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 subsection (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 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 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. 5 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 orj office;

(e) issuing commission or examination
of witness 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.

(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
498 INDIAN LAW REPORTS ALLAHABAD SERIES
contrary contained in the Indian Evidence
Act,
1872
(Act
No.1
of
1872)
notwithstanding.

17. 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. "

6. It is now well settled that the
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 his 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 subsection (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 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. 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 the
court after an inquiry under section 16 of
the Act and in that situation the court has
power to release the attached property in
favour
of
the
person
from
whose
possession the property was attached.

7. The power of the Court to hold an
inquiry under section 16 on the reference
made by the District Magistrate is not an
empty formality, which 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
the power by the District Magistrate in
depriving a person of his properties and to
restore the rule of law. Therefore, a heavy
duty lies on the court to hold a thorough
inquiry 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. This order to be passed under section
17 of the Act must disclose reasons and the
evidence in support of the finding of the
court. The Court is not expected 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
4 All. Satya Prakash Tiwari Vs. State of U.P. & Ors.
499
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 gang chart, can be attached by the
District Magistrate under section 14 of the
Act.

8. In the instant case, the petitioner
claims itself to be the statutory tenant of
the shop since 1948, therefore, interest in
the shop in question has been claimed.
The aforesaid shop has been attached by
the District Magistrate, Agra, thereafter, a
representation was made by the petitioner
for appointment of the Administrator, but
the same was declined by the District
Magistrate, Agra holding that petitioner is
neither owner nor the claimant of the
aforesaid
shop.
From
the
above
provisions mentioned under sections 14
to 17 of the Act, it is apparent that on
receipt of the reference, the Court shall
fix a date for enquiry and give notices
thereof and also to any other person
whose interest appears to be involved in
the said property after due enquiry under
the Act. The Court shall make delivery to
any
other
person
entitled
to
the
possession thereof or otherwise. As such,
the order dated 20.01.2023 passed by the
District Magistrate, Agra appears to be
correct
and
does
not
warrant
any
interference by this Court.

9. So far as prayer made by the
counsel for the petitioner regarding
appointment of Administrator in respect
of aforesaid property is concerned, this
aspect has not been dealt with by the
District Magistrate, Agra in his order
dated 20.01.2023. In case, the petitioner
avails the aforesaid statutory remedy
available to him, the same should have
been considered by the concerned District
Magistrate and will pass the order in the
light of the provisions contained in
Section 14(3) of the aforesaid Act.

10. In above terms, as statutory
remedy is available to him, the present
petition deserves to be dismissed on this
ground alone and it is accordingly
dismissed.
----------
(2023) 4 ILRA 499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE RAJIV GUPTA, J.

Criminal Misc. Writ Petition No. 11743 of 2022

Satya Prakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Baranwal, Sri Akhilesh Chandra Shukla,
Sri Saurabh Chaturvedi, Sri I.K. Chaturvedi (Sr.
Advocate)

Counsel for the Respondents:
G.A., Sri Akhilesh Chandra Shukla

(A) Criminal Law - Constitution of India,
1950 - Article 14, 226 - Prisons Act, 1894
- Section 55, Indian Penal Code, 1860 -
Sections 34, 223, 224, 302 & 307 - Writ
Petition - filed by petitioner who is a closed
relative of the deceased and the nephew of the
one of the informant and he has doing pairavi in
the criminal cases upto High Court - challenging
the impugned order of remission by which
Governor remitted the remaining part of
sentence of 8th respondent, on the ground that,
8th respondent is a hardened criminal and a
history-sheet was also opened in his name and
9 other cases were pending against him - court
hold that, remission has been granted to the
contesting
respondent
on
the
basis
of
incomplete and false information provided by