# Nabi Sarvar v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** Criminal Appeal No. 3200 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nabi-sarvar-v-state-of-u-p-anr-51266
- **Pages:** 12

## Headnote

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3, 14, 15, 16 & 17 -
Appellant challenged orders dated 23.09.2020
(attachment of vehicles), 15.03.2021 (rejection
of representation), and 18.10.2022 (upholding
attachment) by District Magistrate, Ambedkar
Nagar, and Special Judge, Gangster Act, under
Section 14(1) of the Gangster Act. Court held:
(1) No material evidence supported District
Magistrate's belief that vehicles (three trucks
and one Scorpio) were acquired through
offences under the Gangster Act; orders relied
solely on police reports without objective basis.
(2) Appellant provided evidence of legitimate
income from farming, milk distribution, and
fisheries, and vehicles were financed through
loans, acquired prior to 2020 Gangster Act case.
(3) No nexus established between alleged
criminal
activity
(single
case
under
Cow
Slaughter Act) and property acquisition. (4)
District Magistrate and trial court failed to
conduct proper inquiry under Sections 15, 16,
and 17, rendering orders arbitrary and illegal
(Smt. Maina Devi Vs St. of U.P., 2013(83) ACC
902; Smt. Shanti Devi Vs St. of U.P., 2007(2)
ALJ 483; Rajbir Singh Tyagi Vs St. of U.P., 2018
SCC Online All 5986). All impugned orders
quashed; vehicles ordered to be released;
appeal allowed. (Paras 16-20)

Appeal Allowed.

Case Law Cited:

## Text

_Characters 0–39,918 of 42,020. This is a partial read: ask again with offset=39918 for what follows._

1416 INDIAN LAW REPORTS ALLAHABAD SERIES
23/27.04.2022 passed by the District
Magistrate, Amethi attaching/seizing the
property of the appellants and the order
dated 16.08.2022 passed by the District
Magistrate,
Amethi,
rejecting
the
representations of the appellants and
making reference to the learned trial court,
are hereby quashed.

The District Magistrate, Amethi is
directed to release all the properties of the
appellants
attached
vide
order
dated
23/27.04.2022 in favour of appellants,
forthwith.

24. No order as to costs.
----------
(2024) 2 ILRA 1416
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 3200 of 2022

Nabi Sarvar ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Farooq Ayoob

Counsel for the Respondents:
G.A.

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3, 14, 15, 16 & 17 -
Appellant challenged orders dated 23.09.2020
(attachment of vehicles), 15.03.2021 (rejection
of representation), and 18.10.2022 (upholding
attachment) by District Magistrate, Ambedkar
Nagar, and Special Judge, Gangster Act, under
Section 14(1) of the Gangster Act. Court held:
(1) No material evidence supported District
Magistrate's belief that vehicles (three trucks
and one Scorpio) were acquired through
offences under the Gangster Act; orders relied
solely on police reports without objective basis.
(2) Appellant provided evidence of legitimate
income from farming, milk distribution, and
fisheries, and vehicles were financed through
loans, acquired prior to 2020 Gangster Act case.
(3) No nexus established between alleged
criminal
activity
(single
case
under
Cow
Slaughter Act) and property acquisition. (4)
District Magistrate and trial court failed to
conduct proper inquiry under Sections 15, 16,
and 17, rendering orders arbitrary and illegal
(Smt. Maina Devi Vs St. of U.P., 2013(83) ACC
902; Smt. Shanti Devi Vs St. of U.P., 2007(2)
ALJ 483; Rajbir Singh Tyagi Vs St. of U.P., 2018
SCC Online All 5986). All impugned orders
quashed; vehicles ordered to be released;
appeal allowed. (Paras 16-20)

Appeal Allowed.

Case Law Cited:

1. Smt. Maina Devi Vs St. of U.P., 2013(83) ACC
902 (Para 17)

2. Smt. Shanti Devi Vs St. of U.P., 2007(2) ALJ
483 (Para 18)

3. Rajbir Singh Tyagi Vs St. of U.P., 2018 SCC
Online All 5986 (Para 19)

4. Badan Singh alias Baddo Vs St. of U.P., 2002
Cri LJ 1392 (Para 18)

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

1. Heard Shri Farooq Ayoob, the
learned counsel for the appellant and Shri
Ashok Kumar Srivastava, learned A.G.A.
for the State and perused the record.

2. The instant Criminal Appeal has
been filed under Section 18 of Uttar
Pradesh
Gangster
and
Anti-Social
Activities (Prevention) Rules, 2021 against
the order dated 23.09.2020 passed by the
District
Magistrate, Ambedkar
Nagar,
2 All. Nabi Sarvar Vs. State of U.P. & Anr.
1417
whereby the District Magistrate, Ambedkar
Nagar attached the Vehile No. U.P. 45 D
5797 Truck, U.P. 45 T 2245 Truck, UP 45 T
1738 Truck and UP 45Q0287 Scorpio with
the finding that the appellant has purchased
the aforesaid vehicles from the income
earned by involving in anti social activities
and he has no source of income.

The appellant has also prayed for
quashing of the order dated 15.03.2021
passed by the Court of District Magistrate,
Ambedkar Nagar in Criminal Misc Case
No. 648 of 2020, arising out of F.I.R./Case
Crime No. 393 of 2020, under Section 3 (1)
U.P. Gangster Act, 1986, Police Station
Akbarpur, District Ambedkar Nagar and
order dated 18.10.2022 passed by the Court
of Special Judge, Gangster Act Ambedkar
Nagar in Misc. Case No. 153/2021 CNR
No. UPAN0100116872021: State of U.P.
Vs. Nabi Sarvar, whereby the learned trial
court has rejected the application under
Section 16 (1) of Gangster Act, 1986 and
confirmed the order dated 15.03.2021
passed
by
the
District
Magistrate,Ambedkar Nagar.

3. Learned counsel for the appellant has
submitted that being aggrieved by the
aforesaid
attachment
order
dated
23.09.2020,
the
appellant
preferred
representation dated 03.02.2021 before the
District
Magistrate, Ambedkar
Nagar,
under Section 14 (1) of the Gangster Act
seeking release of the appellant's properties
from attachment, alleging therein that
neither there is any Gang nor the applicant
is a member of any Gang. Only one Case
Crime No. 01/18 under Section 3/5A/8 of
Cow Slaughter Prevention Act police
Station Bewana is registered against the
appellant, apart from this, neither any case
is pending or disposed of against the
applicant. The appellant has further stated
in his representation that Vehicle number
UP 45-5797 was purchased twelve years
ago, firstly from Tata Company then
thereafter from
Sriram
Company
by
depositing margin money; Vehicle number
UP 45T 2245 was purchased in the year
2012 and is currently financed by Shriram
Finance; Vehicle No. UP 45T 1738 truck
was purchased in the year 2012 by
depositing margin money and getting it
financed; Vehicle No. UP 45 Q 0287
Scorpio is financed by Mahindra Company.
However, the aforesaid representation was
dismissed in a cursory manner by the
District Magistrate, Ambedkar Nagar vide
order dated 15.03.2021 and referred the
case to the court of learned Special Judge,
Gangsters Act, Ambedkar Nagar under
Section 16 (1) of the Gangster Act; and, the
learned Gangsters Court vide order dated
18.10.2022 confirmed the order dated
15.03.2021
passed
by
the
District
Magistrate,Ambedkar Nagar.

4. Learned counsel for the appellant
further
submitted
that
the
District
Magistrate, Ambedkar Nagar has wrongly
and incorrectly attached the aforesaid
vehicle 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.

5. Clarifying the position, it has been
urged by the learned counsel for the
appellant that as a matter of fact the
appellant and his family member who was
doing farming since long time and milk
distribution as well as fisheries pond was
also running and he has further submitted
that the aforesaid attached vehicle was
purchased by the appellant on installment.
1418 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned counsel for the appellant
further submits that the property of the
appellant and his family members has not
properly verified and with ill motive
property of the appellant has attached under
Section 14 (1) of U.P. Gangster Act by
impugned order dated 23.09.2020 without
issuing any show cause notice to the
appellant and against impugned order dated
23.09.2020
appellant
has
submitted
representation, but without considering the
same District Magistrate Ambedkar Nagar
has not release the property of the appellant
and he passed the order dated 15.03.2021.
In support of his submission, the appellant
has submitted finance paper as Annexure
No. 6 to the affidavit filed in support of the
criminal appeal.

7. Learned counsel for the appellant
has further submitted that the appellant has
filed his objection aginst the order dated
23.09.2020 and has specifically given the
details of the property in question as and
how the same was purchased, but the
District
Magistrate,
Ambedkar
Nagar
without considering the same passed
impugned order dated 15.03.2021 and has
rejected the claim of the appellant.

8. Learned counsel for the appellant
further submits that the appellant has
falsely roped in the cases mention in the
gang chart and in the said case appellant is
on bail and after a long delay impugned
proceeding have been initiated against the
appellant in the month of July, 2020.

9. Learned counsel for the appellant
further submitted that the learned trial court
while passing the impugned order dated
23.09.2020, without properly perusing the
contents of application 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 mmovable property
which have been attached vide order dated
23.09.2020 by the District Magistrate,
Ambedkar Nagar.

10. Learned counsel for the appellant
further submits that the impugned order
dated 23.09.2020 passed by the District
Magistrate, Ambedkar Nagar does not
reveal
that
the
District
Magistrate,
Ambedkar Nagar 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
learned Special Judge, Gangster Act
Ambedkar
Nagar
vide
order
dated
18.10.2022 in cursory manner without
analysing the documents of the appellant.
Thus both the impugned orders are not
sustainable in the eye of law.

11. Per contra, Srhi Ashok Kumar
Srivastava, learned AGA-1, has argued that
the
learned
trialourt
has
correctly
appreciated the material on record before
passing the impugned order. The District
Magistrate, Lucknow has passed the
impugned order dated 23.09.2020 after
being fully satisfied that appellant has
2 All. Nabi Sarvar Vs. State of U.P. & Anr.
1419
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,
Bewana and as such it is wrong to say that
the impugned order of attachment passed
by the competent authority suffers from
infirmities.

12. Learned AGA 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 which was attached by the
learned District Magistrate, Ambedkar
Nagar. The learned trial court also pointed out
that when the vehicle of the appellant i.e.,Truck
number UP 45-5797, Truck UP 45T 2245 ; Truck
No. UP 45T 1738; Scorpio VLX No. UP 45 Q 0287
Scorpio were purchased by the appellant on loan
then from what source of income has the appellant
purchased the land without loan, which was seized
by the District Magistrate. Thus the learned trial court
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.

13. I have heard learned counsel for the
appellant, learned AGA for the opposite parties and
gone through the impugned orders passed by the trial
court as well as by the District Magistrate.

14. 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
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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;

(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
2 All. Nabi Sarvar Vs. State of U.P. & Anr.
1421
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".

15. The issue involved in the present
case may be resolved with the help of the
consideration of provisions of sections 14,
15 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 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 subsection (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
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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."

16. 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 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
2 All. Nabi Sarvar Vs. State of U.P. & Anr.
1423
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.

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 registration of the first case of
the Gangster chart can be attached by
District Magistrate under Section 14 of the
Act.

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 court
below 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.

17. A Coordinate Bench of this Court
in the case of Smt. Maina Devi versus
State of U.P. 2013(83) ACC 902 in paras8, 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
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.

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
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,
2 All. Nabi Sarvar Vs. State of U.P. & Anr.
1425
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. 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."

18. 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 must prove the
source of income for acquisition thereof."

19. 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
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In other words, what is necessary
to find is whether his acquisition of property was
as a result of commission of any offence
enumerated in the Act being a member, leader or
organizer 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
source, no action under Section 14 of the Act can
be taken against him.

18. Section 14 of the Act is a harsh
provision that affects one's right to property
which is a constitutional right under the
Constitution. Therefore, initial burden was upon
the State to satisfy the District Magistrate with
necessary materials that petitioner Rajbir Singh
Tyagi being a gangster acquired the properties
as a result of commission of any offence. That
was however, not done. So, complaining the
attachment order to be illegal, a move was made
by the petitioners by filing a representation for
release of the properties. The said prayer was
rejected with the observation that the petitioners
could not establish the source of income to build
the house and acquire the movables. This
approach of the District Magistrate, in my
opinion, has no sanction under law. The Act does
not provide that-aggrieved person seeking
release of the properties from attachment must
prove the source of income for acquisition
thereof. So, on a conspectus of the relevant
provisions of the Act, I am of the considered
opinion that the order of attachment passed by
the District Magistrate, Muzaffar Nagar is
illegal, arbitrary and against the weight of the
materials on record."

19. Keeping in view the aforesaid settled
proposition of law and the judgments rendered
by this Court in the case of Smt. Maina Devi
versus State of U.P. 2013(83) ACC 902 and
Smt. Shanti Devi wife of Sri Ram versus State
of U.P. 2007(2) ALJ 483 (All), and Rajbir
Singh Tyagi Vs State of U.P. and Others 2018
SCC Online AII 5986, this Court is of the view
that the properties, which were attached, were
acquired by the appellant with the aid of his
earning from legal resources and not by
commission of any offence triable under the Act
as it is settled law that the properties being
made subject matter of 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 and also the impugned orders were not
passed on reasons which are relevant and
material. In the present case from the
perusal of the impugned order dated
15.03.2021 and record it appears that only
on the basis of the police report, the District
Magistrate has attached the property in
question, no material was supplied to the
District Magistrate to have reasons to
believe that the property in question was
acquired by the gangster the present
appellant as a result of commission of any
offence triable under this Act. It vitiates the
subjective satisfaction of the District
Magistrate also from the record. It appears
that the District Magistrate has no material
in support of the police report that the
property in question was acquired by the
present appellant being gangster even
though the proceedings were not followed
as per the provisions of the Act. It appears
that the appellant was having enough
source of income from his farming, milk
distribution as well as fisheries and even
the properties were acquired by the
appellant much prior to the registration of
criminal cases and imposition of Gangster
Act, which was invoked in the year 2020
and the impugned order of attachment was
passed in mechanical manner without
2 All. Satyapal & Anr. Vs. State of U.P.
1427
application of mind and is arbitrary. Thus
the impugned orders dated 23.09.2020 and
15.03.2021
passed
by
the
District
Magistrate, Ambedkar Nagar and the
impugned order dated 18.10.2022 passed
by the Court of Special Judge, Gangster
Act Ambedkar Nagar in Misc. Case No.
153/2021 CNR No. UPAN0100116872021:
State of U.P. Vs. Nabi Sarvar are illegal and
the same are liable to be quashed.

20. In view of above facts and
circumstances of the case, the impugned
orders passed by the trial court cannot be
said to be passed in correct perspectives as
they are not sustainable in the eye of law
and require interference by this Court, the
prosecution has failed to establish that the
provisions of Sections 2 and 3 of the
Gangster Act are attracted in the case of
appellant, and further the appellant's
property is also not attached in accordance
with law, as the prosecution has failed to
establish that the property in question
acquired and owned by the appellant has
been earned from the income indulging in
anti social activities.