# Najmi Begum v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Criminal Appeal No. 2070 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/najmi-begum-v-state-of-u-p-ors-49812
- **Pages:** 15

## Headnote

Criminal Law- U.P. Gangster and Anti
Social (Prevention of Activities) Act, 1986
- Sections 2/3, 14 (1), 15(1), 15 (2), 16
(1), 17 - Indian Penal Code, 1860 -
3 All. Najmi Begum Vs. State of U.P. & Ors.
719
Chapters 16, 17 and 22 - FIR dated 0101-2021 was lodged against the husband
of appellant and 2 others - Allegations -
accused
are
involved
in
anti
social
activities, on account of fear no one has
dare to adduce evidence against them -
Immovable properties and automobile
vehicles of appellant and her husband
were attached - Representations filed -
Dismissed - Submission by appellant -
District Magistrate has wrongly attached
the property, on the wrong presumption
that the said properties have been made
by involving in anti social activities -
Appellant is not named in the F.I.R, she
has been implicated for being the wife of
accused, whose property has already been
released by the court below - Neither
Gangster nor she has earned these
properties from involving in anti social
activities - Held, impugned order is
quashed - District Magistrate is directed
to release the properties of the appellant.
(Para 4, 5, 7, 8, 9, 11, 28, 29)

Held: It is well settled that property being
made subject matter of an attachment must
have been acquired by a gangster and by
commission of an offence triable under the Act.
The District Magistrate has to record its
satisfaction on this point and is not open to
challenge in any appeal. Only a representation is
provided for before the District Magistrate under
Section 15 and in case he refuses to release the
property on such representation, then the
person aggrieved has to make a reference to
the Court having jurisdiction to try an offence.
The Court, under Section 15 (2) has to see
whether the property was acquired by a gangster
as a result of commission of an offence and has to
record his own finding on the basis of the inquiry
held by him under Section 16. If the Court finds
that the property was not acquired by the
gangster, the Court shall order for release of the
property. Hence, the enquiry under Section 16, the
provisions of Section 14, 15 & 17 was also not
followed in accordance with the Act and is hereby
quashed. (Paras - 19, 26, 27)

Appeal is allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,977 of 51,106. This is a partial read: ask again with offset=39977 for what follows._

718 INDIAN LAW REPORTS ALLAHABAD SERIES

29. A document in terms of Section
65 of the Indian Evidence Act is to be
proved by a person, who is acquainted with
the hand writing of the author thereof.
P.W.1 Mahendra Kumar Agarwal, P.W.-2
Ram Bahadur Singh and P.W.-3 Srikant
Pathak have proved the documents i.e.
Paper Nos.4A/6 and 6A/1, 6A/3 and 6A/5
and 6A/6 and 6A/7 as they were acquainted
with the hand writing and signatures of the
then Principal Yaduvansh Ram Tripathi
and the Sub-Inspector Ram Bahadur Singh.

30. In view thereof, I do not find no
substance in the submission of learned
counsel for the accused-appellants that the
documents were not proved in accordance
with the provisions of Section 65 of the
Indian Evidence Act.

31. The technical objections taken at
this stage have no relevance. The accusedappellants have forged their mark-sheets
and took admission in the next class
knowing it to be forged and thus, they have
committed the offences under Sections 420,
468 and 471 IPC. The forgery was done
with obvious purposes of utilizing the
mark-sheets to secure admission. The
accused-appellants are not in a position to
say that they were prejudiced in any
manner by common FIR, one charge sheet
and same charge for all three accusedappellants and one trial. The allegations are
identical. Witnesses were common, who
had proved the documents and deposed in
support of the charge. Therefore, I am of
the considered view that technical plea in
this regard has no substance and is rejected.

32. Essentially, the offence under
Section 468 IPC is the commission of
forgery with an intention to use the forged
document for the purposes of cheating,
whereas the essential ingredients of Section
471 IPC are fraudulently or dishonestly
using
as genuine
any document
or
electronic record which the accused knows
or has reason to believe to be a forged.

33. From the evidence lead by the
prosecution, the offences under Sections
420, 468 and 471 IPC are fully made out
and proved against the accused-appellants
and, the learned trial court has rightly
convicted and sentenced the accusedappellants for the aforesaid offences.

34. In view thereof, I find no
substance in these appeals, which are
hereby dismissed. The accused-appellants
are on bail. Their bail bonds are cancelled
and sureties are discharged. They shall be
taken into custody forthwith to serve out
the sentence as awarded by the learned trial
court. The trial court record be returned
back forthwith.
----------
(2023) 3 ILRA 718
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.02.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2070 of 2021

Najmi Begum ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Nadeem Murtaza, Anjani Kumar Mishra

Counsel for the Respondents:
G.A.

Criminal Law- U.P. Gangster and Anti
Social (Prevention of Activities) Act, 1986
- Sections 2/3, 14 (1), 15(1), 15 (2), 16
(1), 17 - Indian Penal Code, 1860 -
3 All. Najmi Begum Vs. State of U.P. & Ors.
719
Chapters 16, 17 and 22 - FIR dated 0101-2021 was lodged against the husband
of appellant and 2 others - Allegations -
accused
are
involved
in
anti
social
activities, on account of fear no one has
dare to adduce evidence against them -
Immovable properties and automobile
vehicles of appellant and her husband
were attached - Representations filed -
Dismissed - Submission by appellant -
District Magistrate has wrongly attached
the property, on the wrong presumption
that the said properties have been made
by involving in anti social activities -
Appellant is not named in the F.I.R, she
has been implicated for being the wife of
accused, whose property has already been
released by the court below - Neither
Gangster nor she has earned these
properties from involving in anti social
activities - Held, impugned order is
quashed - District Magistrate is directed
to release the properties of the appellant.
(Para 4, 5, 7, 8, 9, 11, 28, 29)

Held: It is well settled that property being
made subject matter of an attachment must
have been acquired by a gangster and by
commission of an offence triable under the Act.
The District Magistrate has to record its
satisfaction on this point and is not open to
challenge in any appeal. Only a representation is
provided for before the District Magistrate under
Section 15 and in case he refuses to release the
property on such representation, then the
person aggrieved has to make a reference to
the Court having jurisdiction to try an offence.
The Court, under Section 15 (2) has to see
whether the property was acquired by a gangster
as a result of commission of an offence and has to
record his own finding on the basis of the inquiry
held by him under Section 16. If the Court finds
that the property was not acquired by the
gangster, the Court shall order for release of the
property. Hence, the enquiry under Section 16, the
provisions of Section 14, 15 & 17 was also not
followed in accordance with the Act and is hereby
quashed. (Paras - 19, 26, 27)

Appeal is allowed. (E-13)

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

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

1. Pleadings have already been
exchanged between the parties and are on
the record. The case is ripe up for final
hearing.

2. Heard Sri Nadeem Murtaza,
learned counsel for the appellant along with
Sri Wali Nawaz Khan and Ms. Snidha
Singh and Sri Manoj Singh, learned A.G.A.
for the State and perused the material
available on record.

3. Perused the lower court record.

4. The present appeal under Section 18 of
U.P. Gangster and Anti Social (Prevention of
Activities) Act, 1986 (herein after referred to as,
'Gangster Act') has been preferred by the
appellant, namely, Najmi Begum against the
judgment and order dated 30.10.2021 passed by
the
court
of
Special
Judge,
Gangster
Act/Additional Sessions Judge Court No.5,
Sitapur in Criminal Misc. Case No. 122 of
2021, Najmi Begum Vs. State, arising out of
Case Crime No. 3 of 2021, under Section 2/3 of
the Gangster Act, Police Station Kotwali,
District Sitapur, whereby the learned trial court
has rejected the application under Section 15(1)
of Gangster Act moved on behalf of appellant
and confirmed the order dated 22.02.2021
passed by the District Magistrate, Sitapur,
directing attachment of property of appellant.

5. In Short facts of the case are that
initially a first information report dated 01-
720 INDIAN LAW REPORTS ALLAHABAD SERIES
01-2021 was lodged by Shri Tej Prakash
Singh, Incharge Inspector of Police Station
Kotwali, District Sitapur bearing Case
Crime No. 0003 of 2021 against the
husband of appellant and 2 others alleging
therein that accused persons are involved in
anti social activities and on account of fear
created by them in the locality no one has
dare to adduce evidence against them. They
are involved in the illegal activities against
Chapter 16, 17 and 22 of Indian Penal
Code.

6. Learned Counsel Mr. Nadeem
Murtaza submits that on implication of
husband of the appellant in Case Crime No.
0003 of 2021, under Section 2/3 of U.P.
Gangster and Anti Social (Prevention of
Activities) Act, registered at Police Station
Kotwali, District Sitapur, the husband of
the appellant and and co-accused Ahmad
Husain @ Chhannu, approached this
Hon'ble Court for quashing of FIR and this
Hon'ble Court was much pleased to stay the
arrest of the husband of the appellant and
co-accused Ahmad Husain @ Chhannu in
Misc. Bench No. 410 of 2021 vide order
dated 08-01-2021.

7. Learned Counsel of the appellant
further submitted that in furtherance of the
FIR bearing Case Crime No. 003/2021
registered at Police Station Kotwali,
District Lucknow, Respondent No. 2
proceeded to exercise his powers under
Section 14(1) of the UP. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 and passed an order for attaching the
immovable properties of, inter alia, the
Appellant and her husband on 02.01.2021.
Further, another order dated 02.01.2021
was passed by Respondent No. 2, whereby,
automobile vehicles of the Appellant and
her husband were attached under Section
14(1) of the U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986.

8. That being aggrieved of the
aforesaid
attachment
orders
dated
02.01.2021 passed by Respondent No.2,
representations
dated
03.02.2021
and
05.02.2021
were
preferred
before
Respondent No. 2 under Section 15 (1) of
the Gangsters Act seeking release of the
Appellant's properties from attachment.
However, the aforesaid representations
were dismissed vide a common order dated
22.02.2021 of Respondent No. 2. While
passing
the
aforesaid
order
dated
22.02.2021 Respondent No 2 referred the
case to the Ld. Gangsters Court under
Section 16 (1) of the UP Gangsters and
Anti-Social Activities (Prevention) Act,
1986 in respect of properties which were
not released by him; and, the Ld. Gangsters
Court, thereafter, proceeded to pass the
impugned order dated 30.10.2021 in
exercise of its powers under Section 17 of
the Gangsters Act.

9. That Learned Counsel for the
appellant further pointed out that Ld. Court
of Special Judge Gangster Act/ Additional
Sessions Judge Court No. 5. Sitapur vide its
order dated 27/08/2021 was pleased to
release the properties of Mujeeb Ahmed
(Appellant's husband) which were attached
by Respondent No. 2 under Section 14 (1)
of the U.P. Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
in
furtherance of the same criminal case, i.e.,
FIR bearing Case Crime No. 0003/2021
registered at Police Station Kotwali,
Dsitrict Sitapur. It was further pointed out
that the Appellant's husband (Mujeeb
Ahmed) is an accused in the aforesaid FIR
but the Appellant is not the accused in the
aforesaid F.I.R.
3 All. Najmi Begum Vs. State of U.P. & Ors.
721

10. Learned Counsel for the appellant
further pointed out that State had filed an
Appeal under Sec 378(3) Cr.P.C. by means
of Government Appeal no. 1000112 of
2021, against the judgement and order
dated 27.08.2021 passed by the learned
Special Judge, Gangster Act/Additional
District and Session Judge, Court No.5,
Sitapur in Criminal Misc. Case No. 121 of
2021, Mujeeb Ahmad Vs. State of U.P.,
under Section 16(2) of U.P. Gangster and
Anti-Social Activities (Prevention) Act,
2016 Police Station Kotwali Nagar. District
Sitapur, releasing the seized property in
favour of the accused husband namely
Mujeeb Ahmad. However, the Application
for leave to Appeal in Government Appeal
no. 1000112 of 2021 was rejected and the
appeal was dismissed at the stage of
admission
itself.
vide
order
dated
14.12.2022.

11. Learned Counsel for the appellant
further submits that the District Magistrate
has wrongly and incorrectly attached the
property and vehicle of the appellant on the
wrong
presumption
that
the
said
properties have been made from the
income earned by the appellant involving
in anti social activities, whereas the
appellant is not named in the F.I.R. she
has just been implicated in the present
case for being the wife of accused
Mujeeb Ahmad, whose property has
already been released by the learned court
below, appellant is neither Gangsters nor
she has earned these properties from
involving in anti social activities. It has
further been argued that the some of the
property and the vehicle in dispute are
not existing in the names of appellant, but
it has been presumed by the District
Magistrate in its order dated 02-01-2021
that the same has been earned by her
from involving in anti social activities.

12. Learned Counsel for the appellant
further submits that the learned trial court
while passing the impugned order, without
properly
perusing
the
contents
of
application and documents annexed with
the said application have wrongly and
incorrectly rejected the said application by
presuming that the property in question
have been earned from the income
indulging in anti social activities without
going through documentary evidence filed
on behalf of appellant and wrongly
interpreting that appellant has not filed any
documents to prove that the said property
in question have not been earned from the
income indulging in anti social activities.

13. Learned Counsel for the appellant
further submits that the learned trial court
had erred in law while rejecting the
application of appellant for release of
property
in
dispute,
learned
counsel
submits that the appellant had explained the
completed details of the property in
application, the reference of the same is
reproduced herein below :-

I. That plot no. 263, village
Saraibhat tehsil Sitapur measuring 0.336
hectares was purchased by the appellant on
06.03.2009 from one Richa manglani in
lieu of Rs.1,25,000 by means of registered
sell deed it is been pointed out that plot no.
263 village Saraibhat tehsil Sitapur the
appellant has alienated some portion by
registered sell deed dated 13.07.2011 in
favour of her sister- in -law namely Smt.
Rizwana does the appellant by means of the
instant appeal has sought release of plot no.
263 village Saraibhat tehsil Sitapur only in
so far as she owns it.

II. That Plot No. 264, Village
Saray Bhat. Tehsil Sitapur admeasuring
0.845 hectares was purchased by the
Appellant on 06.03.2009 from one Manik
722 INDIAN LAW REPORTS ALLAHABAD SERIES
Kailash Chandra in lieu of Rs. 3,20,000/-
by means of a registered sale deed.

III. That Plot No. 265, Village
Saray Bhat, Tehsil Sitapur admeasuring
0.312 hectares was purchased by the
Appellant on 06.03.2009 from one Manik
Kailash Chandra in lieu of Rs. 1,10,000/-
by means of a registered sale deed.

IV. That Plot Nos. 263, 264 and
265, Village Saray Bhat, Tehsil Sitapur
were purchased by the Appellant on
06.03.2009 by means of registered sale
deeds. And, the money which was given in
consideration for the aforesaid lands was
transferred by the brother in law of the
Appellant,
namely,
Sattar
Ali
on
04.03.2009. It is further submitted that Rs.
14,00,000/- were transferred to the bank
account of the Appellant and the same was
used by her to Purchase the aforesaid land.
The Appellant has already annexed her
bank statement with the memo of the
criminal appeal as Annexure No. 12.

V. That Plot Nos 263, 264 and
265, Village Saray Bhat, Tehsil Sitapur are
being used by the Appellant to hurt and
operate a brick field in the name and style
of M/s F.I.T. Brickfield. It is further
submitted that M/s FIT. Brickfield has been
operating since the year 2009-10. Relevant
documents
pertaining
to
the
commencement of M/s FIT. Brickfield and
other relevant documents which fortify the
fact that the same have already been
annexed with the memo of criminal appeal
as Annexure No. 14

VI.
That
House
No.
447,
Batsganj, Sitapur it is submitted that the
plot of land on which the aforesaid house is
built was purchased by her from her brother
in law, namely. Ekhlaak Ahmed for Rs.
1,25,000/- on 16.01.2008 by means of
registered sale deed After purchasing the
aforesaid land, the Appellant took loan
amounting to Rs. 12,00,000/- from the
Union Bank of India in year 2009 and
started the construction of her house. Later
on in the year 2014 and 2017 money
amounting
to
Rs.
20,54,050/-,
Rs.
15,00,000/- and Rs.20,00,000/- was taken
on loan from State Bank of India for
renovation of the house and causing
alterations therein. Also, loan was taken by
the husband of the Appellant (Mujeeb
Ahmed) on Kisan Credit Card amounting
to Rs. 13,38,176/- and the same was used
for the purpose of renovation and alteration
of the aforesaid house. It is further
submitted that the Appellant had taken loan
amounting to Rs. 68,54,050/- from the
banks and used the same for the purpose of
renovation and causing alterations in the
aforesaid house: thus, the money used in
the aforesaid house for the purpose of
renovation and causing alterations comes
from reasonable, well accounted and lawful
sources. The documents pertaining to the
aforesaid loans have already been annexed
as Annexure No. 17 and 18 to the criminal
appeal.

VII. Apart from the above, the
Appellant had also borrowed money
amounting
to
Rs
24,00,000/-
Rs.
10,00,000/-, Rs. 14,00,000/-, Rs. 4,00,000/-
Rs. 5,50,000/- Rs. 4,00,00/- Rs 4,50,000/-
Rs. 75,000/- and Rs 2,50,000/- from her
brother in law, namely, Sattar All which
was transferred in her bank account on
24.10.2013,
28.07.2014,
11.08.2014,
12.08.2014, 05.09.2014. 06.09.2014, 30.09
2014 and 02.02.2015, respectively. In nutshell, the Appellant had borrowed money
amounting to Rs. 69,25,000/- from her
brother in law, namely, Sattar All And, the
aforesaid money was utilized by the
Appellant for doing renovation of the
House No. 447, Batsganj, Sitapur and for
carrying out alterations in the aforesaid
house. The brother in law of the Appellant,
namely, Sattar All was an employee of The
3 All. Najmi Begum Vs. State of U.P. & Ors.
723
Saudi
Arabian
Oil
Company
(Saudi
Aramco) and worked there till the year
2020, and, his annual salary was US
Dollars 109,056,00/- (Rs 80,96,099.33/-).
And, therefore, it is submitted that the
money which was sent by Sattar Ali to the
Appellant and further used for carrying out
alterations in the House No. 447. Batsganj
Sitapur was earned by legal means. Copies
of the bank statement of the Appellant and
as well as the documents relating to the pay
scale of Sattar Ali (Appellant's brother in
law) have been annexed as Annexure No.
19 and 20. respectively, to the memo of
criminal appeal.

VIII. With respect to Plot No.
447A, Batsganj, Sitapur it is submitted that
the same was purchased by the Appellant
through sale deed dated 21.05.2013 from
certain persons in lieu of Rs. 1,50,000/-. It
is further submitted that certain portion of
the same plot was bought by the
Appellant's husband and the same has been
released by competent court.

IX. With respect to Plot No. 485,
Batsganj. Sitapur it is submitted that the
same was purchased by the Appellant by
one Abdul Salam on 11.05.2013 with her
self-earned income.

X. With respect to Car bearing
Registration No. U.P. 34 AV 0555 it is
submitted that the same been purchased by
the Appellant after obtaining loan from
State Bank of India of which she is paying
Equated
Monthly
Installments.
The
documents pertaining to car loan have been
annexed as Annexure No. 23 to the memo
of criminal appeal.

14. Learned Counsel for the appellant
further submits that the order dated 22-022021 passed by the District Magistrate
Sitapur does not reveal that respondent no.-
2 had "reason of believe" that the properties
in question were acquired by the Appellant
as a commission of an offence under the
Gangsters Act rather the aforesaid order is
passed on mere suspicion, Surmises and
conjectures.

15. Shri Manoj Singh, the learned
A.G.A. has vehemently argued that the
learned trial court has correctly appreciated
the material on record before passing the
impugned order. The District Magistrate,
Sitapur has passed the order dated 02-012021 after being fully satisfied that
appellant has acquired the properties in
question by illegal means involving in anti
social activities as prescribed under the
Gangster Act, as such there is no illegality,
infirmity or perversity in the impugned
order.
The
learned
trial
court
after
considering the entire material including
the documentary evidence available on
record has passed the impugned judgment
and order in correct perspectives and it
needs no interference.

16. I have heard learned counsel for
both the parties and gone through the
impugned judgment and order passed by
the court below.

17. 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-
724 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
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
3 All. Najmi Begum Vs. State of U.P. & Ors.
725
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
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.

18. The issue involved in the present
case may be resolved with the help of the
consideration of provisions of section 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
726 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection (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
sub-section (2) of Section 15, the State
Government or any person aggrieved by
such refusal or release may make an
application to the Court referred to in subsection (1) for inquiry as to whether the
property was acquired by or as a result of
the commission of an offence triable under
this Act. Such court may, if it considers
necessary or expedient in the interest of
justice so to do, order attachment of such
property.

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

(b) On the date so fixed or on any
subsequent date to which the inquiry may
be adjourned, the Court shall hear the
parties, receive evidence produced by them,
take such further evidence as it considers
necessary, decide whether the property was
acquired by a gangster as a result of the
commission of an offence triable under this
Act and shall pass such order under
Section 17 as may be just and necessary in
the circumstances of the case.

(4) For the purpose of inquiry
under sub-section (3), the Court shall have
the power of a Civil Court while trying a
suit under the Code of Civil Procedure,
1908 (Act No. V of 1908), in respect of the
following matters, namely:

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

(b) requiring the discovery and
production of documents;

(c)receiving
evidence
on
affidavits;
3 All. Najmi Begum Vs. State of U.P. & Ors.
727

(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.

19. 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
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.

20. 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
728 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

21. 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
appellants 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.

22. 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 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
3 All. Najmi Begum Vs. State of U.P. & Ors.
729
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. Application No.