# Siraj Ahmad Khan & Anr v. The Addl. Chief Secy & Ors

- **Citation:** (2024) 8 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-09
- **Case number:** Criminal Misc. Writ Petition No. 5205 of 2024
- **Bench:** Vivek Chaudhary, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siraj-ahmad-khan-anr-v-the-addl-chief-secy-ors-52485
- **Pages:** 10

## Headnote

Criminal Law - U.P. Gangster and Anti
Social Activities (Prevention) Act, 1986FIR was lodged - immovable and moveable
properties
of
petitioners
attachedCommissioner of Police had followed due
process - Petitioners failed to prove the
legitimate
source
of
income
for
the
properties under Rule 37(4) of the Act-have
right and statutory remedy under the Actwrit cannot be entertained surpassing the
statutory remedy.

W.P dismissed. (E-9)

List of Cases cited:

## Text

894 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 8 ILRA 894
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Writ Petition No. 5205 of 2024

Siraj Ahmad Khan & Anr. ...Petitioners
Versus
The Addl. Chief Secy & Ors. ...Respondents

Counsel for the Petitioners:
Jyotiresh Pandey, Ashish Kumar Jain

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Gangster and Anti
Social Activities (Prevention) Act, 1986FIR was lodged - immovable and moveable
properties
of
petitioners
attachedCommissioner of Police had followed due
process - Petitioners failed to prove the
legitimate
source
of
income
for
the
properties under Rule 37(4) of the Act-have
right and statutory remedy under the Actwrit cannot be entertained surpassing the
statutory remedy.

W.P dismissed. (E-9)

List of Cases cited:

1. Krishna Murari Agrawal @ Deepak Vs District
Magistrate, Jhansi & ors.

2.
Raj
Kumar
Shivhare
Vs
Director
of
Enforcement

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. Heard learned counsel for the
petitioners,
learned
A.G.A.
for
the
State/respondents and perused the record.
2. Having considered the facts,
circumstances and submissions of learned
counsel for the petitioners and learned
A.G.A., we do not considered necessary it
to call for the counter affidavit from the
respondents.

3. By means of this writ petition,
the petitioners have sought following main
reliefs :-

"(i) to issue a writ, order or
direction in the nature of Certiorari, for
quashing the order dated 10.06.2024 passed
by Respondent No.2, annexed with the
petition as annexure No.1 & 2,

(ii) to issue a writ, order or
direction in the nature of Mandamus,
commanding the Respondent No.2 & 3, to
release the seized properties attached by
him,

(iii) to issue a writ, order or
direction in the nature of Mandamus, to the
Respondent No.2 & 3, to permit the
Representative of the Petitioners, for taking
the Mango Crop at the seized Agricultural
Farm of the Petitioners,

(iv) to issue a writ, order or
direction in the nature of Mandamus, to the
Respondent No.2 & 3, for ensuring the
videography of the Mango Orchard and
Residential House at the time of the
release."

4. The facts of the case, in short,
are that informant Fareed Ahmad Khan
lodged an F.I.R. with the contention that on
02.02.2024 at 15.30 hours, accused Siraj
Ahmad @ Lallan Khan reached at the place
of
occurrence
with
his
persons
by
Mahendra
Thar
vehicle
and
started
threatening
and
abusing
his
family
members. Accused Siraj Ahmad @ Lallan
Khan who is an old history-sheeter was
carrying a loaded rifle in his hands. Having
8 All. Siraj Ahmad Khan & Anr. Vs. The Addl. Chief Secy. & Ors.
895
heard the noise, the cousin of the
informant, namely, Munir Khan, who was
present at his house, tried to pacify Siraj
Khan but Siraj and his son Faraz Khan
started exhorting by saying that kill all the
family members. Thereafter, Siraj Khan
opened fire on Hanjla Khan, who was the
minor son of the informant. Having seen
the occurrence, cousin of informant, Munir
Khan tried to stop him but the accused fired
upon him also. When his wife Farin Khan
tried to stop them, then Faraj Khan
snatched the gun from his father and shot
fire at Farin Khan. Consequently, all the
three persons died on the spot. He further
submitted that above occurrence has been
recorded in Camera, which was installed in
his residence. Accordingly, an F.I.R. under
Sections 302, 504, 506 I.P.C. vide Crime
No.0030/2024 was registered at Police
Station Malihabad, Lucknow against the
accused persons. During investigation,
Section 34 I.P.C. as well Section 27/30 of
Arms Act were also added. As a result of
investigation, prima facie, commission of
offence was found. Consequently, the
Investigating Officer has submitted charge
sheet against named accused persons on
17.02.2024.

5. The S.H.O., Police Station Mall,
Lucknow/Investigating Officer of the case
submitted his report on 04.03.2024, which
was
forwarded
by
the
Deputy
Commissioner (Upayukt) of Police (West),
Lucknow
to
Police
Commissioner,
Lucknow. Upon perusal of the report of
S.H.O./Investigating Officer along with the
documents annexed with the report, the fact
came into knowledge of the Police
Commissioner that the accused petitioner
No.1-Siraj Khan @ Lallan Khan is a
vicious offender and under his leadership, a
well organized gang is being run. The
accused/petitioner No.1 himself along with
other members of his gang, is engaged in
criminal activities. Infact the accused Siraj
Khan was born in an ordinary family and
he was brought up by his parents in normal
ways. Desirous of lavish life, the accused
entered into the field of crime. Thereafter,
he established a well organized gang and to
get the temporal pecuniary, material or
other
advantage
for
himself,
started
committing offences. The accused has
committed offences like Mar-peet, abusing,
loot, attempt to murder and murder, just to
create his fear and terror in public. Feared
by his terror, people could not dare to come
forward to lodge complaints or to witness
his activities. Petitioner No.2 Faraz Ahmad
Khan is the active member of his father's
gang and continuously involved in the
criminal activities of his father. He has also
developed his terror in the area. Further to
get in the dispute of possession of land both
the accused persons, i.e. Siraz and Faraz
along with their companions committed
murder of three persons on 02.02.2024 in
day light. Consequently, the public order
and general life of the people got disturbed.
A case under Case Crime No.0030/2024,
under Sections 302/504, 506, 34 IPC and
Section 27/30 of Arms Act was registered
against
the
above
offence.
The
Commissioner of Police also mentioned in
his order dated 10.06.2024 under the U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 (hereinafter referred
to as "the Act of 1986") that petitioner No.1
has acquired 35 piece of land having entire
area 3.0779 Hectare having market value of
Rs.3,66,00,000/-. He has also built a house
No.57/602 situated in revenue village
Begaria, Mohalla Adnan Palli, Dubagga,
P.S. - Dubagga, Lucknow having area
55000 Sq.Ft. including covered area 17,000
Sq.Ft. having market value of Rs.25.00
Crores. He has also purchased a Mahindra
Thar vehicle having registration No. UP 54
896 INDIAN LAW REPORTS ALLAHABAD SERIES
AC 9393 for the value of Rs.16.00 Lacs
and also a S-Cross Smart Hybrid Car
having registration No. UP 32 KX 6396
having value Rs.15,00,000/- which has
wrongly been shown to be sold in the name
of
his
brother-in-law
Saifulla
Khan,
whereas the co-accused in above Crime No.
30 of 2024, petitioner No.2 - Faraz Ahmad
Khan
has
acquired
27
immovable
properties having total area 3.503 Hectare,
whose value, according to the circle rate is
Rs.87,58,000/- and the market value is
approximately Rs.4,16,18,016/-. It has been
alleged that that the above immovable
properties have been gifted to petitioner
No.2 by his father-petitioner No.1 and his
mother Khusnuma Begum. Apart from that,
motorcycle bearing UP 32 MY2437 (HF
Delux), having value of Rs.50,000/- has
been
purchased
by
petitioner
No.2.
Petitioner No.2 is not having his separate
income. The immovable properties which
have been gifted to petitioner No.2 by his
parents, they could not show their valid
source of income as to how they
purchased/acquired
the
aforesaid
immovable properties which have been
mentioned at Serial No.1 to 37 in the order
dated 10.06.2024, all the above immovable
properties
have
been
purchased
by
petitioner No.1 in his and his wife's name,
which subsequently have been gifted to
petitioner No.2. Petitioner No.1 and his
wife have not produced any documentary
evidence of their income, and income tax
returns of relevant years showing the
income for purchase of the properties or
details of bank account in which the
amounts of income were deposited and
from which the amount was used as
consideration money. It has also been
mentioned in the impugned order that
although the petitioner No.2 has submitted
the ITRs of Poland for the year 2022, but
the same is required to be proved in
accordance with law. The motorcycle
which is registered in the name of
petitioner no.2 has also been purchased by
the income of crimes.

6. The Commissioner of Police,
Lucknow in his above order has further
mentioned that the accused petitioner No.1
- Siraj Ahmad Khan acquired the aforesaid
properties which have total market value of
Rs.28,97,00,000/-, and the value of the
property which is in the name of petitioner
No.2, its market value is Rs.4,16,18,016/-
(immovable) and Rs.50,000/- (movable).
The accused Siraj Ahmad Khan has
acquired the above properties by the
criminal activities and he and his family
members are trying to sell out the above
properties. As it has been apprised by the
S.H.O., Police Station Mall, District -
Lucknow. It has also been apprised to the
Commissioner of Police, Lucknow that
both the accused/petitioners were not
having any known and valid source of
income, therefore, the S.H.O., Police
Station - Mall, Lucknow proposed to attach
the
above
properties
of
both
the
accused/petitioners which were procured
by them by the proceeds of crime. The
Commissioner of Police, Lucknow having
satisfied with the report of the S.H.O. of
concerned Police Station, passed its two
separate orders dated 07.03.2024 to attach
the
above
mentioned
properties
of
petitioners
provisionally.
The
Commissioner of Police also appointed
Tehsildar, Malihabad as receiver of the
land of petitioner No.1 mentioned in order
dated 07.03.2024 at Serial No.1 to 35 and
for land of petitioner No.2 as mentioned in
the order dated 07.03.2024 at serial no.1 to
27 and for the properties of petitioner No.1
mentioned at Serial Nos. 36 to 37 and
property of petitioner No.2 mentioned at
serial
no.28,
S.H.O.,
Police
Station
8 All. Siraj Ahmad Khan & Anr. Vs. The Addl. Chief Secy. & Ors.
897
Malihabad has been appointed as receiver.
He also directed to provide a copy of the
attachment order to accused Siraj Ahmad
and Faraz Ahmad to enable them to submit
their representation within three months of
the service of the orders dated 07.03.2024.

7. Aggrieved by the order of
provisional attachment, the petitioners had
approached this Court vide Criminal Misc.
Writ Petition No.2875 of 2024, challenging
the order dated 07.03.2024, passed by the
Police Commissioner under Section 14 (1)
of the U.P. Gangster and Anti Social
Activities (Prevention) Act, 1986. The
Court after hearing the arguments of the
petitioners as well as learned A.G.A.
passed order dated 24.04.2024, which is
reproduced herein below :-

"Heard learned counsel for the
petitioners and learned A.G.A. for the
State.

2. Petitioners have approached
this Court challenging the order dated
7.3.2024 passed under Section 14(1) of the
U.P. Gangsters and Anti-Social Activities
(Prevention)
Act,
1986
whereby
the
property of the petitioners is attached by
the Commissioner of Police, Lucknow.

3. Learned counsel for the
petitioners submits that the said order is
passed without giving any opportunity of
hearing to the petitioners. He further
submits that on the said property, there are
mango orchards and mangoes are ripping
every day, which need to be taken off from
trees, otherwise there would be huge loss to
the petitioners.

4. Learned A.G.A. draws the
attention of the Court to Section 15 of the
said Act, which provides an opportunity of
hearing to the claimant of the property to
submit
a
representation
before
the
authority concerned within a period of
three months from the date of his getting
knowledge of such attachment, on which
the
authority
concerned
is
to
pass
appropriate
orders
taking
into
consideration the reply submitted by the
claimant.

5. Learned counsel for the
petitioners
submits
that
the
reply/representation would be filed by the
petitioners within one week from today to
the impugned order dated 7.3.2024.

6. The Commissioner of Police,
Lucknow is expected to decide the said
reply/representation
of
the
petitioners
within a period of three weeks thereafter in
accordance with law by a reasoned and
speaking order after giving opportunity of
hearing to the petitioners.

7. With the aforesaid, present
writ petition stands disposed of."

8. The petitioners after passing the
orders dated 07.03.2024 submitted their
representations, both dated 29.04.2024 to
the Commissioner of Police, Lucknow with
the prayer to review and recall the orders
dated 07.03.2024 and for release of the
properties seized and attached. The Court
of Commissioner of Police, Lucknow after
providing the opportunity of hearing to the
counsel for the petitioners, considered the
representation of the accused/petitioners
and passed his detailed, well discussed and
reasoned orders dated 10.06.2024. Vide
orders dated 10.06.2024 in the matter of
petitioner No.1, the Commissioner of
Police, Lucknow has released the vehicle
having registration No.UP32 KX 3696 in
favour of Shaifulla Khan. So far as the
other provisionally attached properties of
both the petitioners are concerned, the
Court of Commissioner of Police, Lucknow
was not satisfied with the genuineness of
the claim of the petitioners/accused persons
made under sub Section (1) of Section 15
898 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act of 1986. The Court of
Commissioner
of
Police,
Lucknow
confirmed the provisional attachment under
Section 15 of the Act of 1986 as the
petitioners could not satisfy the court
regarding the source of acquisition of
above properties. Accordingly, the Court
referred the matter to the Court which was
having jurisdiction to try the offence under
the Act of 1986.

9. The Commissioner of Police,
Lucknow in his orders dated 10.06.2024
also discussed that the petitioner - Siraj
Ahmad @ Lallan Khan is engaged in
criminal activities since 1973. He has
history sheet No.11-A in his credit and has
committed 18 criminal offences which have
been mentioned in his criminal history. In
the year 1984 and 1997, Case Crime
No.200/1984, under Sections 394/323 IPC
and
Case
Crime
No.111/1997 under
Section 307/504/323/506 IPC and Section
25 Arms Act at Police Station Malihabad
have been registered against him. He has
attached the properties which has been
mentioned at serial No.1 to 37 in order
dated 10.06.2024 against petitioner No.1
and properties at serial No. 1 to 28 in order
dated 10.06.2024 passed against petitioner
No.2, by the income of the crime. The
properties in the name of petitioner No.2,
were given to him by petitioner No.1 and
his mother Khushnuma Begam. The
petitioners could not show any evidence
regarding the purchase of the attached
properties, therefore, in the absence of any
proof of source of income, it can be
concluded that the above properties were
obtained by the petitioners by the proceeds
of crime as petitioner No.1 was engaged in
criminal activities since 1973.

10. The petitioners have challenged
the above order dated 10.06.2024 of Police
Commissioner, Lucknow in the present
writ petition.

11.

Learned
counsel
for
the
petitioners have submitted that the order
passed
by
the
court
of
Police
Commissioner, Lucknow is bad in the eyes
of law, as the petitioners have not been
provided the opportunity of hearing before
the
provisional
attachment
of
the
properties. There is nothing on record
which
may
prove
the
ground
for
satisfaction of the Police Commissioner.
The burden of proof was on Police
Commissioner regarding "acquisition of
property through proceeds of crime". There
was sufficient income of the petitioners to
purchase the properties as the two sons of
petitioner No.1 are residing abroad have
given money to purchase the properties.
The petitioner No.2 also doing the business
in Poland. He has submitted his income tax
return for the year 2022, which proves that
he earns the income. The Police Officers
have wrongly shown 18 criminal cases in
the credit of the petitioner as the crime
number of the cases have not been
mentioned in history sheet. The petitioner
No.1 has submitted his supplementary
written argument dated 13.05.2024 before
the Police Commissioner, Lucknow in
which he has mentioned that in Case Crime
No.200/1984
and
Case
Crime
No.111/1997, Police Station Malihabad,
Lucknow, the petitioner No.1 was acquitted
long back and regarding the criminal
history, the petitioner No.1 has obtained a
report/reply
from
the
Police
Station
Malihabad, Lucknow under the Right to
Information Act. Replying the question
dated
21.03.2015
that
"whether
any
criminal case is registered against the
petitioner
No.1
at
Police
Station
-
Malihabad", the S.H.O., Police Station
Malihabad
has
informed
that
the
8 All. Siraj Ahmad Khan & Anr. Vs. The Addl. Chief Secy. & Ors.
899
"information is Nil". Hence, it is wrong to
say that 17 criminal cases are registered
against him in Register No.8 and H.S.
Khaka
of
Police
Station
Malihabad,
Lucknow. As a base case of gang chart,
only one case of 2024 has been mentioned
against the petitioners and on the basis of
that very case, neither the petitioners can be
detained under the provisions of the Act of
1986, nor their properties can be attached
under the provisions of the Act of 1986.

12. Learned A.G.A. has vehemently
opposed the submissions of learned counsel
for the petitioners and submitted that
history sheet No.11-A is being maintained
by the police against the petitioner No.1.
There are 17 criminal cases mentioned in
the
history
sheet,
including
heinous
offences as mentioned in Chapter 16, 17
and 22 of the Indian Penal Code, 1860. The
petitioner No.1 could not produce any order
of the court showing his acquittal from the
offence under Case Crime No.200/1984
and Case Crime No.111/1997. As per the
working as prevailed till 1980, prior to the
year 1980, except the year of offence, no
crime number was being entered in the
Register No.8, that is why the offence which
have been mentioned at Serial No.12 to 15 in
Register No.8 of Police Station, Malihabad,
are not having case crime number, although
the offences before 1980 as mentioned in
Register No.8 and H.S. Khaka contains the
sections of criminal law under which the
criminal cases were registered against the
petitioner No.1. In his application for
information under the Right to Information
Act, the petitioner No.1 has not prayed for the
information from the record of history sheet.
The petitioner No.1 has wrongly mentioned
that in history sheet of Police Station
Malihabad, no criminal case exists against
him. Apart from the cases of Police Station
Malihabad, the list of case history contains
criminal cases which have been lodged
against the petitioner No.1 at Serial No.1 to
11 belong to different Police Station of
Lucknow and Hardoi. The same has not been
denied by the petitioners specifically. The
petitioners could not produce the source of
income for acquiring the properties. They
have not produced any certificate of their
regular income, like proof of income tax for
the relevant year of purchasing/acquiring the
properties and ITRs of subsequent years,
showing
the
income
from
agriculture/vegitation or from other sources.
They could not produce the proof of
transaction of money in their bank account
from Poland at the stage of hearing of
argument. After preliminary attachment as
per rule 37(4) of the Act of 1986, the burden
of proof was upon the petitioners to prove
that the properties attached have not been
acquired by the proceeds of crime committed
by petitioner No.1. The petitioners could not
submit any cogent and relevant proof before
the Court of Commissioner of Police,
Lucknow at the stage of hearing of their
representation under Section 15 of the Act of
1986. The petitioners have statutory right for
redressal of their grievance and to take part in
the inquiry under Section 16 of the Act of
1986 before court concerned, as the grounds
taken by learned counsel for petitioners,
require appreciation of evidence. This Court
has no jurisdiction to adjudicate the dispute
by entering into the facts and evidence.
Accordingly, the writ petition is liable to be
dismissed.

13. We have heard learned counsel
for the petitioners, learned A.G.A. for the
State/respondents and perused the material
brought on record.

14. Petitioners have challenged the
validity of the orders dated 10.06.2024 in
present writ petition. Vide orders dated
900 INDIAN LAW REPORTS ALLAHABAD SERIES
10.06.2024,
the
Court
of
Police
Commissioner, Lucknow has confirmed the
attachment of 35 immovable properties of
petitioner No.1 and one residential house
and
one
vehicle
having
registration
No.UP54 AC 9393 and 27 immovable
properties of petitioner No.2 and one
motorcycle. The orders against both the
petitioners
were
passed
by
the
Commissioner of Police, Lucknow under
Section 15 of the Act of 1986. The record
indicates that before passing the above
orders
dated
10.06.2024,
the
Police
Commissioner, Lucknow had passed orders
dated
07.03.2024
for
provisional
attachment of the properties of the
petitioners.
The
said
orders
were
challenged by the petitioner before this
Court in Criminal Misc. Writ Petition
No.2875 of 2024. The court disposed of the
said writ petition with a direction to the
petitioners to approach the Court of Police
Commissioner, Lucknow under Section 15
of the Act of 1986. This Court had also
directed
the
Police
Commissioner,
Lucknow to provide an opportunity to the
petitioners to submit their representations
as well as to provide opportunity of hearing
and decide the representations/replies by a
reasoned and speaking order, in accordance
with law. The order dated 24.04.2024 has
not been challenged by the petitioners
further and it has attained finality.

15. The record indicates that the
petitioners
have
submitted
their
representation/counter reply on 29.04.2024
for review of the order dated 07.03.2024,
written arguments as well as supplementary
written arguments dated 13.05.202 and
rejoinder reply dated 03.06.2024 against the
parawise comments of S.H.O., Police Station
Mall, District Lucknow dated 11.05.2024
before the Court of Police Commissioner,
Lucknow.
Accordingly,
the
Police
Commissioner, Lucknow after providing the
opportunity to submit representations and
opportunity of hearing, passed the orders
dated
10.06.2024.
The
orders
dated
10.06.2024 contains the discussion in detail,
the points of objections of petitioners against
the attachment under Section 14 (1) of the
Act
of
1986.
The
Court
of
Police
Commissioner, Lucknow passed reasoned
and speaking orders after discussing the
representations of petitioners properly.

16. Learned counsel for the petitioners
has submitted that the Court has not provided
any opportunity of hearing before passing the
order under Section 14 of the Act of 1986.
The provisions of Section 14 of the Act of
1986 reads 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."

17. The wording as mentioned by
legislature in the above section provides
8 All. Siraj Ahmad Khan & Anr. Vs. The Addl. Chief Secy. & Ors.
901
that
if
the
District
Magistrate/Police
Commissioner has reason to believe, he
may pass order for attachment of the
property. The Police Commissioner has
mentioned in his order dated 10.06.2024
that he perused the report of S.H.O., Police
Station Mall dated 04.03.2024 which was
forwarded by the Deputy Commissioner of
Police (West), Lucknow and also the
documents annexed with the report. It
shows that S.H.O., Police Station Mall,
Lucknow has given the report of the
activities and properties of the accused
persons/petitioner Siraj Ahmad @ Lallan
Khan and his son Faraz Ahmad. The above
report of S.H.O. was perused, considered
and
thereafter
forwarded
by
Deputy
Commissioner (Upayukt) of Police (West),
Lucknow and the same was the basis of the
orders dated 07.03.2024, which were
passed by the Police Commissioner,
Lucknow under Section 14 (1) of the Act,
1986. In other words, it can be said that the
report of S.H.O., Police Station - Mall,
Lucknow, which was forwarded by his
senior
police
officer,
the
Deputy
Commissioner (Upayukt) of Police (West),
Lucknow, became the reason to believe that
said properties of petitioners have been
acquired by criminal activities and to pass
the impugned orders by the Police
Commissioner, Lucknow.

18. It has also been mentioned in the
above orders that the accused persons and
their family members are trying to transfer
the properties which were acquired by them
by the proceeds of crime, therefore, the
Police Commissioner, Lucknow has passed
the provisional attachment orders dated
07.03.2024. In Section 14 of the Act of
1986, no where it has been mentioned that
before passing the order the District
Magistrate/Police
Commissioner
shall
require to provide an opportunity of
hearing to the accused. It appears that the
intention of the legislation was to prevent
the immediate alienation of properties
because if the opportunity of hearing is
provided before passing the order under
Section 14 (1) of the Act of 1986, the
accused may get sufficient time to transfer
the
property,
then
in
that
case,
a
complication may come on surface in the
proceeding under the Act of 1986.
Therefore, it is wrong to say that it was
mandatory for Police Commissioner to
provide the opportunity of hearing to the
petitioners before passing the orders under
Section 14 (1) of the Act of 1986. It is also
to be noted that challenging the orders
dated 07.03.2024, the order of this Court
dated 24.04.2024 passed in Criminal Misc.
Writ Petition No.2873 of 2024 has attained
finality.

19. The Commissioner of Police,
Lucknow
has
passed
orders
dated
10.06.2024 under Section 15 of the Act of
1986. Provisions of Section 15 of the Act
of 1986 reads 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."

20. It reflects from the orders dated
10.06.2024 that the Police Commissioner,
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow has passed the order after
providing sufficient opportunity of hearing
and after considering the representations of
the petitioners. The Court of Police
Commissioner, Lucknow has discussed in
detail the grounds as mentioned in the
representations of the petitioners. The
Court of Commissioner of Police, Lucknow
has also mentioned that the petitioners
could not submit any cogent and relevant
documentary evidence to prove the source
of money by which the properties under
attachments
were
obtained
by
the
petitioners. In this regard the provisions of
Rule 37 (4) of the U.P. Gangster and Anti
Social Activities (Prevention) Rules, 1986
provides that the burden of proof that the
property attached has not been acquired by
committing offence under the Act and the
burden to show lawful source of acquisition
of the property shall be on accused whose
property in question is attached. In the light
of above provision, the burden of proof of
both the facts was on petitioners. The
proviso to clause (3) of Rule 37, also
provides a condition that the criminal cases
enumerated in sub clauses (i) to (xxv) of
clause (b) of Section 2 of the Act of 1986
should be registered against the petitioner
No.1 and the property has been acquired by
him by committing such offences. In this
regard
the
Commissioner
of
Police,
Lucknow has discussed in the impugned
orders that the petitioner No.1 has been
involved in the criminal activities since
1973 and his history sheet No.11-A is
entered in Register No.8 of the Police
Station - Malihabad. It shows the criminal
history of petitioner No.1, and according to
that entry total 17 cases are registered since
1974 to 1997 against the petitioner No.1. It
has also been brought in the knowledge of
Police
Commissioner,
Lucknow
that
petitioner No.2 could not submit any
cogent and reliable evidence regarding his
income to enable him to acquire the
properties attached. The properties have
been gifted to him by his mother and father
(petitioner
No.1),
although
he
has
submitted his ITR of Poland for the year
2022 but it requires proof. The petitioner
No.2 could not show his regular income.
The above facts, which have been brought
before Police Commissioner also provide a
ground for reason to believe that the
petitioners
have
acquired
the
said
properties by the proceeds of crime
committed by petitioner No.1 regarding
which the petitioners could not submit the
documentary proof regarding source of
income.
Therefore,
the
orders
dated
10.06.2024, passed by the Commissioner of
Police,
Lucknow
cannot
be
termed
arbitrary or baseless. It is in accordance
with
law,
regarding
which
the
Commissioner of Police, Lucknow has
jurisdiction conferred in him by the
legislation.

21. The further submission of learned
counsel
for
the
petitioners
that
the
properties which were attached by the
Commissioner of Police, Lucknow were in
the names of the family members of the
petitioner No.1 and there was no nexus
between the commission of offence and
acquisition of properties. Some of the
properties are ancestral, some of the
properties were purchased by the earnings
of his sons, Ehraz Khan who is the citizen
of Ireland and Shamail Khan who is the
citizen of Poland and some property has
been purchased by petitioner No.2 from his
own income and further submission that the
18 criminal cases have wrongly been
shown as registered against the petitioner
No.1, the criminal history of petitioner
No.1 is not true and the properties under
attachment vide orders dated 10.06.2024
have not been obtained by the proceeds of
8 All. Deepu & Ors. Vs. State of U.P. & Ors.
903
crime, these are the questions of facts and
appreciation of evidence, which cannot be
decided
by
this
Court
under
writ
jurisdiction.

22. On the above point, learned
A.G.A. has placed reliance upon paragraph
4 of the judgment passed by a co-ordinate
Bench of this Court in the case of Krishna
Murari Agrawal alias Deepak Vs. District
Magistrate, Jhansi and others, 2001 CRI.
L.J. 949. Paragraph 4 reads as under :

"4. The question whether the
property attached has been acquired by a
gangster as a result of the commission of an
offence under U.P. Gangsters & Anti-Social
Activities Prevention Act, 1986 is a pure
question of fact. The claim of the petitioner
that the property has not been acquired by
commission of an offence or that it is an
ancestral property can only be established by
appraisal of the evidence. It will be open to the
petitioner to lead oral and documentary
evidence in support of his claim before the
Special Judge (Gangsters Act) where the
matter has been referred. Such appraisal of
evidence is not possible in the present
proceedings under Article 226 of the
Constitution of India. The Act provides a
complete machinery as against the decision of
the Court an appeal lies under Section 18 of
the Act."

23. The petitioners have right and
statutory remedy under Section 16 of the Act
of 1986 in which they will get the opportunity
to prove that the properties which have been
attached have not been acquired by petitioner
No.1 by the commission of the crimes, and
further if the petitioners are not satisfied by the
order confirming attachment/order of the
competent court under Section 17 of the Act of
1986, they shall get opportunity to file appeal
under Section 18 of the Act of 1986.
According to Section 20 of the Act of 1986,
the provisions of the Act of 1986 shall have
overriding
effect
over
the
inconsistent
provisions of general law.

24. It has been held by Hon'ble Supreme
Court in the case of Raj Kumar Shivhare Vs.
Director of Enforcement (2010) 4 SCC 772
that where a statutory forum is created by law
for redressal of grievance and that too in a
fiscal statue, a writ jurisdiction should not be
entertained ignoring the statutory dispensation.

25. Having considered the legal aspect
that extra ordinary remedy under Article 226
of the Constitution of India is not meant to
circumvent
the
statutory
remedies,
the
statutory provisions cannot be bypassed by
this court under its supervisory jurisdiction
under Article 226 of the Constitution of India.

26. In the light of above discussion, we
decline to entertain the writ petition under
Article 226 of the Constitution of India.

27. Accordingly, the writ petition is
rejected. However, the petitioners shall have
liberty to raise all the factual and legal issues
before the court concerned under Section 16 of
the Act of 1986.
----------
(2024) 8 ILRA 903
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 12287 of 2024

Deepu & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents