# Smt. Nazima v. State of U.P

- **Citation:** (2023) 12 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-16
- **Case number:** Criminal Appeal No. 1385 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nazima-v-state-of-u-p-49564
- **Pages:** 12

## Headnote

Criminal Law - Uttar Pradesh Gangster
and Anti Social (Prevention of Activities)
Act, 1986 - Sections 2/3, 14 to 17 -
Appellant's husband implicated in cases
due
to
enmity,
proceedings
under
Gangster Act initiated against him in 2021
- Property attached by District Magistrate
under Section 14(1) of Gangsters Act -
Aggrieved by attachment order, appellant
preferred representation for release of
property under Section 15(1) of Gangster
Act before District Magistrate, rejected,
thereafter matter referred to Gangster
Court under Section 16 and passed
impugned order - In view of settled law, it
is clear that property can be attached
under Section 14 of Gangster Act only if
acquired by gangster through commission
of offence triable under Act - In instant
case, attached property was ancestral,
acquired much prior to registration of
criminal cases and imposition of Gangster
Act - District Magistrate, relying solely on
police
report
and
without
relevant
material, recorded mechanical satisfaction
and passed attachment order which was
arbitrary and without application of mind -
Consequently, orders passed by District
Magistrate and Gangster Court under
Section 16 illegal, liable to be quashed -
Prosecution
failed
to
establish
applicability of provisions of Gangster Act
or that appellant's husband acquired
property from income derived through
anti-social
activities
-
Inquiry
under
Section 16 and procedure under Sections
14, 15 and 17 was not conducted in
accordance with law, thereby vitiating
entire proceedings. (Para 5, 7, 20, 21)

Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,993 of 41,142. This is a partial read: ask again with offset=39993 for what follows._

290 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment to the Court concerned forthwith
for information and follow up action.
----------
(2023) 12 ILRA 290
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.12.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1385 of 2023

Smt. Nazima ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Suchendra Kumar Sharma, Dharm Trivedi,
Dheeraj Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Uttar Pradesh Gangster
and Anti Social (Prevention of Activities)
Act, 1986 - Sections 2/3, 14 to 17 -
Appellant's husband implicated in cases
due
to
enmity,
proceedings
under
Gangster Act initiated against him in 2021
- Property attached by District Magistrate
under Section 14(1) of Gangsters Act -
Aggrieved by attachment order, appellant
preferred representation for release of
property under Section 15(1) of Gangster
Act before District Magistrate, rejected,
thereafter matter referred to Gangster
Court under Section 16 and passed
impugned order - In view of settled law, it
is clear that property can be attached
under Section 14 of Gangster Act only if
acquired by gangster through commission
of offence triable under Act - In instant
case, attached property was ancestral,
acquired much prior to registration of
criminal cases and imposition of Gangster
Act - District Magistrate, relying solely on
police
report
and
without
relevant
material, recorded mechanical satisfaction
and passed attachment order which was
arbitrary and without application of mind -
Consequently, orders passed by District
Magistrate and Gangster Court under
Section 16 illegal, liable to be quashed -
Prosecution
failed
to
establish
applicability of provisions of Gangster Act
or that appellant's husband acquired
property from income derived through
anti-social
activities
-
Inquiry
under
Section 16 and procedure under Sections
14, 15 and 17 was not conducted in
accordance with law, thereby vitiating
entire proceedings. (Para 5, 7, 20, 21)

Appeal allowed. (E-13)

List of Cases cited:

1. Smt. Maina Devi Vs St. of U.P. 2013 (83) ACC
902, (Paras 8 to 10)

2. Smt. Shanti Devi wife of Sri Ram Vs St. of
U.P. 2007(2) ALJ 483 (All), (Paras 9 to 11)

3. Rajbir Singh Tyagi Vs St. of U.P. & ors.2018
SCC Online AII 5986, (Paras 16, 18)
(Delivered by Hon'ble Shamim Ahmed, J.)

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

2. Heard Shri Dharm Trivedi, learned
counsel for the appellant, Ms. Shikha
Sinha, learned Additional Government
Advocate for the State and perused the
material available on record.

3. The present appeal under Section
18 of U.P. Gangster and Anti Social
(Prevention
of Activities) Act,
1986
(hereinafter referred to as the 'Gangster
Act') has been preferred by the appellant,
namely, Smt. Nazima with a prayer to set
aside the order dated 01.04.2023 passed
under Section 16 of the Gangster Act in
Misc. Criminal Case No.186 of 2022
(Nazima Vs. State of U.P.) by learned
Additional Sessions Judge / Special Judge
(Gangster Act), Court No.13, Lakhimpur
12 All. Smt. Nazima Vs. State of U.P.
291
Kheri and order dated 06.04.2022 passed
by District Magistrate, Lakhimpur Kheri
passed under Section 14 of the Gangster
Act in Misc. Criminal Case No.586 of 2022
(Anwar Vs. State of U.P.), Case Crime
No.85 of 2021, under Section 2/3 of Uttar
Pradesh
Gangster
and
Anti
Social
(Prevention of Activities) Act, 1986, Police
Station Mailani, District Kheri, whereby
the District Magistrate, Lakhimpur Kheri
had attached the property (ancestral house)
of the appellant.

4. In short, the facts of the case are
that husband of the appellant, namely,
Anwar was implicated in following cases:-

I) Case Crime No.387 of 2021,
under
Section
13
of
The
Public
Gambling Act, 1867, Police Station
Gola, District Kheri.

II) Case Crime No.85 of 2021, under
Section 2/3 of the Uttar Pradesh Gangster
and Anti Social (Prevention of Activities)
Act, 1986, Police Station Gola, District
Kheri.

III) Case Crime No.07 of 2021, under
Section 60(2) of the Excise Act, Police
Station Gola, District Kheri.

IV) Case Crime No.465 of 2020,
under Section 3/5/8 of the U.P. Prevention
of Cow Slaughter Act, 1955, Police Station
Gola, District Kheri.

V) Case Crime No.15 of 2019, under
Section 3/5/8 of the U.P. Prevention of Cow
Slaughter Act, 1955, Police Station Gola,
District Kheri.

VI) Case Crime No.534 of 2015,
under Section 110(G) of the Code of
Criminal Procedure, 1973, Police Station
Gola, District Kheri.

VII) Case Crime No.785 of 2012,
under
Section
3/5Ka/8
of
the
U.P.
Prevention of Cow Slaughter Act, 1955,
Police Station Gola, District Kheri.

5. Learned counsel for the appellant
submitted that the husband of the appellant
has been implicated in the aforesaid cases
due to enmity and the case under the
Gangster Act was imposed upon him in the
year 2021 whereas the property of the
husband of the appellant which was
attached vide order dated 06.04.2022
passed
by
the
District
Magistrate,
Lakhimpur Kheri under section 14 (1) of
U.P. Gangster Act, was acquired by him
much earlier to the imposition of Gangster
Act upon him.

6. Learned Counsel of the appellant
further submitted that in furtherance of the
FIR bearing Case Crime No.85 of 2021,
under Section 2/3 of the Uttar Pradesh
Gangster and Anti Social (Prevention of
Activities) Act, 1986, Police Station Gola,
District Kheri, the District Magistrate,
Lakhimpur Kheri proceeded to exercise its
power under Section 14(1) of the Gangster
Act and passed an order for attaching the
property of the appellant on 06.04.2022.

7. Being aggrieved by the aforesaid
attachment order dated 06.04.2022 passed
by District Magistrate, Lakhimpur Kheri,
representation
dated
13.06.2022
was
preferred by the appellant before District
Magistrate, Lakhimpur Kheri under Section
15 (1) of the Gangster Act seeking release
of the appellant's property from attachment.
However, the aforesaid representation was
dismissed in a cursory manner by the
District Magistrate, Lakhimpur Kheri vide
order dated 21.07.2022. While passing the
order
dated
21.07.2022,
the
District
Magistrate, Lakhimpur Kheri referred the
case to the learned Gangsters Court under
Section 16 of the Gangster Act in respect of
property which was not released by him;
and,
the
learned
Gangsters
Court,
thereafter, proceeded to pass the impugned
292 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 01.04.2023 in exercise of its
powers under Section 16 of the Gangster
Act.

8. Learned counsel for the appellant
further
submitted
that
the
District
Magistrate, Lakhimpur Kheri has wrongly
and incorrectly attached the house of the
appellant on the wrong presumption that
the said property has been acquired from
the income earned by the husband of the
appellant by his involvement in anti social
activities, whereas the husband of the
appellant is neither Gangster nor he has
earned this property from his involvement
in anti social activities.

9. Learned counsel for the appellant
further submitted that the learned trial court
while passing the impugned order dated
01.04.2023, 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's husband
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 by the appellant's husband 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. He has
further submitted that the appellant had given
the complete details of the property which
has
been
attached
vide
order
dated
06.04.2022 by the District Magistrate,
Lakhimpur Kheri.

10. Learned counsel for the appellant
further submitted that the impugned order
dated 06.04.2022 passed by the District
Magistrate, Lakhimpur Kheri does not
reveal
that
the
District
Magistrate,
Lakhimpur Kheri had "reason of believe"
that the property in question was acquired
by the appellant's husband as a commission
of an offence under the Gangster Act rather
the aforesaid order is passed on mere
suspicion, surmises and conjectures and the
appellate court has also passed the order
dated 01.04.2023 in cursory manner
without analyzing the documents of the
appellant. Thus, both the impugned orders
are not sustainable in the eye of law.

11. Per contra, learned AGA, has
argued that the learned appellate court has
correctly appreciated the material on record
before passing the impugned order. The
District Magistrate, Lakhimnpur Kheri has
also passed the impugned order dated
06.04.2022 after being fully satisfied that
appellant's husband has acquired the
property in question by illegal means
involving himself in anti social activities as
defined under the Gangster Act, as such
there is no illegality, infirmity or perversity
in the impugned orders. Moreover, the
competent authority has passed the order
after
considering
the
report
of
the
Superintendent of Police, as also the report
of Station House Officer, Police Station
Mailani, District Kheri 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 produce the source of income from
which the appellant's husband has acquired
the properties attached by the learned
District Magistrate, Lakhimpur Kheri.
Thus, the learned courts below after
12 All. Smt. Nazima Vs. State of U.P.
293
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 State
and gone through the impugned orders
passed by the courts below.

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 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)
294 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
12 All. Smt. Nazima Vs. State of U.P.
295
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, 16 and 17 of the Gangsters Act, which
read as under:

"14. Attachment of property.-(1)
If the District Magistrate has reason to
believe that any property, whether movable
or immovable, in possession of any person
has been acquired by a gangster as a result
of the commission of an offence triable
under this Act, he may order attachment of
such property whether or not cognizance of
such offence has been taken by any Court.

(2) The provisions of the Code
shall mutatis mutandis apply to every such
attachment.

(3)
Notwithstanding
the
provisions of the Code the District
Magistrate may appoint an Administrator
of any property attached under sub-section
(1) and the Administrator shall have all the
powers to administer such property in the
best interest thereof.

(4) The District Magistrate may
provide police help to the Administrator for
proper and effective administration of such
property.

15. Release of property .- (1) Where
any property is attached under Section 14,
the claimant thereof may, within three
months from the date of knowledge of such
attachment, make a representation to the
District
Magistrate
showing
the
circumstances in and the sources by which
such property was acquired by him.

(2) If the District Magistrate is
satisfied about the genuineness of the claim
made 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
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
296 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
12 All. Smt. Nazima Vs. State of U.P.
297
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
movable 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 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
298 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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 205D/9 situated in Mohalla Chandmari, Imiliyan,
P.S. Sarai Lak-hansi, District Mau in favour of
the appellant forthwith."
12 All. Smt. Nazima Vs. State of U.P.
299

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
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.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. 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 property, which was attached,
was ancestral property of the appellant's
husband 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 06.4.2022 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 i.e. the present appellant's
husband 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. The
District Magistrate has no material in
support of the police report that the
property in question was acquired by the
husband of the present appellant being
gangster even though the proceedings were
not followed as per the provisions of the
Act. From the record it transpires that the
appellant's husband had acquired the
property from his ancestors much prior to
the registration of criminal cases and
imposition of Gangster Act, which was
invoked in the year 2021 and the impugned
order
of
attachment
was
passed
in
mechanical manner without application of
mind and is arbitrary. Thus the impugned
order dated 06.04.2022 passed by the
District Magistrate, Lakhimpur Kheri and
the impugned order dated 01.04.2023
passed under Section 16 of the Gangster
Act in Misc. Criminal Case No.186 of 2022
(Nazima Vs. State of U.P.) by learned
Additional Sessions Judge / Special Judge
12 All. The Commissioner, Commercial Tax, U.P. Lko. Vs. S/s Sanya Construction & Developers
 Pvt. Ltd., Kanpur
301
(Gangster Act), Court No.13, Lakhimpur
Kheri are illegal and the same are liable to
be quashed.

21. In view of above facts and
circumstances of the case, the impugned
orders passed by the courts below 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's
husband has been earned from the income
indulging in anti social activities. The
inquiry under Section 16 was not done in
accordance with the Act, the provisions of
Sections 14, 15 & 17 were also not
followed in accordance with the Act, thus
the entire proceeding initiated in pursuance
thereof is vitiated.

22. Accordingly, the present appeal is
allowed. The impugned order dated order
dated 01.04.2023 passed under Section 16
of the Gangster Act in Misc. Criminal
Case No.186 of 2022 (Nazima Vs. State
of U.P.) by learned Additional Sessions
Judge / Special Judge (Gangster Act),
Court No.13, Lakhimpur Kheri and order
dated 06.04.2022 passed by District
Magistrate,
Lakhimpur
Kheri
passed
under Section 14 of the Gangster Act in
Misc. Criminal Case No.586 of 2022
(Anwar Vs. State of U.P.), Case Crime
No.85 of 2021, under Section 2/3 of Uttar
Pradesh
Gangster
and
Anti
Social
(Prevention of Activities) Act, 1986,
Police Station Mailani, District Kheri are
hereby quashed.

The District Magistrate, Lakhimpur
Kheri is directed to release all the property
of the appellant attached vide order dated
06.04.2022
in
favour
of
appellant,
forthwith.

23. No order as to costs.
----------
(2023) 12 ILRA 301
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.