# Sudha Singh & Anr v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Criminal Appeal No. 3121 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudha-singh-anr-v-state-of-u-p-anr-51265
- **Pages:** 13

## Headnote

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3, 14, 15, 16 & 17 -
Appellants
challenged
orders
dated
23/27.04.2022
(attachment
of
property),
16.08.2022 (rejection of representation), and
19.10.2023 (upholding attachment) by District
Magistrate, Amethi, and Special Judge, Gangster
Act, Sultanpur, under Section 14(1) of the
Gangster Act. Court held: (1) No material
evidence supported District Magistrate's belief
that properties were acquired by appellant no.2
through offences under the Gangster Act; orders
based on mere police reports and suspicion. (2)
Appellants provided evidence of legitimate
income sources (appellant no.1's business since
2015), rebutting presumption under Section 14.
(3) Properties acquired prior to 2022 Gangster
Act case; no nexus established between alleged
crimes and property acquisition. (4) District
Magistrate and trial court failed to conduct
proper inquiry under Sections 15, 16, and 17,
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1405
rendering orders arbitrary and illegal (Smt.
Maina Devi Vs St. of U.P., 2013(83) ACC 902;
Smt. Shanti Devi Vs St. of U.P., 2007(2) ALJ
483; Rajbir Singh Tyagi Vs St. of U.P., 2018 SCC
Online All 5986). All impugned orders quashed;
properties ordered to be released; appeal
allowed. (Paras 17-23)

Appeal Allowed.

Case Law Cited:

## Text

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1404 INDIAN LAW REPORTS ALLAHABAD SERIES
record. The trial court relying on the
testimony of witnesses, even though who
were interested witnesses, has concluded
that the accused had assaulted the injured
persons. Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said to be
reasonable.

24. It is established principle of law of
evidence that statement of witness is to be
read as a whole and conclusion should not
be drawn only by picking up a single
sentence of the statement of a witness. Thus
the trial court has overlooked the material
evidence available on record with regard to
guilt of accused and to that extent
conclusion drawn by the trial Court suffers
with patent infirmity and perversity and
therefore, liable to be reversed and set
aside.

25. Thus in view of above, after
analysis of circumstances of present case in
the
light
of
aforesaid
settled
legal
principles, I come to the conclusion that the
trial court has erred passing the impugned
judgment and order, therefore, this appeal
succeeds and is allowed. The judgment and
order dated 23.07.2008 passed by learned
Additional Special Sessions Judge/S.C. &
S.T. Act/F.T.C.-4, Court No.13, Sultanpur,
in Special Sessions Trial No.9/2007 "State
vs. Jagesar Verma and Others", arising out
of Case Crime No./Court Case No.5/2005,
relating to Police Station-Sangrampur,
District-Sultanpur, by which the appellants
have been convicted under Section 323/34
with a fine of Rs.300/- and in default of
payment of fine two months imprisonment
is set aside and reversed. The appellants,
namely, appellant no.1 Babu Lal, appellant
no.2, namely-Ram Asarey and appellant
No.3, namely-Raj Bahadur Verma are
acquitted of charges under Section 323/34.
Their personal bonds and surety bonds are
canceled and sureties are discharged.

26. Let record of lower Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2024) 2 ILRA 1404
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 3121 of 2023

Sudha Singh & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Anurag Shukla, Birendra Pratap Singh, Pankaj
Shukla

Counsel for the Respondent:
G.A.

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3, 14, 15, 16 & 17 -
Appellants
challenged
orders
dated
23/27.04.2022
(attachment
of
property),
16.08.2022 (rejection of representation), and
19.10.2023 (upholding attachment) by District
Magistrate, Amethi, and Special Judge, Gangster
Act, Sultanpur, under Section 14(1) of the
Gangster Act. Court held: (1) No material
evidence supported District Magistrate's belief
that properties were acquired by appellant no.2
through offences under the Gangster Act; orders
based on mere police reports and suspicion. (2)
Appellants provided evidence of legitimate
income sources (appellant no.1's business since
2015), rebutting presumption under Section 14.
(3) Properties acquired prior to 2022 Gangster
Act case; no nexus established between alleged
crimes and property acquisition. (4) District
Magistrate and trial court failed to conduct
proper inquiry under Sections 15, 16, and 17,
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1405
rendering orders arbitrary and illegal (Smt.
Maina Devi Vs St. of U.P., 2013(83) ACC 902;
Smt. Shanti Devi Vs St. of U.P., 2007(2) ALJ
483; Rajbir Singh Tyagi Vs St. of U.P., 2018 SCC
Online All 5986). All impugned orders quashed;
properties ordered to be released; appeal
allowed. (Paras 17-23)

Appeal Allowed.

Case Law Cited:

1. Smt. Maina Devi Vs St. of U.P., 2013(83) ACC
902 (Para 18)

2. Smt. Shanti Devi Vs St. of U.P., 2007(2) ALJ
483 (Para 19)

3. Rajbir Singh Tyagi Vs St. of U.P., 2018 SCC
Online All 5986 (Para 20)

4. Badan Singh alias Baddo Vs St. of U.P., 2002
Cri LJ 1392 (Para 19)

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

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

2. Heard Shri Anurag Shukla, learned
counsel for the appellants as well as Shri
Ashok Kumar Singh, learned A.G.A-I 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 appellants,
namely, Sudha Singh and Vijay Pratap
Singh @ Gallan Singh with a prayer to set
aside the order dated 19.10.2023 passed by
the learned Additional District and Sessions
Judge / F.T.C.-II / Special Judge, Gangster
Act, District Sultanpur in Crl. Misc. Case
No.4/2022 (State Vs. Vijay Pratap @
Gallan) as well as the order dated
23/27.04.2022 passed by the District
Magistrate, Amethi attaching/seizing the
property of the appellants and the order
dated 16.08.2022 passed by the District
Magistrate,
Amethi,
rejecting
the
representations of the appellants and
making reference to the learned trial court.

4. In short, the facts of the case are
that appellant no.2, namely, Vijay Pratap
Singh @ Gallan Singh was implicated in
following cases:-

I) Case Crime No.257 of 2021, under
Sections 302, 120-B I.P.C., Police Station
Munshiganj, District Amethi.

II) Case Crime No.207 of 2021, under
Sections 323, 504 I.P.C. read with Section
3(1)(d)(dha), 3(2)(5)(ka) of S.C./S.T. Act,
Police Station Munshiganj, District Amethi.

III) Case Crime No.1120 of 2014,
under Sections 147, 148, 149, 188, 307,
302, 336, 382, 353, 357, 427, 506, 504,
120-B I.P.C. and Section 7 of C.L.A. Act,
Police Station Amethi, District Amethi.

IV) Case Crime No.327 of 2001,
under Sections 147, 323 I.P.C., Police
Station Munshiganj, District Amethi.

V) Case Crime No.83 of 1995, under
Section
307
I.P.C.,
Police
Station
Munshiganj, District Amethi.

VI) Case Crime No.68 of 1991, under
Sections 363, 366, 368, 376 I.P.C., Police
Station Munshiganj, District Amethi.

VII) Case Crime No.93 of 1991, under
Sections 394, 504, 506 I.P.C., Police
Station Munshiganj, District Amethi.

5. Learned counsel for the appellants
submitted that the appellant no.2, namely,
Vijay Pratap Singh @ Gallan Singh, who is
the husband of the appellant no.1, namely,
Sudha Singh has been implicated in the
aforesaid cases due to enmity and the case
under the Gangster Act was imposed upon
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
him in the year 2022 whereas the property
of the appellants which was attached vide
order dated 23/27.04.2022 passed by the
District Magistrate, Amethi 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 appellants
further submitted that in furtherance of the
FIR bearing Case Crime No.35 of 2022,
under Section 2/3(1) of the Uttar Pradesh
Gangster and Anti Social (Prevention of
Activities) Act, 1986, Police Station
Gauriganj, District Amethi, the District
Magistrate, Amethi 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
23/27.04.2022.

7. Being aggrieved by the aforesaid
attachment
order
dated
23/27.04.2022
passed by District Magistrate, Amethi,
representation
dated
02.05.2022
was
preferred by the appellants before District
Magistrate, Amethi seeking release of the
appellants'
property
from
attachment.
However, the aforesaid representation was
dismissed in a cursory manner by the
District Magistrate, Amethi vide order
dated 16.08.2022. While passing the order
dated 16.08.2022, the District Magistrate,
Amethi 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 order dated 19.10.2023
in exercise of its powers under Section 16
of the Gangster Act.

8. Learned counsel for the appellant
further
submitted
that
the
District
Magistrate, Amethi has wrongly and
incorrectly attached the properties of the
appellant on the wrong presumption that
the said properties have been acquired from
the income earned by the appellant no.2 by
his involvement in anti social activities,
whereas the appellant no.2 is neither
Gangster nor he has earned this property
from his involvement in anti social
activities.

9. Learned counsel for the appellants
further submitted that the learned trial court
while passing the impugned order dated
19.10.2023, 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 no.2
from the income earned by indulging in
anti social activities without going through
documentary evidence filed on behalf of
appellants and wrongly interpreting that
appellants have not filed any document to
prove that the properties in question have
not been acquired by the appellant no.2
from the income earned by indulging in
anti social activities. Thus, the trial court
erred in law while rejecting the application
of appellants for release of properties in
question. He has further submitted that the
appellants had given the complete details of
the properties which has been attached vide
order dated 23/27.04.2022 by the District
Magistrate, Amethi.

10. Learned counsel for the appellant
further submitted that appellant No.1 who
is the wife of appellant No.2 is a business
lady with registered/approved contractor
possessing the requisite license for running
a proprietorship firm having owned and
accommodated
exclusively
by
sole
proprietor Smt. Sudha Singh i.e. appellant
No.1 since 2015 and she also holds a valid
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1407
license for running liquor shops since 2016.
Further, she belongs to a very reputed
family and her father was a Zamidar and a
popular figure in the society. He further
submitted
that
appellant
No.1
had
categorically
and
comprehensively
explained her source of income to build the
property, which has been attached/seized
vide impugned orders. The presumption of
procurement of the property by a gangster
by illegal means could only arise, had there
been no other source of income. Needless
to say that a presumption is always a
presumption and is always rebuttable.

Thus, he further submitted that in the
present case the appellants are not only
rebutting the presumption as provided
under Section 14 of the Gangsters Act but
are contradicting the same in stricto senso
by disclosing their other source of income.

11. Learned counsel for the appellant
further submitted that the impugned order
dated 23/27.04.2022 passed by the District
Magistrate, Amethi does not reveal that the
District Magistrate, Amethi had "reason of
believe" that the properties in question
were acquired by the appellant no.2 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 19.10.2023 in
cursory manner without analyzing the
documents of the appellants. Thus, both the
impugned orders are not sustainable in the
eye of law.

12. Per contra, Shri Ashok Kumar
Singh, learned AGA-I, has argued that the
learned appellate court has correctly
appreciated the material on record before
passing the impugned order. The District
Magistrate, Amethi has also passed the
impugned order dated 23/27.04.2022 after
being fully satisfied that appellant no.2 has
acquired the properties in question by
illegal means after 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 Gauriganj, District Amethi
and, as such, it is wrong to say that the
impugned order of attachment passed by
the competent authority suffers from
infirmities.

13. Learned AGA-I has further
submitted that the learned trial court
pointed out that the appellants were also
not able to produce the source of income
from which the appellants have acquired
the properties attached by the learned
District Magistrate, Amethi. Thus, the
learned trial court after considering the
entire material including the documentary
evidence available on record have passed
the impugned orders in correct perspectives
and they need no interference.

14. I have heard learned counsel for
the appellants, learned AGA-I for the State
and gone through the impugned orders
passed by the trial court.

15. 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
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
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)
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
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1409
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".

16. 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
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection (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 subsection (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
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1411
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."

17. 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 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
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
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 trial
court 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.

18. 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
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
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1413
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
205-D/9 situated in Mohalla Chandmari,
Imiliyan, P.S. Sarai Lak-hansi, District Mau
in favour of the appellant forthwith."

19. 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
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. 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. 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 thataggrieved 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."

21. Keeping in view the aforesaid
settled
proposition
of
law
and
the
2 All. Sudha Singh & Anr. Vs. State of U.P. & Anr.
1415
judgments rendered by this Court in the
case of Smt. Maina Devi versus State of
U.P. 2013(83) ACC 902 and Smt. Shanti
Devi wife of Sri Ram versus State of U.P.
2007(2) ALJ 483 (All), and Rajbir Singh
Tyagi Vs State of U.P. and Others 2018
SCC Online AII 5986, this Court is of the
view that the properties, which were
attached, were not acquired by the
appellants 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 23/27.04.2022 and record it
appears that only on the basis of the police
report, the District Magistrate, Amethi has
attached the properties in question, no
material was supplied to the District
Magistrate to have reasons to believe that
the properties in question were acquired by
the gangster i.e. the present appellants 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.