# Sushil Kumar Jaiswal & Anr v. State of U.P

- **Citation:** (2023) 2 ILRA 638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-03
- **Case number:** Criminal Appeal No. 1099 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-jaiswal-anr-v-state-of-u-p-49723
- **Pages:** 11

## Headnote

Criminal Law- U.P. Gangster and Anti
Social (Prevention of Activities) Act, 1986-
Sections 3(1), 14(1) & 15- Section 16(2)-
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 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.

While passing an order of attachment the
District Magistrate is required to record his
subjective satisfaction that the property so
attached is an outcome of his activities as a
gangster and the court too has to hold a
formal inquiry in order to come to the
conclusion that the attached property is the
proceeds of his commission of offences
punishable
under
the
Act.
(Para
16,17,18,21)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

638 INDIAN LAW REPORTS ALLAHABAD SERIES
who would be entitled to his fee from the
High Court Legal Service Authority.

49. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Mirzapur, who shall transmit the same to
the Jail Superintendent concerned for
information
of
the
accused-appellant
henceforth.
----------
(2023) 2 ILRA 638
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.02.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1099 of 2021

Sushil Kumar Jaiswal & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Abhishek Kumar Singh

Counsel for the Respondent:
G.A.

Criminal Law- U.P. Gangster and Anti
Social (Prevention of Activities) Act, 1986-
Sections 3(1), 14(1) & 15- Section 16(2)-
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 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.

While passing an order of attachment the
District Magistrate is required to record his
subjective satisfaction that the property so
attached is an outcome of his activities as a
gangster and the court too has to hold a
formal inquiry in order to come to the
conclusion that the attached property is the
proceeds of his commission of offences
punishable
under
the
Act.
(Para
16,17,18,21)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

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

2. Smt. Shanti Devi w/o Sri Ram Vs St. of U.P.
2007(2) ALJ 483 (All)

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

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

2. Heard Ms. Shubhangi Singh,
Advocate, holding brief of Shri Abhishek
Kumar Singh, the learned counsel for
appellants, Shri Diwakar Singh, the learned
A.G.A. for the State-opposite party and
perused the material available on record.

3. Perused the lower court record.

4. The present appeal under Section
18 of U.P. Gangster and Anti Social
(Prevention of Activities) Act, 1986 (herein
after referred to as, 'Gangster Act') has been
preferred by the appellants, namely, Sushil
2 All. Sushil Kumar Jaiswal & Anr. Vs. State of U.P.
639
Kumar Jaiswal and Kamal Kishore Jaiswal
against the judgment and order dated
10.03.2021 passed by the court of learned
Special Judge, Gangster Act/ Additional
Sessions Judge, Court No. 5, Unnao in
Criminal Misc. Case No. 94 of 2021, Sushil
Kumar Jaiswal Vs. State, arising out of
Case Crime No. 336 of 2017, under Section
3(1) of the Gangster Act, Police Station
Hasanganj, District Unnao, whereby the
learned
trial
court
has
rejected
the
application under Section 16(2) of Gangster
Act moved on behalf of appellants and
confirmed the order dated 01.01.2021
passed by the District Magistrate, Unnao,
directing
attachment
of
property
of
appellants.

5. In Short facts of the case are that
initially a first information report dated
06.09.2017 was lodged by Shri Hanuman
Prasad Pandey, Incharge Inspector of Police
Station Hasanganj, District Unnao bearing
Case Crime No. 0336 of 2017 against the
applicants alleging therein that when on
06.09.2017
along
with
other
police
personnel were present were making round
of Hasanganj and Kureel village, then some
villagers informed him that Sushil Kumar
Jaiswal along with his son Kamal Kishore
Jaiswal has made an organized gang, they
are involved in the work of mixing
kerosene and nickel converting it into
diesel and by adulterating petrol they are
earning illegal money, on account of which
State Exchequer is suffering from huge
revenue and for their conduct a case was
earlier got lodged against them bearing
Case Crime No. 132/17, under Sections
420 I.P.C. read with Section 3/7 of
Essential Commodities Act at Police
Station Hasanganj, District Unnao, wherein
after investigation charge sheet has already
been submitted before the court concerned
against them. Accused-Sushil Kumar Singh
is involved in anti social activities and on
account of fear created by him in the
locality no one has dare to adduce evidence
against him. He is involved in the illegal
activities against Chapter 16, 17 and 22 of
Indian Penal Code.

6. Learned Counsel Ms. Shubhangi
Singh submits that on implication of
appellants in Case Crime No. 336 of 2017,
under Section 3(1) of U.P. Gangster and
Anti Social (Prevention of Activities) Act,
registered at Police Station Hasanganj,
District Unnao, wherein they have already
been
enlarged
on
bail,
the
District
Magistrate, Unnao by its order dated
22.09.2020 by exercising its power vested
under Section 14(1) of the Gangster Act,
attached two vehicles, i.e., U.P. 35 AJ 5623
Maruti Suzuki Ertiga Car and Pickup Dala
No. UP 35T 4181 as well as five shops
situated at Khasra No. 256, measuring
0.014 Hectare situated at Village Kurauli,
Tehsil Hasangaj, District Unnao.

7. Ms. Shubhangi Singh submits that
the said attachment was done without prior
notice or knowledge to the appellants and
on coming it to know the appellants made a
representation under Section 15 of the
Gangster Act before the concerned District
Magistrate. On making their representation
by the appellants only the vehicle bearing
Registration No. UP 35 AJ 5623 Maruti
Suzuki Ertiga Car has been ordered to be
released
by
the
concerned
District
Magistrate by its order order dated
01.01.2021, but the shops/ land and other
vehicle,
i.e.,
Pickup
Dala
bearing
Registration No. UP 35 T 4181 have not
been released.

8. Ms. Shubhangi Singh further
submits that the District Magistrate has
wrongly and incorrectly attached the shops/
640 INDIAN LAW REPORTS ALLAHABAD SERIES
land and vehicle of the appellants on the
wrong presumption that the said properties
have been made from the income earned by
the appellants involving in anti social
activities, whereas, appellants were neither
Gangsters nor they have earned these
properties from involving in anti social
activities. It has further been argued that the
shops/ land and the vehicle in dispute are
not existing in the names of appellants, but
it has been presumed by the District
Magistrate in its order dated 22.09.2020
and 01.01.2021 that the same has been
earned by them from involving in anti
social activities while these attached
properties are in the name of their father
and of son of appellant No. 1 namely,
Vimal Jaiswal.

9. Ms. Shubhangi Singh further
submits
that
being
aggrieved
from
attachment of their properties in question
the appellants moved an application under
Section 16(2) of the Gangster Act before
the trial court, which remained pending,
therefore, appellants approached this Court
by filing Writ Petition No. 3566 (MB) of
2021, Sushil Kumar Jaiswal and another
Vs. State of U.P. and others, wherein a
Division Bench of this Court vide order
dated 17.02.2021 directed the trial court to
decide the aforesaid pending application of
appellants within a stipulated time.

10. Ms. Shubhangi Singh further
submits that the learned trial court while
passing the impugned order, without properly
perusing the contents of application and
documents annexed with the said application
have wrongly and incorrectly rejected the
said application by presuming that the shops/
land in question have been earned from the
income indulging in anti social activities
without going through documentary evidence
filed on behalf of appellant and wrongly
interpreting that appellants have not filed any
documents to prove that the said shops/ land
in question have not been earned from the
income indulging in anti social activities and
is in the name of father of the applicant No.
1-Sushil Kumar Jaiswal.

11. Ms. Shubhangi Singh further submits
that the learned trial court had erred in law
while rejecting the application of appellants for
release of property in dispute despite of the fact
that the car in question and the land in question
is entered in the name of father of appellant No.
1 and this property was inherited by their
forefathers, and the vehicle in question belongs
to Vimal Jaiswal who is son of appellant No. 1,
who is a businessman having GST registration
and who has also filed income tax return, who
had purchased the said vehicle through his
income which is clearly apparent from
Khatauni and registration certificate of the said
vehicle.

12. Shri Diwakar Singh, the learned
A.G.A. has vehemently argued that the learned
trial court has correctly appreciated the material
on record before passing the impugned order.
The District Magistrate, Unnao has passed the
order dated 22.09.2020 and 01.01.2021 after
being fully satisfied that appellants have
acquired the properties in question by illegal
means involving in anti social activities as
prescribed under the Gangster Act, as such there
is no illegality, infirmity or perversity in the
impugned order. The learned trial court after
considering the entire material including the
documentary evidence available on record has
passed the impugned judgment and order in
correct
perspectives
and
it
needs
no
interference.

13. I have heard learned counsel for
both the parties and gone through the
impugned judgment and order passed by the
court below.
2 All. Sushil Kumar Jaiswal & Anr. Vs. State of U.P.
641

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)
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
642 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.
2 All. Sushil Kumar Jaiswal & Anr. Vs. State of U.P.
643

15. The issue involved in the present
case may be resolved with the help of the
consideration of provisions of section 14,
15 and 17 of the Gangsters Act, which read
as under:

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

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

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

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

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

(2) If the District Magistrate is
satisfied about the genuineness of the claim
made under sub-section (1) he shall
forthwith
release
the
property
from
attachment and thereupon such 6 property
shall be made over to the claimant.

16. Inquiry into the character of
acquisition of property by court .-

(1) Where no representation is
made within the period specified in subsection (1) of Section 15 or the District
Magistrate does not release the property
under sub-section (2) of Section 15 he shall
refer the matter with his report to the Court
having jurisdiction to try an offence under
this Act.

(2) Where the District Magistrate
has refused to attach any property under 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
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
644 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. 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
2 All. Sushil Kumar Jaiswal & Anr. Vs. State of U.P.
645
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.

18. The provisions of Section 14 of
the Act, referred to above, empowers the
District Magistrate to attach the property
acquired by the Gangster as a result of
commission of an offence triable under
this Act. The District Magistrate may
appoint an Administrator of any property
attached, to administer such property in
the best interest thereof but there must be
reason to believe that any property
whether moveable or immovable
in
possession of any person, has been
acquired by a Gangster as a result of
commission of an offence, triable under
this Act but the District Magistrate in its
order has not recorded his satisfaction
having reason to believe with regard to the
property attached that it was acquired by
appellants as a result of commission of an
offence triable under Gangster Act, even
though while deciding the reference under
Section 16 of the Act, the court below
does not appreciate the evidence and in a
mechanical manner passed the impugned
order relying upon the observations made
by the District Magistrate which is illegal
and an unjustified approach.

19. A coordinate Bench of this Court
sitting at Allahabad in the case of Smt.
Maina Devi versus State of U.P. 2013(83)
ACC 902 in paras-8, 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
646 INDIAN LAW REPORTS ALLAHABAD SERIES
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 205-D/9 situated in
Mohalla Chandmari, Imiliyan, P.S. Sarai
Lak-hansi, District Mau in favour of the
appellant forthwith.

20. Further, another coordinate Bench
of this Court sitting at Allahabad 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
2 All. Sushil Kumar Jaiswal & Anr. Vs. State of U.P.
647
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.

21. Keeping in view the aforesaid
settled proposition of law and the judgment
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), this Court is of the view that the
attached land property is the ancestral
property of appellants and the attached
vehicle belongs to the son of appellant No.
1 and the prosecution has failed to prove its
case that the properties in question, which
were attached, were acquired by them after
accumulating money after committing
offence as it is settled law that the property
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. The impugned orders were not passed
on reasons which are relevant and material.
In the present case from the perusal of the
court orders and record it appears that only
on the basis of the police report the D.M.
has attached the property in question, no
material was supplied to the District
Magistrate to have reasons to believe that
the property in question was acquired by
the gangster the present appellants as a
result of commission of any offence triable
under this Act. It vitiates the subjective
satisfaction of the District Magistrate also
648 INDIAN LAW REPORTS ALLAHABAD SERIES
from the record it appears that the District
Magistrate has no material in support of the
police report that the property in question
was acquired by the present appellants
being
gangsters
even
though
the
proceedings was not followed as per the
provisions of the Act. While passing the
impugned orders of attachment the order
was passed in mechanical manner without
application of mind and is arbitrary. Thus
the order passed by learned Special Judge
Gangsters Act / Additional Session Judge
Court No.-5 Unnao is also illegal and the
same is also liable to be quashed.

22. In view of above facts and
circumstances of the case, the impugned
judgment and order of the learned court
below cannot be said to be passed in
correct perspectives as it is not sustainable
in the eye of law and requires interference
by this court, the prosecution has failed to
establish that the provisions of Section 2
and 3 of the Gangster Act is attracted in the
case of of appellants, and further the
appellants' property is also not attached in
accordance with law, as the prosecution has
failed to establish that the said property and
vehicle acquired and owned by the
appellants have been earned from the
income indulging in anti social activities.
The enquiry under Section 16 was not done
in accordance with the Act, the provisions
of Section 14, 15 & 17 was also not
followed in accordance with the Act, thus
the entire proceeding initiated in pursuance
thereof is vitiated.

23. Accordingly, the present appeal is
allowed. The impugned judgment and order
dated 10.03.2021 passed by the court of
learned Special Judge, Gangster Act/
Additional Sessions Judge, Court No. 5,
Unnao in Criminal Misc. Case No. 94 of
2021, Sushil Kumar Jaiswal Vs. State,
arising out of Case Crime No. 336 of 2017,
under Section 3(1) of the Gangster Act,
Police Station Hasanganj, District Unnao is
hereby quashed.

24. Consequently the order dated
22.09.2020 and 01.01.2021 passed by
District
Magistrate,
Unnao,
are
also
quashed.

25. The District Magistrate, Unnao is
directed to release the vehicles Pickup Dala
No. UP 35T 4181 as well as five shops
situated at Khasra No. 256, measuring
0.014 Hectare situated at Village Kurauli,
Tehsil Hasangaj, District Unnao in favour
of appellants, forthwith.

26. No order as to costs.
----------
(2023) 2 ILRA 648
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 2490 of 2022

Tajeem ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sushil Pandey

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section 304-B - Indian Penal Code,1860 -
Dowry death - Punishment - Sentence -
duty of a court to use its judicial discretion
to award a sentence that is ''proper' in the
backdrop of circumstances of the case at
hand, and ''matches' with the guilt of