# Vikram Singh v. State & Anr

- **Citation:** (2024) 3 ILRA 1623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-17
- **Case number:** J. Criminal Appeal No. 10336 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikram-singh-v-state-anr-51569
- **Pages:** 7

## Headnote

(A) Criminal Law - Attachment of Property
under Gangster Act - Reference made
under Section 15(1) - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2(b), 2(c), 14, 15(1), 16, 17
-
Must
be
a
nexus
between
the
commission
of
any
offence
and
the
acquisition of the property - Nexus
between ''reason' and ''belief' - District
Magistrate's
order
attaching
property
must be based on reasonable belief and
not arbitrary - For the purpose of enquiry,
the Court is empowered to take any
evidence and to summon any person as a
witness as it considers necessary - If the
appellant was not a gangster at the time
of acquiring the property, he could not
commit an offence under the Act - Burden
of proof lies on State to prove property
was acquired through commission of
offence. (Para - 9,10,11,12,14)

Appellant's vehicle attached under Gangsters
Act - attachment order challenged before D.M.
and ASJ - rejected by both court - Vehicle
purchased
in
2016,
prior
to
appellant's
involvement in criminal cases - appellant
contended - vehicle was financed through a
bank loan and agricultural income - not criminal
earnings - Special Judge, Gangster Act affirmed
seizure - prompting this appeal. (Para 2-5,12)

HELD: - Attached vehicle was acquired by
appellant with the aid of his earnings from legal
resources and not due to commission of any
offense under the Act. Impugned orders were
not reasoned orders. D.M. only attached vehicle
based on a police report. State had to initially
prove the appellant was a gangster, but the
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
claimant had to prove in the negative.
Impugned order of attachment was arbitrary
and mechanical. Enquiry under Section 16 of the
Act was not performed in accordance with the
Act's proceedings and object. Entire proceeding
initiated under Sections 14, 15, and 17 was
vitiated.
Impugned
judgment
and
order
quashed. Property vehicle 'Scorpio' attached in
the matter was released from attachment
forthwith. (Para -15,16)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

3 All. Vikram Singh Vs. State & Anr.
1623
there stand about the fact as to how they
had witnessed the incident makes the entire
prosecution story unreliable. Even though it
is correct that minor discrepancies should
be ignored, we find that the discrepancies
are of such a nature which cannot be
ignored and we thus hold that the
appellants were in fact not guilty of the
crime as the prosecution has failed to prove
its case beyond reasonable doubt against
the appellants herein.

27. The appeals are, therefore,
allowed. The judgment and order 24.3.2012
is set aside. The appellants before us, in
both the appeals, are declared innocent and
are acquitted of the charges levelled against
them in the instant case. The appellantKishan Singh is already on bail. Therefore,
his bail bonds as well as sureties are
discharged.

28. In the instant case, the appellantPravesh was declared juvenile vide order
dated 24.3.2018 by the Juvenile Justice
Board, Hathras after his conviction by the
impugned order and in pursuance of the
order dated 24.3.2018, he was released in
the instant case. The appellant-Vipin was
also declared juvenile vide order dated
10.5.2018 by the Juvenile Justice Board,
Hathras and was released in the instant
case. The appellant-Manoj is in jail. He
shall be released forthwith unless required
in any other case.
----------
(2024) 3 ILRA 1623
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA,
J.
Criminal Appeal No. 10336 of 2023

Vikram Singh ...Appellant
Versus
State & Anr. ...Respondents

Counsel for the Appellant:
Sri Anil Kumar Pathak, Sri Vijay KUmar

Counsel for the Respondents:
G.A.

(A) Criminal Law - Attachment of Property
under Gangster Act - Reference made
under Section 15(1) - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2(b), 2(c), 14, 15(1), 16, 17
-
Must
be
a
nexus
between
the
commission
of
any
offence
and
the
acquisition of the property - Nexus
between ''reason' and ''belief' - District
Magistrate's
order
attaching
property
must be based on reasonable belief and
not arbitrary - For the purpose of enquiry,
the Court is empowered to take any
evidence and to summon any person as a
witness as it considers necessary - If the
appellant was not a gangster at the time
of acquiring the property, he could not
commit an offence under the Act - Burden
of proof lies on State to prove property
was acquired through commission of
offence. (Para - 9,10,11,12,14)

Appellant's vehicle attached under Gangsters
Act - attachment order challenged before D.M.
and ASJ - rejected by both court - Vehicle
purchased
in
2016,
prior
to
appellant's
involvement in criminal cases - appellant
contended - vehicle was financed through a
bank loan and agricultural income - not criminal
earnings - Special Judge, Gangster Act affirmed
seizure - prompting this appeal. (Para 2-5,12)

HELD: - Attached vehicle was acquired by
appellant with the aid of his earnings from legal
resources and not due to commission of any
offense under the Act. Impugned orders were
not reasoned orders. D.M. only attached vehicle
based on a police report. State had to initially
prove the appellant was a gangster, but the
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
claimant had to prove in the negative.
Impugned order of attachment was arbitrary
and mechanical. Enquiry under Section 16 of the
Act was not performed in accordance with the
Act's proceedings and object. Entire proceeding
initiated under Sections 14, 15, and 17 was
vitiated.
Impugned
judgment
and
order
quashed. Property vehicle 'Scorpio' attached in
the matter was released from attachment
forthwith. (Para -15,16)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Smt. Rashida Bano Vs St. of U.P. & ors., 2014
6 ADJ 575

2. Badan Singh @ Baddo Vs St. of U.P. & ors.,
(2001)10 AHC CK 0033

3. Smt. Maina Devi Vs St. of U.P., 2013 9 ADJ
542

4. Waseem Khan Vs St. of U.P., 2023 LawSuit
(All)751

5. Abrar Vs St. of U.P. & anr., Crl. Appeal No.
2130 of 2021

6. St. of U.P. Vs Manoj Kumar Pandey, 2010
(69) ACC 1

(Delivered by Hon'ble Nalin Kumar
Srivastava, J)

1. In the present criminal appeal the
judgment and order dated 5.11.2022 passed
by Special Judge Gangster Act / Additional
Sessions Judge, Court No. 4, Aligarh in
Criminal Misc. Case No. 330 of 2022,
which is a reference made to the court
under Section 15(1) of U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 (hereinafter referred to as "Act")
whereby
the
orders
of
the
District
Magistrate, Aligarh dated 13.8.2021 seizing
/ attaching the vehicle of appellant under
Section 14 of the Act as well as order dated
23.5.2022 dismissing the objection moved
by the appellant have been affirmed, has
been questioned.

2. The facts of the case, in brief, are
that the District Magistrate, Aligarh passed
an order under Section 14(1) of the Act
seizing / attaching the vehicle of the
appellant on the basis of report of in-charge
Inspector, Police Station Pisawa, District
Aligarh dated 29.7.2021, submitted through
S.S.P., Aligarh. It was mentioned in the
report that during investigation of Case
Crime No. 88 of 2021 under Section 2/3 of
the Act, it was found that appellant owned a
vehicle Scorpio bearing registration no. UP
81-BL2333 which was purchased with
illegally earned money as gangster in the
year 2016.

3. Against the aforesaid attachment /
seizure order, the appellant made a
representation under Section 15(1) of the
Act to the District Magistrate, Aligarh, who
dismissed the same and affirmed the order
of
attachment
dated
13.8.2021.
Simultaneously, he referred the matter to
the Court of Additional Sessions Judge,
Gangster Act under Section 16(1) of the
Act vide order dated 23.5.2022. The
appellant approached the competent Court
at Aligarh but his application was rejected
by the Special Judge Gangster Act /
Additional Sessions Judge, Court No. 4,
Aligarh vide order dated 5.11.2022. Feeling
aggrieved with the said order, this criminal
appeal has been preferred by the appellant
before this Court.

4. Heard Shri Anil Kumar Pathak,
learned counsel for the appellant, Shri
Nitesh Kumar Srivastava, learned A.G.A.
and perused the record.

5. It is submitted by the learned
counsel for the appellant that the appellant
3 All. Vikram Singh Vs. State & Anr.
1625
has been falsely implicated in two criminal
cases i.e. Case Crime No. 71 of 2021 under
Sections 420, 272, 273, 120-B IPC and
60(1) Excise Act, P.S. Pisawa, District
Aligarh and Case Crime No. 72 of 2021
under Sections 420, 272, 273, 467, 468,
471, 120-B IPC and 60(1) Excise Act, P.S.
Pisawa, District Aligarh. On the basis of
pendency of the aforesaid two cases,
proceeding under the Act was initiated by
the Station House Officer, P.S. Pisawa,
district Aligarh against the appellant. It is
also submitted that the Scorpio vehicle said
to be in his possession was purchased with
the money earned by him. He took a loan
of Rs. 12,50,000/- from Canara Bank,
S.M.E. Branch, Aligarh on 31.5.2016 and
repaid the same by way of EMI for Rs.
20,255/-. He had filed income tax return
showing his income in the years 2015-16 as
Rs. 10,15,504/-, 2016-17 as Rs. 6,23,497/-,
2017-18 as Rs. 09,39, 162/-, 2018-19 as Rs.
03,18,350/-, 2019-20 as Rs. 03,01,350/-. It
is further submitted that he had paid the
cash money of Rs. 03,06,200/- from the
earning of agricultural products. It is
further
submitted
that
the
District
Magistrate, Aligarh did not consider the
plea of appellant and arbitrarily confirmed
his order of attachment while rejecting his
representation and holding that the vehicle
was procured by illegally earned money by
a gangster as a result of commission of an
offence triable under the Act and referred
the case to Special Judge Gangster Act,
Aligarh. It is further submitted that the
Additional Sessions Judge, Court no. 4,
Aligarh passed the order dated 5.11.2022,
under challenge in this appeal, upholding
the orders of the District Magistrate dated
13.8.2021 and 23.5.2022 and dismissed the
application of the appellant which is illegal
and against the mandate of law.

6. Learned A.G.A. vehemently
opposed the contentions made by learned
counsel for the appellant and submitted that
the Court concerned after examining all the
facts and evidence on record passed the
impugned order and there is no illegality in
the same.

7. I have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record carefully.

8. Before examining the arguments
advanced by the learned counsel for the
parties, it is appropriate to first consider the
provisions of Section 2(b) and 2(c) of the
Act, which read as under:

"2(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-

.......

.......

2(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;"

9. On a conjoint reading of Section
2(b) and 2(c) of the Act, it appears that for
taking action under Section 14 of the Act
against a person, there must be material for
objective determination of the District
Magistrate that he either, as a member,
leader or organiser of a gang acquired any
property as a result of commission of any
1626 INDIAN LAW REPORTS ALLAHABAD SERIES
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, as it is necessary to find out
whether his acquisition of property was a
result of commission of any offence
enumerated in the Act being a gangster.
Further, one might have committed several
offences but if the property is acquired by
him with the aid of his earning from legal
source, no action under Section 14 of the
Act can be taken against him.

10. Section 14 of the Act reads as
under :

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

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

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

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

This Court had an opportunity to go
through the various judgments of this Court
viz. Smt. Rashida Bano vs. State of U.P.
and others, 2014 6 ADJ 575, Badan Singh
@ Baddo vs. State of U.P. and others,
(2001)10 AHC CK 0033, Smt. Maina Devi
vs. State of U.P., 2013 9 ADJ 542, Waseem
Khan vs. State of U.P., 2023 LawSuit
(All)751 and Criminal Appeal No. 2130 of
2021 (Abrar vs. State of U.P. and another),
decided on 23.10.2021 propounding legal
dictums on the subject and a co-joint
reading of the same leads to draw a
conclusion that Section 14 clearly provides
that the order of the District Magistrate
attaching one's property, must be based on
reason and not arbitrary. The expression
"reason to believe" appearing therein has
some intent and purpose. It puts fetter in
the
arbitrary
exercise
of
power
of
attachment to deny a person of his right to
any property. Law requires that there must
be reason to believe that the property
sought to be attached, has been acquired by
a ''gangster' as a result of commission of
any offence under the Act. The expression
"reason
to
believe"
contemplates
an
objective determination based on intelligent
care and deliberation involving judicial
review, as distinguished from purely
subjective consideration. There must be
rational and intelligible nexus between
''reason' and ''belief'. The word ''believe' is a
much stronger word than ''suspect' and it
involves the necessity of showing that the
circumstances were such that a prudent
man must have felt convinced in his mind
that what has been alleged, is true. The
expression "reason to believe" is also
defined in Section 26 of the Indian Penal
Code. According to the said definition, a
person is said to have ''reason to believe' a
thing, if he has sufficient cause to believe
that thing but not otherwise. "Reason to
believe" is not the same thing as the
''suspicion' or ''doubt' and mere seeing also
cannot be equated to believing. "Reason to
believe" is a higher level of state of mind.
The Court, of course, cannot investigate
3 All. Vikram Singh Vs. State & Anr.
1627
into the adequacy or sufficiency of the
reasons examined by the authority in
coming to the believe, but the Court can
certainly examine whether the reasons are
relevant and have a bearing in the matter in
regard to which it is required to entertain
the belief.

11. To add further, it is to be kept in
mind that initial burden is always upon the
State to satisfy the District Magistrate with
necessary materials that the appellant being
a gangster acquired the properties as a
result of commission of any offence
mentioned in Section 2 of the Act. So far as
the present case is concerned, this has not
been done by the State. It is also to be kept
in mind that the appellant / aggrieved is not
liable to establish the source of income to
acquire the property in question. It is no
requirement of law that the aggrieved
person seeking release of properties from
attachment must prove the source of
income for acquisition thereof. There must
be a nexus between the commission of any
offence and the acquisition of the property.
It reflects from the perusal of the impugned
order passed by the District Magistrate
concerned that he being influenced by the
report of the police, hastened to exercise
power under the Act and attached the
property in question in absence of any
material to show that the said property was
acquired as a result of commission of any
offence triable under the Act.

12. This fact cannot lose sight of that
prior to the year 2021, there was no
criminal case lodged against the appellant
and the property in question was purchased
by him prior to the year 2021 but in the
year 2016 and thus, at that point of time he
was not a gangster and in this situation the
requirement of law does not fulfil at all. If
the appellant was not a gangster at the time
of acquiring the property, he could not
commit an offence under the Act. It is an
admitted case that the vehicle in question
was purchased by the appellant in the year
2016 when he was having no criminal
history to his credit and he was not a
gangster.

13. Sub-sections (3) and (5) of
Section 16 of the Act, which are relevant,
are as under:

"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 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.

(5) In any proceedings under this
Section the burden of proving that the
property in question or any part thereof
was not acquired by 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
notwithstanding."

14. The Court while dealing with the
reference made under sub-section (2) of
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Sub-section (3)(b) of
Section 16 of the Act provides that the
Court shall hear the parties, receive
evidence produced by them and take such
further evidence as it considers necessary
to decide whether the property was
acquired by a gangster as a result of the
commission of an offence triable under the
Act and shall pass such order under Section
17 as may be just and necessary in the
circumstances of the case. In the present
case the appellant has shown before the
Court concerned the source of money
whereby he purchased the aforesaid vehicle
(i) from the loan of Rs. 12,50,000/- taken
from Canara Bank, Aligarh, (ii) Rs.
2,00,000/- from the earning of agricultural
products of ancestral properties, and (iii)
from the earning of his three shops allotted
to him as excise contractors for which Rs.
01,06,200/- has been paid as income tax by
him in the financial year 2016-17. In the
impugned order, the Court concerned while
dealing with the matter has observed that
the appellant had leased out his agricultural
land for two years and received Rupees
Two Lakhs and made down payment in
respect of the said car but he did not prove
it by presenting the person to whom he had
leased his agricultural land. It is true that
the appellant has not presented the person
to whom he had leased his agricultural land
before the Court but sub-section (3)(b) of
Section 16 of the Act empowers the Court
to take such further evidence as it considers
necessary to decide the issue. It was held in
State of U.P. vs. Manoj Kumar Pandey,
2010 (69) ACC 1 that "For the purpose of
enquiry, the Court is empowered to take
any evidence and to summon any person as
a witness as it considers necessary." But in
the matter in hand such power has not been
exercised by the Court. If the Court
concerned was of the view that the person,
to whom land was given on lease, ought to
have been presented before the Court, he
could very well be summoned by the Court
itself but instead of proceeding in this
direction, the Court concerned acted in a
hasty manner and did not consider this
aspect
of
the
matter.
The
District
Magistrate
concerned
has
also
not
considered the fact that at the time of
procuring the vehicle the appellant was not
a gangster and rejected his representation.

15. Hence, keeping in view the facts
and circumstances of the case the Court is
of the view that the vehicle, which was
attached, was acquired by the appellant
with the aid of his earning from legal
resources and it was not a result of
commission of any offence triable under
the Act and the impugned orders are not
reasoned orders. It appears that only on the
basis of the police report, the District
Magistrate has attached the vehicle in
question and no relevant material was
supplied to the District Magistrate to have
reason to believe that the property in
question was acquired by the gangster, the
present appellant, as a result of commission
of any offence triable under the Act though
it was incumbent upon the State to initially
prove that the appellant was a gangster who
has allegedly acquired the property by way
of commission of offence and after its
proof burden lies on claimant to prove in
negative.
It
vitiates
the
subjective
satisfaction of the District Magistrate also.
From the perusal of record it also appears
that the District Magistrate had no relevant
material in support of the police report with
regard to that the vehicle in question was
3 All. Upasana Kumari Vs. State of U.P. & Ors.
1629
acquired by the present appellant being
gangster. It also appears that the appellant
was having enough source of income from
which he had procured the vehicle and even
the said vehicle was procured by him much
prior to the registration of criminal cases
and imposition of provisions of Act against
him, which was invoked in the year 2021
and the impugned order of attachment was
passed in mechanical manner without
application of mind and was arbitrary. The
enquiry under Section 16 of the Act was
not performed in accordance with the
proceedings and object of the Act and the
provisions of Sections 14, 15 & 17 of the
Act were also not followed in true spirit.
Hence, the entire proceeding initiated in
pursuance thereof is vitiated.

16. In view of the discussions made
above, in my view the impugned judgment
and order dated 5.11.2022 passed by
Special Judge Gangster Act / Additional
Sessions Judge, Court No. 4, Aligarh in
Criminal Misc. Case No. 330 of 2022,
which is a reference made to the court
under Section 15(1) of U.P. Gangsters and
Anti-Social Activities (Prevention) Act, the
orders of the District Magistrate, Aligarh
dated 13.8.2021 seizing / attaching the
vehicle of appellant under Section 14 of the
Act as well as order dated 23.5.2022 are
liable to be quashed and the appeal is liable
to be allowed. Accordingly the aforesaid
orders are quashed and the appeal is
allowed. The property vehicle 'Scorpio'
attached in the matter shall be released
from attachment forthwith.

17. Copy of this judgment be
transmitted
to
the
Court
/
District
Magistrate
concerned
for
necessary
compliance.
----------
(2024) 3 ILRA 1629
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Criminal Misc. Writ Petition No. 27 of 2024

Upasana Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gambhir Singh, Sri Amit Kumar Verma, Sri
Amit Kumar Verma

Counsel for the Respondents:
G.A.

Criminal Law -Constitution of India,1950 -
Article 226 - medical examination during
investigation - offences under Sections 498A,
323, 354, 504, 420 IPC and Sections 3/4 D.P.
Act - allegation of non-consummation of
marriage and impotency of husband - FIR
lodged by wife - medical examination of
husband
conducted
-
Medical
Inquiry
Committee advising gynecology examination of
wife - objection by petitioner - sexual
intercourse involves both husband and wife -
comprehensive report regarding potency test
cannot
be
prepared
without
medical
examination
of
petitioner
-
investigation
includes all proceedings for collection of
evidence under Section 2(h) Cr.P.C. - no
illegality or impropriety in medical advice - no
interference required .

W.P. dismissed. (E-9)

Cases Cited:

1. Ameet Bhuvan v. Smt. Swati Bhaskar, First
Appeal No. 111 of 2014, decided on 10.07.2017
(Uttarakhand High Court)

2. Jagdish Lal v. Smt. Shyama Madan and
others, AIR 1966 All 150