# Waseem Khan v. State of U.P. & Anr. 858 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Criminal Appeal No. 203 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waseem-khan-v-state-of-u-p-anr-858-indian-law-reports-allahabad-series-50406
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - U.P.
Gangster and Anti-Social (Prevention of
Activities) Act, 1986 - Section 18 - The
appellant has been falsely implicated due
to enmity and the case under the Gangster
Act was imposed upon and the property of
the appellant was attached by the District
Magistrate u/s 14(1) of the Act-Only on
the basis of the police report, the District
Magistrate has attached the property-the
prosecution has failed to establish that
the provisions of Sections 2 and 3 of the
Act are attracted in the case of appellant,
the prosecution has also failed to establish
that the property acquired and owned by
the appellant has been earned from the
income indulging in anti-social activitiesthe enquiry u/s 16 was not done in
accordance with the Act, the provisions of
Sections 14, 15, 17 were also not followed
in accordance with the Act-thus, the entire
proceeding initiated in pursuance thereof
is
vitiated-Order
of
attachment
was
passed in mechanical manner without
application of mind and is arbitrary.(Para
1 to 25)

B. In order to proceed u/s 14 there must
be materials for objective determination
of the District Magistrate that the person
is either a member, leader or organizer of
a gang and has acquired any property in
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. Initial
burden was upon the State to satisfy the
District
Magistrate
with
necessary
materials-The Act does not provide that
aggrieved person seeking release of the
properties from attachment must prove
the source of income for acquisition
thereof. (Para 18)

The appeal is allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,841 of 47,884. This is a partial read: ask again with offset=39841 for what follows._

5 All. Waseem Khan Vs. State of U.P. & Anr.
857
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

31. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

32. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

We may also record that while going
through the factual scenario the appellant
cannot be said to have a motive or intention
to do away with the deceased who was his
relative. The motive is not spelt out from
any of the evidence.

33. Therefore, on totality of the facts
and circumstance and the oral testimony of
the eye-witnesses coupled with the medical
evidence
permit
us
to
convert
the
conviction of the accused-appellant from
302 I.P.C. to Section 304 Part-I I.P.C. The
fact
that
the
accused-appellant
was
incarcerated post trial after passing of the
impugned judgment for more than 2 years
and some months before he was ordered to
be enlarged on bail on 05.02.1993 and
thereafter he has been incarcerated in jail
since 27.01.2020 after issuance of nonbailable warrant, meaning thereby the total
period of incarceration of the accusedappellant is approximately four years now
without remission. The incident is of the year
1978, the fact that the accused-appellant is of 75
years of age, the sentence is reduced to the period
already undergone by the accused-appellant i.e.
approximately four years with remission. Fine of
Rs. 5000/- to be deposited within four weeks of
release from incarceration. If fine is not deposited
within four weeks he shall be enlarged in jail to
undergo default sentences of three months.

34. In view of the above, this criminal
appeal
is
partly
allowed.
Record
and
proceedings be sent back to the Court below
forthwith.

35. Sri Radheshyam Yadav, learned
Amicus Curiae has ably assisted this Court and
would be entitled to his fee for a sum of Rs.
10,000/- from the High Court Legal Services
Committee.
----------
(2023) 5 ILRA 857
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 10.05.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 203 of 2023

Waseem Khan ...Appellant
Versus
State of U.P. & Anr. ...Respondents
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sushil Kumar Misra, Vishal Nigam

Counsel for the Respondents:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - U.P.
Gangster and Anti-Social (Prevention of
Activities) Act, 1986 - Section 18 - The
appellant has been falsely implicated due
to enmity and the case under the Gangster
Act was imposed upon and the property of
the appellant was attached by the District
Magistrate u/s 14(1) of the Act-Only on
the basis of the police report, the District
Magistrate has attached the property-the
prosecution has failed to establish that
the provisions of Sections 2 and 3 of the
Act are attracted in the case of appellant,
the prosecution has also failed to establish
that the property acquired and owned by
the appellant has been earned from the
income indulging in anti-social activitiesthe enquiry u/s 16 was not done in
accordance with the Act, the provisions of
Sections 14, 15, 17 were also not followed
in accordance with the Act-thus, the entire
proceeding initiated in pursuance thereof
is
vitiated-Order
of
attachment
was
passed in mechanical manner without
application of mind and is arbitrary.(Para
1 to 25)

B. In order to proceed u/s 14 there must
be materials for objective determination
of the District Magistrate that the person
is either a member, leader or organizer of
a gang and has acquired any property in
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. Initial
burden was upon the State to satisfy the
District
Magistrate
with
necessary
materials-The Act does not provide that
aggrieved person seeking release of the
properties from attachment must prove
the source of income for acquisition
thereof. (Para 18)

The appeal is allowed. (E-6)
List of Cases cited:

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

3. Rajbir Singh Tyagi Vs St. of U.P. & ors.
(2018) SCC Online All 5986

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

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

2. Heard Shri Sushil Kumar Misra,
learned counsel for the appellant, Mrs.
Kiran
Singh,
learned
Additional
Government Advocate-1 for the State and
perused the material available on record.

3. The present appeal under Section
18 of U.P. Gangster and Anti Social
(Prevention
of Activities) Act,
1986
(hereinafter referred to as the 'Gangster
Act') has been preferred by the appellant,
namely, Waseem Khan with a prayer to
quash the judgment and order dated
13.4.2022
passed
by
the
District
Magistrate, Lucknow/opposite party no.2 in
Case No. 2850 of 2021 Computerized Case
No.
D202110460002850
(State
Vs.
Waseem Khan) under section 14(1) of the
Gangster Act , whereby the District
Magistrate,
Lucknow
attached
the
following
property
of
the
appellant
including a new house situated in village
Tirgawan,
Tehsil
Malihabad,
District
Lucknow with the finding that the appellant
has purchased the house in question and
land (immovable property) between 2012
to 2021 from the income earned by
involving in anti social activities and the
appellant has purchased the following
properties without taking loan whereas the
5 All. Waseem Khan Vs. State of U.P. & Anr.
859
appellant has purchased the Scorpio and
Pulsar Motor Cycle by taking loan.

क्र
मां
क
िाजस्व
ग्राम
का
नाम
खतौनी
खाता
संख्या
गाटा
संख्या

गाटे
का
कुल
िकबा
हेक्टेयि
में
अन्य जववि
ण
जववि
ण
गाटे में
अंश
अंश
का
क्षेत्र
फल
हे०
में
1. 2.
3.
4.
5.
6.
7.
8.
1. जतिगवां 61
152
0.27
8
1⁄2
0.1
39

2. जतिगवां 105 87
0.40
2
1⁄2
0.2
01

3. अहमदा
बाद
30
438
1.04
4
1/18 0.0
58

4. अहमदा
बाद
43
623
0.26
2
1/18 0.0
15

5. अहमदा
बाद
44
625
0.43
5
1/18 0.0
24

6. अहमदा
बाद
45
623
0.26
2
1/18 0.0
15

योग
6
खाता
6
जकता
2.68
2

0.4
52

4. The appellant has also prayed for
quashing of the impugned judgment and order
dated 5.1.2023 passed by the Additional District
and Sessions Judge, Court No. 08/Special Judge,
Gangster Act, Lucknow in Criminal Appeal No.
84 of 2022, Waseem Khan Vs. State of Uttar
Pradesh and another, whereby the appellate court
dismissed the appeal and decided the Criminal
Misc. Case No. 735 of 2022 finally and
confirmed the impugned order dated 13.04.2022
passed by the District Magistrate, Lucknow.

5. In short, the facts of the case are
that initially, more than ten years ago, a
First Information Report dated 15.08.2012
was lodged by one Shri Suleman Beg son
of Sikandar Beg, resident of village
Daulatpur Malihabad, District Lucknow,
which was registered as case crime no. 342
of
2012
under
sections
147,307,325,504,506
IPC
against
six
persons including the appellant alleging
therein that a construction work was being
done by the appellant on government land
and being Village Pradhan, Suleman Beg
restrained the appellant from constructing
him the same. Thereafter First Information
Reports were lodged against the appellant
bearing case crime no. 535 of 2017 under
sections 147,148,452,504,506 IPC and case
crime no. 81 of 2019, under sections
406,323,506 IPC and case crime no. 551 of
2019 under sections 420,468,471,506,120B IPC and case crime no. 24 of 2019 under
sections 419,420,467,468,471 IPC and case
crime no. 173 of 2021 under section 2/3
U.P. Gangster Act.

6. Learned counsel for the appellant
submits
that
the
appellant
has
been
implicated in the aforesaid cases due to
enmity and the case under the Gangster Act
was imposed upon the appellant in the year
2021 whereas the property of the appellant
which was attached vide order dated
13.4.2022 passed by the District Magistrate,
Lucknow under section 14 (1) of U.P.
Gangster Act, was acquired by the appellant
much earlier to the imposition of Gangster
Act upon him being ancestral property.

7. Elaborating the submissions,
learned counsel for the appellant has
submitted that the attached property, the
reference of which is given above, was in
fact ancestral property of the appellant.

8. Learned Counsel of the appellant
further submitted that in furtherance of the
860 INDIAN LAW REPORTS ALLAHABAD SERIES
FIR bearing Case Crime No. 173/2021
under section 2/3 U.P. Gangster Act, the
District
Magistrate,
Lucknow-opposite
party no.2 proceeded to exercise its power
under Section 14(1) of the Gangster Act
and passed an order for attaching the
properties of the appellant on 13.4.2022.

9. Being aggrieved by the aforesaid
attachment order dated 13.04.2022 passed
by District Magistrate, Lucknow-opposite
party no.2, representation dated 14.9.2021
was preferred by the appellant before
opposite party no.2 under Section 15 (1) of
the Gangster Act seeking release of the
appellant's properties from attachment.
However, the aforesaid representation was
dismissed in a cursory manner by the
District
Magistrate,
Lucknow/opposite
party no.2 vide order dated 13.04.2022.
While passing the impugned order
dated
13.4.2022
the
District
Magistrate,
Lucknow/opposite
party
no.2 referred the case to the learned
Gangsters Court under Section 16 (1)
of the Gangster Act in respect of
properties which were not released by
him; and, the learned Gangsters Court,
thereafter,
proceeded
to
pass
the
impugned order dated 05.01.2023 in
exercise of its powers under Section 17
of the Gangster Act.

10. Learned counsel for the appellant
further
submitted
that
the
District
Magistrate, Lucknow/opposite party no. 2
has wrongly and incorrectly attached the
immovable property and the house of the
appellant on the wrong presumption that
the said properties have been acquired
from the income earned by the appellant
by involving in anti social activities,
whereas the appellant is neither Gangster
nor he has earned these properties from
involving in anti social activities.

11. Clarifying the position, it has been
urged by the learned counsel for the
appellant that as a matter of fact the
appellant was doing business at Mumbai
from 1997 to 2008 and used to send the
money to his parents and from that money
as well as the income of his father, a house
was constructed of which electrical energy
connection was taken in the year 1998. In
the year 2008, he came back from Mumbai
and apart from looking after the agriculture
and groves farms he started selling building
material shop in the name and style "M/s
Hira Traders" from where he was selling
Morang, Sariya, Sand and Cement and for
running this business, he had obtained Tin
Number and used to give income tax. It has
also been submitted that a tax raid was also
conducted at his business establishment. It
has also been indicated that land of Khata
No. 447, Gata No. 95 area 0.062 acres
situated in village Moazzamnagar
is
recorded in the name of his father which
even today is recorded in his name. The
land of other gatas is his ancestral property
and are recorded in the name of his father
and not in his name. It has also been
submitted by the learned counsel for the
appellant that the house in question was
constructed in village Tirgawan by the
appellant in the year 1999 on the abadi land
from the income earned by the business run
by himself before imposition of Gangster
Act upon him. In this regard, the appellant
has submitted voter list of the year 1999
before court below and also the copies of
receipts of electricity connection of the
House taken on 31.7.1999 issued by Uttar
Pradesh
State
Electricity
Corporation
bearing no. 551075/97/GSPL, Receipt No.
43 of Rs. 600/-, electricity bill of Rs.
10244/- of the house of November, 2002
issued by the Uttar Pradesh Corporation
Limited and telephone bills of the house of
dated 11.7.2003 of Rs. 442/-, 11.5.2003 of
5 All. Waseem Khan Vs. State of U.P. & Anr.
861
Rs.
115/-,
11.3.2003
of
Rs.
153/-,
11.01.2003 of Rs. 115/-, 11.09.2002 of Rs.
290/-, 11.07.2002 of Rs. 230/-, 11.5.2002
of Rs. 155/- and Annual Tax Statement
under section 203AA of the Income Tax
Act. 1961 of the Assessment Year 2009-10
of his House. The copies of receipts of the
same are annexed as Annexure no.3 to this
appeal. The aforesaid receipts fortify the
fact
that
the
appellant
had
purchased/constructed his house much
earlier even when no criminal case was
registered against him and even before
imposing the Gangster Act upon him.
However, the concerned authorities without
considering all these relevant facts and
documentary
evidence,
passed
the
impugned orders on wrong premise with
oblique motive.

12. Learned counsel for the appellant
further submitted that the learned trial court
while passing the impugned order dated
13.04.2022, 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 from the
income earned by indulging in anti social
activities
without
going
through
documentary evidence filed on behalf of
appellant and wrongly interpreting that
appellant has not filed any document to
prove that the property in question has not
been acquired from the income earned by
indulging in anti social activities. Thus the
trial court erred in law while rejecting the
application of appellant for release of
property in question. The learned counsel
submits that the appellant had given the
complete detail of the immovable property
including the house which has been
attached vide order dated 13.4.2022 by the
District Magistrate, Lucknow.

13. Learned counsel for the appellant
further submits that the impugned order
dated 13.4.2022 passed by the District
Magistrate, Lucknow does not reveal that
the District Magistrate, Lucknow had
"reason of believe" that the property in
question was acquired by the appellant 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 5.1.2023 in cursory
manner without analysing the documents of
the appellant. Thus both the impugned
orders are not sustainable in the eye of law.

14. Per contra, Mrs. Kiran Singh,
learned AGA-1, has argued that the learned
appellate court has correctly appreciated
the material on record before passing the
impugned order. The District Magistrate,
Lucknow has passed the impugned order
dated 13.04.2022 after being fully satisfied
that appellant has acquired the property in
question by illegal means involving himself
in anti social activities as defined under the
Gangster Act, as such there is no illegality,
infirmity or perversity in the impugned
orders. Moreover, the competent authority
has passed the order after considering the
report of the Superintendent of Police
(Rural Area) as also the report of Station
House Officer, Mall and as such it is wrong
to say that the impugned order of
attachment passed by the competent
authority suffers from infirmities.

15. Learned AGA-1 has further
submitted that the learned trial court
pointed out that the appellant was also not
able to show the source of income from
which the appellant has acquired the
properties attached by the learned District
Magistrate, Lucknow. The learned trial
court also pointed out that when the vehicle
862 INDIAN LAW REPORTS ALLAHABAD SERIES
of the appellant i.e., Scorpio Car and Pulsar
Motorcycle
were
purchased
by
the
appellant on loan then from what source of
income has the appellant purchased the
land without loan, which was seized by the
District Magistrate. Thus the learned courts
below 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.

16. I have heard learned counsel for
the appellant, learned AGA-1 for the
opposite parties and gone through the
impugned orders passed by the courts
below.

17. 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
5 All. Waseem Khan Vs. State of U.P. & Anr.
863
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
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
864 INDIAN LAW REPORTS ALLAHABAD SERIES
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".

18. The issue involved in the present
case may be resolved with the help of the
consideration of provisions of sections 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 sub-section

(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.
5 All. Waseem Khan Vs. State of U.P. & Anr.
865

(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 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."

19. 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
866 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
appellant as a result of commission of an
offence triable under Gangster Act, even
though while deciding the reference under
Section 16 of the Act, the court below does
not appreciate the evidence and in a
mechanical manner passed the impugned
order relying upon the observations made
by the District Magistrate which is illegal
and an unjustified approach.

20. 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
5 All. Waseem Khan Vs. State of U.P. & Anr.
867
under this Act it shall order for release of
the property of the person from whose
possession it was attached. In any other
case the Court may make such order as it
thinks fit for the disposal of the property by
attachment, confiscation or delivery to any
person entitled to the possession thereof, or
otherwise.
9. In light of above mentioned provisions of
the Gangster Act the District Magistrate is
empowered
to
attach
movable
or
immovable properties in possession of any
person acquired by a gangster as a result of
the commission of an offence triable under
this Act. But for exercising such powers
there must be the reason to believe to the
District Magistrate that such property was
acquired by a gangster as a result of the
commission of an offence triable under this
Act. The words reason to believe are
stronger than the word "satisfied", it must
be passed on reasons which are relevant
and material. In the present case, from the
perusal of the lower Court record it
appears that only on the basis of the police
report submitted by the officer incharge of
P.S. Sarai Lak-hansi, District Mau, the
District Magistrate, Mau has attached two
houses of the appellant, no material was
supplied to the District Magistrate to have
a reason to believe that the property in
question was acquired by the gangster Raj
Bahadur Singh as a result of commission of
an offence triable under this Act. It vitiates
the subjective satisfaction of the District
Magistrate also. The learned District
Magistrate was having no material in
support of the police report that both the
houses of the appellant were acquired by
his son Raj Bahadur Singh. The learned
District Magistrate rejected the application
under section 15 of the Gangsters Act
moved by the appellant for releasing the
attached houses. The application was
moved well within the time, the application
was a representation to the District
Magistrate, Mau, it was having all the
details disclosing the sources by which both
the houses were acquired by the appellant.
But learned District Magistrate did not
consider the sources disclosed by the
appellant and rejected the application vide
order dated 29.12.2008. The explanation of
all the sources by which the appellant
acquired the houses has not been properly
considered. Therefore, impugned order
dated 29.12.2008 has become illegal. The
learned Special Judge (Gangsters Act),
Azamgarh rejected the application moved
by the appellant under section 17 of the
Gangsters Act without considering the
provisions of the section 14 of the
Gangsters Act and the 'relevancy of the
reasons'
recorded
by
the
District
Magistrate to believe that both the attached
houses were acquired by a gangster Raj
Bahadur Singh son of the appellant as a
result of commission of an offence triable
under this Act. The order dated 17.3.2009
passed
by
learned
Special
Judge
(Gangsters Act)/Additional Sessions Judge,
Azamgarh in Criminal Misc. Application
No. 2 of 2009 is also illegal.

10. In view of the above discussion,
the order passed by District Magistrate,
Mau under section 14(1) of the Gangsters
Act attaching two houses of the appellant
the order dated 29.12.2008 passed by
District Magistrate, Mau by which the
application under section 15(1)(2) of the
Gangster Act has been rejected and the
order dated 17.3.2009 passed by learned
Special Judge (Gangster Act), Additional
Sessions Judge, Azamgarh in Criminal
Misc. Application No. 2 of 2009 are illegal,
the same are hereby set aside and the
District Magistrate, Mau is hereby directed
to release both the houses No. 204-D/8 and
205-D/9 situated in Mohalla Chandmari,
868 INDIAN LAW REPORTS ALLAHABAD SERIES
Imiliyan, P.S. Sarai Lak-hansi, District
Mau in favour of the appellant forthwith."

21. Further, another Coordinate
Bench of this Court in the case of Smt.
Shanti Devi wife of Sri Ram versus State
of U.P. 2007(2) ALJ 483 (All) in paras-9,
10 and 11 has been pleased to held as
under:-

"9. The conjoint reading of these
sections shows that first it has to be proved
that gangster or any person on his behalf is
or has been in possession of the property,
and such property has been acquired by the
commission of any offence triable under
this Act, only then the District Magistrate
acquires jurisdiction to proceed in the
matter and to attach the property. Only
when the initial burden is discharged, the
onus shifts to the gangster or such person,
to account for the same satisfactorily. But if
it is found that the concerned person was
not a gangster and did not acquire the
property in commission of any offence
triable under this Act, it has to be released
as provided in Section 17. In other words
the initial burden is on the prosecution to
show that the concerned person is a
gangster and has acquired property on
account of his criminal activity as triable
under the Act.

10. Therefore, in order to proceed
under section 14 there must be materials
for objective determination of the District
Magistrate that the person is either a
member, leader or organiser of a gang and
has acquired any property in commission of
any offence under the Act. There must be a
nexus between his criminal acts as
enumerated therein and the property
acquired by him. His mere involvement in
any offence is not sufficient to attach his
property. In other words what is necessary
to find is whether, his acquisition of
property was a result of commission of any
offence enumerated in the Act being a
member, leader or organiser of a gang.
One might have committed several offences
but if the property acquired by him was
with the aid of his earning from legal
resources no action under Section 14 of the
Act can be taken against him.

11. In the case of Badan Singh alias
Baddo v. State of U.P., 2002 Cri LJ 1392 :
2001 All LJ 2852 it has been held by this
Court that Section 14 of the Act is a harsh
provision that affects one's right to
property, which is a fundamental right
under the Constitution.