state of up Vs Mohd. Hamid @ Hamid Husain

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL APPEAL No. - 12322 of 2024

State of U.P.

	Versus .....Appellant(s)
Mohd. Hamid @ Hamid Husain	.....Respondent(s)
Counsel for Appellant(s)	: Ashutosh Kumar Sand
Counsel for Respondent(s)	: Mohammad Sakir, Shashi Kant Shukla

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Court No. - 54

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HON'BLE MRS. VANI RANJAN AGRAWAL, J.

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Heard Sri Rahul Asthana, learned A.G.A. for the State appellant and Mohammad Sakir; Sri Shashi Kant Kant Shukla, learned counsel for the opposite party.

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This criminal appeal has been filed against the judgement and order dated 16.2.2024 passed by learned Special Judge, (Gangster Act)/Additional Session Judge, Court No.5, Moradabad in Criminal Misc. Case No.98 of 2023 (Mohd. Hamid 2 Hamid Husain Vs. State of U.P.) whereby learned trial Court had allowed the aforesaid Misc. Case filed by the opposite party and has directed to release the vehicle of the opposite party, which has been attached in pursuance of the order dated 14.10.2022 passed by District Magistrate, Moradabad.

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It is submitted by the learned A.G.A. that the impugned order is wholly illegal, erroneous, unjustified and bad in law as the learned Special Judge has committed an illegality in not considering this aspect of the matter, that the opposite party has acquired the vehicle and has not been able to demonstrate and prove as to what was his legal source of income. The learned trial Court has not considered the fact that the police in its report has specifically stated that the brother of the opposite party namely Rahees son of Sadik in criminal minded person and has no valid source of income. The opposite party has formed a gang and started illegal mining with his muscle

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power and has purchased the vehicle attached by the earnings from the said illegal activities. The vehicle which has been attached has been valued to Rs.3,00000/-. The vehicle has been said to be purchased in the year 2014 for a sum of Rs.600000/-. It has been stated that the opposite party has agricultural income but still no proof of valid income has been given either before the District Magistrate or before the trial Court, in absence of the same, the income of the opposite party from valid source has not been proved. The learned trial Court has escaped the attention of the fact that the burden of proof is on the opposite party as per Section 16(5) of U.P. Gangster and Antisocial Activities (Prevention) Act, 1986 to show that the properties/vehicle so procured are from valid source of income. The opposite party has failed to discharge the said burden. The opposite party has not filed any income tax returns or any statement of account duly certified which could be taken as evidence before the Court, and therefore, release of the vehicle only on the ground that they have been procured from loan taken by the banks is wholly illegal and arbitrary.

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Learned counsel for opposite party submits that the opposite party is a farmer and doing agriculture work on his fields. He is also doing agriculture work by taking agriculture land on Batai and other agriculture related work. He for the purpose of agriculture work had a old tractor, which was given to the company and new Tractor (Arjun) bearing Registration No. UP-21AX4493 was purchased on 08.08.2014, the remaining amount was paid by the opposite party in installments. In this regard, the copy of the Certificate of Registration of tractor of the opposite party is being filed herewith and marked as Annexure No.SCA-01 to the short counter affidavit. The opposite party is residing separately from his other family members in his village Gopiwala, P.S. and Tehsil-Thakurdwara, District: Moradabad. In this regard, the copy of Pariwar Register and Ration Card of the opposite party are being filed herewith collectively and marked as Annexure No.SCA-02 to the short counter affidavit. On 14.09.2022 an F.I.R. bearing Case Crime No.442 of 2022, Under Sections 147, 341, 352, 332, 504, 353 IPC 2 and 21(4) Mines &

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Mineral Act, PS-Thakurdwara, Dsitrict: Moradabad was lodged by Sri Ashok Kumar, Mines Officer, Moradabad against the brother of opposite party and other named and unknown persons in which during investigation sections 384, 395 IPC and 3 Public Property Prevention of Damages Act were added. The copy of the F.I.R. of Case Crime No.442 of 2022 dated 14.09.2022 is being filed herewith and marked as Annexure No.SCA- 03 to the short counter affidavit. It is relevant to mention here that the opposite party has not been named in the aforesaid F.I.R. nor his name has come during investigation of the aforesaid case crime. On the strength of lodging of aforesaid Case Crime No.442 of 2022 against the brother of opposite party and others, the concerned police has implicated the brother of opposite party and 18 others in Gangster Act U/s-3(1). Moreover, the opposite party is also not named in the Gangster Act and his name does not find place in Gang Chart. In this regard, the copy of Gang Chart dated 11.10.2022 is being filed herewith and marked as Annexure No.SCA-04 to the short counter affidavit. On the basis of aforesaid F.I.R. and Gangster Act imposed on the brother of opposite party, the Tractor (Arjun) bearing Registration No. UP-21AX-4493 which he has purchased for agriculture purposes, has been seized along with other movable and immovable properties of the brother of the opposite party U/s-14(1) of Gangsters Act vide order dated 14.10.2022 (Annexure-2 of Criminal Appeal) passed by District Magistrate, Moradabad. Being aggrieved by the order dated 14.10.2022, the opposite party moved an application before District Magistrate, Moradabad for release of his Tractor (Arjun) bearing Registration No.UP-21AX-4493 which was illegally rejected vide order dated 30.01.2023 by the District Magistrate, Moradabad and the matter was referred to the learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No.5, Moradabad U/s 16(1) of U.P. Gangsters Act where Criminal Misc. Case No.98/2023 (Mohd. Hamid @ Hamid Husain Vs. State of U.P.) was registered and notice was issued to be opposite party. After receiving the notice, the opposite party through his counsel submitted his representation/ objection against the order dated 30.01.2023 and 14.10.2022 passed by District Magistrate, Moradabad

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before the trial court. The learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad by a detailed order dated 16.02.2024 directed the District Magistrate, Moradabad to release the Tractor (Arjun) bearing Registration No.UP-21AX-4493 in favour of the opposite party after expiry of limitation period of appeal (30 days) within 7 days. This judgment and order dated 16.02.2024 is under challenge in the aforesaid appeal. In pursuance of the judgment and order dated 16.02.2024 the opposite party moved representation before District Magistrate, Moradabad and prayed for release of his Tractor (Arjun) bearing Registration No. UP- 21AX-4493 in compliance of aforesaid judgment and order dated 16.02.2024, which was registered as Case No.7214/2022 (Mohd Hamid @ Hamid Husain Vs. State) U/S-15 of Gangster Act. Against the aforesaid judgment and order dated 16.02.2024 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad the State Government has filed above mentioned defective Criminal Appeal on 25.10.2024 i.e. after long delay of more than 8 months. Learned District Magistrate, Moradabad rejected the representation of the opposite party vide order dated 29.05.2024 stating therein that as per report of S.H.O. PSThakurdwara, Moradabad against order dated 16.02.2024 appeal proposal dated 02.05.2024 has been sent. He has further stated that against order dated 16.02.2024 appeal has been filed and as such, it is not appropriate to release Tractor (Arjun) bearing Registration No. UP-21AX-4493. The certified copy of the order dated 29.05.2024 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.SCA-05 to the short counter affidavit. The order dated 29.05.2024 passed by District Magistrate, Moradabad is illegal, incorrect, arbitrary and cannot be sustained in the eyes of law as the defective criminal appeal against the order dated 16.02.2024 has been filed before this Hon'ble Court on 25.10.2024 but in the order dated 29.05.2024 the learned District Magistrate, Moradabad has stated that the appeal has been filed. The District Magistrate, Moradabad, in fact, has committed contempt of court's order dated 16.02.2024 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court

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No.5, Moradabad by not releasing the Tractor (Arjun) bearing Registration No. UP- 21AX-4493 of the opposite party after stipulated period and he has also passed incorrect order dated 29.05.2024 as an appellate court for which he has no right, as after 37 days of order dated 16.02.2024 the District Magistrate was duty bound to release the aforesaid Tractor (Arjun) bearing Registration No. UP-21AX-4493 in favour of the opposite party. The District Magistrate, Moradabad who is highest administrative authority of the District has passed a false order as an appellate authority incorrectly stating that against order dated 16.02.2024 criminal appeal has been filed so the said vehicle i.e. Tractor (Arjun) bearing Registration No. UP-21AX-4493 cannot be released, but the criminal appeal that too defective was filed on 25.10.2024 and as such he has committed manifest illegality, which is apparent on the fact of record itself. The opposite party has been living separately than his other family members at his village Gopiwala and doing agriculture work on his field and also taking the agricultural field on Batai. He was also doing agriculture related work from his Tractor and was earning about 2-2.5 Lakh annually and was earning livelihood for himself and for his family members who are 7 in numbers. He purchased the said vehicle on his own after giving his old tractor to the company and remaining amount was paid in installment, but the District Magistrate, Moradabad has illegally seized his aforesaid vehicle though neither there was F.I.R. against the opposite party nor was he accused in Gangster Act. The vehicle of the opposite has been lying in concerned police station for more than two years, which he had purchased on 08.08.2014 itself but due to seizer of said vehicle the opposite party is not able to do agriculture work and other agriculture related work from his tractor and is unable to earn his livelihood and livelihood for his family members. The opposite party has no concern with the business of his brother nor he is named in FIR or in Gangster Act, but even though his own vehicle has illegally been seized. The action of the District Administration is illegal, arbitrary and cannot be sustained in the eyes of law. In view of the facts and circumstances of the case mentioned above, it is expedient and necessary in the interest of justice that the District

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Magistrate, Moradabad may be directed to release the Tractor (Arjun) bearing Registration No.UP-21AX-4493 of the opposite party forthwith; otherwise the opposite party shall suffer irreparable loss and injury.

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

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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:

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"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-

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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;"

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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 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

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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.

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8. Section 14 of the Act reads as under :

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"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.

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

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(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.

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

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This Court had an opportunity to go through the various judgments of this Court viz. S mt. 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

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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.

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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 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.

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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 opposite party / 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

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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.

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At this juncture it would be appropriate to reproduce the relevant part of order impugned dated 14.2.2024 which is as under :-

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" इस प्रकरण में जो भी साक्ष्य पत्रावली पर उपलब्ध हैं, उससे वह सम्बन्ध स्थािपत नहीं होता है जैसा िक माननीय उच्च न्यायालय की उपरोक्त िविध व्यवस्था में अवधािरत िकया गया है। उपरोक्त जांच में यह तथ्य कहीं भी स्पष्ट नही हुआ िक उपरोक्त प्रश्नगत ट्रैक्टर जो अगस्त, 2014 में क्रय िकया गया है, उसका िकस प्रकार अिभयुक्त रहीश के िवरूद्ध गैंगचाट मर् ें अंिकत अ0सं0 442/2022 से संबंध है, क्योंिक उक्त मुकदमा िदनाक 14.09.2022 को पंजीकृत हुआ है। प्रत्यावेदनकता दर् ्वारा कुकर् शुदा ट्रैक्टर अगस्त, 2014 में क्रय िकया गया है। ऐसी िस्थित में, उपरोक्त िविध व्यवस्थाओं के अनुसार यह तथ्य िसद्ध है िक प्रश्नगत वाहन गैंगचाटर् में अंिकत मु०अ०सं० 442/2022 के पंजीकत होनृ े से लगभग 8 वषर् पूवर् क्रय िकया गया था। इस आधार पर यह तथ्य िसद्ध हो जाता है िक प्रश्नगत ट्रैक्टर का गैंगचाटर् में अंिकत मुकदमे के द्वारा अिजत अिविधक आय से क्रय नहीं िकया गया है। ऐसी िस्थित में, यह तथ्य िसद्ध नहीं है िक गैंगचाटर् में अंिकत मुकदमा अ0सं0 442/2022 का संबंध प्रश्नगत ट्रैक्टर के क्रय से है। यिद अिभयोजन के कथन को मान भी िलया जाये िक अिभयुक्त रहीश द्वारा अवैध कृत्यों से अिजत आय से अपने भाई मौ० हािमद उफर् हािमद हुसैन के नाम पर प्रश्नगत ट्रैक्टर क्रय िकया गया था, तब भी अिभयोजन पर भार है िक वह इस तथ्य को पूणर् रूप से िसद्ध करे और इस तथ्य को माननीय उच्च न्यायालय ने अपनी िविध व्यवस्था शांित देवी पत्नी श्रीराम बनाम उ०प्र० राज्य, 2007 (2) ए०एल०जे० 483 में अवधािरत िकया है। अिभयोजन द्वारा ऐसा कोई भी साक्ष्य पत्रावली पर प्रस्तुत नहीं िकया गया, जो इस तथ्य को िसद्ध करता हो िक प्रत्यावेदनकतार् के भाई अिभयुक्त रहीश का कोई पूवर् का आपरािधक इितहास रहा हो और गैंगचाटर् में अंिकत मुकदम की आय से े प्रश्नगत ट्रैक्टर क्रय िकया गया हो। माननीय उच्च न्यायालय की िविध व्यवस्था में प्रितपािदत िसद्धांतों के अनुसार यह भार अिभयोजन पर था िक वह यह िसद्ध करता िक िजस धनरािश से प्रश्नगत

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ट्रैक्टर क्रय िकया गया है, वह असामािजक िक्रयाकलापों द्वारा अिजत की गई हो और अिभयोजन अपने इस भार को उतारने में असफल रहा है।

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पत्रावली पर उपलब्ध प्रपत्रों का सम्यक पिरशीलन करने के पश्चात न्यायालय इस िनष्कषर् पर पहुंचती है िक प्रत्यावेदनकतार् मौ० हािमद उफर् हािमद हुसैन का कुकर् शुदा ट्रैक्टर अजुर्न रिज० नं० यू०पी० 21 एएक्स 4493 का क्रय िकये जाने का संबंध िकसी भी आपरािधक कृत्य से अिजत आय से िलया जाना िसद्ध नहीं होता है। माननीय उच्च न्यायालय, इलाहाबाद द्वारा पूवर् में उिल्लिखत िविध व्यवस्थाओं से स्पष्ट उल्लेख िकया गया है िक मात्र पुिलस िरपोट कर् े आधार पर गैंगस्टर एक्ट को धारा-14(1) के अन्तगर्त िजला मिजस्ट्रेट, मुरादाबाद द्वारा की गयी कुकीर् की कायर्वाही िविध िवरूद्ध होगी।

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उपरोक्त िववेचन के पश्चात् न्यायालय इस िनष्कषर् पर पहुंचती है िक िवद्वान िजला मिजस्ट्रेट, मुरादाबाद द्वारा पािरत कुकीर् आदेश िदनांिकत14.10.2022 प्रत्यावेदनकतार् मौ० हािमद उफर् हािमद हुसैन द्वारा िजला मिजस्ट्रेट के समक्ष प्रस्तुत। प्रत्यावेदन को िनरस्त करने सम्बन्धी आदेश िदनांिकत-30.01.2023 आंिशक रूप से िनरस्त िकये जाने योग्य है तथा कुकर्शुदा ट्रैक्टर अजुर्न रिज० न० यू०पी० 21 एएक्स 4493 कुकीर् से अवमुक्त िकये जाने योग्य है।"

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Emphasis Added

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

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"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.

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(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

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under Section 17 as may be just and necessary in the circumstances of the case.

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(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."

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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. 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. The District Magistrate concerned has also not considered the fact that the appellant was not a gangster and rejected his representation.

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It is to be noted here that initially placing reliance on the police report dated 13.10.2022, the District Magistrate, Moradabad has passed the order of attachment of the vehicle in question, and thereafter, referred the matter to the Court of learned Special Judge (Gangster Act)/Additional Sessions Judge who vide order dated 16.2.2024 has released the vehicle in question in favour of the opposite party. Pursuant to the order dated 16.2.2024 the opposite party has moved a representation before the District Magistrate, Moradabad and again the District Magistrate, Moradabad rejected the representation of the opposite party on the ground that as per police report an

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appeal has been filed against the order dated 16.2.2024 before High Court, and therefore, during pendency of the appeal the vehicle in question cannot be released. When in fact the appeal has been filed before this Court on 25.10.2024, that is, after lapse of five months, therefore, this ground was not available with the District Magistrate, Moradabad at the time of passing of order dated 29.5.2024 whereby the representation filed by the opposite party has been rejected. Moreover, examination of the order dated 16.2.2024 passed by learned Special Judge (U.P. Gangster Act/Additional Sessions Judge, Court No.5, Moradabad, shows that the order dated 16.2.2024 is a well reasoned order and requires to no interference by this Court.

¶68

Hence, keeping in view the facts and circumstances of the case this Court is of the view that the vehicle, which was attached, was acquired by the opposite party 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 order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party is nonest in law. It also appears that the appellant was having enough source of income from which he had procured the vehicle. The order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party (which was filed pursuant to order dated 16.2.2024) is in a mechanical manner without application of mind and is arbitrary.

¶69

In view of the discussions made above, in my view the appeal has no merit, and is accordingly, dismissed. The order of the District Magistrate, Moradabad dated 29.5.2024 rejecting the representation of the opposite party is non-est in law. The vehicle i.e. Tractor Arjun U.P.21-AX-4493 be released from attachment forthwith.

¶70

Copy of this judgment be transmitted to the Court / District Magistrate concerned for necessary compliance.

¶71

November 21, 2025 Dev

¶72

(Mrs. Vani Ranjan Agrawal,J.)

¶73

Digitally signed by :- DEV PRAKASH High Court of Judicature at Allahabad

state of up v. Mohd. Hamid @ Hamid Husain

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state of up v. Mohd. Hamid @ Hamid Husain

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