Ankita Singh and Another Vs State of U.P. and 3 Others

The present appeal under Section 18 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as the 'Gangster Act') has been filed with the following prayers:-

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"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to set aside the impugned order dated 04.05.2023 passed by Additional district and Sessions Judge/Special Judge (Gangster Act), court no. 4, Azamgarh by which the Learned Court has confiscated the property in favour of state in Criminal Case No. 4200009 of 2023, C.N.R. No. U.P.A.Z.010033382023 Umesh Singh and another V/s State of U.P. and the order dated 12.05.2022 passed by Learned District Magistrate Azamgarh in case no. 1493 of 2022, Computer Case No.D202215060001493 State V/s Umesh Singh and another U/s 14 (1) U.P. Gangster and Antisocial Activities, 1986 and against the order dated 30.01.2023 passed by the court of District Magistrate, Azamgarh by which he has rejected the application of the appellant moved U/s 15 U.P. Gangster and Antisocial Activities, 1986 for release of the attached property and referred the matter before Special Jude Gangster Act, Azamgarh for necessary order and to release the property confiscated/attached in favour of appellants during the pendency of present appeal before this Hon'ble court.

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And or to pass such other and further which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case otherwise the appellant will suffer irreparable loss and injury and or to pass such other and further which this Hon'ble Court."

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3. Background facts:

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The District Magistrate, Azamgarh, in light of the report of the S.H.O., Police Station Jiyanpur, District Azamgarh dated 27.4.2022, as approved by the Superintendent of Police, Azamgarh on 4.5.2022, in exercise of powers conferred under Section 14(1) of the Act, thereafter, ex-parte order dated 12.5.2022 has been passed attaching the property of the appellants on the ground that they are gangster alongwith their cohorts amassed physical/financial benefits.

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The attachment order dated 12.05.2022 passed in Suit No.D202215060001493 (State vs Umesh Singh etc.) under Section 14(1) of the Act has been passed on the basis of the report dated 27.04.2022 of the Station House Officer/Investigating Officer, Police Station Jiyanpur, District Azamgarh, attached with the recommendation along with the report dated 04.05.2022 of the Superintendent of Police, Azamgarh. According to the report dated 04.05.2022 of the Superintendent of Police, Azamgarh, the notorious accused Dhruv Singh alias Kuntu Singh, resident of village Chhapra Sultanpur, Police Station Jiyanpur, Azamgarh, related to FIR No. 467/2013, Section 3(1) of the Act, Police Station Jiyanpur, using his influence, obtained Bharat Gas Agency License No. Mh202215060001493 in village Chhapra Sultanpur jointly in the name of his co-sharers Umesh Singh, son of Ramvriksh Singh, and Ankita Singh, wife of Umesh Singh, from the money earned through criminal activities. The building/warehouse of the said gas agency is situated on 0.091 hectare of land out of Gata No. 919/0.812 hectare, north of which is a paved road, south Chak Umesh, east and west Chak Rajesh, whose value has been fixed at Rs.8,09,000/-. Umesh Singh, son of Ramvriksh Singh, and Ankita Singh, wife of Umesh Singh, residents of Chhapra Sultanpur village, own the Bharat Gas Agency in Chhapra Sultanpur village. Umesh Singh, son of Ramvriksh Singh, is a cosharer of the aforementioned criminal mafia, Dhruv Singh alias Kuntu Singh, son of the late Rudra Pratap Singh. Dhruv Singh alias Kuntu Singh, a resident of Chhapra Sultanpur, Police Station Jiyanpur, Azamgarh, used his influence to secure the license for the gas agency for Umesh Singh and Ankita Singh jointly. Dhruv Singh alias Kuntu Singh, a criminal, cannot own a gas agency in his own name, but he secretly operates the gas agency. Due to Dhruv Singh alias Kuntu Singh's influence and intimidation, residents of the surrounding area obtain connections exclusively from the aforementioned gas agency. Due to the mafia's influence, no one in the villages surrounding the gas agency receives gas connections, nor can they receive connections/supplies from any other gas agency. A portion of the profits from the gas agency secretly goes to Dhruv Singh, alias Kuntu Singh,

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who uses them to defend the case and intimidate witnesses. Umesh Singh and Ankita Singh do not have a significant source of income to own the gas agency or construct a building. Dhruv Singh, alias Kuntu Singh, is a statelevel criminal mafia, against whom a total of 75 criminal cases have been registered between 1992 and 2021. The accused's criminal history report, numbered 138-A, was opened in 1994. After obtaining legal opinion from the Joint Director of Prosecution, Azamgarh, the gang chart, reports, and evidence attached to the file prima facie confirmed that the property described was acquired through criminal activities through ill-gotten gains.

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Learned counsel for the appellant submits that pursuant to order of attachment passed by the District Magistrate, Azamgarh dated 12.5.2022 appellants have submitted a representation dated 31.5.2022, which was rejected by the District Magistrate, Azamgarh vide order dated 30.1.2023, thereafter, the appellants contested the matter before the learned Additional District and Sessions Judge/Special Judge (Gagster Act), Azamgarh by filing Criminal Misc. Case No.4200009/2023, which too was dismissed vide order dated 4.5.2023.

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Learned counsel for the appellant has assailed the order impugned on the following grounds :-

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The judgment and order dated 04.05.2023 passed by Additional District and Sessions Judge/Special Judge (Gangster Act), court no. 4, Azamgarh is against the fact and circumstances of the case. The order dated 04.05.2023, 30.01.2023 and 12.05.2022 passed by the learned trial Court suffer manifest error of law and procedure as such are not sustainable in the eye of law. The learned Special Judge (Gangster Act) has not applied its judicial mind to the fact and evidence on record and wrongly passed the impugned order dated 04.05.2023 for confiscating the attached property in favour of state. While passing the impugned order dated 04.05.2023 learned trial court/ Special Judge has not considered the fact that only on the basis of police report forwarded by S.P. Azamgarh on 04.05.2022 to the District Magistrate, Azamgarh for attachment of the appellant gas agency including Godown. Learned Court below has not considered this fact that in the police report apart from the allegation not even a single testimony has been produced in support of allegation leveled in the beat report. Learned Trial court, while passing the impugned order dated 04.05.2023 has not call upon the Investigating Officer P.S Jiyanpur, Azamgarh to examine him. In spite of disclosing the sources from where appellant collected money for the said gas agency, the court below has not considered the same while passing the impugned orders dated 04.05.2023. 12.05.2022 and 30.01.2023. It has not proved either by the beat report or by the police inquiry that appellants or

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any member of his family were involved in criminal activities of the alleged mafiya. The police report has also failed to show a single case registered against any member of the appellants' family. Appellants before District Magistrate Azamgarh and Special Judge (Gangster Act), Azamgarh stated that neither they have any relation with the alleged mafiya nor in any way he is involved in obtaining the license of the Bharat Gas Agency. Because appellants are wholly innocent and has not committed any crime in any manner and the court below by adopting illegal and erroneous way attach the gas agency and godown of the appellants. The attachment and confiscation of the appellants' gas agency and godown is against the evidence on record as prosecution has failed to prove its case beyond doubt. Because the order of attachment and confiscation awarded by the court below is too sever and against the evidence on record. Because the finding recorded by the court below are based on surmises and conjecture. Because the appellants are very innocent and have not committed any crime in his life.

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Per contra, learned Additional Government Advocate has supported the order impugned on the following grounds :-

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Appellants are the tenants of the criminal mafia Dhruv Singh and Mafia Dhruv Singh got Bharat Gas Agency in village Chhapra Sultanpur for appellant no.2 through his influence. The people of the surrounding area used to take connection from the above gas agency, but due to terror and fear of Dhruv Singh, neither a person could take a gas agency nor could any other gas agency get connection/supply. The share of the profit from the gas agency of the appellants secretly given to the Mafia Dhruv Singh alias Kunnu Singh, which uses to plead the case and intimidate the witnesses. The report has been sent by the Inspector-in-Charge, Jiyanpur on the correct facts and actual basis, which was forwarded by the Superintendent of Police, Azamgarh as a report dated 4.5.2022 for attachment of gas agency building. No evidence was produced before the learned District Magistrate by the accused appellants before the District Magistrate concerned regarding legitimate source of acquisition of his property and after considering all aspects of the matter District Magistrate concerned has passed the order impugned.

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

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It seems to be just and expedient to refer to the relevant provisions of the Gangster Act which are as under :-

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2. Definitions- In this Act,- (a) "Code" means the Code of Criminal Procedure, 1973;

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(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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(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code, or

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(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

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(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

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(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or

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(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or

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(vi) offences punishable under Section 3 of the Public Gambling Act, 1867, or

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(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

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(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

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(ix) offences punishable under Section 171-E of the Indian

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Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or

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(x) inciting others to resort to violence to disturb communal harmony, or

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(xi) creating panic, alarm or terror in public, or

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(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

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(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or

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(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;

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(xvi) offences punishable under the Regulation of Money Lending Act, 1976;

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(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;

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(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;

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(xx) printing, transporting and circulating of fake Indian currency notes;

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(xxi) involving in production, sale and distribution of spurious drugs;

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(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention of Sections 5, 7 and 12

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of the Arms Act, 1959;

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(xxiii) felling or killing for economic gains, smuggling of products in contravention of the Indian Forest Act, 1927 and The Wildlife Protection Act, 1972;

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(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;

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(xvv) indulging in crimes that impact security of State, public order and even tempo of life,"

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(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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(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;

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(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;

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(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.

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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:

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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.

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(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any Court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine".

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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:

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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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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.

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(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section

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(1) he shall forthwith release the property from attachment and thereupon such 6 property shall be made over to the claimant.

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

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

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(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under 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.

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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 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.

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(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:

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(a) summoning and enforcing the attendance of any person and examining him on oath ;

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(b) requiring the discovery and production of documents;

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(c)receiving evidence on affidavits;

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(d) requisitioning any public record or copy thereof from any court or office ;

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(e) issuing commission for examination of witnesses or documents;

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(f) dismissing a reference for default or deciding it ex parte;

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(g) setting aside an order of dismissal for default or ex parte decision.

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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 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.

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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."

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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.

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11. The object behind providing the power of judicial scrutiny under Section 16 of the Code is to check arbitrary exercise of power by the District Magistrate in depriving a person of his property and to restore the rule of law, therefore a heavy duty lies upon the Court to hold a

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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.

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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.

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A Coordinate Bench of this Court in the case of Smt. Maina Devi versus State of U.P. 2013(83) ACC 902 in paras-8, 9 and 10 has been pleased to held as under:-

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"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:

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15. Release of property . (1) Where any property is attached under section 14, the claimant thereof may within three

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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.

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(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section

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(1) he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant.

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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.

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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

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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 â€˜relevancy of the reasonsâ€™ 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.

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

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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:-

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"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

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triable under the Act.

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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.

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11. In the case of Badan Singh alias Baddo v. State of U.P., 2002 Cri LJ 1392 : 2001 All LJ 2852 it has been held by this Court that Section 14 of the Act is a harsh provision that affects one's right to property, which is a fundamental right under the Constitution. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that a gangster acquired the properties as a result of commission of any offence. It has also been held in this case that the Act does not provide that the aggrieved person seeking release of the properties from attachment must prove the source of income for acquisition thereof."

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Further, another Coordinate Bench of this Court in the case of Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986 in paras 16 and 18 has been pleased to held as under:

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"16. A conjoint reading of the aforesaid two definitions what appears is that for taking action under Section 14 against a person, there must be materials for objective determination of the District Magistrate that he either as a member, leader or organizer of a gang acquired any property as a result of commission of any offence under the Act. There must be nexus between his criminal act and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words, what is necessary to find is whether his acquisition of property was as a result of commission of any offence enumerated in the Act being a member, leader or organizer of a gang. One might have committed several offences, but if the property acquired by him was with the aid of his earning from legal source, no action under Section 14 of the Act can be taken against him.

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18. Section 14 of the Act is a harsh provision that affects one's right to

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property which is a constitutional right under the Constitution. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that petitioner Rajbir Singh Tyagi being a gangster acquired the properties as a result of commission of any offence. That was however, not done. So, complaining the attachment order to be illegal, a move was made by the petitioners by filing a representation for release of the properties. The said prayer was rejected with the observation that the petitioners could not establish the source of income to build the house and acquire the movables. This approach of the District Magistrate, in my opinion, has no sanction under law. The Act does not provide that-aggrieved person seeking release of the properties from attachment must prove the source of income for acquisition thereof. So, on a conspectus of the relevant provisions of the Act, I am of the considered opinion that the order of attachment passed by the District Magistrate, Muzaffar Nagar is illegal, arbitrary and against the weight of the materials on record."

¶135

Keeping in view the aforesaid settled proposition of law and the judgments rendered by this Court in the case of Smt. Maina Devi versus State of U.P. 2013(83) ACC 902 and Smt. Shanti Devi wife of Sri Ram versus State of U.P. 2007(2) ALJ 483 (All), and Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986 , this Court is of the view that the properties, which were attached, were acquired by the appellant with the aid of his earning from legal resources and not by commission of any offence triable under the Act as it is settled law that the properties being made subject matter of attachment under Section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act and also the impugned orders were not passed on reasons which are relevant and material.

¶136

In the present case from the perusal of the impugned order dated 4.5.2023 and record it appears that only on the basis of the police report, the District Magistrate has attached the property in question, no material was supplied to the District Magistrate to have reasons to believe that the property in question was acquired by the present appellants as a result of commission of any offence triable under this Act. It vitiates the subjective satisfaction of the District Magistrate also from the record. It appears that the District Magistrate has no material in support of the police report that the property in question was acquired by the present appellant being gangster.

¶137

It is relevant to reproduce the relevant part of the impugned order dated 4.5.2023, which reads as under:-

¶138

CRLA No. 12422 of 2024

¶139

16

¶140

" ्ऺस्तुत ि्विमनल िमस्लेिनयस वाद सं० -09/2023 स्टेट बनाम अंिकता िसह आिद में आवेदकगण अंिकता िसह एवं उमेश िसह ्ऺस्तुत संपि्त अवमु्व संबंधी ्ऺाथर्ना प्ऴ िदनांिकत 10.04.2023 खािरज िकया जाता है। िव्षान िजला मिजस ् ेट , आजमग़ा ्षारा वाद संख्या -1886/2022, कम्प्यूटरीकृत वाद संख्या -D202215060001886 सरकार बनाम अंिकता िसह , अन्तगर्त धारा -15 उ०्ऺ० िगरोहबन्द एवं समाज िवरोधी ि्वया कलाप िनवारण अिधिनयम , 1986 में पािरत आलोच्य आदेश िदनांिकत 30.01.2023 पु्ि िकया जाता है। उपरो्व (Confiscate) ककु र् शदा सु ंपि्त को राज्य क िहत मे ें समपहिरत की जाती ह। अिभयै ु्व 06 ्व िसह उफषु र् कुण्ट िसह को गू गैं से टर कोट् र् सं० आजमगढ़ ्ष ारा मु०अ०सं० सं० 340/2010 धारा 3 (1) 31.03.2022 को 10 उ०्ऺ ० गगैं से टर ऐक् ्ट िदनांक वषर् की सजा दी जा चुकी ह। ै प्ऴावली िनणर्य की ्ऺित के साथ माननीय िजला मिजस ् ेट , न्यायालय आजमग़ा को अि्षम कायर्वाही हेतु वापस भेजी जाये।

¶141

इस आदेश की एक ्ऺित अनुपालनाथर् , िजला मिजस ् ेट , आजमग़ा को ्ऺेिषत की जाये। ्ऺस्तुत प्ऴावली िनयमानुसार दािखल दफ्तर हो। "

¶142

It is to be noted that the sole basis taken for attachment of the property of the appellants is that the Gangster Dhruv Singh @ Kuntu Singh has been convicted for the offence punishable under Section 3(1) of the Act and other criminal cases are pending against him. No such proceedings are there against the present appellants, no nexus between appellants and Dhruv Singh @ Kuntu Singh could be established by the prosecution. It is appears that the orders impugned have been passed only on the basis surmises and conjuncture. Therefore, there appears no reason to believe that the appellants have acquired the property in question by commission of any crime. Moreover, the appellants have stated that they took a loan of two lakhs rupees in cash and two lakh ninety-six thousand rupees from his village resident, Deendayal son of Sukh Shankar Singh. He also borrowed two lakh fifty thousand rupees from Shri Sai Shraddha Building Materials and construction materials on credit. Ankita Singh borrowed five lakhs rupees in installments from his brother, Deen Bandhu Singh, and sold his wife's property to construct the gas agency building, and deposited the license fee of two lakh eighty thousand rupees. Ankita Singh had taken two lakh rupees in cash in installments from his brother-in-law's son Nitish Singh. The applicant Umesh Singh kept cows and buffaloes at his home and ran the milk business and worked as a driver with a doctor in Sadar Hospital and whatever money he saved, he also invested it in the construction of the building and warehouse of the above agency.

¶143

It appears that the appellants were having enough source of income from which the appellants have acquired the properties and even the properties there is no imposition of Gangster Act, against them even then order of attachment was passed in mechanical manner without application of mind

¶144

CRLA No. 12422 of 2024

¶145

17

¶146

and is arbitrary. Thus the impugned order dated 30.1.2023 passed by the District Magistrate, Azamgarh and the impugned order dated 4.5.2023 passed by the Additional District and Session Judge/Special Judge, Gangsters Act, Azamgarh are illegal and the same are liable to be quashed.

¶147

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

¶148

Accordingly, the present appeal is allowed. The impugned order dated 30.1.2023 passed by the District Magistrate, Azamgarh under section 14(1) of Gangster Act and the impugned order dated 4.5.2023 passed by the Additional District and Sessions Judge/Special Judge/Special Judge, Gangster Act, Azamgarh are hereby quashed.

¶149

The District Magistrate, Azamgarh is directed to release all the properties of the appellant attached in favour of appellant, forthwith.

¶150

No order as to costs.

¶151

November 10, 2025 Dev

¶152

(Mrs. Vani Ranjan Agrawal,J.)

¶153

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

Ankita Singh and Another v. State of U.P. and 3 Others

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