1. Supplementary affidavit filed today, is taken on record.

2. In view of undisputed facts and evidence/documents available on record and with consent of learned Counsel for the parties, this Court proceeded to hear the instant appeal for final disposal at admission stage.

3. Heard learned counsel for the appellant and Sri Ajay Kumar Srivastava, learned A.G.A. for the State.

4. The present appeal has been filed under Section 18 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short 'Act of 1986') against the impugned order dated 06.03.2024 passed by Additional Sessions Judge, Court No. 4, Lakhimpur Kheri (in short 'trial court'), in Criminal Misc. Case No. 18 of 2023 related to Police Station-Tikoniya, District-Kheri.

5. By the impugned order, under appeal, dated 06.03.2024, the trial court has affirmed the order passed by the District Magistrate on 16.01.2023 in exercise of power under Section 15 of the Act of 1986, whereby the District Magistrate confirmed the order of attachment of house of the appellant passed on 27.06.2022 in exercise of power under Section 14(1) of the Act of 1986.

6. The brief facts of the case are to the effect that an FIR as Case Crime No. 39 of 2002 under Section 2(B)(1)/3 of the Act of 1986, Police Station Tikoniya, District Kheri, was lodged against the appellant on the basis of following cases were shown in the gang-chart against the appellant:-

(1) Case Crime No. 42 of 2020 under Section 60(2) of Excise Act and Section 272 IPC, Police Station Tikoniya, District Kheri.

(2) Case Crime No. 232 of 2020 under Section 60(2) of Excise Act, Police Station Tikoniya,, District Kheri.

(3) Case Crime No. 39 of 2022 under Section 2(B)(1)/3 of the Act of 1986, Police Station Tikoniya, District Kheri.

7. Thereafter, the Magistrate exercised its power under Section 14(1) of the Act of 1986 and passed the order dated 27.06.2022 and in compliance of the same the property i.e. house of the appellant situated at Kheraghat, Police Station Tikoniya, District Kheri, was attached.

8. It would be apt to indicate that one Bajaj Platina Motor Cycle UP31 AK 3844 and one Tractor, Engine no. S.L. 28618 and Chasis No. A/19558, which was purchased by the appellant and as per the appellant both were sold prior to proceeding under the Act of 1986, were also attached.

9. After attachment, the appellant preferred an application in terms of Section 15 of the Act of 1986 for releasing of the property/house.

10. The application dated 29.07.2022 was preferred by the appellant, as appears, on 05.08.2022.

11. In the aforesaid application the appellant has specifically pleaded that the house was constructed in the financial year 2012-13 and for this purpose, an amount to the tune of Rs. 35,000/- was also provided by the State Exchequer under the scheme known as 'Indira Awas Yojana' and further before the District Magistrate the proof of providing the said amount from the State Exchequer was also filed, which is on record as part of supplementary affidavit dated 10.05.2024.

12. The District Magistrate dismissed the application of appellant dated 29.07.2022 vide order dated 16.01.2023.

13. Being aggrieved, the appellant filed an appeal in terms of Section 18 of the Act of 1986, which was registered as Misc. Case No. 18 of 2023 (Surjeet Singh Versus State).

14. The trial court vide order dated 06.03.2024 dismissed the appeal of the appellant. The relevant portion of order dated 06.03.2024 is extracted hereunder:-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

15. Assailing the order dated 06.03.2024, whereby the trial court affirmed the order of District Magistrate dated 16.01.2023, it is stated by learned Counsel for the appellant that neither the trial court nor the District Magistrate concerned recorded the specific findings after considering the evidence placed by the appellant to prove that house was constructed after receiving Rs. 35,000/- in the financial year 2012-13, in terms of the scheme known as 'Indira Awas Yojana'. To establish the fact that an amount to the tune of Rs. 35,000/- for construction of house was provided to the appellant in terms of 'Indira Awas Yojana' the certificate of Khand Vikas Adhikari, Rania Behar, District Kheri, has been placed on record.

16. It is further stated that no doubt that claimant is required to establish that property was not acquired as a result of commission of any offence triable under the Act of 1986, but before asking a claimant to discharge the burden, it is incumbent upon the State to initially prove that one is a 'gangster' as defined in the Act who alleged to have acquired the attached properties.

17. It is also stated that the State was required to prove or discharge its burden that appellant is a 'gangster' and the properties including the house in issue was acquired by the appellant/claimant as a result of the commission of an offence triable under the Act of 19886 and in the instant case the State has not discharged its burden.

18. It is further stated that cases i.e. Case Crime No. 42 of 2020 under Section 60(2) of Excise Act and Section 272 IPC, Police Station Tikoniya, District Kheri and Case Crime No. 232 of 2020 under Section 60(2) of Excise Act, Police Station Tikoniya,, District Kheri and Case Crime No. 39 of 2022 under Section 2(B)(1)/3 of the Act of 1986, Police Station Tikoniya, District Kheri, are the basis of attachment of the property/house of the appellant under the Gangster Act and this attachment by the State is unsustainable in the eyes of law as the house was constructed way back after receiving financial aid in the financial year 2012-13 in terms of 'Indira Awas Yojana' and District Magistrate concerned as also trial court completely failed to take note of this aspect.

19. It is further submitted that in view of the aforesaid background of the case particularly the period of construction of house attached in compliance of order dated 27.06.2022 passed by the District Magistrate, confirmed vide order dated 16.01.2023 and thereafter affirmed by the trial court vide order dated 06.03.2024 and the cases subsequently lodged against the appellant i.e. Case Crime No. 42 of 2020 under Section 60(2) of Excise Act and Section 272 IPC, Police Station Tikoniya,, District Kheri and Case Crime No. 232 of 2020 under Section 60(2) of Excise Act, Police Station Tikoniya,, District Kheri and Case Crime No. 39 of 2022 under Section 2(B)(1)/3 of the Act of 1986, Police Station Tikoniya, District Kheri, present appeal is liable to be allowed and impugned order dated 06.03.2024 is liable to be set aside.

20. Learned A.G.A. vehemently opposed the prayer of the appellant, however, he could not dispute the above contentions made by the appellant's counsel.

21. Considered the aforesaid and perused the records.

22. In order to coming to the conclusion in the instant case, it would be appropriate to refer the relevant provisions of the Act of 1986 and the observations of this Court after considering the same.

23. Relevant provisions of the Act of 1986 are extracted herein under:-

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

(b) "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of

disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely-

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code, or (ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or

(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims, for title or possession of immovable property whether in himself or any other person, or

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

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

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

(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or

(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or

(ix) offences punishable under Section 171-E of the Indian Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or

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

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

(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or

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

(xiv) kidnapping or abducting any person with intent to extort ransom, or (xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;

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

(xvii) illegally transporting and/or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960;

(xviii) human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities;

(xix) offences punishable under the Unlawful Activities (Prevention) Act, 1966;

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

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

(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention of Sections 5, 7 and 12 of the Arms Act, 1959;

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

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

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

(c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities;

(d) "public servant" means a public servant as defined in Section 21 of the Indian Penal Code or any other law for the time being in force, and includes any person who lawfully assists the police or other authorities of the State, in investigation or prosecution or punishment of an offence punishable under this Act, whether by giving information or evidence relating to such offence or offender or in any other manner;

(e) "member of the family of a public servant" means his parents or spouse and brother, sister, son, daughter, grandson, granddaughter or the spouses of any of them, and includes a person dependent on or residing with the public servant and a person in whose welfare the public servant is interested;

(f) words and phrases used but not defined in this Act and defined in the Code of Criminal Procedure, 1973, or the Indian Penal Code shall have the meanings respectively assigned to them in such Codes.

3. Penalty- (1) A gangster, shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:

Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees.

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

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 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.

(3) (a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case.

(b) On the date so fixed or on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case.

(4) For the purpose of inquiry under sub-section (3), the Court shall have 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.”

24. In the case of Waseem Khan Versus State of U.P. and another reported in MANU/UP/1210/2023, this Court after considering the aforesaid provisions in Para 19 observed as under:-

"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 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."

25. 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 observed as under:-

“8. Considering the facts, circumstances of the case, submissions made by the learned Counsel for the appellant and the learned A.G.A. and from the perusal of the record it appears that the issue involved in the present case may be resolved with the help of the consideration of the provisions of section 14, 15 and 17 of the Gangsters Act, which read as under:

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

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

17. Order after inquiry—If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.

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

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

26. In the case of Smt. Shanti Devi wife of Sri Ram versus State of U.P. 2007(2) ALJ 483 (All) this Court in paras-9, 10 and 11 observed 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. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that a gangster acquired the properties as a result of commission of any offence. It has also been held in this case that the Act does not provide that the aggrived person seeking release of the properties from attachment must prove the source of income for acquisition thereof.”

27. In the case of Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986 this Court in paras 13,14,16,18 and 21 observed as under:-

13. The aforesaid provision clearly envisages that the order of the District Magistrate attaching one's property should be based on reasons 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. What law requires is 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 very much stronger word than ‘suspect’ and it involves the necessity of showing that the circumstances were such that a reasonable 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 Penal Code, 1860. 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 “suspicion” or “doubt” and mere seeing also cannot be equated to believing. “Reason to believe” is a higher level of state of mind. The belief entertained by the authority must not be arbitrary or irrational. It must be reasonable or in other words, it must be based on reasons which are relevant and material. The Court, of course, cannot investigate into the adequacy or sufficiency of the reasons which weighed with 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.

14. So keeping in mind the meaning of the words “reason to believe” in Section 14 of the Act coupled with the effect of order of attachment which makes one homeless and pauper, it is to be seen whether in the present case there were sufficient materials before the District Magistrate, Muzaffar Nagar for his believe that petitioner Rajbir Singh Tyagi is a gangster and that he has acquired the properties as a result of commission of any offence triable under the Act.

“ 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.

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

21. The authority to hold enquiry as provided under Section

16 is the Court which has jurisdiction to try the offences under the Act. In the case in hand, Special Judge, Saharanpur is the competent Court to try the offences under the Act and accordingly, on a reference he passed the impugned order. Clause (b) of sub-section (3) prescribes the procedure for holding enquiry by the Court. As provided therein, on the date of hearing, the Court shall receive evidence produced by the parties and take further evidence which it may consider necessary and then decide whether properties were acquired by a gangster as a result of commission of any offence under Act. The Act is a special Statute which has been enacted for the prevention of and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto. These being the objects and reasons for having the Act, the Legislature in its wisdom thought it expedient to place burden upon the claimant to prove in the negative as provided in sub-section (5) that properties were not acquired by a gangster as a result of commission of any offence under the Act. But before asking the claimant to discharge the burden, it is incumbent upon the State to initially prove that one is a ‘gangster’ as defined in the Act who alleged to have acquired the attached properties. During enquiry under Section

16 of the Act, the State was required to prove that petitioner was a gangster. If this was established, then the burden shifts to the petitioner as provided in sub section (5) to prove that the attached properties were not acquired by him as a result of commission of any offence. In the case in hand, the initial burden as aforesaid had not been discharged by the State. Yet the learned Special Judge with the aid of sub-section (5) came to hold that the petitioner could not prove that he had not acquired the properties as a ‘gangster’ as a result of commission of any offence under the Act and consequently, affirmed the order of the District Magistrate. In that view of the matter, I would hold that the impugned order, is contrary to law and thus unsustainable."

28. Having considered the aforesaid observation of this Court in the judgment referred above as also the undisputed fact that the house in issue was constructed after taking financial aid from the State Exchequer under the scheme known as 'Indira Awas Yojana' in the year 2012 and case of the State is based upon subsequent cases, which are the basis of proceedings under Act of 1986, and the State has failed to discharge its burden, as observed by this Court in the above mentioned judgments, this Court finds that present appeal has force and accordingly the same is allowed and the order dated 06.03.2024 passed by the trial court passed by the trial court as also the order dated 16.01.2023 passed by District Magistrate, Kheri, are hereby set aside. The Court shall follow, which means the property/house of the appellant shall be released.