Abid S/O Saddiq v. Counsel for

businessman. He owns a firm namely M/s. Abid Hussain Building Material Suppliers having its principal place of business at village Ramuwala Ganesh, Tehsil-Thakurdwara, Moradabad, Uttar Pradesh. The firm of opposite party is registered having its GST Registration No. 09AHJPH0637C1ZO dated

01.07.2017. The copy of GST Registration certificate of opposite party firm issued on 28.07.2018 is being field herewith and marked as Annexure No.CA-1 to the short counter affidavit. The opposite party is also filing Income Tax Return since 2016-17 up till now. In this regard, the copy of ITR filed by opposite party of Assessment Year 2016-17; 2017-18; 2018-19; 2019-20; 2020-21; 2021-22; 2022-23 and 2023-24 are being filed herewith collectively and marked as Annexure No.CA-2 to the short counter affidavit. To carry building material the opposite party has purchased TATA TIPPER No.UP21CN8605 the year 2019 after taking loan of Rs.36,55,710/- from Cholamandalam Investment and Finance Company Ltd. of which EMI of Rs.1,00,000/- per month is paid by the opposite party from the income of aforesaid vehicle. In this regard, the copy of repayment schedule of aforesaid loan is being filed herewith and marked as Annexure No.CA-3 to the short counter affidavit. On 29.11.2008 the opposite party has purchased Plot No.127 area 162.575 Sq. Yard in village Ramuwala Ganesh Tehsil Thakurdwara, District: Moradabad by one Sumit Kumar Goyal after paying consideration of Rs.1,50,000/- and after purchase the name of opposite party was also recorded in the relevant Khatauni. The aforesaid plot 4 CRLA No. 12320 of 2024 of the opposite party is about 50 Kms. away from District Headquarter Moradabad. Moreover, as to the report of P.W.D. it's valuation if about Rs.14,63,175/-. In this regard, a copy of sale deed dated 29.11.2008 and Khatauni of 1430-1435 Fasli are being filed herewith collectively and marked as Annexure No.CA-4 to the short counter affidavit. On the aforesaid plot of the opposite party, he started constructing a house over it since year 2008 which could be completed in several phases in the year 2021 due to lack of money. Now as per the report of P.W.D. its valuation is about Rs.58,24,600/- It is strange that opposite party has purchased a plot having area 162.575 Sq. Yard. over which he constructed house of which covered area has been measured by P.W.D. to be 366.03 Sq.Mt.. The opposite party has bank account in State Bank of India, Branch- Thakurdwara, Moradabad having Account No.35109324729 in which Rs.33,971/- is lying. The opposite party also has another bank account in Punjab National Bank, Branch-Thakurdwara, Moradabad having Account No.65130001000010511 in which Rs.34,851.97/- is lying. On 14.09.2022 an F.I.R. bearing Case Crime No.442 of 2022, Under Sections 147, 341, 352, 332, 504, 353 IPC and 21(4) Mines & Mineral Act, PS-Thakurdwara, 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 Section 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.CA-5 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. but during investigation the opposite party has also been implicated in the present case. 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 opposite party, his brother and 17 others in Gangster Act U/s-3(1) In this regard, the copy of Gang Chart dated 11.10.2022 is being filed herewith and marked as Annexure No.CA-6 to the short counter affidavit. On the basis of aforesaid F.I.R. and Gangster Act imposed on the 5 CRLA No. 12320 of 2024 opposite party, the Tata Tipper of opposite party, his aforesaid plot, house and aforesaid two accounts have been seized U/s-14(1) of Gangsters Act vide order dated 14.10.2022 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 aforesaid movable and immovable properties. The application of the opposite party 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.100/2023 (Abid Vs. State of U.P.) was registered and notice was issued to be opposite party. The certified copy of order dated 31.01.2023 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-7 to this affidavit. The opposite party after receiving the notice submitted his representation/ objection through his counsel against the order dated 30.01.2023 and 14.10.2022 passed by District Magistrate, Moradabad. The learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad by a detailed order dated 21.12.2023 directed the District Magistrate, Moradabad to release the moveable and immovable properties in favour of the opposite party after expiry of limitation period of appeal (30 days) within 7 days. This judgment and order dated 21.12.2023 is under challenge in the aforesaid appeal. Against the aforesaid judgment and order dated 21.12.2023 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

07.08.2024 (sweared on 14.05.2024) i.e. after long delay of about 8 months. In pursuance of the judgment and order dated 21.12.2023 the opposite party moved representation before District Magistrate, Moradabad and prayed for release of his movable and immovable properties in compliance of aforesaid judgment and order dated 21.12.2023, which was registered as Case No.7040/2022 (Abid Vs. State) U/S-15 of Gangster Act. The District Magistrate, Moradabad rejected the representation of the opposite party vide 6 CRLA No. 12320 of 2024 order dated 27.05.2024 stating therein that as per report of S.H.O. PS-Dilari, Moradabad against order dated 21.12.2023 appeal proposal dated 07.02.2024 has been sent. He has further stated that against order dated 21.12.2023 appeal has been filed and as such it is not appropriate to release the seized properties. The certified copy of the order dated 27.05.2024 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-8 to the short counter affidavit. The order dated

27.05.2024 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 21.12.2023 has been filed before this Honble Court on 07.08.2024 (though affidavit was sweared on 14.05.2024) but in the order dated 27.05.2024 the learned District Magistrate, Moradabad has stated that the appeal has been filed. After seizer of Tata Tipper of the opposite party under Gangster Act, the opposite party could not able to pay EMI as he could not ply the Tipper and earn money to pay the EMI and as such now several notices are regularly being sent by the concerned bank and not only the opposite party but the sureties are also being harassed by the bank authorities. The remaining EMI up to 17.11.2022 is Rs.13,86,141/- . Apart from it on the aforesaid Tata Tipper Tax is also due for which notice dated 11.08.2023 has been sent by ARTO, Moradabad to DM Moradabad for recovery of tax from the opposite party. In this regard, the copy of notice dated 17.11.2022 sent by the concerned bank for payment of EMI to the opposite party and copy of notice dated 11.08.2023 sent by ARTO, Moradabad to D.M. Moradabad are being filed herewith collectively and marked as Annexure No.CA-9 to the short counter affidavit. The District Magistrate, Moradabad, in fact, has committed contempt of court's order dated 21.12.2023 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No.5, Moradabad by not releasing the seized properties of the opposite party after stipulated period and he has also passed incorrect order dated 27.05.2024 as an appellate court for which he has no right, as after 37 days of order dated 21.12.2023 the District Magistrate was duty bound to release the seized properties in favour of the 7 CRLA No. 12320 of 2024 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 21.12.2023, criminal appeal has been filed so the seized properties cannot be released, but the criminal appeal that too defective was filed on 07.08.2024 and as such he has committed manifest illegality, which is apparent on the fact of record itself. The opposite party has separate business than his brother Rahees. He purchased the said vehicle on his own after taking huge amount on loan by the bank and also from relatives for margin money and the sole earning of opposite party was from ply of aforesaid Tata Tipper but the District Magistrate, Moradabad has illegally seized his aforesaid vehicle along with house and accounts in the bank. The vehicle of the opposite has been lying in concerned police station since more than two years, which he had purchased in the year 2019. Huge money was invested by the opposite party for purchasing the said vehicle after taking loan of which huge EMI is to be paid but due to seizer of said vehicle neither the EMI is being paid nor the opposite party is able to the earn money for livelihood of his family and for himself. The action of the District Administration is illegal, arbitrary and cannot be sustained in the eyes of law. Thus, 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 Magistrate, Moradabad may be directed to release the moveable and immoveable properties of the opposite party forthwith in compliance of the judgment and order dated 21.12.2023 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad in Crl. Misc. Case No.100/2023 (Abid Vs. State of U.P.) U/s-16(1) of U.P. Gangsters Act; otherwise the opposite party shall suffer irreparable loss and injury.

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

6. Before examining the arguments advanced by the learned counsel for the 8 CRLA No. 12320 of 2024 parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: "2(b). "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely- ....... ....... 2(c). "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities;"

7. 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 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.

8. Section 14 of the Act reads as under : "14. Attachment of property.- (1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession 9 CRLA No. 12320 of 2024 of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court. (2) The provisions of the Code shall mutatis mutandis apply to every such attachment. (3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property." This Court had an opportunity to go through the various judgments of this Court viz. Smt. Rashida Bano vs. State of U.P. and others, 2014 6 ADJ 575, Badan Singh @ Baddo vs. State of U.P. and others, (2001)10 AHC CK 0033, Smt. Maina Devi vs. State of U.P., 2013 9 ADJ 542, Waseem Khan vs. State of U.P., 2023 LawSuit (All)751 and Criminal Appeal No. 2130 of 2021 (Abrar vs. State of U.P. and another), decided on

23.10.2021 propounding legal dictums on the subject and a co-joint reading of the same leads to draw a conclusion that Section 14 clearly provides that the order of the District Magistrate attaching one's property, must be based on reason and not arbitrary. The expression "reason to believe" appearing therein has some intent and purpose. It puts fetter in the arbitrary exercise of power of attachment to deny a person of his right to any property. Law requires that there must be reason to believe that the property sought to be attached, has been acquired by a ''gangster' as a result of commission of any offence under the Act. The expression "reason to believe" contemplates an objective determination based on intelligent care and deliberation involving judicial review, as distinguished from purely subjective consideration. There must be rational and intelligible nexus 10 CRLA No. 12320 of 2024 between ''reason' and ''belief'. The word 'believe' is a much stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. According to the said definition, a person is said to have ''reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as the ''suspicion' or ''doubt' and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. The Court, of course, cannot investigate 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.

9. 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 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.

10. At this juncture it would be appropriate to reproduce the relevant part of 11 CRLA No. 12320 of 2024 order impugned dated 21.12.2023 which is as under :- "पत्रावली पर उपलब्ध प्रपत्रो का सम्यक पिरशीलन करने के पश्चात् न्यायालय इस िनष्कषर् पर पहुँचती है िक माननीय उच्च न्यायालय की उपरोक्त िविध व्यवस्थाओ में प्रितपािदत िसद्वान्तो एवं उभय पक्षो द्वारा प्रस्तुत िकये गये साक्ष्य व तकोर् को दृिष्टगत रखते हुए उपरोक्त कु कर् शुदा सम्पित्तयों ग्राम रामूवाला गणेश िस्थत आवासीय भूिम खाता संख्या 147, क्षेत्रफल

162.575 वगर् मीटर तथा ग्राम रामूवाला गणेश िस्थत आवासीय भूिम पर िनिमत भवन कवडर् एिरया 366.03 वगर् मीटर तथा टाटा िटप्पर रिज० संख्या यू०पी० 21 सी0एन 8605 तथा स्टेट बैंक आफ इिण्डया, शाखा ठाकु रद्वारा का खाता संख्या 35109324729 तथा पंजाब नेशनल बैंक, शाखा ठाकु रद्वारा का खाता संख्या 6513000100010511 को अिजत व िनिमत िकये जाने का संबध िकसी भी आपरािधक कृ त्य से अिजत आय से िकया जाना िसद्ध नही होता ह और प्रत्यावेदनकतार् आिबद द्वारा उपरोक्त सम्पित्तयों को अिजत करने हेतु धन के संबध में अपने िविधक आय स्रोतो का उल्लेख िकया है माननीय उच्च न्यायालय इलाहाबाद द्वारा पूवर् में उिल्लिखत िविध व्यवसथाओ मे यह स्पष्ट उल्लेख िकया गया है िक मात्र पुिलस िरपोटर् के आधार पर गैंगस्टर एक्ट की धारा-14 (1) के अन्तगर्त िजला मिजस्ट्रेट, मुरादाबाद द्वारा की गयी कु कीर् की कायर्वाही िविध िवरूद्व होगी। उपरोक्त िववेचना के पश्चात् न्यायालय इस िनष्कषर् पर पहुँची है िक िवद्वान िजला मिजस्ट्रेट, मुरादाबाद द्वारा पािरत कु कीर् आदेश िदनांिकत 14.10.2022 तथा आिबद द्वारा िजला मिजस्ट्रेट के समक्ष प्रस्तुत प्रत्यावेदन को िनरस्त करने सम्बन्धी आदेश िदनांिकत-30.01. 2023 पूणर् रूप से िनरस्त िकये जाने योग्य हैं तथा कु कर् शुदा संपित्तयां ग्राम रामूवाला गणेश िस्थत आवासीय भूिम खाता सं0 147, क्षेत्रफल 162.575 वगर् मीटर तथा ग्राम रामूवाला गणेश िस्थत आवासीय भूिम पर िनिमत भवन कवडर् एिरया 366.03 वगर् मीटर तथा टाटा िटप्पर रिज० सं० यू०पी० 21 सी०एन० 8605 तथा स्टेट बैंक ऑफ इिण्डया, शाखा ठाकु रद्वारा का खाता सं० 35199324729 तथा पंजाब नेशनल बैंक, शाखा ठाकु रद्वारा का खाता सं० 6513000100010511 प्रत्यावेदनकतार् आिबद के पक्ष में अवमुक्त िकये जाने योग्य है।" Emphasis Added

11. Sub-sections (3) and (5) of Section 16 of the Act, which are relevant, are as under: "3 (a) On receipt of the reference under sub-section (1) or an application 12 CRLA No. 12320 of 2024 under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case. (b) On the date so fixed on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case. (5) In any proceedings under this Section the burden of proving that the property in question or any part thereof was not acquired by gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act notwithstanding."

12. 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 13 CRLA No. 12320 of 2024 the fact that the appellant was not a gangster and rejected his representation.

13. 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 21.12.2023 has released the property in question in favour of the opposite party. Pursuant to the order dated 21.12.2023 the opposite party has moved a representation before the District Magistrate, Moradabad and again the District Magistrate, Moradabad has rejected the representation of the opposite party on 27.5.2024, on the ground that the as per police report an appeal has been filed before this Court and during pendency of the appeal, the property in question cannot be released, when in fact no such appeal has been filed before this Court by that time and the present appeal has been filed after expiry of about eight months i.e. on

7.8.2024. Thus, the ground taken by the District Magistrate, Mordabad was not existing at the time of rejecting the representation on the opposite party i.e. on 27.5.2024 and thus, the order dated 27.5.2024 is held as nonest.

14. Hence, keeping in view the facts and circumstances of the case this Court is of the view that the properties, which were 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 27.5.2024 rejecting the representation of the opposite party by acting as an appellant Court is non-est in law. It is apparently clear that only the basis of a wrong police report, the District Magistrate has acted as an appellate Court. It also appears that the appellant was having enough source of income from which he had procured the properties. The order dated

27.5.2024 passed by District Magistrate, Moradabad rejecting representation of the opposite party (which was filed pursuant to order dated

21.12.2023) is in a mechanical manner without application of mind and is arbitrary. 14 CRLA No. 12320 of 2024

15. 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 27.5.2024 rejecting the representation of the opposite party has been passed is non-est in law. The properties in question be released from attachment forthwith.

16. Copy of this judgment be transmitted to the Court / District Magistrate concerned for necessary compliance. November 21, 2025 Dev (Mrs. Vani Ranjan Agrawal,J.)

businessman. He owns a firm namely M/s. Abid Hussain Building Material Suppliers having its principal place of business at village Ramuwala Ganesh, Tehsil-Thakurdwara, Moradabad, Uttar Pradesh. The firm of opposite party is registered having its GST Registration No. 09AHJPH0637C1ZO dated

01.07.2017. The copy of GST Registration certificate of opposite party firm issued on 28.07.2018 is being field herewith and marked as Annexure No.CA-1 to the short counter affidavit. The opposite party is also filing Income Tax Return since 2016-17 up till now. In this regard, the copy of ITR filed by opposite party of Assessment Year 2016-17; 2017-18; 2018-19; 2019-20; 2020-21; 2021-22; 2022-23 and 2023-24 are being filed herewith collectively and marked as Annexure No.CA-2 to the short counter affidavit. To carry building material the opposite party has purchased TATA TIPPER No.UP21CN8605 the year 2019 after taking loan of Rs.36,55,710/- from Cholamandalam Investment and Finance Company Ltd. of which EMI of Rs.1,00,000/- per month is paid by the opposite party from the income of aforesaid vehicle. In this regard, the copy of repayment schedule of aforesaid loan is being filed herewith and marked as Annexure No.CA-3 to the short counter affidavit. On 29.11.2008 the opposite party has purchased Plot No.127 area 162.575 Sq. Yard in village Ramuwala Ganesh Tehsil Thakurdwara, District: Moradabad by one Sumit Kumar Goyal after paying consideration of Rs.1,50,000/- and after purchase the name of opposite party was also recorded in the relevant Khatauni. The aforesaid plot 4 CRLA No. 12320 of 2024 of the opposite party is about 50 Kms. away from District Headquarter Moradabad. Moreover, as to the report of P.W.D. it's valuation if about Rs.14,63,175/-. In this regard, a copy of sale deed dated 29.11.2008 and Khatauni of 1430-1435 Fasli are being filed herewith collectively and marked as Annexure No.CA-4 to the short counter affidavit. On the aforesaid plot of the opposite party, he started constructing a house over it since year 2008 which could be completed in several phases in the year 2021 due to lack of money. Now as per the report of P.W.D. its valuation is about Rs.58,24,600/- It is strange that opposite party has purchased a plot having area 162.575 Sq. Yard. over which he constructed house of which covered area has been measured by P.W.D. to be 366.03 Sq.Mt.. The opposite party has bank account in State Bank of India, Branch- Thakurdwara, Moradabad having Account No.35109324729 in which Rs.33,971/- is lying. The opposite party also has another bank account in Punjab National Bank, Branch-Thakurdwara, Moradabad having Account No.65130001000010511 in which Rs.34,851.97/- is lying. On 14.09.2022 an F.I.R. bearing Case Crime No.442 of 2022, Under Sections 147, 341, 352, 332, 504, 353 IPC and 21(4) Mines & Mineral Act, PS-Thakurdwara, 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 Section 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.CA-5 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. but during investigation the opposite party has also been implicated in the present case. 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 opposite party, his brother and 17 others in Gangster Act U/s-3(1) In this regard, the copy of Gang Chart dated 11.10.2022 is being filed herewith and marked as Annexure No.CA-6 to the short counter affidavit. On the basis of aforesaid F.I.R. and Gangster Act imposed on the 5 CRLA No. 12320 of 2024 opposite party, the Tata Tipper of opposite party, his aforesaid plot, house and aforesaid two accounts have been seized U/s-14(1) of Gangsters Act vide order dated 14.10.2022 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 aforesaid movable and immovable properties. The application of the opposite party 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.100/2023 (Abid Vs. State of U.P.) was registered and notice was issued to be opposite party. The certified copy of order dated 31.01.2023 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-7 to this affidavit. The opposite party after receiving the notice submitted his representation/ objection through his counsel against the order dated 30.01.2023 and 14.10.2022 passed by District Magistrate, Moradabad. The learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad by a detailed order dated 21.12.2023 directed the District Magistrate, Moradabad to release the moveable and immovable properties in favour of the opposite party after expiry of limitation period of appeal (30 days) within 7 days. This judgment and order dated 21.12.2023 is under challenge in the aforesaid appeal. Against the aforesaid judgment and order dated 21.12.2023 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

07.08.2024 (sweared on 14.05.2024) i.e. after long delay of about 8 months. In pursuance of the judgment and order dated 21.12.2023 the opposite party moved representation before District Magistrate, Moradabad and prayed for release of his movable and immovable properties in compliance of aforesaid judgment and order dated 21.12.2023, which was registered as Case No.7040/2022 (Abid Vs. State) U/S-15 of Gangster Act. The District Magistrate, Moradabad rejected the representation of the opposite party vide 6 CRLA No. 12320 of 2024 order dated 27.05.2024 stating therein that as per report of S.H.O. PS-Dilari, Moradabad against order dated 21.12.2023 appeal proposal dated 07.02.2024 has been sent. He has further stated that against order dated 21.12.2023 appeal has been filed and as such it is not appropriate to release the seized properties. The certified copy of the order dated 27.05.2024 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-8 to the short counter affidavit. The order dated

27.05.2024 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 21.12.2023 has been filed before this Honble Court on 07.08.2024 (though affidavit was sweared on 14.05.2024) but in the order dated 27.05.2024 the learned District Magistrate, Moradabad has stated that the appeal has been filed. After seizer of Tata Tipper of the opposite party under Gangster Act, the opposite party could not able to pay EMI as he could not ply the Tipper and earn money to pay the EMI and as such now several notices are regularly being sent by the concerned bank and not only the opposite party but the sureties are also being harassed by the bank authorities. The remaining EMI up to 17.11.2022 is Rs.13,86,141/- . Apart from it on the aforesaid Tata Tipper Tax is also due for which notice dated 11.08.2023 has been sent by ARTO, Moradabad to DM Moradabad for recovery of tax from the opposite party. In this regard, the copy of notice dated 17.11.2022 sent by the concerned bank for payment of EMI to the opposite party and copy of notice dated 11.08.2023 sent by ARTO, Moradabad to D.M. Moradabad are being filed herewith collectively and marked as Annexure No.CA-9 to the short counter affidavit. The District Magistrate, Moradabad, in fact, has committed contempt of court's order dated 21.12.2023 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No.5, Moradabad by not releasing the seized properties of the opposite party after stipulated period and he has also passed incorrect order dated 27.05.2024 as an appellate court for which he has no right, as after 37 days of order dated 21.12.2023 the District Magistrate was duty bound to release the seized properties in favour of the 7 CRLA No. 12320 of 2024 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 21.12.2023, criminal appeal has been filed so the seized properties cannot be released, but the criminal appeal that too defective was filed on 07.08.2024 and as such he has committed manifest illegality, which is apparent on the fact of record itself. The opposite party has separate business than his brother Rahees. He purchased the said vehicle on his own after taking huge amount on loan by the bank and also from relatives for margin money and the sole earning of opposite party was from ply of aforesaid Tata Tipper but the District Magistrate, Moradabad has illegally seized his aforesaid vehicle along with house and accounts in the bank. The vehicle of the opposite has been lying in concerned police station since more than two years, which he had purchased in the year 2019. Huge money was invested by the opposite party for purchasing the said vehicle after taking loan of which huge EMI is to be paid but due to seizer of said vehicle neither the EMI is being paid nor the opposite party is able to the earn money for livelihood of his family and for himself. The action of the District Administration is illegal, arbitrary and cannot be sustained in the eyes of law. Thus, 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 Magistrate, Moradabad may be directed to release the moveable and immoveable properties of the opposite party forthwith in compliance of the judgment and order dated 21.12.2023 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad in Crl. Misc. Case No.100/2023 (Abid Vs. State of U.P.) U/s-16(1) of U.P. Gangsters Act; otherwise the opposite party shall suffer irreparable loss and injury.

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

6. Before examining the arguments advanced by the learned counsel for the 8 CRLA No. 12320 of 2024 parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: "2(b). "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely- ....... ....... 2(c). "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities;"

7. 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 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.

8. Section 14 of the Act reads as under : "14. Attachment of property.- (1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession 9 CRLA No. 12320 of 2024 of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court. (2) The provisions of the Code shall mutatis mutandis apply to every such attachment. (3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property." This Court had an opportunity to go through the various judgments of this Court viz. Smt. Rashida Bano vs. State of U.P. and others, 2014 6 ADJ 575, Badan Singh @ Baddo vs. State of U.P. and others, (2001)10 AHC CK 0033, Smt. Maina Devi vs. State of U.P., 2013 9 ADJ 542, Waseem Khan vs. State of U.P., 2023 LawSuit (All)751 and Criminal Appeal No. 2130 of 2021 (Abrar vs. State of U.P. and another), decided on

23.10.2021 propounding legal dictums on the subject and a co-joint reading of the same leads to draw a conclusion that Section 14 clearly provides that the order of the District Magistrate attaching one's property, must be based on reason and not arbitrary. The expression "reason to believe" appearing therein has some intent and purpose. It puts fetter in the arbitrary exercise of power of attachment to deny a person of his right to any property. Law requires that there must be reason to believe that the property sought to be attached, has been acquired by a ''gangster' as a result of commission of any offence under the Act. The expression "reason to believe" contemplates an objective determination based on intelligent care and deliberation involving judicial review, as distinguished from purely subjective consideration. There must be rational and intelligible nexus 10 CRLA No. 12320 of 2024 between ''reason' and ''belief'. The word 'believe' is a much stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. According to the said definition, a person is said to have ''reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as the ''suspicion' or ''doubt' and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. The Court, of course, cannot investigate 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.

9. 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 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.

10. At this juncture it would be appropriate to reproduce the relevant part of 11 CRLA No. 12320 of 2024 order impugned dated 21.12.2023 which is as under :- "पत्रावली पर उपलब्ध प्रपत्रो का सम्यक पिरशीलन करने के पश्चात् न्यायालय इस िनष्कषर् पर पहुँचती है िक माननीय उच्च न्यायालय की उपरोक्त िविध व्यवस्थाओ में प्रितपािदत िसद्वान्तो एवं उभय पक्षो द्वारा प्रस्तुत िकये गये साक्ष्य व तकोर् को दृिष्टगत रखते हुए उपरोक्त कु कर् शुदा सम्पित्तयों ग्राम रामूवाला गणेश िस्थत आवासीय भूिम खाता संख्या 147, क्षेत्रफल

162.575 वगर् मीटर तथा ग्राम रामूवाला गणेश िस्थत आवासीय भूिम पर िनिमत भवन कवडर् एिरया 366.03 वगर् मीटर तथा टाटा िटप्पर रिज० संख्या यू०पी० 21 सी0एन 8605 तथा स्टेट बैंक आफ इिण्डया, शाखा ठाकु रद्वारा का खाता संख्या 35109324729 तथा पंजाब नेशनल बैंक, शाखा ठाकु रद्वारा का खाता संख्या 6513000100010511 को अिजत व िनिमत िकये जाने का संबध िकसी भी आपरािधक कृ त्य से अिजत आय से िकया जाना िसद्ध नही होता ह और प्रत्यावेदनकतार् आिबद द्वारा उपरोक्त सम्पित्तयों को अिजत करने हेतु धन के संबध में अपने िविधक आय स्रोतो का उल्लेख िकया है माननीय उच्च न्यायालय इलाहाबाद द्वारा पूवर् में उिल्लिखत िविध व्यवसथाओ मे यह स्पष्ट उल्लेख िकया गया है िक मात्र पुिलस िरपोटर् के आधार पर गैंगस्टर एक्ट की धारा-14 (1) के अन्तगर्त िजला मिजस्ट्रेट, मुरादाबाद द्वारा की गयी कु कीर् की कायर्वाही िविध िवरूद्व होगी। उपरोक्त िववेचना के पश्चात् न्यायालय इस िनष्कषर् पर पहुँची है िक िवद्वान िजला मिजस्ट्रेट, मुरादाबाद द्वारा पािरत कु कीर् आदेश िदनांिकत 14.10.2022 तथा आिबद द्वारा िजला मिजस्ट्रेट के समक्ष प्रस्तुत प्रत्यावेदन को िनरस्त करने सम्बन्धी आदेश िदनांिकत-30.01. 2023 पूणर् रूप से िनरस्त िकये जाने योग्य हैं तथा कु कर् शुदा संपित्तयां ग्राम रामूवाला गणेश िस्थत आवासीय भूिम खाता सं0 147, क्षेत्रफल 162.575 वगर् मीटर तथा ग्राम रामूवाला गणेश िस्थत आवासीय भूिम पर िनिमत भवन कवडर् एिरया 366.03 वगर् मीटर तथा टाटा िटप्पर रिज० सं० यू०पी० 21 सी०एन० 8605 तथा स्टेट बैंक ऑफ इिण्डया, शाखा ठाकु रद्वारा का खाता सं० 35199324729 तथा पंजाब नेशनल बैंक, शाखा ठाकु रद्वारा का खाता सं० 6513000100010511 प्रत्यावेदनकतार् आिबद के पक्ष में अवमुक्त िकये जाने योग्य है।" Emphasis Added

11. Sub-sections (3) and (5) of Section 16 of the Act, which are relevant, are as under: "3 (a) On receipt of the reference under sub-section (1) or an application 12 CRLA No. 12320 of 2024 under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case. (b) On the date so fixed on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case. (5) In any proceedings under this Section the burden of proving that the property in question or any part thereof was not acquired by gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act notwithstanding."

12. 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 13 CRLA No. 12320 of 2024 the fact that the appellant was not a gangster and rejected his representation.

13. 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 21.12.2023 has released the property in question in favour of the opposite party. Pursuant to the order dated 21.12.2023 the opposite party has moved a representation before the District Magistrate, Moradabad and again the District Magistrate, Moradabad has rejected the representation of the opposite party on 27.5.2024, on the ground that the as per police report an appeal has been filed before this Court and during pendency of the appeal, the property in question cannot be released, when in fact no such appeal has been filed before this Court by that time and the present appeal has been filed after expiry of about eight months i.e. on

7.8.2024. Thus, the ground taken by the District Magistrate, Mordabad was not existing at the time of rejecting the representation on the opposite party i.e. on 27.5.2024 and thus, the order dated 27.5.2024 is held as nonest.

14. Hence, keeping in view the facts and circumstances of the case this Court is of the view that the properties, which were 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 27.5.2024 rejecting the representation of the opposite party by acting as an appellant Court is non-est in law. It is apparently clear that only the basis of a wrong police report, the District Magistrate has acted as an appellate Court. It also appears that the appellant was having enough source of income from which he had procured the properties. The order dated

27.5.2024 passed by District Magistrate, Moradabad rejecting representation of the opposite party (which was filed pursuant to order dated

21.12.2023) is in a mechanical manner without application of mind and is arbitrary. 14 CRLA No. 12320 of 2024

15. 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 27.5.2024 rejecting the representation of the opposite party has been passed is non-est in law. The properties in question be released from attachment forthwith.

16. Copy of this judgment be transmitted to the Court / District Magistrate concerned for necessary compliance. November 21, 2025 Dev (Mrs. Vani Ranjan Agrawal,J.)