Danish v. State of U.P.) whereby learned trial Court had allowed the aforesaid Misc. Case f

by Sri Ashok Kumar, Mines Officer, Moradabad against the father of opposite party and other named and unknown persons in which during investigation Sections 384, 395 IPC and 3 Public Property Prevention of Damages Act were added. The copy of the F.I.R. of Case Crime No.442 of 2022 dated 14.09.2022 is being filed herewith and marked as Annexure No.CA-2 to the short counter affidavit. It is relevant to mention here that the opposite party has not been named in the aforesaid F.I.R. nor his name has come during investigation of the aforesaid case crime. On the strength of lodging of aforesaid Case Crime No.442 of 2022 against the father of opposite party and others, the concerned police has implicated the father of opposite party and 18 others in Gangster Act U/s-3(1) Moreover, the opposite party is also not named in the Gangster Act and his name does not find place in Gang Chart. In this regard, the copy of Gang Chart dated

11.10.2022 is being filed herewith and marked as Annexure No.CA-3 to the short counter affidavit. On the basis of aforesaid F.I.R. and Gangster Act imposed on the father of opposite party, the Tipper of opposite party bearing registration No. UP21CT5728 which he has purchased after taking huge loan from IndusInd Band and also from the relatives has been seized along with other movable and immovable properties of the father of the opposite party U/s-14(1) of Gangsters Act vide order dated 14.10.2022 (Annexure-2 of 4 CRLA No. 12321 of 2024 Criminal Appeal) passed by District Magistrate, Moradabad. Being aggrieved by the order dated 14.10.2022, the opposite party moved an application before District Magistrate, Moradabad for release of his Tata Tipper No. UP21CT5728 stating therein that the said Tipper was purchased by him after taking huge loan from Bank and relatives and it has no concern with his father as it was not purchased by his father by his own earning but the same was purchased by the opposite party after taking loan from bank and relatives. Thus, the same may be released in his favour as he is not being able to pay EMI of loan due to non-functioning of his vehicle, which has been illegally seized. 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.99/2023 (Danish Vs. State of U.P.) was registered and notice was issued to be opposite party. After receiving the notice, the opposite party through his counsel submitted his representation/objection against the order dated 30.01.2023 and

14.10.2022 passed by District Magistrate, Moradabad before the trial court. The learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad by a detailed order dated 14.02.2024 directed the District Magistrate, Moradabad to release the Tata Tipper No. UP21CT5748 in favour of the opposite party after expiry of limitation period of appeal (30 days) within 7 days. This judgment and order dated 14.02.2024 is under challenge in the aforesaid appeal. In pursuance of the judgment and order dated 14.02.2024 the opposite party moved representation before District Magistrate, Moradabad and prayed for release of his Tata Tipper No. UP21CT5728 in compliance of aforesaid judgment and order dated

14.02.2024, which was registered as Case No.7387/2022 (Danish Vs. State) U/S-15 of Gangster Act. Against the aforesaid judgment and order dated

14.02.2024 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad the State Government has filed above mentioned defective Criminal Appeal on 05.10.2024 i.e. after long 5 CRLA No. 12321 of 2024 delay of about 8 months. Learned District Magistrate, Moradabad rejected the representation of the opposite party vide order dated 29.05.2024 stating therein that as per report of S.H.O. PS-Thakurdwara, Moradabad against order dated 14.02.2024 appeal proposal dated 02.05.2024 has been sent. He has further stated that against order dated 14.02.2024 appeal has been filed and as such is not appropriate release Tata Tipper No. UP21CT5728. The certified copy of the order dated 29.05.2024 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-4 to the short counter affidavit. The order dated

29.05.2024 passed by District Magistrate, Moradabad is illegal, incorrect, arbitrary and cannot be sustained in the eyes of law as the defective criminal appeal against the order dated 14.02.2024 has been filed before this Honble Court on 05.10.2024 but in the order dated 29.05.2024 the learned District Magistrate, Moradabad has stated that the appeal has been filed. After seizer of Tata Tipper No. UP21CT5728 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 02.05.2024 is Rs.18,57,086.56/-. In this regard, the copies of notices sent by the concerned bank for payment of EMI to the opposite party are being filed herewith collectively and marked as Annexure No.CA-5 to the short counter affidavit. The opposite party is a law abiding citizen of this country and he is regularly filling Income Tax Return regarding his income. In this regard, the copy of I.T.Rs. filed by the opposite party are being filed herewith collectively and marked as Annexure No. CA-6 to the short counter affidavit. The District Magistrate, Moradabad, in fact, has committed contempt of court's order dated 14.02.2024 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No. 5, Moradabad by not releasing the Tata Tipper of the opposite party after stipulated period and he has also passed incorrect order dated 29.05.2024 as an appellate court for which he has no right, as after 37 days of order dated 6 CRLA No. 12321 of 2024

14.02.2024 the District Magistrate was duty bound to release the aforesaid Tata Tipper in favour of the opposite party. The District Magistrate, Moradabad who is highest administrative authority of the District has passed a false order as an appellate authority incorrectly stating that against order dated 14.02.2024 criminal appeal has been filed so the said vehicle i.e. Tata Tipper No. UP21CT5728 cannot be released, but the criminal appeal that too defective was filed on 05.10.2024 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 father. He purchased the said vehicle on his own after taking huge amount on loan by IndusInd 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 though neither there was F.I.R. against the opposite party nor was he accused in Gangster Act. The vehicle of the opposite has been lying in concerned police station for more than two years, which he had purchased on 30.03.2022 itself. 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 opposite party has no concern with the business of his father nor he is named in FIR or Gangster Act, but even though his own vehicle has illegally been seized. The action of the District Administration is illegal, arbitrary and cannot be sustained in the eyes of law. In view of the facts and circumstances of the case mentioned above, it is expedient and necessary in the interest of justice that the District Magistrate, Moradabad may be directed to release the Tata Tipper No. UP21CT5728 of the opposite party forthwith; 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. 7 CRLA No. 12321 of 2024

6. Before examining the arguments advanced by the learned counsel for the parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: "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 8 CRLA No. 12321 of 2024 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." 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 9 CRLA No. 12321 of 2024 subjective consideration. There must be rational and intelligible nexus between ''reason' and ''belief'. The word 'believe' is a much stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. 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 CRLA No. 12321 of 2024

10. At this juncture it would be appropriate to reproduce the relevant part of order impugned dated 14.2.2024 which is as under :- "इस प्रकरण में जो भी साक्ष्य पत्रावली पर उपलब्ध है, उससे वह संबंध स्थािपत नहीं होता है. जैसा िक माननीय उच्च न्यायालय की उपराक िविध व्यवस्था में अवधािरत िकया गया है। उपरोक्त जांच में यह तथ्य कहीं भी स्पष्ट नहीं हुआ िक उपरोक्त प्रश्नगत टाटा िटप्पर, जो माचर् 2022 में कय िकया गया है, उसका िकस प्रकार अिभयुक्त रहीश के िवरुद्ध गैंगचाटर् में अंिकत अ0सं0 442/2022 से संबंध है, क्योंिक उक्त मुकदमा िदनांक 14.09.2022 को पंजीकृ त हुआ है। प्रत्यावेदनकतार् द्वारा कु कर् शुदा िटप्पर माचर् 2022 में ऋण लेकर कय िकया गया है। ऐसी िस्थित में, उपरोक्त िविध व्यवस्थाओं के अनुसार यह तथ्य िसद्ध है िक प्रश्नगत वाहन गैंगचाटर् में अंिकत मु०अ०सं० 442/2022 के पंजीकृ त होने से लगभग 6 माह पूवर् कय िकया गया था। इस आधार पर यह तथ्य िसद्ध हो जाता है िक प्रश्नगत टाटा िटप्पर का गैंगचाटर् में अंिकत मुकदमे के द्वारा अिजत अिविधक आय से कय नहीं िकया गया है। प्रत्यावेदनकतार् के कु कर् शुदा टाटा िटप्पर, िजसका रिज० सं० यू०पी० 21 सी0टी0 5728 है. के संबंध में अिभयोजन द्वारा कथन िकया गया है िक अिभयुक्त रहीश द्वारा प्रत्यावेदनकतार् दािनश के नाम से उपरोक्त वाहन गैंगचाटर् में अंिकत मुकदमे द्वारा अिजत अिविधक आय से कय िकया गया है, जबिक इसके िवरोध में प्रत्यावेदनकतार् द्व ारा अपने बयान में कथन िकया गया है िक उसके द्वारा उक्त वाहन इन्डसंड बैंक से मु0 47,21,978/- रू0 का ऋण लेकर माचर् 2022 में कय िकया गया है और उपरोक्त वाहन की उस समय कु ल कीमत 54,15,000/- रू० थी और कु कर् िकये जाने के समय उसका मूल्य लगभग 37,00,000/- रू० संभागीय पिरवहन अिधकारी, मुरादाबाद द्वारा अपनी आख्या में दशार्या है। वह अपने वाहन को आिबद हुसैन िबिल्डंग मैटेिरयल सप्लायर के यहां बजरी, बजरफु ट आिद को ले जाने हेतू भाड़े पर चलाता है, िजससे उसे 1,50,000/- रू0 प्रितमाह िमलते हैं और उक्त गैटेिरयल सप्लायर की फमर् वािणिज्यक कर िवभाग, उ०प्र० में िदनांक 01.07.2017 से पंजीकृ त है और भाडे से प्राप्त आय से वह िकश्त अदा करता है। ऐसी िस्थित में, यह तथ्य िसद्ध नहीं है िक गैंगचाटर् में अंिकत मुकदमा अ0सं0 442/2022 का संबंध प्रश्नगत िटप्पर के कय से है। यिद अिभयोजन के कथन को मान भी िलया जाये िक अिभयुक्त रहीश द्व ारा अवैध कृ त्यों से अिजत आय से अपने पुत्र दािनश के नाम पर प्रश्नगत टाटा िटप्पर कय िकया गया था. तब भी अिभयोजन पर भार है िक वह इस तथ्य को पूणर् रूप से िसद्ध करे और इस तथ्य को माननीय उच्च न्यायालय ने अपनी िविध व्यवस्था शांित हवी पत्नी श्रीराम बनाम उ०प्र० राज्य, 2007 (2) ए०एल० जे० 483 में अवधािरत नालाप के उपरांत भी प्रत्यावेदनकतार् दािनश द्वारा अपने 11 CRLA No. 12321 of 2024 आय स्त्रोतो/िटप्पर के कय का ब्यौरा न्यायालय में प्रस्तुत िकया गया है। अिभयोजन द्वारा ऐसा कोई भी साक्ष्य पत्रावली पर प्रस्तुत नहीं िकया गया, जो इस तथ्य को िसद्ध करता हो िक प्रत्यावेदनकतार् दािनश के िपता अिभयुक्त रहीश का कोई पूवर् का आपरािधक इितहास रहा हो और गैंगचाटर् में अंिकत मुकदमे की आय से प्रश्नगत टाटा िदप्पर कय िकया गया हो। इसके अितिरक्त प्रत्यावेदनकतार् द्वारा अपने आयकर िरटनर् की प्रित भी दािखल की गई हैं, जो पत्रावली पर उपलब्ध है। प्रत्यावेदनकतार् दािनश द्वारा जो अिभलेखीय व मौिखक साक्ष्य प्रस्तुत िकया गया है, उससे यह तथ्य िसद्ध होता है िक उपरोक्त कु कर् शुदा टाटा िटप्पर प्रत्यावेदनकतार् द्वारा अपने िविधक आय स्त्रोतों से अिजत/िनिमत की गई है। माननीय उच्च न्यायालय की िविध व्यवस्था में प्रितपािदत िसद्धांतों के अनुसार यह भार अिभयोजन पर था िक यह यह िसद्ध करता िक िजस धनरािश से प्रश्नगत टाटा िटप्पर कय िकया गया है, वह असामािजक िकयाकलापों छ ारा अिजत की गई हो और अिभयोजन अपने इस भार को उतारने में असफल रहा है। पत्रावली पर उपलब्ध प्रपत्रों का सम्यक पिरशीलन करने के पश्चात् न्यायालय इस िनष्कषर् पर पहुंचती है िक प्रत्यावेदनकतार् दािनश का कु कर् शुदा टाटा िटप्पर सं० यू०पी० 21 सी0टी0 5728 का कय िकये जाने का संबंध िकसी भी आपरािधक कृ त्य से अिजत आय से िकया जाना िसद्ध नहीं होता है। माननीय उच्च न्यायालय, इलाहाबाद द्वारा पूवर् में उिल्लिखत िविध व्यवस्थाओं में 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 िवरूद्ध होगी। उपरोक्त िववेचन के पश्चात् न्यायालय इस िनष्कषर् पर पहुंचती है िक िवद्वान िजला मिजस्ट्रेट, मुरादाबाद द्वारा पािरत कु कीर् आदेश िदनांिकत-14.10.2022 तथा प्रत्यावेदनकतार् दािनश द्वारा िजला मिजस्ट्रेट के समक्ष प्रस्तुत प्रत्यावेदन को िनरस्त करने सम्बन्धी आदेश िदनांिकत-

30.01.2023 आंिशक रूप से िनरस्त िकये जाने योग्य हैं तथा कु कर् शुदा टाटा िटप्पर सं० यू०पी० 21 सी०टी० 5728 कु कीर् से अवमुक्त िकये जाने योग्य हैं।" 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 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 12 CRLA No. 12321 of 2024 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 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 13 CRLA No. 12321 of 2024 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 14.2.2024 has released the vehicle in question in favour of the opposite party. Pursuant to the order dated 14.2.2024 the opposite party has moved a representation before the District Magistrate, Moradabad and again the District Magistrate, Moradabad placing reliance on the ground that the as per police report an appeal has been filed against the order dated 14.2.2024 before High Court, therefore, during pendency of the appeal the vehicle in question cannot be released. When in fact the appeal has been filed before this Court on 5.10.2024, that is, after lapse of eight months, therefore, this ground was not available with the District Magistrate, Moradabad at the time of passing of order dated 29.5.2024 whereby the representation filed by the opposite party has been rejected. Moreover, examination of the order dated 14.2.2024 passed by learned Special Judge (U.P. Gangster Act/Additional Sessions Judge, Court No.5, Moradabad, shows that the order dated 14.2.2024 is a well reasoned order and requires to no interference by this Court.

14. Hence, keeping in view the facts and circumstances of the case this Court is of the view that the vehicle, which was attached, was acquired by the opposite party with the aid of his earning from legal resources and it was not a result of commission of any offence triable under the Act and the order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party is nonest in law. It also appears that the appellant was having enough source of income from which he had procured the vehicle. The order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party (which was filed pursuant to order dated 1.2.2024) is in a mechanical manner without application of mind and is arbitrary.

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 29.5.2024 rejecting the representation of the opposite party 14 CRLA No. 12321 of 2024 is nonest in law. The vehicle i.e. Tractor John Deere U.P.21-CT-5728 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.)

by Sri Ashok Kumar, Mines Officer, Moradabad against the father of opposite party and other named and unknown persons in which during investigation Sections 384, 395 IPC and 3 Public Property Prevention of Damages Act were added. The copy of the F.I.R. of Case Crime No.442 of 2022 dated 14.09.2022 is being filed herewith and marked as Annexure No.CA-2 to the short counter affidavit. It is relevant to mention here that the opposite party has not been named in the aforesaid F.I.R. nor his name has come during investigation of the aforesaid case crime. On the strength of lodging of aforesaid Case Crime No.442 of 2022 against the father of opposite party and others, the concerned police has implicated the father of opposite party and 18 others in Gangster Act U/s-3(1) Moreover, the opposite party is also not named in the Gangster Act and his name does not find place in Gang Chart. In this regard, the copy of Gang Chart dated

11.10.2022 is being filed herewith and marked as Annexure No.CA-3 to the short counter affidavit. On the basis of aforesaid F.I.R. and Gangster Act imposed on the father of opposite party, the Tipper of opposite party bearing registration No. UP21CT5728 which he has purchased after taking huge loan from IndusInd Band and also from the relatives has been seized along with other movable and immovable properties of the father of the opposite party U/s-14(1) of Gangsters Act vide order dated 14.10.2022 (Annexure-2 of 4 CRLA No. 12321 of 2024 Criminal Appeal) passed by District Magistrate, Moradabad. Being aggrieved by the order dated 14.10.2022, the opposite party moved an application before District Magistrate, Moradabad for release of his Tata Tipper No. UP21CT5728 stating therein that the said Tipper was purchased by him after taking huge loan from Bank and relatives and it has no concern with his father as it was not purchased by his father by his own earning but the same was purchased by the opposite party after taking loan from bank and relatives. Thus, the same may be released in his favour as he is not being able to pay EMI of loan due to non-functioning of his vehicle, which has been illegally seized. 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.99/2023 (Danish Vs. State of U.P.) was registered and notice was issued to be opposite party. After receiving the notice, the opposite party through his counsel submitted his representation/objection against the order dated 30.01.2023 and

14.10.2022 passed by District Magistrate, Moradabad before the trial court. The learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad by a detailed order dated 14.02.2024 directed the District Magistrate, Moradabad to release the Tata Tipper No. UP21CT5748 in favour of the opposite party after expiry of limitation period of appeal (30 days) within 7 days. This judgment and order dated 14.02.2024 is under challenge in the aforesaid appeal. In pursuance of the judgment and order dated 14.02.2024 the opposite party moved representation before District Magistrate, Moradabad and prayed for release of his Tata Tipper No. UP21CT5728 in compliance of aforesaid judgment and order dated

14.02.2024, which was registered as Case No.7387/2022 (Danish Vs. State) U/S-15 of Gangster Act. Against the aforesaid judgment and order dated

14.02.2024 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No.5, Moradabad the State Government has filed above mentioned defective Criminal Appeal on 05.10.2024 i.e. after long 5 CRLA No. 12321 of 2024 delay of about 8 months. Learned District Magistrate, Moradabad rejected the representation of the opposite party vide order dated 29.05.2024 stating therein that as per report of S.H.O. PS-Thakurdwara, Moradabad against order dated 14.02.2024 appeal proposal dated 02.05.2024 has been sent. He has further stated that against order dated 14.02.2024 appeal has been filed and as such is not appropriate release Tata Tipper No. UP21CT5728. The certified copy of the order dated 29.05.2024 passed by District Magistrate, Moradabad is being filed herewith and marked as Annexure No.CA-4 to the short counter affidavit. The order dated

29.05.2024 passed by District Magistrate, Moradabad is illegal, incorrect, arbitrary and cannot be sustained in the eyes of law as the defective criminal appeal against the order dated 14.02.2024 has been filed before this Honble Court on 05.10.2024 but in the order dated 29.05.2024 the learned District Magistrate, Moradabad has stated that the appeal has been filed. After seizer of Tata Tipper No. UP21CT5728 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 02.05.2024 is Rs.18,57,086.56/-. In this regard, the copies of notices sent by the concerned bank for payment of EMI to the opposite party are being filed herewith collectively and marked as Annexure No.CA-5 to the short counter affidavit. The opposite party is a law abiding citizen of this country and he is regularly filling Income Tax Return regarding his income. In this regard, the copy of I.T.Rs. filed by the opposite party are being filed herewith collectively and marked as Annexure No. CA-6 to the short counter affidavit. The District Magistrate, Moradabad, in fact, has committed contempt of court's order dated 14.02.2024 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No. 5, Moradabad by not releasing the Tata Tipper of the opposite party after stipulated period and he has also passed incorrect order dated 29.05.2024 as an appellate court for which he has no right, as after 37 days of order dated 6 CRLA No. 12321 of 2024

14.02.2024 the District Magistrate was duty bound to release the aforesaid Tata Tipper in favour of the opposite party. The District Magistrate, Moradabad who is highest administrative authority of the District has passed a false order as an appellate authority incorrectly stating that against order dated 14.02.2024 criminal appeal has been filed so the said vehicle i.e. Tata Tipper No. UP21CT5728 cannot be released, but the criminal appeal that too defective was filed on 05.10.2024 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 father. He purchased the said vehicle on his own after taking huge amount on loan by IndusInd 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 though neither there was F.I.R. against the opposite party nor was he accused in Gangster Act. The vehicle of the opposite has been lying in concerned police station for more than two years, which he had purchased on 30.03.2022 itself. 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 opposite party has no concern with the business of his father nor he is named in FIR or Gangster Act, but even though his own vehicle has illegally been seized. The action of the District Administration is illegal, arbitrary and cannot be sustained in the eyes of law. In view of the facts and circumstances of the case mentioned above, it is expedient and necessary in the interest of justice that the District Magistrate, Moradabad may be directed to release the Tata Tipper No. UP21CT5728 of the opposite party forthwith; 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. 7 CRLA No. 12321 of 2024

6. Before examining the arguments advanced by the learned counsel for the parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: "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 8 CRLA No. 12321 of 2024 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." 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 9 CRLA No. 12321 of 2024 subjective consideration. There must be rational and intelligible nexus between ''reason' and ''belief'. The word 'believe' is a much stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. 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 CRLA No. 12321 of 2024

10. At this juncture it would be appropriate to reproduce the relevant part of order impugned dated 14.2.2024 which is as under :- "इस प्रकरण में जो भी साक्ष्य पत्रावली पर उपलब्ध है, उससे वह संबंध स्थािपत नहीं होता है. जैसा िक माननीय उच्च न्यायालय की उपराक िविध व्यवस्था में अवधािरत िकया गया है। उपरोक्त जांच में यह तथ्य कहीं भी स्पष्ट नहीं हुआ िक उपरोक्त प्रश्नगत टाटा िटप्पर, जो माचर् 2022 में कय िकया गया है, उसका िकस प्रकार अिभयुक्त रहीश के िवरुद्ध गैंगचाटर् में अंिकत अ0सं0 442/2022 से संबंध है, क्योंिक उक्त मुकदमा िदनांक 14.09.2022 को पंजीकृ त हुआ है। प्रत्यावेदनकतार् द्वारा कु कर् शुदा िटप्पर माचर् 2022 में ऋण लेकर कय िकया गया है। ऐसी िस्थित में, उपरोक्त िविध व्यवस्थाओं के अनुसार यह तथ्य िसद्ध है िक प्रश्नगत वाहन गैंगचाटर् में अंिकत मु०अ०सं० 442/2022 के पंजीकृ त होने से लगभग 6 माह पूवर् कय िकया गया था। इस आधार पर यह तथ्य िसद्ध हो जाता है िक प्रश्नगत टाटा िटप्पर का गैंगचाटर् में अंिकत मुकदमे के द्वारा अिजत अिविधक आय से कय नहीं िकया गया है। प्रत्यावेदनकतार् के कु कर् शुदा टाटा िटप्पर, िजसका रिज० सं० यू०पी० 21 सी0टी0 5728 है. के संबंध में अिभयोजन द्वारा कथन िकया गया है िक अिभयुक्त रहीश द्वारा प्रत्यावेदनकतार् दािनश के नाम से उपरोक्त वाहन गैंगचाटर् में अंिकत मुकदमे द्वारा अिजत अिविधक आय से कय िकया गया है, जबिक इसके िवरोध में प्रत्यावेदनकतार् द्व ारा अपने बयान में कथन िकया गया है िक उसके द्वारा उक्त वाहन इन्डसंड बैंक से मु0 47,21,978/- रू0 का ऋण लेकर माचर् 2022 में कय िकया गया है और उपरोक्त वाहन की उस समय कु ल कीमत 54,15,000/- रू० थी और कु कर् िकये जाने के समय उसका मूल्य लगभग 37,00,000/- रू० संभागीय पिरवहन अिधकारी, मुरादाबाद द्वारा अपनी आख्या में दशार्या है। वह अपने वाहन को आिबद हुसैन िबिल्डंग मैटेिरयल सप्लायर के यहां बजरी, बजरफु ट आिद को ले जाने हेतू भाड़े पर चलाता है, िजससे उसे 1,50,000/- रू0 प्रितमाह िमलते हैं और उक्त गैटेिरयल सप्लायर की फमर् वािणिज्यक कर िवभाग, उ०प्र० में िदनांक 01.07.2017 से पंजीकृ त है और भाडे से प्राप्त आय से वह िकश्त अदा करता है। ऐसी िस्थित में, यह तथ्य िसद्ध नहीं है िक गैंगचाटर् में अंिकत मुकदमा अ0सं0 442/2022 का संबंध प्रश्नगत िटप्पर के कय से है। यिद अिभयोजन के कथन को मान भी िलया जाये िक अिभयुक्त रहीश द्व ारा अवैध कृ त्यों से अिजत आय से अपने पुत्र दािनश के नाम पर प्रश्नगत टाटा िटप्पर कय िकया गया था. तब भी अिभयोजन पर भार है िक वह इस तथ्य को पूणर् रूप से िसद्ध करे और इस तथ्य को माननीय उच्च न्यायालय ने अपनी िविध व्यवस्था शांित हवी पत्नी श्रीराम बनाम उ०प्र० राज्य, 2007 (2) ए०एल० जे० 483 में अवधािरत नालाप के उपरांत भी प्रत्यावेदनकतार् दािनश द्वारा अपने 11 CRLA No. 12321 of 2024 आय स्त्रोतो/िटप्पर के कय का ब्यौरा न्यायालय में प्रस्तुत िकया गया है। अिभयोजन द्वारा ऐसा कोई भी साक्ष्य पत्रावली पर प्रस्तुत नहीं िकया गया, जो इस तथ्य को िसद्ध करता हो िक प्रत्यावेदनकतार् दािनश के िपता अिभयुक्त रहीश का कोई पूवर् का आपरािधक इितहास रहा हो और गैंगचाटर् में अंिकत मुकदमे की आय से प्रश्नगत टाटा िदप्पर कय िकया गया हो। इसके अितिरक्त प्रत्यावेदनकतार् द्वारा अपने आयकर िरटनर् की प्रित भी दािखल की गई हैं, जो पत्रावली पर उपलब्ध है। प्रत्यावेदनकतार् दािनश द्वारा जो अिभलेखीय व मौिखक साक्ष्य प्रस्तुत िकया गया है, उससे यह तथ्य िसद्ध होता है िक उपरोक्त कु कर् शुदा टाटा िटप्पर प्रत्यावेदनकतार् द्वारा अपने िविधक आय स्त्रोतों से अिजत/िनिमत की गई है। माननीय उच्च न्यायालय की िविध व्यवस्था में प्रितपािदत िसद्धांतों के अनुसार यह भार अिभयोजन पर था िक यह यह िसद्ध करता िक िजस धनरािश से प्रश्नगत टाटा िटप्पर कय िकया गया है, वह असामािजक िकयाकलापों छ ारा अिजत की गई हो और अिभयोजन अपने इस भार को उतारने में असफल रहा है। पत्रावली पर उपलब्ध प्रपत्रों का सम्यक पिरशीलन करने के पश्चात् न्यायालय इस िनष्कषर् पर पहुंचती है िक प्रत्यावेदनकतार् दािनश का कु कर् शुदा टाटा िटप्पर सं० यू०पी० 21 सी0टी0 5728 का कय िकये जाने का संबंध िकसी भी आपरािधक कृ त्य से अिजत आय से िकया जाना िसद्ध नहीं होता है। माननीय उच्च न्यायालय, इलाहाबाद द्वारा पूवर् में उिल्लिखत िविध व्यवस्थाओं में 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 िवरूद्ध होगी। उपरोक्त िववेचन के पश्चात् न्यायालय इस िनष्कषर् पर पहुंचती है िक िवद्वान िजला मिजस्ट्रेट, मुरादाबाद द्वारा पािरत कु कीर् आदेश िदनांिकत-14.10.2022 तथा प्रत्यावेदनकतार् दािनश द्वारा िजला मिजस्ट्रेट के समक्ष प्रस्तुत प्रत्यावेदन को िनरस्त करने सम्बन्धी आदेश िदनांिकत-

30.01.2023 आंिशक रूप से िनरस्त िकये जाने योग्य हैं तथा कु कर् शुदा टाटा िटप्पर सं० यू०पी० 21 सी०टी० 5728 कु कीर् से अवमुक्त िकये जाने योग्य हैं।" 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 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 12 CRLA No. 12321 of 2024 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 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 13 CRLA No. 12321 of 2024 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 14.2.2024 has released the vehicle in question in favour of the opposite party. Pursuant to the order dated 14.2.2024 the opposite party has moved a representation before the District Magistrate, Moradabad and again the District Magistrate, Moradabad placing reliance on the ground that the as per police report an appeal has been filed against the order dated 14.2.2024 before High Court, therefore, during pendency of the appeal the vehicle in question cannot be released. When in fact the appeal has been filed before this Court on 5.10.2024, that is, after lapse of eight months, therefore, this ground was not available with the District Magistrate, Moradabad at the time of passing of order dated 29.5.2024 whereby the representation filed by the opposite party has been rejected. Moreover, examination of the order dated 14.2.2024 passed by learned Special Judge (U.P. Gangster Act/Additional Sessions Judge, Court No.5, Moradabad, shows that the order dated 14.2.2024 is a well reasoned order and requires to no interference by this Court.

14. Hence, keeping in view the facts and circumstances of the case this Court is of the view that the vehicle, which was attached, was acquired by the opposite party with the aid of his earning from legal resources and it was not a result of commission of any offence triable under the Act and the order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party is nonest in law. It also appears that the appellant was having enough source of income from which he had procured the vehicle. The order dated 29.5.2024 passed by District Magistrate, Moradabad rejecting the representation of the opposite party (which was filed pursuant to order dated 1.2.2024) is in a mechanical manner without application of mind and is arbitrary.

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 29.5.2024 rejecting the representation of the opposite party 14 CRLA No. 12321 of 2024 is nonest in law. The vehicle i.e. Tractor John Deere U.P.21-CT-5728 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.)