Allahabad High Court
Sarita Rai And Another vs State Of U.P. on 4 May, 2026
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:100450
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1933 of 2025
Sarita Rai And Another
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Prakhar Saran Srivastava, Shashi Bhushan Kunwar, Sr. Advocate
Counsel for Respondent(s)
:
G.A.
ReservedCourt No. - 90
HON'BLE RAJ BEER SINGH, J.
1. This appeal has been preferred under Section - 18 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as 'Gangster Act') with following prayer :-
"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present appeal and set aside the impugned judgment and order dated 03.01.2025 passed by the Special Judge, Gangster Court/Special Judge (SC/ST Act), Ghazipur in Criminal Misc. Case No. 32 of 2024 (State vs. Angad Rai alias Jhullan Rai) and Criminal Misc. Case No. 676 of 2023 (State vs. Angad Rai alias Jhullan Rai) along with the impugned order dated 26.12.2023 passed by the District Magistrate, Ghazipur in Case No. 1558 of 2023 (State Versus Angad Rai) and impugned order dated 12.12.2023 passed by the District Magistrate, Ghazipur in Case No. 868 of 2023 (State Versus Angad Rai alias Jhullan Rai), arising out of Case Crime No. 107 of 2009, under Section 3(1) of the U.P. Gangster and Anti-Social Activity (Prevention) Act, 1986, Police Station Bhanwarkol, District Ghazipur, and may further be pleased to direct release of the attached properties."
2. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Prakhar Saran Srivastava, learned counsel for the appellants and learned A.G.A. for the State.
3. Learned Senior Advocate appearing for appellants submitted that impugned order is against facts and law and thus, liable to be set aside. As per prosecution version, appellant No.2 Angad Rai @ Jhullan Rai was alleged to be a gangster and some cases were pending against him. It was alleged that residential property situated at Sherpur Khurd / Sherkala, Ghazipur, plot No.32 at Jagjivanpur, Tehsil ? Mohammadabad, District ? Ghazipur and another property plot of 381 square meters at Dafi, Varanasi were acquired by him from the illegal proceeds obtained by committing offences and said properties were acquired by him in his own name or in the name of his wife Smt. Sarita Rai. Said properties were attached by the District Magistrate, Ghazipur under Section ? 14(1) Gangster Act vide order dated 08.05.2023 and 29.05.2023. The objections against said attachment of the property filed under Section 15(1) Gangster Act were rejected by the District Magistrate vide order dated 26.12.2023 and 12.12.2023. It was submitted that in reference under Section 16(2) Gangster Act, the application of appellants was rejected by the Special Judge, (Gangster Act), Ghazipur vide impugned judgment and order dated 03.01.2025.
4. Learned Senior Advocate submitted that a residential building was situated at village Sherkala / Sherpur Khurd, District Ghazipur, which was devolved upon appellant No.2 from his ancestors. Said property was re-constructed in the year 2006 after demolishing old structure. It was submitted that 1/6th share of plot No.32 having area 0.165 hectare situated at village Jagjivanpur, Tehsil Mohammadabad, Ghazipur is in the name of appellant No.1 and plot measuring 381 square meters situated at Dafi, Varanasi was purchased vide sale-deed dated 07.04.2015 in the names of minors Atul Rai and Utkarsh Rai through their mother / guardian / appellant No.1.
5. It was stated that a case was registered on 20.02.2009 at P.S. Bhanwarkol vide case No. 107 of 2009 under Section 3(1) Gangster Act against the appellant No. 2 and after investigation charge-sheet was submitted and that trial is still pending and in that matter appellant No.2 is on bail. Learned Senior Advocate submitted that on 30.04.2023 a Revenue and Police team inspected Sherkala property and thereafter by order dated 08.05.2023, passed under Section 14 Gangster Act, District Magistrate has attached the said property situated at Sherkala. The property plot No. 32 was also attached. Similarly on 29.05.2023, by a separate order under Section 14 Gangster Act, the property situated at Dafi, Varanasi was also attached by the District Magistrate. The appellants have submitted representation against said orders of attachment, by showing source of their income to explain the acquisition of the said properties but the District Magistrate rejected the representation in relation to Sherkala house and plot No. 32 by order dated 12.12.2023, without considering material on record. Similarly the representation in relation to property situated at Dafi, Varanasi was rejected by the District Magistrate vide order dated 26.12.2023. The evidence and documents produced by the appellants were not considered. There was no positive finding that the said properties were acquired as a result of committing any particular offence as mentioned under the Gangster Act.
6. Learned Senior Advocate next submitted that in reference under Section 16(2) of Gangster Act, appellants have preferred their representation before the learned Special Judge, Gangster Act, Ghazipur and Criminal Misc. Case No. 32 of 2024 relating to Ghazipur property and Criminal Misc. Case No. 676 of 2023 relating to Varanasi property were registered. The appellants have produced entire chain of acquisition of the said properties and emphasized that the property situated at Sherkala was ancestral and that agriculture income was used in reconstruction of the same in the year 2006. It was also pointed out that police report did not identify any particular offence in order to show any illegal earnings but learned Special Judge, Gangster Act has dismissed both the said criminal misc. cases by impugned order dated 03.01.2025 without considering evidence on record and without considering position of law applicable to the cases.
7. Learned Senior Advocate submitted that the residential building at village Sherpur Khurd / Sherkala, Ghazipur was constructed by the appellants on the ancestral land in the year 2006 by using old bricks and beams obtained from old ancestral building. Expenses of Rs. 1,25,000/- incurred in the said reconstruction were arranged from income of agriculture, as appellant No.2 has 6 bigha of agricultural land. Regarding property situated at Dafi in Varanasi, it was submitted that earlier the appellants have purchased a plot at Jagjivanpur, Ghazipur for Rs. 2.5 lakhs on 03.08.2010 and later said plot was sold for Rs. 17 lakhs on 26.02.2015, out of which an amount of Rs. 13 lakhs was paid and Rs. 4 lakhs was to be paid in future. Said consideration amount of Rs. 13 lakhs was used to purchase property situated at Dafi in Varanasi and the building thereon was constructed from the source of streedhan and agriculture income of appellants.
8. Referring to provisions of Section 2(b), 2(c), 14 and 16 of Gangster Act, it was submitted that no case for attachment of disputed properties was made out. It was submitted that burden is upon the State to establish by some credible material that a person is a gangster and there is rational nexus between his gangster activities and acquisition of the property and in the instant matter the State has utterly failed to do so. In this regard, learned Senior Advocate has referred case of Smt. Shanti Devi Vs. State of U.P. 2007 SCC OnLine All 1224, Rajbir Singh Tyagi Vs. State of U.P. and Others 2018 SCC OnLine All 5986, Vaishali Kapoor and Another Vs. State of U.P. and Another 2024 SCC OnLine All 2235, Nabi Sarvar Vs. State of U.P. and Another (2024) 1 HCC (All) 255 and Smt. Bimla Yadav Vs. State of U.P. and Another 2026:AHC:21369.
9. It was submitted that the impugned orders of attachment were passed by the District Magistrate only on the basis of multiplicity of criminal cases registered or pending against appellant No.2, circle rate valuation of the properties aggregating to over Rs. 4.32 crore and alleged failure of appellants to produce documentary proof of lawful income commensurate with such valuations. No material was discussed to show that the disputed properties were acquired by the appellants from the proceeds of any offence as mentioned in Section 2 Gangster Act. The disputed properties were attached in a mechanical exercise and there was no material to arrive at satisfaction that disputed properties were acquired by the appellants from proceeds obtained by committing offences. Mere criminal history, without there being any nexus to the specific properties cannot justify the attachment of the properties.
10. It was submitted that in the impugned judgment, learned Special judge has invoked the reverse burden clause of Section 16(5) of Gangster Act and placed the entire onus upon the appellants to prove that properties were not acquired from illegal earnings, whereas the State has failed to discharge its initial burden to establish that appellant No.2 is a gangster and there exists some material linking the properties with the offences mentioned in the Gangster Act. The observation of the learned Special Judge that the appellants did not submit sufficient proof of agriculture income or did not produce income tax returns and other documents to substantiate the figure of amount of Rs. 8 lakhs or Rs. 1.25 lakhs and did not produce documentary proof regarding alleged amount of Rs. 13 lakhs received in the year 2015, is against the facts and law. The said approach of learned Special Judge stands negated by the law laid down in case of Smt. Shanti Devi, Rajbir Singh Tyagi, Vaishali Kapoor and Another, Smt. Bimla Yadav (supra).
11. Learned Senior Advocate submitted that the appellants have consistently pleaded and produced registered sale-deed and documents to demonstrate that ancestral house was re-constructed in the year 2006, whereas the case under Gangster Act was registered in the year 2009. It was shown that earlier purchased plot No. 32 was sold on 26.02.2015 against consideration of Rs. 17 lakhs and that the property situated at Dafi, Varanasi property was purchased on 07.04.2015 against consideration of Rs. 13 lakhs. The police failed to rebut that chain and without any credible material alleged that illegal money was used in acquisition of those properties. The impugned judgment is based merely on criminal history of appellant No. 2 and police report and same were relied in a mechanical manner without considering facts and position of law. It is further submitted that impugned judgment reflects valuations such as Rs. 1,99,61,752/- for property situated at Dafi in Varanasi and aggregate value in crores and treated them as material against appellants without acknowledging the consideration mentioned in registered transactions of the year 2010 and 2015. This approach of the learned Special Judge is wholly against law. Learned Senior Advocate has referred facts of the matter and law laid down in above referred cases and submitted that impugned judgment and orders are against facts and law and thus, liable to be quashed.
12. Per contra learned A.G.A. has opposed the appeal and submitted that there is no illegality or perversity in the impugned orders. It was stated that appellant No.2 is a gangster and he has acquired property in his name as well in the name of his wife / appellant No.1 Sarita from the resources obtained as a gangster. The District Magistrate has attached the said properties in accordance with law. Appellant No.2 has submitted representation against the order of attachment and the same was rejected by the District Magistrate vide order dated 26.12.2023 by a reasoned order. The application of appellant, filed under Section 16(1) Gangster Act, before the Special Judge has also been rejected by a reasoned order. Similarly appellant No.1 has also submitted representation against attachment of the property and the same was also rejected. The District Magistrate has attached the disputed properties after being satisfied and considering the material available on record. It was submitted that appellant No.1 Angad Rai has long criminal history of as many as 25 cases and he is a gangster and he has acquired financial resource / money by way of commission of offences as mentioned in Section 2 of Gangster Act. The disputed properties were acquired by appellant No.2 from that money in his name as well as in the name of his wife. Referring to facts of the matter and averments of counter affidavit, it was submitted that there is no illegality or perversity in the impugned orders and the present appeal may be dismissed.
13. I have considered the rival submissions and perused the record.
14. Perusal of record shows that a case under Section 3(1) Gangster Act was registered against appellant No.2 vide Case Crime No. 107 of 2009 at Police Station Bhanwarkol. The District Magistrate, Ghazipur has attached the residential property situated at village Sherkala / Sherpur Khurd, District Ghazipur under Section 14 Gangster Act vide order dated 08.05.2023. Similarly the property plot No. 32 situated at Jagjivanpur, District Ghazipur was also attached. Another property i.e. a plot measuring 381 square meters situated at Dafi, Varanasi was attached by the District Magistrate vide order dated 29.05.2023. The representation dated 31.05.2023 filed against the attachment of Sherkala residential property and plot No.32 situated at Jagjivanpur, was rejected by the District Magistrate vide order dated 12.12.2023. In the similar way the representation dated 29.08.2023 in respect of property situated at Dafi, Varanasi was rejected by the District Magistrate vide order dated 26.12.2023. The appellants have filed applications in reference made under section 16(2) of Gangster Act before the Special Judge (Gangster Act), Ghazipur, which were registered as Criminal Misc. Case No. 32 of 2024 (relating to Ghazipur properties) and Criminal Misc. Case No. 676 of 2023 relating to Varanasi property. The said representations were rejected by the learned Special Judge (Gangster Act), Ghazipur by the common judgment and order dated 03.01.2025.
15. Before proceeding further, it would be appropriate to quote the provisions of Section 2(b), 2(c) and Section 14 of the Gangster 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;"
"14. Attachment of property.- (1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall mutatis mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property."
16. Considering the aforesaid provisions, the Court in case of Rajbir Singh Tyagi (supra), held as under :-
"16. A conjoint reading of the aforesaid two definitions what appears is that for taking action under Section 14 against a person, there must be materials for objective determination of the District Magistrate that he either as a member, leader or organizer of a gang acquired any property as a result of commission of any offence under the Act. There must be nexus between his criminal act and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words, what is necessary to find is whether his acquisition of property was as a result of commission of any offence enumerated in the Act being a member, leader or organizer of a gang. One might have committed several offences, but if the property acquired by him was with the aid of his earning from legal source, no action under Section 14 of the Act can be taken against him."
"18. Section 14 of the Act is a harsh provision that affects one's right to property which is a constitutional right under the Constitution. Therefore, initial burden was upon the State to satisfy the District Magistrate with necessary materials that petitioner Rajbir Singh Tyagi being a gangster acquired the properties as a result of commission of any offence. That was however, not done. So, complaining the attachment order to be illegal, a move was made by the petitioners by filing a representation for release of the properties. The said prayer was rejected with the observation that the petitioners could not establish the source of income to build the house and acquire the movables. This approach of the District Magistrate, in my opinion, has no sanction under law. The Act does not provide that-aggrieved person seeking release of the properties from attachment must prove the source of income for acquisition thereof. So, on a conspectus of the relevant provisions of the Act, I am of the considered opinion that the order of attachment passed by the District Magistrate, Muzaffar Nagar is illegal, arbitrary and against the weight of the materials on record."
17. In case of Smt. Shanti Devi (supra), this Court held as under :-
"14. Learned trial Court has proceeded on the presumption that the appellant failed to show that the property in question was not acquired out of the property of gangster. Learned Trial Court has misconstrued Section 4(b) and has reached at a wrong conclusion. This section clearly provides that first it has to be proved that the gangster or any person on his behalf is or has at any time been in possession of movable or immovable property which he cannot satisfactorily account for or where his pecuniary resources are disproportionate to his known sources of income and only then the presumption can be raised if the other party fails to prove the contrary. In the instant case there was no evidence to show that the land was purcahsed by the appellant out of the illegal earnings of her son or that he spent any amount in the construction and interior decoration of the house. The appellant has given specific evidence that she purchased the land for Rs. 20,000/- in the year 2001 and also produced the copy of the sale deed. It shows that the land was sold for Rs. 20,000/- although the circle rate was Rs. 57,935/-. The finding of the learned Trial Court that the appellant should have produced the executors of the sale deed is not correct. It is a matter of common knowledge that the circle rate is usually higher than the actual price of a particular property. Moreover, it has come in evidence that this plot is situate in Kasa, Bithoor at a distance of about 200 yards from the main road. No document was filed by the prosecution to suggest the market rate of the nearby land at the relevant time. Again the valuer had made the valuation on the current rate as prevailing in 2005 and not of the year 2001 and he also did not allow any depreciation. This fact was not disputed that the appellant had taken loan from the bank but the learned Special Judge has held that the appellant did not adduce any cogent evidence reagarding her service or salary in the bank. This approach was not correct. The appellant had filed the copy of statement of account of Central Bank of India and it shows that she was in the staff of the bank. Thus, I come to the conclusion that the appellant had sufficiently shown that she had purchased land and had constructed house thereon out of her own resources. There is nothing on the record to show that any amount was spent in the purchase of the land or construction of the house out of the illegal earnings of her son Lala Mehtar alias Naresh amassed from commission of offences, triable under the Act. He has also not been held to be a gangster by the authorities concerned. Therefore, the impugned order dated 20-1-2006 passed by the Special Judge as well as the order dated 24th December 2004 passed by the District Magistrate are liable to be set aside and the appeal is liable to be allowed."
18. In case of Vaishali Kapoor (supra), the Court held :-
"12. This Court had an opportunity to go through the various judgments of this Court viz. Smt. Rashida Bano v. State of U.P., 2014 6 AD] 575, Badan Singh @ Baddo v. State of U.P., (2001) 10 AHC CK 0033, Smt. Mana Devi v. State of U.P., 2013 9 ADJ 542, Waseem Khan v. State of U.P., 2023 LawSuit (All) 751 and Criminal Appeal No. 2130 of 2021 (Abrar v. State of U.P.), decided on 23.10.2021 propounding legal dictum 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 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 belleve" is also defined in Section 26 of the Penal Code, 1660. 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."
13. 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, the State has utterly failed to do so. It is also to be kept in mind that the appellant/aggrieved is not liable to establish the source of income to acquire the properties 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."
19. In case of Nabi Sarvar (supra), the Court held as under :-
"19. Keeping in view the aforesaid settled proposition of law and the Judgments rendered by this Court in Maina Devi v. State of U.P.2 and Shanti Devi v State of U.P.2, and Rajbir Singh Tyagi v. State of U.P., this Court is of the view that the properties, which were attached, were acquired by the appellant with the aid of his earning from legal resources and not by commission of any offence triable under the Act as it is settled law that the properties being made subject-matter of attachment under Section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act and also the impugned orders were not passed on reasons which are relevant and material. In the present case from the perusal of the Impugned order dated 15-3-2021 and record it appears that only on the basis of the police report, the District Magistrate has attached the property in question, no material was supplied to the District Magistrate to have reasons to believe that the property in question was acquired by the gangster the present appellant as a result of commission of any offence triable under this Act. It vitiates the subjective satisfaction of the District Magistrate also from the record. It appears that the District Magistrate has no material in support of the police report that the property in question was acquired by the present appellant being gangster even though the proceedings were not followed as per the provisions of the Act. It appears that the appellant was having enough source of income from his farming, milk distribution as well as fisheries and even the properties were acquired by the appellant much prior to the registration of criminal cases and imposition of Gangster Act, which was invoked in the year 2020 and the impugned order of attachment was passed in mechanical manner without application of mind and is arbitrary. Thus, the impugned orders dated 23-9-2020 and 15-3-2021 passed by the District Magistrate, Ambedkar Nagar and the impugned order dated 18-10-2022 passed by the court of Special Judge, Gangster Act Ambedkar Nagar in State of U.P. v. Nabi Sarvar are illegal and the same are liable to be quashed."
20. In case of Smt. Bimla Yadav (supra), referring to some earlier cases, similar position of law was reiterated.
21. From the aforesaid case laws, it is clear that under the provisions of Gangster Act, District Magistrate is empowered to attach immovable or movable property in possession of any person acquired by a gangster as a result of commission of an offence / offences, as mentioned in Section 2 of Gangster Act. For exercising such powers, the District Magistrate must be satisfied that there are reasons to believe that such property was acquired by a gangster as a result of commission of offences, referred in Section 2 of Gangster Act. It was held that words 'reason to believe' used in Section 14 are stronger than words 'satisfied' and that there must be some nexus between the criminal acts of the gangster and the property acquired by him. Mere involvement of a person in any offence is not sufficient to attach his property, unless the aforesaid condition is satisfied. As referred above, in case of Vaishali Kapoor (supra), the Co-ordinate Bench of this Court has held that it is to be kept in mind that initial burden is always upon the State to satisfy the District Magistrate with necessary materials that appellant being a gangster has acquired the properties as a result of commission of offence / offences mentioned in Section 2 of Gangster Act. The appellant / aggrieved person is not liable to establish the source of income to acquire the properties in question.
22. Keeping in view the aforesaid legal position, in the instant case perusal of record shows that in respect of property situated at Jagjivanpur and Sherpur Kala, the Superintendent of Police, Ghazipur has forwarded a report, wherein it was alleged that appellant No.2 Angad Rai has made a gang and he indulges in criminal and anti-social activities and thereby he has acquired the said properties. The valuation of the property situated at Jagjivanpur was shown Rs. 2,16,26,200/- and valuation of property situated at village Sherpur Kala was shown Rs.17,74,000/-. It was alleged that said properties were acquired from the funds obtained by way of commission of offences and that a case under Section 3(1) Gangster Act has been registered against appellant No.2 vide Crime No. 107 of 2019. Said properties were attached by order dated 08.05.2023. The appellants have preferred representation against the said order of attachment dated 08.05.2023, which was rejected by the District Magistrate vide order dated 12.12.2023. In order dated 12.12.2023 that the District Magistrate has mentioned that appellant No.2 Angad Rai is a gang leader and several cases are pending against him and he has acquired the property plot No. 32 situated at Mauja, Jagjivanpur and he constructed a building from the resources obtained by way of commission of criminal offences. It was also mentioned that said construction was not possible from the income of agriculture of appellants and that appellant No.1 has failed to show any source of income. It was further observed that no documentary evidence was filed regarding expenditure incurred in said construction and the representation under Section 15(1) regarding that property was rejected. The Similar observations were made in respect of the property situated at Jagjivanpur and it was further observed that the representation under Section 15(1) regarding the property situated at Jagjivanpur was not filed within the prescribed period of three months. In view of these facts, the representation under Section 15(1) was rejected vide order dated 12.12.2023. On the basis of a separate police report, the District Magistrate has attached property situated at Village Dafi, Varanasi vide order dated 29.05.2023. The valuation of said property was shown Rs. 1,99,61,752/-. The said property was in the name of minor sons of appellants Atul Rai and Utkarsh Rai through their guardian Sarita Rai (appellant No.1). Appellant No.2 has preferred representation against order dated 29.05.2023 and said representation was rejected by the District Magistrate, Ghazipur vide order dated 26.12.2023.
23. It appears from the order dated 26.12.2023 that the District Magistrate has considered police report, wherein it was mentioned that appellant No.2 Angad Rai is a gang leader and he has acquired various properties by way of commission of offences as referred in Section 2 of Gangster Act and the property situated at village Dafi, Varanasi was also acquired in the similar way in the name of his wife Sarita Rai and that there was no known source of income of appellants to purchase / acquire that property. In her representation, the appellant No.1 has mentioned that earlier she has sold a piece of land on 26.02.2015 against consideration of Rs. 13 lakhs and from that funds she has purchased the disputed property and later constructed a residential building but the District Magistrate observed that copy of bank account of appellant No.2 shows that she has received only an amount of Rs. 8 lakhs through RTGS, which was not sufficient to purchase or construct the said property and that appellant No.1 has failed to show any source of income to purchase the said property or to make the construction shown on that land. The District Magistrate has observed that in fact said property was acquired by appellant No. 2 from the resources obtained by way of commission of offences, in the name of his wife / appellant No.1 and children and that no documentary proof was produced regarding expenditure incurred in construction of the said building. It was also mentioned that 25 cases have been registered against appellant No.2 Angad Rai and the attending facts raise a presumption that disputed property was acquired by way of commission of offences.
24. The appellants have preferred an application / representation against order dated 12.12.2023 in the Court of Special Judge, Gangster Act, Ghazipur vide Case No. 32 of 2024. Similarly another representation / application was filed against order dated 26.12.2023 before the Special Judge, Gangster Act, Ghazipur, which was registered vide Case No. 676 of 2023. Both these applications / representations were rejected by a learned Special Judge by a common judgment dated 03.01.2025. It would be pertinent to mention here that though criminal history of 25 cases has been shown against appellant No.2 Angad Rai and a case under Section 3(1) Gangster Act was registered against him but as referred above the attachment of property under Section 14(1) / 15 Gangster Act has to be made in accordance with law and not merely on the basis of criminal history of the appellants. Perusal of impugned judgment passed by learned Special Judge, shows that learned Special Judge has referred the orders passed by the District Magistrate under Section 14 and 15 of Gangster Act and the evidence produced before the Court and the applications of appellants were rejected mainly on the ground that total valuation of the disputed properties is to the tune of Rs. 4,32,92,412/- and appellants have failed to show valid and known source of income to purchase such properties and that the burden to prove that said properties were not purchased by a gangster as a result of commission of criminal offences, is upon such person / gangster. It is correct that provisions of clause (5) of Section 16 of Gangster Act provides that burden of proving that the property in question or part thereof was not acquired by a gangster as a result of the commission of any offence triable under the Gangster Act shall be on the person claiming the properties but the same can not forgo the requirement of provisions of Section 14 of the Gangster Act, which provides that if the District Magistrate has reason to believe that any property whether movable or immovable in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under the Gangster Act, the same may be attached. Thus, initial burden lies on the State to satisfy the District Magistrate with relevant material that the property whether movable or immovable in possession of any person has been acquired by a gangster as a result of the commission of an offences, mentioned in section 2 of Gangster Act. The words 'reason to believe' used in Section 14 are of quite significance. As referred above in case of Rajbir Tyagi (supra), it has been held that initial burden was upon the State to satisfy the District Magistrate with necessary materials that petitioner being a gangster acquired the properties as a result of commission of any offence. It was further observed that the Gangster Act does not provide that aggrieved person seeking release of the property from attachment must prove the source of income of acquisition thereof. It is apparent that there must be nexus between criminal acts of such person and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In case of Vaishali Kapoor (supra), it has been held that initial burden is always upon the State to satisfy the District Magistrate with necessary materials that appellant being a gangster acquired the properties as a result of commission of any offence as mentioned in Section 2 of the Gangster Act. It appears that learned Special Judge has not considered the matter in accordance with law. Though it appears that appellants have not led any oral evidence before the learned Special Judge (Gangster Act) and the total valuation of the disputed properties was shown to the tune of Rs. 4,32,92,412/- but nevertheless learned Special Judge must have examined the matter at the touchstone of position of law as referred above. Having perused the record and considering aforesaid position of law it is apparent that the learned Special Judge failed to consider and examine the matter in accordance with law and thus, the impugned judgement and order dated 03.01.2025 is liable to be set aside.
25. In view of aforesaid, the impugned judgement and order dated 03.01.2025 passed by the learned Special Judge is set aside and the matter is remanded back to the learned Special Judge, Gangster Act to consider and decide the matter afresh in accordance with law.
26. Appeal is disposed of in above terms.
(Raj Beer Singh,J.) May 4, 2026 S Rawat