Hon’ble Mrs. Vijay Lakshmi, J.—By means of this writ petition, the petitioner has prayed to quash the orders dated 24.7.2009 passed by Special Judge, Gangster Act, Jhansi, as well as order dated 1.2.2009 and 25.2.2009 passed by the District Magistrate, Lalitpur.

2. The petitioner has also prayed to issue a writ in the nature of mandamus commanding the respondents to release the property attached in pursuance of attachment order dated 1.2.2009 in favour of the petitioner.

3. Heard and perused the record.

4. Some brief facts are that a criminal case was lodged against the petitioner under Section 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as “Gangster Act”) at P.S. Talbehat. In Gang Chart, two separate offences were shown against the applicant/petitioner i.e. case Crime No. 136 of 2009 under Section 60 of Excise Act, P.S. Talbehat and Case crime No. 553 of 2008 under Section 60/63 Excise Act, P.S. Talbehat, Lalitpur. The S.O. Talbehat, Lalitpur submitted its report dated 5.8.2008 and 8.11.2008 through S.S.P. Lalitpur to the District Magistrate, Lalitpur stating that the properties mentioned above were acquired by the applicant as a result of commission of offence triable under the Gangster Act. The District Magistrate issued notice to the petitioner and attached the said properties vide order dated 1.2.2009. The applicant filed his objections alongwith an affidavit and certificates issued by Mahindra Finance Co. Ltd., In his objections, applicant stated that source of his income is agriculture, his house with ‘Khaprail’ roof is ancestral, he has purchased the Bolero Car by the savings of his agricultural income and also by a loan taken by him from Mahindra Finance Co. Ltd on 24.6.2006. He has repaid the loan to some extent from the income of the said vehicle but still Rs. 65,000/-is due for payment. The motorcycle has been gifted to his son in marriage by his in-laws. But learned District Magistrate, Lalitpur refused to release the aforesaid properties in favour of the petitioner. Learned District Magistrate rejected his application of release vide impugned order dated 25.2.2009. Exercising his powers under Section 16 (1) of the Gangster Act learned District Magistrate referred the matter to the Special Court, constituted under the Gangster Act. The petitioner also moved an application before the Court concerned for release of the properties attached.

5. The learned Special judge (Gangster) while relying on a judgment of Allahabad High Court, cited before him as Ram Kumar Dubey v. State of U.P., 2005 (51) ACC 878, held that an order under Section 17 of the Act can only be made after the trial of the commission of an offence is over. The learned Special Judge after observing that as the trial of the applicant/petitioner) is still pending in his Court and the application for release of the property can only be decided after trial is over, rejected the release application moved by the petitioner.

6. I have carefully gone through the aforesaid judgment of Ram Kumar Dubey passed by Single Judge of this Court and after going through the judgement and the relevant legal provisions, I am of the view that the judgement passed by learned Single Judge in Ram Kumar Dubey’s case (Supra), has no application in the instant case because the facts are entirely different. In Ram Kumar Dubey’s case, by an interim order, the trial Court had released the property in favour of the applicants subject to some conditions till final disposal of the enquiry and the learned Single Judge, after quoting the relevant provision i.e. Section 17 of the Gangster Act held that “the provisions of the Act clearly stipulates for the enquiry Court to pass a final order under Section 17 of the Gangster Act and does not empower the Court to pass an interim order. There is no such provisions in the Act whereby the Court can pass the interim order as has been done in the present case”.

7. Thus the facts of Ram