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1968 DIGILAW 84 (ALL)

Mangu Lal v. State

1968-02-12

J.N.TAKRU

body1968
ORDER J.N. Takru, J. - Mangoo Lal has filed this revision against the judgment and order of the learned Sessions Judge, Farrukhabad dated 8-2-1966 allowing the opposite party's--i.e. the State's--application u/s 520 Code of Criminal Procedure. 2. The brief facts giving rise to this revision are as follows: The Applicant, who is a gold-smith, was prosecuted for the contravention of Rule 126-C Sub-clause (a)(i) and Rule 126(i) of the Defence of India Rules. The case for the prosecution was that on receiving some information against the Applicant, P.W. Onkar Singh, Dy. S.P., along with some Central Excise Officers, raided shop of the Applicant on 16-3-1963 at about 1.40 p.m. and found him manufacturing ornaments of gold weighing Rs. 51.12 of the purity of more than 14 carats, and in possession of gold and unfinished gold ornaments weighing Rs. 23.1 of the purity of more than 14 carats for which he had failed to make a declaration. The Collector of Customs and Central Excise exercising powers Under Rule 126-M of the Defence of India Rules 1962 passed on order confiscating the entire gold and gold ornaments to the Central Government. The Applicant preferred an appeal against that order to the Gold Administrator which was allowed. Thereafter the Collector of Customs and Central Excise took fresh proceedings for confiscation and again passed an order confiscating the seized gold and gold ornaments. The Applicant filed an appeal against that order before the Gold Administrator and the same is still pending before him. Meanwhile on 15-12-1965, the ADM (J), before whom the Applicant's trial for the breach of the aforesaid Rules was going on, acquitted the Applicant of both the offences and also, ordered the gold and the gold ornaments recovered from his possession to be released in his favour after the period of appeal or revision had expired. Thereupon the State filed the application giving rise to this application u/s 520 Code of Criminal Procedure which was allowed. 3. On behalf of the Applicant his Learned Counsel Sri B.C. Saxena advanced two contentions in support of this revision. His first contention was that as an application u/s 520 Code of Criminal Procedure was not maintainable in the court below, it acted illegally in passing the order in question on it. 3. On behalf of the Applicant his Learned Counsel Sri B.C. Saxena advanced two contentions in support of this revision. His first contention was that as an application u/s 520 Code of Criminal Procedure was not maintainable in the court below, it acted illegally in passing the order in question on it. His second contention was that as the Applicant was acquitted of both the offences by the trial court he was entitled to the return of the gold and gold ornaments in respect of which the offences were allegedly committed. After hearing the Learned Counsel for the parties I am satisfied that while the first contention has no force the second contention is well founded. 4. Now, so far as the first contention is concerned it is unnecessary to dilate upon it, as it is concluded by the decision of this Court in Ram Abhilakh and Anr. v. The State 1951 AWR 184 with which I find myself in respectful agreement. As held in that case the words "any court of appeal" in Section 520 Code of Criminal Procedure mean the court to which appeals ordinarily lie from the judgment and orders of the trial court, and not a court in which an appeal has been filed. As an appeal from the judgment of the learned A.D.M. (J) ordinarily lie to the court of the Sessions Judge, the latter court has the jurisdiction to entertain an application u/s 520 Code of Criminal Procedure. 5. Coming to the second contention of Sri Saxena, the first thing to be noticed is that no appeal or revision was filed against the order of acquittal passed by the A.D.M. (J) Farrukhabad, with-the result that that order has become final. The result of the said order having become final is that the Applicant cannot be held to have committed either of the offences for which he was prosecuted. Hence the gold and gold ornaments which were recovered from the Applicant's-possession cannot be regarded as property regarding which any offence was committed and they are therefore liable to be returned to the Applicant u/s 517 Code of Criminal Procedure. The reasons given by the learned Sessions Judge for holding that the Applicant was, not entitled to the return of the gold and gold ornaments recovered from him, despite his acquittal, are patently erroneous. The reasons given by the learned Sessions Judge for holding that the Applicant was, not entitled to the return of the gold and gold ornaments recovered from him, despite his acquittal, are patently erroneous. The learned Sessions Judge held that the fact that the confiscation was made under the provisions of Rule 126-M of the Defence of India Rules, coupled with the fact that the Custom Authorities produced the confiscated gold and gold ornaments along with an application wherein they expressly stated that the said gold and the gold ornaments had been absolutely confiscated to the Central Government and were returnable to it after the conclusion of the trial, showed that the ownership in these articles had pissed from the Applicant to the Central Government in the intervening period and the order of the learned A.D.M. (J) that they be returned to the Applicant was consequently unjustified and erroneous. The view of the learned Sessions Judge is incorrect as Rule 126-M of the Defence of India Rules only renders the gold seized Under Rule 126 1 liable to confiscation. The words 'liable to confiscation' clearly imply that the seized gold must be gold in respect of which--as Rule 126-L lays down--any provision of the Gold Control Rules has been or is being or is about to be contravened. It follows from this that if the seized gold is not gold in respect of which any provision of the Gold Control Rules has been or is being or has been contravened, then that gold is not liable to confiscation and must, on acquittal be returned to its rightful owner. To hold otherwise would be to, lead to the most oppressive result that no matter how arbitrary and unwarranted the seizure may be the seized gold ceases to be the property of its rightful owner and becomes the property of the Central Government. I am, therefore, satisfied thatthe finding of the learned Sessions Judge on this point is manifestly perverse and must be set aside. I, therefore, allow this revision, and, setting aside the order of the learned Sessions Judge, direct that the gold and the gold ornaments seized from the possession of the Applicant on 16-3-1963 shall be returned to him forthwith. Revision allowed.