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1989 DIGILAW 541 (KER)

Cherian v. State of Kerala

1989-12-13

JAGANNADHA RAJU

body1989
Judgment :- 1. This Crl. Revision is filed against the order in Crl.A. No.197 of 1987. The revision petitioner is Al in C.C.No.168 of 1986 on the file of the Judicial First Class Magistrate, Muvattupuzha. Al and A2 were indicted for offences under S.3,5 and 25 of the Arms Act. It is the prosecution case that A2 manufactured an illicit gun and sold it to Al. A raid was conducted on the house of Al, during his absence. Two guns MOs. 2 and 3 were seized from his house. One gun, M.O.2, has a longer barrel and the other gun, MO.3, has a shorter barrel. It is the claim of the prosecution as well as the accused that Al was having a valid licence for MO2, the gun with longer barrel Ext.P3 licence has been in force from 1979 July. It was duly checked from time to time. The trial court acquitted both the accused on the ground that the prosecution has failed to establish the charges against the two accused, but at the same time the trial court ordered confiscation of both the guns, MOs.2 and 3, exercise its powers under S.452 Cr.P.C, and the court did not refer to S.32 of the Arms Act which reads as follows: "32. Power to confiscate. (1) When any person is convicted under this Act of any offence committed by him in respect of any arms or ammunition, it shall be in the discretion of the convicting Court further to direct that the whole or any portion of such arms or ammunition, and any vessel, vehicle or other means of conveyance and any respectable or thing containing, or used to conceal, the arms or ammunition shall be confiscated: Provided that if the conviction is set aside on appeal or otherwise, the order of confiscation shall become void. (2) An order of confiscation may also be made by the Appellate Court or by High Court when exercising its powers of revision." The order of confiscation was confirmed in appeal by the III Addl. Sessions Judge, Ernakulam. Aggrieved by the same, the present Revision is filed. 2. (2) An order of confiscation may also be made by the Appellate Court or by High Court when exercising its powers of revision." The order of confiscation was confirmed in appeal by the III Addl. Sessions Judge, Ernakulam. Aggrieved by the same, the present Revision is filed. 2. In this revision Shri. K.M. Joseph contends that the trial court as well as the appellate court committed a mistake in ordering confiscation of MOs.2 and 3 when in fact MO 2 gun was covered by a valid licence, and the order of confiscation is bad in law as both the accused have been acquitted of the offences alleged against them under the Indian Arms Act It is not open to the court to rely upon S.452 Cr.P.C when S.32 of the Indian Arms Act specifically deals with the power to confiscate. Shri. Joseph contends that the special provision excludes the general law provision of S.452 Cr.P.C. The Arms Act is a complete code in itself and in such circumstances it is not open to the court to rely upon S.452 Cr.P.C, and order confiscation of MOs.2 and 3, when the accused were acquitted. 3. The point for consideration is whether the court is justified in relying upon S.452 Cr.P.C, to the exclusion of S.32 of the Indian Arms Act. 4. The point: It is an admitted fact that Al holds Ext.P3 licence and He is entitled to have in his possession SBMC gun No. 5024. Both MOs.2 and 3 were found to have the same number engraved on them. MO2 has a longer barrel and is greater in length, when compared to MO3. It is interesting to see that in Ext. P3 licence though Column 3 contemplates brief descriptive particulars of each weapon with details like identification marks, Reg. No. etc., in this licence, the only description given is SBMC gun No.5024. No other details like the name of the manufacturer, the year of manufacture, model or other descriptive particulars of the weapon are given. It is now clear from the evidence of PWS, the Investigating Officer, that MO2, the longer gun, is the gun covered by the licence, Ext.P3. It should be remembered that the Indian Arms Act is a complete Code in itself. It is now clear from the evidence of PWS, the Investigating Officer, that MO2, the longer gun, is the gun covered by the licence, Ext.P3. It should be remembered that the Indian Arms Act is a complete Code in itself. S.32 specifically lays down that only when any person is convicted under the Act for any offence committed by him in respect of any arms or ammunition, the court can exercise its discretion and then order confiscation. In the present case, both the accused have been acquitted of the offences. But yet MOs.2 and 3 were ordered to be confiscated taking recourse to S.452 of the Cr.P.C. It should be remembered that S.452 Cr.P.C, is the general provision which deals with order for disposal of property at conclusion of trial. This provision can be invoked only where the special enactment under which the accused are prosecuted does not provide for disposal of property after the conclusion of trial. In so far as S.32 of the Arms Act provides for confiscation only in cases of conviction, the court is not justified in ordering confiscation. Abdu v. State of Kerala, 1979 K.L.T. 189 lays down the principle that provisions of S.452 of the Code are general provisions which can be invoked only when there is no special provision in the Act. In that decision this Court was dealing with a case under The Essential Commodities Act. As S.7(1)(b) of The Essential Commodities Act deals with the disposal of the property, the court held that it is not open to the court to rely upon the provisions of S.452 Cr.P.C. The court clearly pointed out, quoting several authorities: "it is a general rule of construction of statutes that a special provision will override the general provision and the provision in special enactments must have overriding application unless it be that the circumstances point to the need for application of the provisions of the general enactment in the particular case. It .... Thus it is clear that the special provision under S.32 of the Indian Arms Act will exclude the application of the general provision under S.452 Cr.P.C The order of confiscation is bad in law. 5. In this case MO 2 only is covered by Ext.P3 licence held by Al. Under the law, Al is entitled to possession of MO2 gun. Thus it is clear that the special provision under S.32 of the Indian Arms Act will exclude the application of the general provision under S.452 Cr.P.C The order of confiscation is bad in law. 5. In this case MO 2 only is covered by Ext.P3 licence held by Al. Under the law, Al is entitled to possession of MO2 gun. He is not entitled to claim possession of the other gun, which was seized from the house of Al. Obviously it is an illicitly made gun. In these circumstances though the order of confiscation regarding MO.3 is also bad in law, I do not propose to interfere with the order of confiscation regarding M03. 6. In the result the revision filed by Al is allowed. The order of confiscation regarding MO.2 is set aside. MO.2 gun along with licence Ext.P3 shall be returned to the revision petitioner. Allowed.