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2015 DIGILAW 784 (GUJ)

Saeedbhai Abdulbhai Dhuka v. State of Gujarat

2015-08-10

HARSHA DEVANI

body2015
JUDGMENT : Harsha Devani, J. 1. This appeal under Sec. 454 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") is directed against the judgment and order dated 27th March, 2015 passed by the learned Special Judge, Banaskantha, Palanpur in Special (Atrocity) Case No. 21 of 2014 to the extent the trial Court while acquitting the accused persons has directed that the muddamal article No. 6 - shotgun be forfeited to the Government after the appeal period is over. The appellant herein was the accused No. 8 in the above-referred criminal case for the offence punishable under Secs. 143, 147, 148, 149, 354,427, 323, 504 and 506(2) of the Indian Penal Code and Sec. 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as Sec. 25(1)(c) of the Arms Act. Upon conclusion of the trial, the trial Court after appreciating the evidence on record found that the prosecution had failed to establish the charges against the accused beyond reasonable doubt and acquitted the accused persons by giving them the benefit of doubt. However, while acquitting the accused, the muddamal No. 6 -shotgun which had been seized from the custody of the appellant herein, was ordered to be confiscated to the Government. Being aggrieved, the appellant has preferred the present appeal. 2. Mr. Virat Popat, learned Advocate for the appellant assailed the impugned order by submitting that the trial Court has failed to apply its mind to the fact that the shotgun in question had not been used in the commission of any offence and had mechanically ordered that the same be forfeited to the Government. It was pointed out that in the impugned judgment and order, the only reference to the shotgun is that the appellant herein had a shotgun in his hand and was inciting the other accused persons. It was submitted that once the accused have been acquitted, the trial Court ought not to have ordered confiscation of the shotgun. It was pointed out that in the impugned judgment and order, the only reference to the shotgun is that the appellant herein had a shotgun in his hand and was inciting the other accused persons. It was submitted that once the accused have been acquitted, the trial Court ought not to have ordered confiscation of the shotgun. In support of such submission, the learned Counsel placed reliance upon the decision of the Supreme Court in the case of N. Madhavan v. State of Kerala, AIR 1979 SC 1829 , for the proposition that when after an inquiry or trial, the accused is discharged or acquitted, the Court should normally restore the property, which is produced before it or which is in its custody, to the person from whose custody it was taken. Departure from this rule of practice is not to be lightly made when there is no dispute or doubt that the property was seized from the custody of such accused and belonged to him. The Court further observed that where the Sessions Judge did not give any reason for directing confiscation of the licensed gun belonging to the accused and there was no material indicating special circumstances which would warrant departure from the general rule, the order of confiscation, which was passed without giving opportunity of being heard to the accused specifically, was manifestly arbitrary, and therefore, liable to be set aside. It was submitted that the above decision would be squarely applicable to the facts of the present case, inasmuch as, the appellant herein was holding a licence when the shotgun in question came to be seized and that there is no dispute or doubt that the shotgun was seized from the custody of the appellant herein and belonged to him. Under the circumstances, without indicating any special circumstances which would warrant departure from the general rule that the property should be restored to the person from whose custody it is taken, the trial Court was not justified in ordering confiscation of the shotgun. The learned Counsel further submitted that the accused was charged under Sec. 25(1)(c) of the Arms Act, despite the fact that at the relevant time such provision did not exist on the statute book. The attention of the Court was invited to the Arms (Amendment) Act, 1988 whereby clause (c) of sub-sec. The learned Counsel further submitted that the accused was charged under Sec. 25(1)(c) of the Arms Act, despite the fact that at the relevant time such provision did not exist on the statute book. The attention of the Court was invited to the Arms (Amendment) Act, 1988 whereby clause (c) of sub-sec. (1) of Sec. 25 of the Principal Act came to be omitted. It was, accordingly, urged that the appeal requires to be allowed and the impugned order to the extent the same directs confiscation of the shotgun is required to be quashed and set aside and the property in question be ordered to be restored to the appellant herein. 3. On the other hand, Ms. Moxa Thakker, learned Additional Public Prosecutor opposed the appeal by submitting that the arms' licence held by the appellant has not been renewed since a long time, and therefore, it would not be proper to restore the shotgun to his custody. 4. This Court has considered the submissions advanced by the learned Counsel for the respective parties and has perused the impugned order as well as the judgment of the Supreme Court on which reliance had been placed by the learned Counsel for the appellant. 5. From a perusal of the judgment and order of acquittal, it is evident that there is no finding against the appellant herein with regard to use of the shotgun in question. The trial Court after appreciating the evidence on record has found that the prosecution had failed to establish the charge against the accused and has acquitted them. The Supreme Court in the above-referred decision in the case of N. Madhavan v. State of Kerala, AIR 1979 SC 1829 has held thus: "8. The trial Court after appreciating the evidence on record has found that the prosecution had failed to establish the charge against the accused and has acquitted them. The Supreme Court in the above-referred decision in the case of N. Madhavan v. State of Kerala, AIR 1979 SC 1829 has held thus: "8. The material part of Sec. 517 of the Code of Criminal Procedure, 1898 (which has been re-enacted as Sec. 452(1) in the Code of 1973), reads as follows: "When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence." An analysis of this provision would show that it refers to property or document (a) which is produced before the Court, or (b) which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence. Then, at the conclusion of the enquiry or trial, the disposal of any class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to the possession thereof. 9. In the case before us, the gun in question does not fall either under class (c) or class (d) because it is neither "property" regarding which any offence appears to have been committed "nor" which has been used for the commission of any offence". The acquittal of the accused on the ground that this gun was used in causing the fatal injury to the deceased, only in self-defence, necessarily involved a finding that the gun was not used in the commission of any offence for which the accused was tried. The gun was obviously property falling under class (b). 10. The words "may make such order as it thinks fit" in the Section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section. But the exercise of such discretion is inherently a judicial function. The gun was obviously property falling under class (b). 10. The words "may make such order as it thinks fit" in the Section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such a well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt - as in the instant case - that the property in question was seized from the custody of such accused and belonged to him." 6. Examining the facts of the present case in the light of the principles laid down in the above decision, what is required to be examined is as to whether the order made by the trial Court directing confiscation of the shotgun in question can be said to be an order made judicially. The answer would be an emphatic "no". The trial Court has not at all applied its mind to the relevant factors prior to passing such order and has mechanically ordered confiscation of the shotgun. In the impugned judgment, the trial Court has recorded a categorical finding to the effect that having regard to the evidence of the witnesses, and more particularly, the cross-examination, it emerges that the accused had not given any threats to kill them nor had they used any words derogatory to their community nor had they seen any arms in the hands of the accused. In the light of the above findings recorded by it, the trial Court has found that the charge against the accused had not been proved. Admittedly, therefore, there is a finding involved that the shotgun in question was not used in the commission of any offence for which the accused were tried. In the light of the above findings recorded by it, the trial Court has found that the charge against the accused had not been proved. Admittedly, therefore, there is a finding involved that the shotgun in question was not used in the commission of any offence for which the accused were tried. The shotgun, therefore, obviously is a property falling under class (b) of the classes referred to in the above-referred decision. As held by the Supreme Court in the above decision, the exercise of discretion by the trial Court to dispose of the property in any of the three modes specified in the Section is a judicial function and that the choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. The basic principle is that after the trial, if the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. In the present case, the property in question belongs to class (b). The trial Court without recording any reason as to why the normal course of restoring the property to the custody of the person from whom it was taken should be departed from, has mechanically directed confiscation of the shotgun in question. Besides, there is nothing on record to indicate that before passing the order of confiscation, the trial Court had given an opportunity of being heard to the accused specifically with regard to this matter. The order of confiscation of the shotgun, is therefore, manifestly arbitrary. 7. For the foregoing reasons, the impugned order passed by the trial Court ordering confiscation of the shotgun being arbitrary and unjust, cannot be sustained. The appeal is accordingly allowed. The impugned order dated 27th March, 2015 passed by the learned Special Judge, Banaskantha, Palanpur in Special (Atrocity) Case No. 21 of 2014 to the extent the same orders, confiscation of the shotgun (muddamal No. 6) to the Government is hereby quashed and set aside. It is further directed that the possession of the shotgun be forthwith restored to the appellant. Direct Service is permitted.