Orissa High Court
Baikuntha Nath Mahanta vs State Of Orissa on 11 August, 2000
Equivalent citations: 2000(II)OLR658
Author: C.R. Pal
Bench: C.R. Pal
JUDGMENT C.R. Pal, J.
1. This appeal under Section 454, Cr. P.C. has been directed against the order dated 4.2.1999 passed by the learned Sessions Judge, Keonjhar in S.T.Case No. 18 of 1985 confiscating the gun seized from the house of the appellant.
2. The facts of the case, in brief, giving rise to this appeal are as follows : The appellant and another faced their trial before the learned Sessions Judge in the aforementioned Sessions Case for an offence under Section 307 read with Section 34, I.P.C. At the conclusion of the trial, the trial Court found that the prosecution was not able to bring home the charge beyond reasonable doubt against the accused persons and accordingly acquitted them of the charge. The trial Court though acquitted the accused persons, confiscated the gun seized in the aforementioned case. Being aggrieved by the said order of confiscation, the accused appellant preferred an appeal, i.e., Criminal Appeal No. 69 of 1985 which was disposed of on 11.8.1995 with a direction to the trial Court to pass fresh order after giving opportunity of hearing to the parties. Accordingly, the learned Sessions Judge conducted an inquiry and examined a witness and the appellant and passed the impugned order on 4.2.1999 observing that the appellant had no valid licence to possess the gun on the date of the seizure, i.e. on 15.8.1984 since the licence was renewed till 31.12.1980 and us such he is not entitled to possess the said property. Being aggrieved by the aforesaid order, the accused-appellant has preferred this appeal.
3. The learned counsel of the appellant contended that the reason assigned by the learned Sessions Judge for confiscating the seized gun is not based on the evidence on record and as such the impugned order is liable to be set aside. The learned counsel also relied on N. Madhavan v. State of Kerala reported in 7979 Cri. L.J. 1197 wherein the apex Court has held that when after the inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property which is produced before the Court or which is in the custody of the Court 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 that the property in question was seized from the custody of such accused. He therefore contended that keeping in view the aforesaid principle, the seized property has to be restored to the appellant. The learned Addl. Standing Counsel, on the other hand, conceding to the principle laid down by the apex Court in the aforesaid case submitted that the above principle is not applicable to the case of the appellant as the appellant has disowned the ownership over the gun in his statement recorded by the learned Sessions Judge under Section 313, Cr. P.C. in the concerned sessions trial. In the above context, it is noticed that in the inquiry made pursuant to the direction given in the judgment dated 11.8.1995 passed in Criminal Appeal No. 69 of 1986, the appellant besides examining a witness, examined himself as his witness No. 2. It is noticed from the impugned order that the learned Sessions Judge held that the appellant is not entitled to the possession of the gun observing as follows :
".......... The gun licence produced shows that the same has been renewed up to 31.12.80. So, by the time of the seizure of the gun on 15.8.84, the petitioner had no valid licence for its possession and that has also been admitted by the petitioner in his cross-examination made by the P.P............."
According to the learned counsel of the appellant, the aforesaid observation is not based on evidence. It is noticed that the appellant in his evidence given during inquiry before the learned Sessions Judge as his witness No. 2 has deposed in his cross-examination as follows :
"After two months of seizure I knew about the seizure. 1 did not apply before police for return of the gun. I do not know if my licence was cancelled by the time of seizure. I do not know if I am having a valid licence now. I have not renewed my licence nor applied for fresh licence."
This is the entire evidence adduced during cross-examination. From the above, it does not appear that the appellant-petitioner any where admitted that he had no licence to possess the gun on the date of seizure. The seized licence has been proved and marked as Ext. 3 during the trial of the sessions case. On perusal of the Ext. 3, it is found that it bears the endorsement dated 14.3.1984 of the concerned Magistrate renewing the licence up to 31.12.1986. Here it may also be mentioned that the gun was seized on 15.8.1984. Thus it is glaring that the observation made by the learned Sessions Judge that the appellant had no licence on the date of seizure and that he had admitted about the same are not based on the evidence on record and as such, these findings cannot be supported.
4. The next question comes for consideration is whether the appellant has disowned ownership of the gun in his statement recorded under Section 313, Cr.P.C. In the above context, perused the said statement. It is noticed that the question put to him runs as follows :
" Q.No. 15 - From the evidence of P.W.7, the I.O. it transpires that he had seized one 12 Bore D.B.B.L. Gun, one used empty cartridge, one unused cartridge and Gun licence from your house. What have you got to say ?"
In answer to the aforesaid question the accused simply stated "false". In the question put to the accused he was not required to say whether he was the owner of the gun or not. The question is whether the gun and other articles were seized from his house or not. It appears from the evidence as well as the police papers that the appellant was not present in his house on the date of the seizure. The prosecution does not dispute that the gun was seized from the house of the accused during his absence. In this context, it may also be mentioned here that the seizure was effected on 15.8.1984 in presence of two witnesses. The seizure list has been proved and marked as Ext. 4. It appears from the Ext. 4 that the copy of the seizure list was neither given to the accused nor to any of the inmates of the house. This appellant was arrested on 17.8.1984. The witness No.l as well as this appellant who has been examined as witness No. 2 during the inquiry have deposed that when the seizure was effected the appellant was not present in his house. Under such circumstances, the petitioner had no occasion to know about the circumstances under which the gun was seized and as such has given the answer as stated above to the question put to him. However, from the question put to him as well as the answer given by the accused, it is not possible to come to a conclusion that he disowned the ownership over the gun. Hence, the contention raised by the learned Addl. Standing Counsel cannot also be sustained.
5. In N. Madhavan v. State of Kerala (supra) the appellant was tried by the learned Sessions Judge on a charge under Section 302, I.P.C. for shooting dead one Bhaskaran by his gun. At the trial the appellant set up a plea of self-defence. In the tight of the evidence brought on record the Sessions Judge accepted the plea and held that the accused was entitled to the protection of Section 96, I.P.C. and had therefore committed no offence. But at the same time without assigning any reason confiscated the gun to the Government. In revision, the High Court declined to interfere with the order observing that the order of confiscation was made by way of sufficient safeguard against its use again by the petitioner. In appeal the apex Court after considering the provision of Section 452(1), Cr.P.C. held as follows :
"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 inquiry 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."
The apex Court further observed :
"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).
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."
It is noticed that in the present case there is no evidence to show that the seized gun was used for the commission of any offence. None of the witnesses examined in the sessions case has deposed to have seen the gun in the hands of the appellant or the other accused. They only stated to have heard a gun shot sound though some of them even have expressed their doubt as to whether the sound they heard was a gun shot sound or not. It is also noticed that the gun was sent to the Ballistic Expert for examination and the report of the Expert, Ext. 6, shows that there is nothing to suggest that any shot was fired recently from that gun. The appellant who faced the trial before the Sessions Judge has been acquitted of the charge under Section 307,I.PC. as prosecution failed to establish the charge. Therefore, in absence of any evidence to show that the gun was used in the commission of an offence or that regarding the gun any offence has been committed it will be illegal to deprive the appellant from the possession of the same. Here also it comes within the class of property which is in the custody of the Court and as such applying the principle laid down by the apex Court cited above the same ought to have been restored to the appellant.
6. In the result, the appeal is allowed, the impugned order is set aside and it is directed that the seized property be restored to the possession of the appellant following the procedure of law.