Delhi District Court
Ashok Pathak vs The State on 28 April, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
Criminal Appeal NO: 19/11
U/s 83/97 DP Act
PS Karol Bagh
IN THE MATTER OF
ASHOK PATHAK
S/o Sh. RAM SABHA PATHAK
R/O T30/IC, BALJEET NAGAR,
NEW DELHI. ..... APPELLANT
vs.
1. THE STATE
2. THE SHO ,
PS KAROL BAGH, NEW DELHI. ........RESPONDENTS
Date of Institution : 05.03.11
Date of final argument : 28.04.11
Date of final order : 28.04.11
APPEAL UNDER SECTION 374 Cr.P.C.
AGAINST THE ORDER DATED 14.2.2011
ORDER
1. This appeal is against the order dated 14.2.2011 whereby appellant was convicted and sentenced with fine of Rs.100/ while sentencing the convict / appellant U/s 83/97 DP Act, Ld. MM also ordered for forefitting and destruction of the articles belonging to the appellant / convict.
2. I have heard argument of Ld. Counsel Sh.R.P.Tiwari advocate for 2 appellant and Ld. Addl. PP Sh. G.S.Guraya for State . I have also carefully perused the entire file.
3. It is argued that apart from imposing sentence of fine of Rs.100/, Ld. MM was not legally justifying in ordering destruction of of 240 ladies Kurties belonging to the appellant.
4. Perusal of DP Act shows that in chapter 7 titles "Power in relation to unclaimed property, "Section 66 DP Act" provides that police can take charge of any unclaimed property. But the property in hand belonging to the appellant / convict can not be said to be an unclaimed property. Apart from this provision of law, DP Act as per as Ld. APP as well, does not authorise police to seek or to empower Ld. MM to order for destruction of such kind of article. The offence of 83 DP Act only pertains to causing obstruction while 97 DP Act only provides for punishment thereof.
5. However, as per Section 452 Cr.P.C , legally , order of confiscation 3 and disposal by destruction can be passed by a Magistrate at the conclusion of a trial. But this Section also provides for delivery of the property to any person who claims the same. Since the property ordered to be destroyed is a valuable one, order of Ld. MM qua its destruction appears to be harsh. As such destruction of wearable apparels belonging to the convict, who is petty street hawker is not going to serve any purpose.
6. At this juncture, it is observed that the manner in which this appeal as drafted, it is challenging the entire order of conviction of guilt which is clearly barred U/s 375 Cr.P.C. However, oral prayer is made in the court by LD. Counsel for appellant as well as by appellant that he is challenging only the later part of order of LD.MM whereby his articles were seized and seized articles were ordered to be destroyed.
7. As such the first part of this appeal stands dismissed, which 4 pertains to the order of conviction and imposition of penalty of Rs.100/.
8. As regards the later part qua the order of destruction of the seized articles i.e. 214 ladies kurties , the appeal is allowed . SHO PS Karol Bagh is hereby directed to unconditionally release the articles to the appellant. SHO is also directed to ensure that appellant Ashok or any other person under his disguise should not squat through him at the same place again so as to commit any repeated offence . Appeal stands disposed off accordingly.
9. Copy of this order be given dasti to the appellant. One copy be sent to Ld. Concerned MM. Appeal file be consigned to RR. One copy be also sent to the SHO PS Karol Bagh through appellant. Announced and dictated in open Court on : 28/4/2011 (SURINDER S. RATHI) ASJ02/CENTRAL DELHI: 28.4.2011 5 Criminal Appeal NO: 19/11 U/s 83/97 DP Act PS Karol Bagh 28.4.2011 Pr: Ld. Addl. PP Sh. G.S.Guraya for State Ld. Counsel Sh.R.P.Tiwari advocate for appellant with appellant Submissions heard from both the sides at length and file perused.
Vide a separate order on appeal of the day, the internal part of appeal of the appellant qua conviction and imposition of fine stands dismissed. However later part of the appeal qua release of seized articles i.e. 214 ladies kurties, is allowed . SHO PS Karol Bagh is hereby directed to unconditionally release the articles to the appellant. Copy of this order be given dasti to appellant and one copy of the order be sent to Ld.MM. One copy of the order be sent to SHO PS Karol Bagh through appellant. Appeal file be consigned to RR.
(SURINDER S. RATHI) ASJ02/CENTRAL DELHI: 28.4.2011