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PETITIONER: N. MADHAVAN

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT07/08/1979

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH SHINGAL, P.N. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1829            1980 SCR  (1) 228  1979 SCC  (4)   1

ACT:      Criminal Procedure  Code, 1898  Section 517  [1973 Code Section 452(1)]-Disposal of property seized at conclusion of trial-Accused given  the protection of Section 96 Penal Code accepting the  plea of  self defence-Legality  of the  order confiscating  to   Government  of   M.O.  1,   licensed  gun surrendered by the accused.

HEADNOTE:      Accepting the  plea of self defence, the Sessions Judge held that  the accused  was entitled  to the  protection  of Section  96  Penal  Code  and  had  therefore  committed  no offence. However  the ordered  confiscation to Government of M.O. 1,  the licensed  gun surrendered  by  the  accused.  A revision petition  filed against  the said  direction having failed before  the Kerala High Court, the appellant obtained special leave from this Court.      Allowing the appeal, the Court ^      HELD: 1.  The impugned order of confiscation of the gun being arbitrary  and unjust,  cannot be  sustained. (a)  The Sessions Judge  did  not  give  any  reason,  whatever,  for directing  confiscation  of  this  licensed  gun  admittedly belonging to  the appellant  accused. There  was no material before him  indicating the special circumstances which would warrant a departure from the general rule. There was nothing on the  record to  show that  the Sessions Judge had, before passing the  order of  confiscation, given an opportunity of being heard  to the accused specifically with regard to this matter; (b) there was absolutely no material before the High Court to show that in the past twenty years during which the appellant had  been in lawful possession of this gun under a licence, he  had ever  used or attempted to use this gun for commission of  any offence  from which,  in the event of the gun being  restored to  the appellant,  a likelihood  of his misusing the  gun "again"  could be reasonably predicated or even suspected. [232B-D & E-F]      Pushkar Singh v. State of Madhya Bharat, A.I.R. 1953 SC 508, followed.      Lalluram Mohanlal v. State of Gujarat, A.I.R. 1967 Guj. 268, approved.

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    2. An  analysis of  the provision in Section 517 of the Code of  Criminal Procedure,  1898 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  be possession thereof. [231D-E]      In the  instant case, 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 229 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). [231 E-G]      3. 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 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 the Court. One of such 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. [231G-H, 232 A-B]      Arjun Padhy  and Ors.  v. State of Orissa & Anr. A.I.R. 1965 Orissa 198; disapproved.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 155 of 1973.      Appeal by  Special Leave  from the  Judgment and  order dated  9-11-1972  of  the  Kerala  High  Court  in  Criminal Revision Petition No. 393/72.      N. Sudhkaran for the Appellant.      K. R. Nambiar for the Respondent.      The Judgment by the Court was delivered by      SARKARIA, J.  Appellant before  us  was  tried  by  the Sessions Judge,  Palghat on  a  charge  under  Section  302, Indian Penal  Code, for  shooting  dead  with  his  12  bore licensed gun,  one Bhaskaran alias Vasu on April 1, 1971. On the same day after the occurrence, the appellant surrendered at Police  Station Koyalmannam,  along with his licensed gun which he had used in shooting the deceased      At the  trial, accused  Madhavan set up a plea of self- defence. In the light of the evidence brought on record, the Sessions Judge  accepted this plea and held that the accused was entitled  to the  protection of  Section 96, Penal Code,

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and had  therefore committed  no offence.  At the same time, without assigning  any reason,  he directed that "M.O.1. gun shall be confiscated to the Government".      Against this  direction of  confiscation  of  the  gun, Madhavan filed Criminal Revision No. 392 of 1972 in the High Court. The  Revision was dismissed by a learned Single Judge with these observations: 230           "Although the  direction  is  not  accompanied  by      sufficient grounds  for doing  so, I  do not  think  it      proper to  interfere  with  the  order  passed  by  the      learned  Sessions   Judge........  in  an  order  under      Section 517, Cr.P.C. the principle is that it should be      returned to  the  person  from  whose  custody  it  was      seized. That  of course is the general rule. I am aware      that there  is no  other claimant  for the  gun in this      case and  the gun  naturally belongs to the petitioner.      But the  order  of  confiscation  is  made  by  way  of      sufficient safeguard  against  its  use  again  by  the      petitioner. I  do not  think it necessary to interfere-      with the order of the Court below."      Aggrieved by this order, dated November 9, 1972, of the High Court of Kerala, Madhavan has come in appeal by special leave under Article 136 of the Constitution.      The short  question  for  decision  in  this  case  is, whether in  the circumstances  of the case, the Courts below were right  in confiscating  this licensed  gun  instead  of restoring it to the appellant.      Mr.  Sudhakaran,  learned  counsel  for  the  appellant submits that  the impugned  order of confiscation of the gun was illegal  because it  has been  made arbitrarily  without assigning any  reason. It  is emphasised  that in exercising its power under Section S 17, Criminal Procedure Code, 1898, the Court  has to  act judicially  in accordance  with well- settled principles, the most fundamental of which is that at the conclusion  of the  trial, resulting in acquittal of the accused, the  property seized  from his  possession must  be restored to him, particularly when the property undisputedly belongs to  the accused.  In  support  of  this  contention, reference has  been made to Pushkar Singh v. State of Madhya Bharat and Lalluram Mohanlal v. State of Gujarat.      As against  this, Mr. Nambiar, appearing for the State, maintains that  there is  no hard  and fast  rule, that  the property seized  from the  accused, must on his acquittal be returned to  him. The  Section, it  is emphasised, gives the Court a  very wide  discretion to choose as one of the modes of  disposal  mentioned  in  the  section,  irrespective  of whether the  trial results in acquittal or conviction of the accused. In the instant case, it is argued, the Court in the exercise of  that discretion  decided to confiscate the gun, which is one of the modes re- 231 cognised by the Section. The impugned order therefore, could not be  said to  be without jurisdiction which would warrant interference by  a revisional  or appellate  Court. In  this connection, counsel  cited Arjun  Padhy and Ors. v. State of Orissa & Anr      The material  part  of  Section  517  of  the  Code  of Criminal Procedure,  1898  (which  has  been  re-enacted  as Section 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  clamming  to  be  entitled  to      possession thereof  or otherwise,  of any  property  or

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    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 be possession thereof.      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 232 keeping in view the class and nature of the property and the material ’before  it. One of such 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.      Let us  now test  the impugned  order in  the light  of these principles.  Can it  be  said  to  be  an  order  made judicially? The  answer is unhesitatingly ’No’. The Sessions Judge did  not give  any  reason,  whatever,  for  directing confiscation of  this licensed  gun admittedly  belonging to the appellant-accused. Nor was there any material before him indicating the  special circumstances  which would warrant a departure from  the general  rule aforesaid.  Nor  is  there anything on  the record to show that the Sessions Judge had, before  passing   the  Order   of  confiscation,   given  an opportunity of being heard to the accused, specifically with regard to  this matter. The order of confiscation of the gun was manifestly arbitrary.      The High  Court also,-if  we may  say so  with respect- while noting  that the  order of  confiscation  of  the  gun passed  by  the  Sessions  Judge  was  "not  accompanied  by sufficient grounds," endorsed that order in a capricious and cavalier  manner,   "by  way   of"-as  it   fancifully  says "sufficient  safeguard   against  its   use  again   by  the petitioner". There  was absolutely  no material  before  the High Court  to show  that in  the past  twenty years  during which the  appellant had  been in  lawful possession of this gun under  a license,  he had ever Fused or attempted to use this gun  for commission  of any offence, from which, in the

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event of  the gun being restored to him, a likelihood of his misusing the  gun "again" could be reasonably predicated, or even suspected.      For all  the foregoing  reasons, we are of opinion that the impugned  order of  confiscation of  gun being arbitrary and unjust,  cannot be  sustained. We  therefore, allow this appeal,  set  aside  the  impugned  order  and  direct  that possession of this gun (M.O.1) be restored to the appellant. S.R.                                          Appeal allowed 233