CHERIAN Vs. STATE OF KERALA

JUDGEMENT

(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.) 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.) 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.