SAEEDBHAI ABDULBHAI DHUKA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal under section 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.21/2014 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.

(2.) The appellant herein was the accused No.8 in the above referred criminal case for the offence punishable under sections 143, 147, 148, 149, 354, 427, 323, 504 and 506(2) of the Indian Penal Code and section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1988 as well as section 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.

(3.) 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. 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, 1979 AIR(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 section 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-section (1) of section 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.