STATE OF WEST BENGAL Vs. KHANDU BHUNIA

JUDGEMENT

(1.) N. G. CHAUDHURI, J. : This is an appeal by and on behalf of the State of West Bengal under section 378 Cr. P. C. 1973. The memorandum of appeal was filed on 17th of July 1981. There in two orders have been described as orders under challenge, viz,, an order dated 28. 11. 80 passed in Case No. UR946/73 by the learned Judicial Magistrate, 4th court, Midnapore, acquitting the accused opposite parties of an offence under section 3 (a) of the Railway Properties (Unlawful Possession) Act 1966 and another order dated 31. 1. 81 passed by learned Additional Sessions Judge, Midnapore, in Criminal Appeal No. 3 of 1981 directing that the goods seized be returned to accused Khandu Bhunia. Along with the memorandum of appeal an application for leave under ' section 378 (3) of the Cr. P. G. was filed simultaneously on 17. 7. 81.

(2.) THE final order passed in case No. UR 846/73 by the Judicial Magistrate earlier mentioned may be conveniently quoted below :-"that accused Ganga Benia,khadu Bhuinya and Korobt Show are found not guilty of offence u/s 3 (a)RP (UP) Act. The accused persons -: are hereby acquitted in accordance with the provision of section 248 (1)Cr. P. O. Let the unclaimed properties' be confiscated to the State. " in so far as the order confiscated certain goods to the State-Khandu Bhunia preferred an appeal under section 354 of the Code in court of Sessions Judge and on transfer learned Additional sessions Judge by his order dated 31. 1. 81 allowed the appeal on contest and set aside the order in so far as the same directed confiscation of goods to the State government. The Additional Sessions judge on the contrary directed return of the goods to Khandu Bhunia, the appellant.

(3.) AT the time of filing the appeal the appellant noticed that the appeal was time barred, but made no application with a specific prayer for condonation of delay under section 5 of the Limitation Act. As a matter of fact, the point of limitation did not attract the notice of the Court when line appeal, was admitted. When we. were getting, ready to hear the appeal merits Mr. Dipak sengupta the learned Advocate assisted by his learned junior- Mr. Amit Taukudar raised the point of limitation and submitted that the appeal on the date of its filing was hopelessly barred by limitation. We accordingly heard both sides only on the point of limitation.