The appellant, original accused, has preferred this appeal under Section 454 of the Code of Criminal Procedure, 1973 (“the Code” for short) and challenged the order made by learned Additional Sessions Judge, City Sessions Court, Ahmedabad, on 21.7.2009 in Sessions Case No. 402 of 2006 to confiscate muddamal revolver produced before it during the trial under Section 452 of the Code. 2. According to the appellant he along with three other accused persons was prosecuted for offences punishable under Sections 307, 34 and 120B of the Indian Penal Code and Section 27(3) of the Arms Act by learned Additional Sessions Judge, City Sessions Court, Ahmedabad. According to the appellant one Maheshbhai Kiritbhai Shah lodged First Information Report (FIR) C.R. -I 20 of 2005 in Naroda Police Station for the offences punishable under Section 307, 34, 120B of the Indian Penal Code and Sections 25(1) and 27 of the Arms Act. On the basis of FIR, investigation was started. During the course of investigation, he was arrested and muddamal revolver and licence thereof were recovered after drawing panchnama. At the end of investigation, chargesheet came to be filed against him and other accused persons. The case was committed to the City Sessions Court and prosecution adduced evidence. At the end of trial, the accused were acquitted by learned trial Judge but by impugned order, learned trial Judge directed to confiscate the muddamal revolver recovered from him. Being aggrieved by the said order of confiscation of muddamal revolver, present appeal has been filed.
3. I have heard learned advocate Mr. Vyas for the appellant and learned A.P.P. Ms. C.M. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the trial Court.
4. Learned advocate Mr. Vyas submitted that the muddamal revolver was recovered from the appellant by drawing panchnama and licence for the same was also recovered by drawing panchnama. The trial Court acquitted the appellant. However, without giving an opportunity of hearing, the trial Court passed order under Section 452 of the Code to confiscate the muddamal revolver. He also submitted that the appellant was not given an opportunity of hearing to claim possession of the muddamal revolver. Therefore, the impugned order is required to be set aside. He relied on the decision of BAIKUNTHNATH MOHANTA VS. STATE reported in 1996 Cri. L. J. 661.
5. Learned A.P.P. Ms. C.M. Shah could not dispute any of the facts submitted by learned advocate for the appellant and she submitted that it is true that during the course of trial, the muddamal revolver and the licence were produced before the trial Court and without giving an opportunity of hearing to the appellant, order for confiscation was passed.
6. It is not in dispute that the appellant and other accused persons were prosecuted by the trial Court for the offences punishable under Sections 307, 34 and 120B of the Indian Penal Code and Sections 25(1) and 27 of the Arms Act. However, at the end of trial, the accused were acquitted. It is stated that no appeal against acquittal is preferred by the State. It appears that muddamal list was produced at Exh. 7 in the trial Court and muddamal revolver was recovered during investigation and muddamal receipt No. 21 of 2005 dated 15.1.2005 was passed. It further indicates that licence in respect of the said muddamal was also recovered during investigation. Therefore, the muddamal revolver was recovered during the investigation of the offence and was produced before the trial Court at the time of trial. Under Section 452 of the Code when trial in any Criminal Court is concluded, the Court may make such order as it thinks fit with regard to disposal of the property produced before it. In the present case, as observed earlier, muddamal revolver was recovered from possession of present appellant by panchnama Exh. 20.
7. It is true that the appellant accused in his further statement under Section 313 of the Code denied the fact that he was having revolver and the police constable Ranjit caught him but that cannot be used against the appellant as it was in context of deposition of PW-8 Ganpatsinh. In the decision in the case of BAIKUNTHNATH MOHANTA VS. STATE (supra), Orissa High Court took a view that Section 452 of the Code authorizes the Court to return articles, whether or not an offence is committed in respect thereof, to the person claiming to be entitled to possession and the Court can consider the claims on the basis of evidence which is already before him in the case. The Court also ruled that when order is likely to prejudice a person in the proceeding, the affected person should be granted an opportunity of being heard. The facts are identical in the present case as the appellant is not given an opportunity of hearing before passing order of confiscation of muddamal article revolver. Therefore, impugned order with regard to confiscation of revolver is required to be set aside.
8. In view of above, this appeal is allowed. The direction for confiscation of the muddamal article revolver is set aside. Learned trial Judge shall pass a fresh order with regard to muddamal revolver after giving opportunity of hearing to the parties. It is made clear that this Court has not expressed any opinion in respect of merits of the case. The appeal stands disposed of. Record and proceedings be sent back to the trial Court forthwith.
(BANKIM N. MEHTA, J) (pkn)