The confiscation of the weapon of offence under Section 452 of Criminal Procedure Code is not illegal when the prosecution is under the Penal Code and not under any Special Act.

1. 1. Petitioner Brijlal was con-victed and sentenced for the offence under Section 307 Indian Penal Code by the Assist-ant Sessions Judge, Hanumangarh on 17-9-1973 for the charge of causing in-juries with a gun to complainant Dayaram. In appeal the conviction for that offence was maintained but the sentence of 2 years' R.I. was reduced to two years' R.I. The petitioner then preferred revision petition in this Court. By the judgment dated 22-12-1981, this Court partly allowed the revision petition and altered the conviction from Section 307 Indian Penal Code to one under Section 324 Indian Penal Code and sentenced the petitioner to the period he had remained in custody, along with sentence of fine.

2. During the course of investigation, a gun was recovered from the petitioner and the same was ordered to be confiscated by the trial Court at the conclusion of the trial. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of Criminal Procedure Code challenging the order of confiscation of the gun recovered from him during the course of investigation. Notice at the admission stage was issued to the State. Dr. S.S. Bhandawat, Public Prosecutor, has put in appearance on behalf of the State.

3. I heard Mr. D.K. Purohit, learned counsel for the petitioner and Dr. S.S. Bhandawat, learned Public Prosecutor for the State.

4. The law point agitated in this peti-tion under Section 482 of Criminal Procedure Code is, whether an order under Section 452 of Criminal Procedure Code could be passed by the trial Court regarding the gun, the weapon of offence. The learned counsel for the petitioner strenuously contended that the special enactment i.e. the Arms Act, 1959, overrides the general law i.e. Criminal Procedure Code and therefore, the learn-ed Magistrate should not have taken resort to the provision of Section 452 of Criminal Procedure Code for the disposal of the gun. According to Mr. Purohit, the petitioner was holding a valid licence for the gun in question and therefore, even if used for the commission of the crime, it should not have been confiscated by the Court because it amounts to forfeiture of property which is not permissible under the Penal Code. Referring to Section 53 of the Penal Code, Mr. Purohit contended that forfeiture of property is now permitted only for certain offences.

5. The learned counsel next argued that Sections 4 and 5 of Criminal Procedure Code exclude the scope of Criminal Procedure Code for the cases under special Acts and fire arm being the subject-matter of the Indian Arms Act, no order under Section 452 of Criminal Procedure Code could have been passed. Mr. Purohit referred to certain authorities to substantiate his contention which I would just discuss.

6. The learned Public Prosecutor, on the other hand, placed reliance on the provisions of Section 452 of Criminal Procedure Code and submitted that, as the gun was produced in the case and proved to be the weapon of offence, the Court was justified in passing an order under Sec-tion 452 of the Criminal Procedure Code.

7. There is no dispute on the point that the gun in question was proved to be the weapon of offence in the criminal case in which the petitioner was convict-ed. Section 53 provides forfeiture of property as one of the punishments, but it is not in all cases that the property can be forfeited. The forfeiture of the property is retained as punishment only for a few offences falling under Sections 126, 127 and 169 of the Penal Code. In the present case confiscation of the gun cannot be said to be forfeiture of property as a penalty imposed upon the petitioner. It has been confiscated be-cause of it being the weapon of offence.

8. The point emerging for determination is as to whether by virtue of the provisions of Sections 4(2) and 5 of the Criminal Procedure Code the provisions of the Special Act, i.e. the Arms Act were attracted and there was a bar for applying the provisions of Section 452 of Criminal Proc