The central legal point established in the judgment is the principle of restoring the property to the person from whose custody it was taken when the accused is discharged or acquitted, as well as the judicial discretion in disposing of the property under Section 452(1) Cr.P.C.

JUDGMENT :

C.R. Pal, J. - This appeal u/s 454, Cr. P.C. has been directed against the order dated 4.2.1999 passed by the learned Sessions Judge, Keonjhar in S.T.Case No. 18 of 1985 confiscating the gun seized from the house of the appellant.

2. The facts of the case, in brief, giving rise to this appeal are as follows : The appellant and another faced their trial before the learned Sessions Judge in the aforementioned Sessions Case for an offence u/s 307 read with Section 34, I.P.C. At the conclusion of the trial, the trial Court found that the prosecution was not able to bring home the charge beyond reasonable doubt against the accused persons and accordingly acquitted them of the charge. The trial Court though acquitted the accused persons, confiscated the gun seized in the aforementioned case. Being aggrieved by the said order of confiscation, the accused appellant preferred an appeal, i.e., Criminal Appeal No. 69 of 1985 which was disposed of on 11.8.1995 with a direction to the trial Court to pass fresh order after giving opportunity of hearing to the parties. Accordingly, the learned Sessions Judge conducted an inquiry and examined a witness and the appellant and passed the impugned order on 4.2.1999 observing that the appellant had no valid licence to possess the gun on the date of the seizure, i.e. on 15.8.1984 since the licence was renewed till 31.12.1980 and us such he is not entitled to possess the said property. Being aggrieved by the aforesaid order, the accused-appellant has preferred this appeal.

3. The learned counsel of the appellant contended that the reason assigned by the learned Sessions Judge for confiscating the seized gun is not based on the evidence on record and as such the impugned order is liable to be set aside. The learned counsel also relied on N. Madhavan v. State of Kerala reported in 7979 Cri. L.J. 1197 wherein the apex Court has held that when after the inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property which is produced before the Court or which is in the custody of the Court to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made when there is no dispute or doubt that the property in question was seized from the custody of such accused. He therefore contended that keeping in view the aforesaid principle, the seized property has to be restored to the appellant. The learned Addl. Standing Counsel, on the other hand, conceding to the principle laid down by the apex Court in the aforesaid case submitted that the above principle is not applicable to the case of the appellant as the appellant has disowned the ownership over the gun in his statement recorded by the learned Sessions Judge u/s 313 Cr. P.C. in the concerned sessions trial. In the above context, it is noticed that in the inquiry made pursuant to the direction given in the judgment dated 11.8.1995 passed in Criminal Appeal No. 69 of 1986, the appellant besides examining a witness, examined himself as his witness No. 2. It is noticed from the impugned order that the learned Sessions Judge held that the appellant is not entitled to the possession of the gun observing as follows :

".......... The gun licence produced shows that the same has been renewed up to 31.12.80. So, by the time of the seizure of the gun on 15.8.84, the petitioner had no valid licence for its possession and that has also been admitted by the petitioner in his cross-examination made by the P.P............."

According to the learned counsel of the appellant, the aforesaid observation is not based on evidence. It is noticed that the appellant in his evidence given during inquiry before the learned Sessions Judge as his witness No. 2 has deposed in his cross-examination as follows :

"After two months of seizure I knew about the seizure. 1 did not apply before police for return of the gun. I do not know if my licence was cancelled by the time of seizure. I do not