- (1.) I. M. Quddusi, J. Heard the learned counsel for the appellant and the learned A. G. A.
(2.) IT appears that in Sessions Trial No. 205/90 the brother of the appellant was being prosecuted along with other co-ac cused persons for the offence punishable under Section 307, I. P. C. and 25/27, Arms Act, but the S. B. B. L. Gun No. 3343/75 was confiscated in favour of the State Govern ment on the ground that the accused has not claimed the gun. In fact the gun was of the appellant hence the accused person did not claim the same. This appeal has been filed by Kamal Kumar Singh, the brother of the accused namely Vimal Kumar Singh, who has been acquitted as indicated above with the allegation that in fact, the gun belonged to him and be had valid fire-arm licence and the S. B. B. L. Gun was entered in the licence. On this, this Court vide order dated 17-4-99 passed an order to the effect that the appellant first of all should apply for the renewal of the licence and in case the licence is renewed by the authority concerned only then he would be entitled to press the appeal before this Court for release of the gun. The appellant has s here after filed an affidavit annexing the photostat copy of the licence according to which the licence of the appellant has been renewed till 31-12-2001. Learned Sessions Judge while delivering the judgment acquitted the ac cused persons and ordered for confisca tion of the gun on the ground that none of the accused person claimed the gun. How ever, the charge could not be proved by them. Section 452, Cr. P. C. provides that when an enquiry or trial in any criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to pos session thereof or otherwise, of any property or document before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(3.) IN view of this provision, the decision in respect of the case property should have been taken only after the con fiscation of the trial. The judgment is part of the trial, hence it cannot be said that before the delivery of judgment the trial was concluded. The learned Court below ordered for confiscation of the case property i. e. gun while delivering the judg ment. Hence he has committed manifest error of law as after the expiry of judgment he should not have taken the matter for disposal of the case property in accordance with Section452, Cr. P. C. In view of the above, the part of the judgment by which the gun in question has been confiscated in favour of the State Government is liable to be set aside. In the result the part of the judgment and order dated 21-3-98 passed in ST. No. 205/90 by which the S. B. B. L. Gun No. 3343/75 has been confiscated in favour of the State Government is, set aside. The learned VI Addl. Sessions Judge, Basti is directed to pass fresh order in respect of the aforesaid gun in accordance with Section 452, Cr. P. C. The opportunity of hearing shall be provided to the appellant also, who has claimed to be the owner of the gun and also that the licence has been renewed in his favour.;