JAI SINGH SEKHON, J. - (1.) GURMAIL Singh brother of Gurcharan Singh, petitioner, was apprehended by the police on 25-5-1986 just outside their joint house and 20 kilograms of opium was allegedly recovered from his personal search. Thereafter search of the joint house of the petitioner and aforesaid Gurmail Singh yielded the recovery of currency notes of the value of Rs. 1,00,000/-. The petitioner filed an application before the Additional Chief Judicial Magistrate, Ferozepur, for return of the said money claiming that it belongs to him as earlier he had sold a truck and some money was pertaining to the carriage charges of that truck. On this application, the report of the Investigating Officer was called for. The Investigating Officer submitted the report reproduced in sub-para (vii) of para No. 9 of the petition. which reads as under : "Sir, as per orders of the Court I went to village Mudki and made inquiries from respectables who were called. Secret and open inquiries were made. It was found on inquiry that they have a joint family and are living in the same house. All the members of the family are residing in the outer house and in the old house only their old mother is residing. On inquiry Gurcharan Singh son of Mukhtiar Singh produced a writing of Truck Operators Union, Mudki to the effect that he had received Rs. 20, 450/- as carriage charges of the truck and two stamp, papers regarding purchase of truck by Jalaur Singh from Gurcharan Singh and Gurcharan Singh stated that these were the sale proceeds of his truck. It was found on my inquiries that rupees one lakh were regarding the carriage charges of the truck and the remaining received by him for the sale of the truck. Report is submitted. Sd/- S. H. O. P. C. Ghal Khurd 22-10-86."
(2.) HOWEVER , the Additional Chief Judicial Magistrate rejected the application of Gurcharan Singh, petitioner, for return of the Money vide order dated 23-10-1986 Annexure P-2 on the ground that the trial of the case under section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') against Gurmail Singh had not yet started and the offence under section 19 of the Act being exclusively triable by the Court of Sessions, he had no jurisdiction to order refund of this money. The petitioner then filed a revision petition before the Additional Sessions Judge, Ferzepur, against the order of the Additional Chief Judicial Magistrate. The said petition was ultimately dismissed by the Additional Sessions Judge vide his order dated 9-8-1989 Annexure P-4 on the ground that since in the trial of the case against Gurmail Singh brother of the petitioner under section 18 of the Act, this money had been ordered to be confiscated, the same cannot be refunded to the petitioner. The petitioner has invoked the inherent jurisdiction of this Court under section 482 of the Code Criminal Procedure for quashment of the order Annexure P-4 of the learned Additional Sessions Judge, Ferozepur, as well as of the Additional Chief Judicial Magistrate Annexure P-2 contending that as the money was not recovered from the personal search of Gurmail Singh but from the joint house owned by the petitioner and aforesaid Gurmail Singh besides other members of the family and that the order of confiscation was bad as no notice was given to the petitioner or other inmates of the house. In return filed by Assistant District Attorney-I, Ferozepur on behalf of the respondents, it is maintained that the trial Court had passed the above referred order as the money was also recovered from the house of Gurmail Singh accused in that case.
(3.) AN Assistant District Attorney is not expected to know the facts of the case as he had neither conducted the investigation thereof and nor he is in a position to know whether the house of recovery of money was jointly owned and possessed by Gurmail Singh along with Gurcharan Singh petitioner and other brother. In sub-paras (ii) and (vi) of para No. 9 of the petition. it has been specifically averred by the petitioner that the house of recovery of currency notes was jointly owned by him and his brother Gurmail Singh accused and that the local police on his application before the Additional Chief Judicial Magistrate had supported this fact. In sub-para (ii) of para 9 of the petition, the petitioner had also specifically alleged that during cross-examination, Harchand Singh, Inspector. (PW3) had admitted that the house jointly belonged to Gurmail Singh and his brother Gurcharan Singh (the present petitioner). The Assistant District Attorney in return had simply denied these facts in an evasive manner.;