JUDGMENT
R.C. Mishra, J.
1. This is an appeal, under Section 454 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) against the order, as contained in the operative part of a common judgment dated 30-4-2001 passed by III ASJ, Chhatarpur in S.T. Nos. 86/97, 213/96 and 140/90, directing retention of a 12 bore gun, ten cartridges and a wrist watch, allegedly seized from the possession of the appellant in custody of Court till conclusion of the trial of the absconding accused persons.
2. The appellant is amongst the persons, who were prosecuted and tried on the charges of the offences punishable under Sections 395 read with Sections 397 and 396 of the Indian Penal Code. As per seizure memo (Exh. P-20), the Investigating Officer S.N. Singh had seized the gun as the firearm used in commission of the dacoity with murder as early as on 17-7-1995. Although, for want of incriminating evidence, learned Trial Judge acquitted the appellant of the offences yet, he proceeded to direct retention of gun on the ground that some of the accused were still absconding.
3. Learned Counsel for the appellant has contended that the gun seized from him has nothing to do with the Trial of the absconding accused persons.
4. The question that arises for consideration is, whether in the circumstances of the case, the impugned direction to retain the gun in the custody of Court deserves any interference.
5. An analysis of Section 452 of the Code would show that it refers to property or document (a) which is produced before the Court, or (b) which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence. Then, at the conclusion of the enquiry or trial, the disposal of any class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to the possession thereof. [N. Madhvan v. State of Kerala relied on].
6. As explained further, the words “may make such order as it thinks fit” in the section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with the sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such a well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) 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 – as in the instant case – that the property in question was seized from the custody of such accused and belonged to him.
7. Section 454 of the Code corresponds to Section 520 of the old Code. The language of old Section 520 was somewhat ambiguous and there was a conflict of judicial decisions on its interpretation as to whether there was or was not an independent right of appeal conferred on any party against an order passed under any of the three preceding sections. That section has therefore been altered conferring a right of appeal on any person aggrieved by Court’s order under Section 452. Apart from resolving conflicting judicial decisions, the provision was considered necessary because the party aggrieved by the order whether interim or otherwise directing disposal of property might not be the same as the party aggrieved by the main judgment. Admittedly, the respondent/ State has not preferred any appeal against acquittal of the appellant.
7.1 Even assuming for the sake of arguments that the gun was used in the commission of any offence for which the absconding accused are to be tried, no useful purpose would be served by retaining in custody for an indefinite period particularly when there is no reasonable ground to predict or even suspect that in the event of restoration, the appellant would misuse the firearm.
8. Taking into consideration, the facts and circumstances of the case, including prospective necessity of production of the gun during trial of the other accused persons since absconding, I am of opinion that the impugned order deserves modification.
9. Consequently, the appeal is allowed and the impugned order is modified. Instead, it is directed that if the appellant furnishes a “supurdginama” in the sum of Rs. 25,000/- (Rupees twenty five thousand) with a solvent surety in the like amount to the satisfaction of the Trial Court, incorporating the following conditions:
(i) That he would produce the same as and when directed by the Trial Court;
(ii) That, in the meantime, he shall not make use of gun for any unlawful purpose;
the seized gun be restored to the appellant.