N. MADHAVAN versus STATE OF KERALA

Citation: [1980] 1 S.C.R. 228 · Decided: 07-08-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

228 
N. MADHAVAN 
v. 
STATE OF KERALA 
August 7, 1979 
8 
[R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.] 
D 
F 
Criminal Procedure Code, 1898 Section 517 [1973 Code Section 452(1)]-
Disposal of property seized at conclusion of trial-Accused given the protec-
tion of Section 96 Penal t~ode accepting the plea of self defence-Legaluy of 
the order confiscating to Government of M.O. 1, licensed gun surrendered by 
the accused. 
Accepting the plea of self defence, the Sessions Judge held that the accused 
wa-, entitled to the protection of Section 96 Penal Code and had therefore com-
mitted no offence. However he ordered confiscation to Government of M.0.1, 
the licensed gun surrendered by the accused. 
A revision petition filed against 
the said direction having failed before the Kerala High Court, the appellant 
obtained special leave from this Court. 
Allowing the appeal, the Court 
HELD : 1. The impugned order of confiscation of the gun being arbitrary and 
unjust, cannot be sustained. (a) The Sessions Judge did not give any reason, 
whatever, for directing confiscation of this licensed gun admittedly belonging to 
the appellant accused. There was no material before him indicating the special 
circumstances which would warrant a departure from the general rule. There 
was nothing on the record to show that the Sessions Judge had, before passing the 
order of confiscation, given an opportunity of being heard to the accused specifi· 
cally with regard to this matter; (b) there was absolutely no material before the 
High Court to show that in the past twenty years during which the appellant had 
been in lawful possession of this gun under a licence, he had ever used or attempt· 
ed to use this gun for commission of any offence from which, in the event of 
the gun being restored to the appellant, a likelihood of his misusing the gun 
"again" could be reas?nably predicated or even suspected. 
[232B·D & E·F] 
l'ushkar Singh v. State of Madhya Bharat, A.I.R. 1953 SC 508, followed. 
Lalluram Mohan/al v. State of Gujarat, A.I.R. 1967 Guj. 268; approved. 
2. An analysis of the provision in Section 517 of the Code of Criminal 
Procedure, 1898 would show that it refers to property or document (a) which 
is produced Defore 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 anv da"is of the property listed above, may 
be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person 
entitled to be possession thereof. 
[23 ID-E] 
In the instant case, the gun in question does not fall either under class (c) 
or class (d) because it is neither property 
1'regarding which any offence appea~ 
to have been committed", nor "which has been used for the commission of any 
' 
' • 
' 
.. 
) 
N. MADHAVAN v. KERALA 
(Sark.~ria, !,) 
229 
offence". The acquittal of the accused on the ground that this gun was used in 
causing the fatal injury to the deceased, only in self-defence, necessarily involv· 
ed a finding that the gun was not used in the commission of any offence for 
which the accused was tried. 
The gun was obviously property falling 
under 
class (b). [231 E-G] 
3. The words "may make such order as it thinks fit" in the section, vest the 
A 
Court with a discretion .to dispose of the property in any of the three modes 
B 
speci'6ed in the Section. But tbe exercise of such discretion is inherently a judi-
cial function. The choice of the n1ode or manner of disposal is not to be n1ade 
arbitrarily, but judicially in accordance with sound principles founded on reason 
and justice, keeping in view the class and nature of the property and the mate-
rial before the Court. One of such well recognised principles is that when after 
an inquiry or trial the accused is discharged or acquitted, the Court should nor-
n1ally restore the property of class (a) or (b) to the person from whose custody 
C 
it \vas 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 pro-
p·~rty in question was seized from the custody of such accused and belonged 
to him. 
[231G-H, 232 A-BJ 
Arujun Padhy and Ors. v. State of Orissa & Anr. A.I.R. 1965 Orissa 198; 
dis~pproved. 
D 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of 
1973. 
Appe

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