Irshad Ahmad vs State Of U.P. & Another
2013 Latest Caselaw 1239 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

? A.F.R.
 
Court No. - 35
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 8812 of 2012
 

 
Petitioner :- Irshad Ahmad
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Dharmendra Pratap Singh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

The present petition has been filed assailing the validity of the twin impugned orders; the first one being the order dated 27.2.2012 passed by the C.J.M.Kaushambi and the second one being the order dated 11.6.2012 passed by the District and Sessions Judge, Kaushambi in Criminal Revision No. 14 of 2012 whereby it upheld the order passed by the C.J.M. refusing to release the seized weapon of the petitioner.

Heard Sri Dharmendra Pratap Singh, learned counsel for the petitioner and the learned A.G.A of the State.

It has been submitted that the petitioner's DBBL gun No. 10310-C/Y-03 has been seized by the police in connection with case crime no. 162 of 2011, relating to police Station Saray Akil, district Kaushambi. Apart from his weapon another DBBL gun belonging to another co-accused in connection with the same crime number was also seized by the police. Both the accused along with certain others have been charge sheeted by the police under Sections 147,148,149,323,504,506 452 I.P.C. And 3 (2) (5) SC/ST Act.

It is being urged that vide order dated 15.6.2011 the C.J.M. Kaushambi thought it proper to release the DBBL gun belonging to co-accused, Israr Ahmad which was found to be a licenced weapon. The learned C.J.M.  also took into the account the fact that no proceedings for cancellation of the weapon were pending. The petitioner has annexed a report of Police Station Saray Akil, Kaushambi as annexure 7 to the writ petition which makes it clear that even the present DBBL gun in question belonging to petitioner Irshad Ahmad is not the subject matter of any licence cancellation proceeding. It has been averred in para 3 of the writ petition that the DBBL gun belonging to the petitioner under licence no. 10560 has also been renewed till 28.2.2014 by the licencing authority. The petitioner had sought the release of his gun but the C.J.M. refused to release the  same  and the revisional court   confirmed the C.J.M's order. The main reason given by both the lower Courts  for refusing to release the gun seems to be that the DBBL gun belonging to the petitioner has been found by the forensic expert to have been used in some incident as some remains  of led have been found in the barrel of gun. The revisional court has also considered the fact that the gun in question is a case property.

I have perused the record and have heard both sides.

Some case law cited by the petitioner in the lower revisional Court was distinguished and was found not applicable in the present case by the court concerned. When a seized article should be released in favour of its owner and when not is a question which cannot be resolved through any straight jacketed cut and dried formula. It all depends upon the circumstances of the case in question. What is the nature of the article sought to be released? Whether it is perishable or imperishable? Whether its continuation as a seized property is going to effect some very important constitutional rights of its owner?  Whether the deprivation of the right to use one's own property or article has been done by adopting a proper prescribed procedure of law? What are criminal antecedents of the user of the article? What is the degree of likelihood of its misuse again in future? What is the history of the misuse of the article? Whether there is any allegation of any repeated misuse of the seized article or not? Whether its release is fraught with a reasonable possibility of its further misuse? Whether the release of the property will adversely effect the right of investigating agency to investigate and collect the evidence regarding the same? Whether its release is capable to adversely effect the prosecution in a prejudicial manner? All these and many more may be the relevant considerations to be looked into by the courts concerned while deciding the question of release of the seized article. There cannot be any exhaustive list to the considerations mentioned above and they are only illustrative in nature on the question concerned. In fact there may be many cases where the prosecution side can always say that if a article was illegally used once it can always be misused again; such a theoretical possibility can never be ruled out by its owner. The courts have to use their judicial wisdom in weighing all these questions and have to strike a balance between the rights of the article owner and the duties of the prosecution agency in defence of the society and its law and order. Whether the crime in connection with which the article is seized, is trivial or grave  in nature may also be a germane consideration.

Though no body can predict with definite certitude likelihood or unlikelihood of the gun's future misuse, the court can always take help from the previous antecedents of the accused or owner and the antecendental history of the weapon to indicate the likelihood or unlikelihood of its future misuse.

Learned A.G.A has not been able to show anything on record to suggest any criminal antecedent of the petitioner or any previous history indicating earlier or repeated misuse of the gun in question.

Now adverting  to the facts of the present case, learned A.G.A. does not dispute the fact that the charge sheet has not been filed under Section 307 I.P.C. The copy of the charge sheet has also been filed as Annexure-5 to the writ petition  which endorses this fact. It has also not been disputed by the State that no body on the prosecution side received any firearm injury. The maximum that could be said is that according to the prosecution side gun was used though without hitting any body. It is also admitted position of fact that the case in  whose connection   the petitioner's gun has been seized, charge sheet  has already been filed and the investigation  is pending no more. If the gun was needed for the purpose of investigation, the purpose stands resolved and the prosecution is already in possession of the forensic experts report regarding  the gun.

The learned A.G.A.  is unable to show any reason or purpose for which the gun in question may be required any more to serve any useful purpose. The ultimate  fate of this gun  and the manner  of its disposal shall depend upon the final adjudication  of the case and the findings arrived   at by  the trial court. But meanwhile I do not see any point in continuing this weapon to remain in police custody. It can always be produced by the licence holder in the court whenever it is required and  requisitioned. The co-accused has already been given back his weapon by the C.J.M.

I, therefore, allow the writ petition. The weapon under licence No.10560 belonging to the petitioner shall be returned back to him on furnishing adequate security/surety and bonds to the satisfaction of the court concerned i.e. C.J.M., Kaushambi. It goes without saying that till the final adjudication of the case, the petitioner shall neither sale nor transfer the weapon to any body nor make any altercation or change in it and shall produce it in the court if and when  required without fail. Both the impugned orders of lower court are set aside.

Order Date :- 24.4.2013

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