Dwarkadas Bandulal Agrawal vs The State Of Maharashtra
2008 Latest Caselaw 41 Bom

                                         (1)



                IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                                  BENCH AT AURANGABAD

                           CRIMINAL APPLICATION NO.2469 OF 2008




                                                                                   
                                             WITH
                           CRIMINAL APPLICATION NO.1731 OF 1997




                                                          
     Dwarkadas Bandulal Agrawal
     R/o Bhusawal Dist-Jalgaon                                      APPLICANT

                VERSUS




                                                         
     01.   The State of Maharashtra
     02.   Amanullah Khan Habib Khan
           R/o Bhusawal, Dist-Jalgaon
     03.   Rajesh Ramesh Sonawane
           R/o Bhusawal, Dist-Jalgaon                               RESPONDENTS




                                            
                        .....

Mr. D.L.Agrawal, Advocate for the applicant/s Mr. B.J.Sonawane, A.P.P. for respondent/s Mr. S.N.Boiwar, Advocate for the respondents No.2 & 3 .....

[CORAM: V.R. KINGAONKAR, J.]

DATE : 11th September,2008

----------------------------

ORAL JUDGMENT :

     1.         The         first     one     is     an        application             for

     restoration.             For      the    reasons          stated          in      the





     application,          the Criminal Application No.1731/1997 is

     restored        in     the     interest of justice             and      is      being

     finally heard in view of "Madhurmilan Syntex Ltd.                                 and

others V/s Union of India & Anr." 2007 AIR SCW 1971.

2. So far as the main application is concerned,

the applicant impugns the order rendered by the

Learned Sessions Judge, Jalgaon in Criminal Revision

Application No.31/1997 and that of Judicial Magistrate

(F.C.) in Criminal Miscellaneous Application

No.217/1996.

3. The applicant was chargesheeted as accused in

commission of offence u/s 4 and 5 of the Bombay

Prevention of Gambling Act, 1887. The prosecution

alleged that at his residential house the applicant

indulged in gambling game called "Kalyan Matka". He

was accepting bets for money on the figures, from

customers. The police carried out raid on the 3rd

floor of the residential premises, where the applicant

was

found accepting money from customers. An amount

of Rs.81,787/- was recovered from his residential

premises, along with chitthis, on which certain

figures were written, two writing pads and ball pens

etc.

4. The learned Judicial Magistrate (F.C.)

discharged the applicant u/s 258 of the Code of

Criminal Procedure in view of Common Cause Judgment

1966 (2) Crimes 114 (SC). The learned Judicial

Magistrate (F.C.), however, directed that the cash

amount, recovered from his house, shall be confiscated

to the state and remaining worthless property shall be

destroyed. The applicant filed an application on the

same day (Exhibit-C) which was registered as Criminal

Miscellaneous Application No.217/1996. He prayed for

restoration of the cash amount seized from his

residential house to him. His application was

rejected by the learned Judicial Magistrate (F.C.),

Bhusawal. He preferred Criminal Revision Application

No.31/1997, which came to be dismissed.

5. Heard.

6. The impugned order, rendered by the learned

Judicial Magistrate (F.C.), only shows that the order

for disposal of property was rendered under provisions

of the Code of Criminal Procedure. The learned

Magistrate held ig that since the applicant was not

acquitted on merits, the money recovered could be

forfeited and confiscated to the Government. The

learned Sessions Judge held that appeal, provided u/s

454, could be filed only within 30 days and the appeal

was not filed within one month and, therefore, the

Revision Application, even if it was to be converted

into appeal, was barred by limitation. The learned

Sessions Judge also noticed that there was no delay

condonation application filed. Therefore, the

Revision Petition came to be dismissed. It appears

that the impugned order was rendered by the learned

Magistrate on 23.12.1996, whereas the Revision

Application was filed on 18.01.1997. Obviously, it

was filed within the period of one month, after

passing of the impugned order dated 23.12.1996. The

appeal period was counted by the learned Sessions

Judge from the date of original order dated 05.10.1996

because in the same course the confiscation order was

passed. Thus, the appeal could be preferred on or

before 05.11.1996, which was not so done.

7. Mr.Agrawal would submit that the confiscation

could not be effected under general provisions of the

Code of Criminal Procedure in view of specific

provisions u/s 8 of the Bombay Prevention of Gambling

Act. He refers to certain observations in Ramprasad

Chhaganlal Agrawal V/s State of Maharashtra (1950-91)

2 B.Cr.C.492 and Ramchandra Shankar Ghone V/s State of

Maharashtra 1990 Mh.L.J.112. It is important to note

that the confiscation order was rendered by the

learned Judicial Magistrate (F.C.) on 05.10.1996 and

on the same day the applicant submitted application

for recalling of the order regarding confiscation.

His such application (Criminal Miscellaneous

Application No.217/1996) was not decided on the same

day. The applicant challenged the order dated

23.12.1996 within a period of one month, by filing

Revision Application. Naturally, the applicant was

aggrieved by the order dated 23.12.1996. Had his

application been allowed, there was no occasion for

him to prefer Revision Application. Consequently, I

am of the opinion that the Revisional Court took

rather dogmatic view while dismissing the Revision

Application on technical plea of limitation.

8. What appears from the record is that when the

criminal prosecution was stopped u/s 258 of the Code

of Criminal Procedure, the applicant was not heard, as

regards the question of disposal of the property. The

learned Judicial Magistrate (F.C.) ordered

confiscation of the cash amount without giving

opportunity to the applicant to make any submission.

So his immediate conduct was to request the learned

Magistrate to recall such order. Considering these

aspects, dismissal of the Revisional Application, on

technical pleas, was improper.

9. Coming to the merits, it may be said that

confiscation of the cash amount or any article seized,

could be only u/s 8 of the Bombay Prevention of

Gambling Act. It is a special enactment and,

therefore, general provisions, contained in Section

452 of the Code of Criminal Procedure are not

attracted. The confiscation may be allowed when it is

proved that the money, seized from possession of the

accused, is "instrument of gambling" or used in the

course of alleged gambling game. Forfeiture of the

money, in absence of any evidence to show that it was

an instrument of gambling, is illegal. For, such

confiscation would fall out side pale of section 8 of

the Bombay Prevention of Gambling Act. In this view

of the matter, when the proceedings were stopped u/s

258 of the Code of Criminal Procedure and the amount

was not found to be connected with the alleged

gambling game called "Kalyan Matka" and could not be

branded as "instrument of gambling", the confiscation

is illegal.

10. For the reasons aforestated, the application

is allowed and the impugned orders are quashed. The

amount so seized from the applicant's house is

directed to be restored to him.

[ V.R. KINGAONKAR ] JUDGE

drp/CRIAPLN2469-08