Munnilal Yadav Vs. State of M.P.

Munnilal Yadav vs State of M.P.

Disposition Appeal allowed Court Madhya Pradesh Decided Oct 23, 2007

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Citation: sooperkanoon.com/511361
Court: Madhya Pradesh High Court
Judge: R.C. Mishra, J.
Decided On: Oct 23, 2007
Subject: Criminal
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2(f): [Dipak Misra, K.K. Lahoti & Rajendra Menon, JJ] Service Tax - Packaging and bottling of liquor whether amounts to manufacture within meaning of Section 2(f) of Central Excise Act 1944? Finance Act 932 of 1994), Section 65 (76 b) (as amended on 16.6.2005) - Held, The first limb of the inclusive defi...

Key legal issue: Criminal
Outcome / disposition: Appeal allowed

Parties & Advocates

Appellant / Petitioner

Munnilal Yadav

Respondent

State of M.P.

Legal References

Cases Referred: N. Madhvan v. State of Kerala
Reported In: 2008(2)MPHT173

Excerpt

- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture..........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.

Full 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 : 1979 CriLJ1197 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.

Same Court & Year Madhya Pradesh · 2007 Same Parties Munnilal Yadav vs State of M.P. Same Subject Criminal Same Judge R.C. Mishra, J.

Criminal