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Judgment
A.P. Bhangale, J.—The appellant has preferred this appeal challenging the judgment and order dated 27.7.1995 passed by the Special Judge (N.D.P.S.)Court for Greater Bombay in N.D.P.S. Special Case No. 208/1989 on 27.7.1995, whereby the appellant accused was acquitted of offence punishable u/s 8(c) read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act). The accused were directed to be set at liberty forthwith, if not required in any other case. However, learned Special Judge directed that muddemal property to be destroyed after the appeal period is over, while the cash amount of Rs.10,000/( US dollar 1000) and amounts under the fixed deposit receipts were directed to be forfeited to the State, after the appeal period is over.
The learned Counsel for the appellant remained absent at the time of final hearing. None is represented by Respondent No. 1. Shri D.P.Adsule, learned Addl. Public Prosecutor is present and he supported the impugned judgment and order. Relevant observation of the Supreme Court in Lt. Col. S.J. Chaudhary Vs. State (Delhi Administration), wherein it has been observed thus :
The trial before the Sessions Court must proceed and be dealt with continuously from it''s inception to it''s finish. It will be in the interest of both prosecution and the defence that the trial proceed from day to day. Sessions cases must not be tried piecemeal. Once the trial commences, be must except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded.
A criminal appeal is further continuation of trial proceedings and has same urgency to be concluded as early as possible by same analogy. An Advocate accepting criminal appeal must attend it, at final hearing. His failure without any pressing or inevitable reason will amount to professional misconduct or breach of his professional duty.
It is now well settled that criminal appeal cannot be dismissed on the ground of default in appearance, the court has to go through the record of the case even in the absence of the appellant or their counsel and decide the matter on merits See Parsuram Patel v. State of Orissa, (1994) 4 SCC 664,
The appellant has challenged the forfeiture of the muddemal property, namely (1) cash amount of Rs.10,000/, (2) eight fixed deposit receipts (3) bank pass book of the Account No. 3080 belonging to the appellant. It appears grievance of the appellant that the impugned order with regard to the forfeiture of the above property, belonging to the appellant, is contrary to law and it is liable to be set aside in view of Section 452 of the Code of Criminal Procedure. It appears further contention of the appellant that forfeiture directed in respect of the above property is against weight of the evidence and opposed to the rule of law, and may be a result of prejudice in the mind against the appellant.
The learned Additional Public Prosecutor, who referred two panchnamas Exh.9 dated 12.12.1988 in the trial Court, brought to my attention that aforesaid muddemal property was seized from the appellant vide panchnama dated 12.12.1988. He, however, submitted that it was for the appellant and advocate representing him to canvass the issue in favour of the appellant in view of Section 452 of Code of Criminal Procedure by remaining present before the Court. Respondent No. 1, Intelligence Officer, Narcotic Bureau Bombay also remained absent and none appeared on his behalf.
The appeal is pending since the year 1995 and it was fixed for final hearing duly notified. It was the duty of the appellant and Advocate representing him to attend the Court at the final hearing. It is also lamentable that Respondent No. 1 did not bother to instruct Advocate or counsel concerned to attend this Court and oppose the appeal, if they so desire at final hearing.
In view of Section 452 of Code of Criminal Procedure, the trial Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, or otherwise of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which may have been used for the commission of any offence. What is necessary is, an inquiry, independent or in the course of trial, so as to pass a final order at the conclusion of the trial, regarding delivery of any property to any person claiming to be entitled to the possession thereof with or without condition as to bond or surety to the satisfaction of the court, requiring the executant to restore such property if such order is modified or set aside any appeal or revision.
In the present case, after going through the impugned judgment it does not appear that any inquiry was made regarding disposal of the aforesaid property. It is true that no elaborate inquiry or examination of witnesses is necessary, but court has to look into evidence already before it in the course of the trial with relevant circumstances on record. Separate notice may not be required to be served on the accused or the prosecution, if order is passed simultaneously in the judgment of the criminal case, however, the record must show that some inquiry was made which may be in summary manner regarding right to possession of the property. In this case, it appears that the panchnama dated 12.12.1988 does show that the aforesaid property was recovered from possession of the appellant. In the absence of any evidence to the contrary, as a general rule, property may be returned to the person from whom it was seized at the conclusion of the trial in view of Section 452 of Code of Criminal Procedure In other words, the property is required to be returned to the persons who is the best entitled to possession of the seized property. Some inquiry proceeding undertaken must be reflected from the record as an order is required to be passed to restore the property to possession of the person who may be best entitled to its possession unless for reasons recorded otherwise the trial court may decide to confiscate or forfeit the property, as the case may be, if it is satisfied that the said property is used in commission of offence.
For all these reasons, the appeal is required to be allowed in the following terms:
(a) The proceedings are remanded back to learned trial Judge (Special Judge, N.D.P.S. Court for Greater Bombay) so as to hold an inquiry in respect of right to possession of the property described as cash amount of Rs. 10,000/( 3) eight fixed deposit receipts (4) bank pass book of A/c No. 3080. The trial Court shall decide the question after giving opportunity of hearing to the appellant as well as Respondent No. 1 and then pass an appropriate order in accordance with law in view of Section 452 of Code of Criminal Procedure
(b) Appeal is allowed accordingly.
(c) R & P be sent back to the trial court.