MISHRI Vs. STATE OF U.P. AND OTHERS

JUDGEMENT

(1.) On 2 3.6.94 Sri P.N. Nigam, Station Officer, P.S. Kotwali, Maharajganj was on gasht duty along with the constables Bharat Sharma and Lalchand. In gasba Maharajganj he received information from a secret informer that in village Satbharia one person has collected 'Betphal' illegally from the forest in considerable quantity and that in case he is not apprehended he may remove the forest produce to some other place. Upon this information the Station Officer along with other members of police force reached the house of the revisionist. In the presence of Radhey Shyam Pandey and Ram Prakash Maurya, public witnesses, his house was searched. 55 bundles of 'Betphal' was recovered from his possession. He was there upon arrested. An FIR under Sections 379, 411 Indian Penal Code and Sec. 26 of the Forest Act was registered against him. 'Betphal' were also seized. The revisionist thereafter moved an application in court of the concerned Magistrate for releasing the seized forest produce in his favour. This application was rejected on 30.6.94 by the then C.J.M. Maharajganj. The accused has now come to this Court.

(2.) I have heard learned counsel for the parties and have perused the record.

(3.) The Magistrate in the order has stated that the application is for release of 58 bundles of cane seeds and the pack of Kamalgatta which were seized from the possession of the revisionist by the police. The copy of the recovery memo filed by the revisionist does not indicate that Kamalgatta was also recovered from his possession. The Magistrate has further stated that the extract of 'Khasra' has been filed by the applicant to show that he has certain pieces of land over which the cane was grown. The contention of the applicant before this Court is that Smt. Jainab had grown cane seed over her plots of land that he had taken lease from her for three years to collect cane seeds. The Magistrate has further stated in his order that in view of the facts of this case the release application is rejected, and the disposal of the case property shall abide by the result of the case at the final stage. He also stated that if the prosecution makes any delay in the case then the property may be released in favour of the accused.