JILANI NASIRUDDIN GORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Application under section 482 of the Code of criminal Procedure takes exception to the order passed by the Court of Sessions for Greater Bombay dated March 19, 2004 dismissing the Revision Application no. 125 of 2004 preferred by the applicant, thereby confirming the order passed by the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai in case No. 2/n/2004 allowing the applicant's request for custody of truck on condition stated in the order.

(2.) The prosecution case is that the truck belonging to the applicant bearing registration No. MWU-7711 was intercepted on 28th December, 2003, when it was found loaded with fire wood, which was being carried from the forest, to be delivered at the site where country liquor was illegally manufactured by local bootleggers. On that basis, the truck in question was seized in connection with C. R. No. 590 of 2003. On the other hand, the case of the applicant is that false case has been registered by the local police. According to the applicant, the truck was carrying licensed forest wood, to be delivered at the site, which was owned by Pashupati Mhatre from where he was carrying on business of fire wood (vakhar). It is not necessary for this Court to go into the correctness of the stand taken by the applicant or that of the prosecution. Suffice it to observe that the prosecution case will have to be accepted as it is for the present. As mentioned earlier, according to the prosecution, the truck was carrying fire wood to a place where country liquor was being illegally manufactured by local bootleggers. In other words, as the material found in the truck (fire wood) was to be used for manufacture of illegal country liquor, which is an offence under the provisions of Bombay Prohibition act, 1949 (hereinafter referred to as the Act") , the subject truck was seized, as it was liable to be confiscated under the provisions of the Act. The applicantnt, therefore, preferred application before the trial Judge for return of the property. The Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, was pleased to allow the application preferred by the applicantnt for return of the subject truck, but on condition that he shall furnish bank guarantee of rs. 1,00,000/- (Rupees One Lakh) and undertake to produce the same when required. The order also obligates the applicantnt not to create third party interest in the truck during the pendency of the trial. This order was carried in Revision by the applicantnt before the Court of Sessions for Grater Mumbai being Revision Application No. 125 of 2004. The Revisional Court not only affirmed the opinion recorded by the trial Judge but went on to observe that surh an order ought nol to have been passed. None the less, proceeded to merely dismiss the Revision Application upholding the view taken by the trial judge. The applicant has therefore approached this Court by way of present application under section 482 of the Code.

(3.) According to the applicant, the truck was used for carrying licensed fire wood. In the first place, the said fire wood was being transported authorisedly under license from the Forest A. M. Department. Accordingly, contends the applicant, the Prohibition Officer had no authority to seize the vehicle, namely, the subject truck, which merely contained fire wood, much less, licensed fire wood, and not the prohibited items such as intoxicant, hemp, mhowra flowers or molasses or implement and apparatus required for illegal manufacture of country liquor. Strong reliance is placed on the decision of the Apex Court in the case of (State of Maharashtra and Ors. v. Nanded-Parbhani Z. L. B. M. V. Operator Sangh) , reported in 2000 (5) Bom. C. R. (S. C. ) 669 : 2000 (2) S. C. C. 69 to contend that principle underlying the said decision ought to be followed to answer the point in issue in favour of the applicant. In other words, it is contended that as the truck was carrying only fire wood and not the prohibited items, the same could neither be seized nor confiscated in law under the provisions of the Act. It was then contended that at any rate, the condition imposed by the trial judge for return of the truck to the applicant is excessive.