STATE OF MAHARASHTRA Vs. BAHADURSINGH GULBARTSINGH

JUDGEMENT

(1.) THIS criminal writ petition is filed by the State, being aggrieved by the judgment and order dated 16th January, 1992, passed by the Additional Sessions Judge, Pune, rejecting the application made by the State Excise Sub Division, Lonawala, District Pune, whereby interim stay granted by him was also vacated.

(2.) FEW facts, which are required to be stated, are as follows: the prosecution case is that on 19th December, 1991, the authorities of State Excise Department received information that near Hotel Safari at village Kamshet, Taluka Maval, in Pune District, illegal spirit stock was kept and it was to be sent to Bombay for disposal. On receiving this information, Inspector of State Excise Department along with his staff members and two panchas conducted a raid on the said spot and seized two tankers bearing Nos. MH/04-4195 and MCY-1947 containing spirit. The Inspector also seized 28 barrels of rectified spirit and 90 barrels of denatured spirit and arrested four persons by name, Jogeshwar Pakhandu Yadav, Mohamud Khan Shahaj Khan, Dhiran Muljibhai Patel and Pravin Jayantilal Bhansali and produced them before Judicial Magistrate, First Class, Wadgaon Maval on 21st December, 1991. The learned Magistrate granted Magisterial Custody Remand to them upto 27th December, 1991. Sub-Inspector of State Excise Mr. Vadiyal, also lodged complaint against the said four accused and one absconding accused Bahaddursingh (respondent herein), the driver of motor vehicle No. MH-04/c-4195 and crime came to be registered at C. R. No. 69/91 for the offence punishable under section 66 (1) (b), 67, 77 (b) and 83 of the Bombay Prohibition Act, 1949. The prosecution case is that thereafter on 21st December, 1991, the absconding accused Bahaddursingh had applied through his advocate to the learned Magistrate for possession of the tanker bearing No. MH-04/c-4195 along with contents therein and the documents of the said vehicle. The contention of the prosecution is that the learned Judicial Magistrate, First Class, had ordered the Excise Officer to file say and accordingly two days time was asked for, for filing say and the matter was kept on 23rd December, 1991. On 23rd December, 1991, before filing say by the Excise Officer the learned Magistrate was pleased to pass an order and released the property attached in the said case on bond of Rs. 5 lakhs.

(3.) THE State, being aggrieved by the said order, preferred Criminal Revision Application No. 428 of 1991, in the Court of the Sessions Judge, Pune, contending that the property was returned to the absconding accused and, therefore, the order of the Magistrate was against law, justice and good conscience. It was also the grievance of the State that no proper opportunity was given to the Excise Department to file their say and that the learned Magistrate did not consider the facts mentioned in the F. I. R. against the applicant viz. , the absconding accused Bahaddursingh, who is respondent herein. It was also contended by the State that the motor vehicle, which came to be attached, was not owned by the respondent and as per the record, it was owned by one Smt. Surjit Kaur Jagasingh Bians. It was also contended that the property, which was attached, so also the documents which were seized, were not of perishable nature and, therefore, there was no necessity to pass the order in a hurry without hearing the revision petitioner viz. , the State. Therefore, the prayer was made that the said order of Magistrate be set aside.