Decided on February 03,1966

STATE Respondents


N.G.SHELAT - (1.) On 27-12-65 one Suraj Mohan Babu Mishra of Billimora made an application in the Court of the Judicial Magistrate First Class at Navsari stating inter alia about one Baburao Raghojirao having been arrested by the Navsari police in respect of the offences under sec. 66(b) and 81 of the Bombay Prohibition Act and that a motor truck No. GTA 3093 belonging to him has been seized at that time by the police. He has then stated that his income for livelihood depends upon the use of his motor truck. It has been lying idle at the police station and for want of use etc. it would get spoiled. So saying he has prayed for the return of the said truck to him and for which he was prepared to give suitable security as demanded by the Court That application was heard on 30 and it came to be rejected by the learned Magistrate saying that no report from the police under sec. 523 Criminal Procedure Code was received by him in that respect and that therefore no order under sec. 523 of the Criminal Procedure Code can be passed. It is against that order that the applicant has come to this Court invoking the revisional jurisdiction of this Court inter alia contending that no sooner it has been brought to the notice of the learned Magistrate about the seizure of a truck in connection with an offence-which has been registered as C. R. No. 997 of 1965 at the police station it was necessary for the learned Magistrate to make an inquiry and pass suitable order under sec. 523 of the Criminal Procedure Code.
(2.) When this matter came up for admission on 18-1-1966 while issuing rule an order was passed for obtaining a report from the learned Magistrate to know whether any such report from the Navsari Police Station in respect of the truck seized in connection with the prohibition offence has been received by him so far as contemplated under sec. 523 of the Criminal Procedure Code. From his report dated 20-1-66 it is clear that no such report from the P. S. I. Navsari has been received by him-though the first information report about the offence in respect of which presumably the motor truck was seized has been received by that Court. Mr. Choksi the learned Govt. Pleader resists the petition inter alia contending that unless the report was received by the learned Magistrate the Court cannot be said to have any jurisdiction to pass any order under sec. 523 of the Criminal Procedure Code. That would in his view amount to usurpation of the powers of the investigating officer. It was besides urged that the applicant has made no request to the learned Magistrate for having any such report from the police called for and in absence of any such request the learned Magistrate was justified in rejecting the application. It does not therefore call for any interference by this Court in revision and more so when he has come directly to this Court and not through the Court of the Sessions Judge of the district of Balsar.
(3.) Now it is clear that under clause 2 of sec. 98 of the Bombay Prohibition Act whenever any offence punishable under the provisions of the Bombay Prohibition Act has been committed any receptacle package or covering in which any of the articles liable to confiscation under sub-sec. (1) is found and the other contents of such receptacle package or covering and the animals carts vessels or other conveyances used in carrying any such article shall likewise be liable to confiscation by the order of the Court. Then under proviso to sec. 99 of the Act no animal cart vessel vehicle or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of the offence. The offences falling under the provisions of the Bombay Prohibition Act are cognizable offences and any conveyance used in carrying any such articles can be seized by the police. The question of confiscation of any such conveyance ultimately has to be decided by the Court.;

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