Prashant Kumar Agarwal, J. - (1.) HEARD learned counsel for the parties.
(2.) CLAIMING to be registered owner of the tractor -trolley bearing registration No. RJ.02 -A -2755, petitioner has filed this criminal writ petition under Article 226 of the Constitution of India with a prayer to quash FIR No. 320/2015 registered at Police Station Behror (District Alwar) for the offence under Section 41 read with Section 42 of the Rajasthan Forest Act, 1953 (hereinafter referred to as the Act) and all subsequent proceedings undertaken therein and also to release the seized vehicle. Brief relevant facts for the disposal of this petition are that the aforesaid FIR came to be registered on 18.6.2015 and one Shri Subhash S/o Shri Jai Narain being driver of the aforesaid vehicle was arrested and the vehicle was seized by the concerned police officer on the premise that "forest produce" in the form of stones was being transported by it without any valid permit or transit pass. It was also found that the stones were brought from a forest area by illegal mining. The stones were also accordingly seized under the provisions of the Act.
(3.) IN support of the petition, learned counsel for the petitioner submitted as below: (i) Offences under the provisions of the Act are non -cognizable as the maximum sentence of imprisonment prescribed for such offences is less than three years. According to the Entry -III of Part -II of the First Schedule of Cr.P.C., if an offence under any other law (other than IPC) is punishable with imprisonment for less than three years or with fine only, such an offence is a non -cognizable offence within the meaning of Clause (c) and Clause (l) of Section 2 of Cr.P.C. (ii) Police Officer is not empowered to arrest a person accused of a non -cognizable offence without an order of a Magistrate and as per the provisions of Section 155 Cr.P.C. for such an offence neither FIR can be registered nor investigation can be undertaken by the police without the order of a Magistrate having power to try such offence or commit the case for trial. In the present case, it is an admitted fact that Shri Subhash was arrested, tractor -trolley and stones were seized, FIR was registered and investigation was undertaken by police without an order from the concerned Magistrate. (iii) As the offence in the present case is under a special Act, preliminary enquiry was required to be conducted by the police to verify the allegation levelled against the accused before FIR was registered, but admittedly it was not done. The seized stones were being transported under the authority of a valid permit (Ravanna), which has been filed alongwith the petition. If before seizure and registration of FIR, opportunity would have been granted to the petitioner to explain the circumstances in which his vehicle was found to carrying stones from a forest area, he, by producing permit (Ravanna), was in a possession to satisfy the Seizing Officer that it was carrying the stones under a legal authority and in that eventuality need would not have arisen to register FIR and to undertake any other proceedings and that is why it was obligatory on the part of the police officer to conduct preliminary enquiry before proceeding further.;