JUDGMENT 1. - This revision petition arises out of the order dated 25.4.96 passed by the learned Additional Sessions Judge, Bhilwara in Appeal No. 3/96 whereby the order dated 15th September, 1995 passed by learned Additional Chief Judicial Magistrate, Gangapur in Cr. Misc. Case No. 318/94 under section 102 Criminal Procedure Code was affirmed whereby the learned Additional Chief Judicial Magistrate after holding an inquiry under section 457 Criminal Procedure Code ordered to forfeit a sum of Rs. 1,55,000/- seized from the petitioner under section 102 Criminal Procedure Code. 2. The facts giving rise to this petition may be stated briefly that the petitioner was travelling in a truck HMQ 8867 on 1.9.94 from Udaipur to Bhilwara. The truck was stopped by constables Satya Narain and Kishan Lal of Police Station, Karoi on wireless message. Shri Devi Singh son of Ganesh Singh Rajput resident of Seti, District Chittorgarh was driving the truck and Manohar Lal Sharma was the khalasi of this truck. One Mohd. Salim was also sitting alongwith the petitioner in the truck. The truck was checked by the head constable of Police Station, Karoi and a sum of Rs. 1,55,000/- was seized from the possession of the petitioner. The allegation against the petitioner is that he was going to Bhilwara to purchase English wine from Sohan Lal and Co. for taking that English wine to Ahmedabad for sale. Since the said amount was kept by the petitioner for doing illegal trade in wine it was seized under section 102 Criminal Procedure Code After investigation a report was submitted under section 102(3) Criminal Procedure Code to Additional Chief Judicial Magistrate, Gangapur. 3. The learned Additional Chief Judicial Magistrate issued a proclamation under sub-section (2) of Section 457 Criminal Procedure Code Upon it the petitioner approached this Court through S.B. Criminal Misc. Petition No. 799/94 wherein it was ordered on 1.8.95 that the enquiry should be completed within a period of 45 days from the date of the order. Consequently, the learned Additional Chief Judicial Magistrate concluded the enquiry as directed by this Court and recorded the order dated 15th September, 1995 to forfeit the amount in favour of the State and the application of the petitioner to refund the amount was rejected. As already stated above, the appeal was dismissed by learned Additional Sessions Judge, Bhilwara. 4. Consequently, the learned Additional Chief Judicial Magistrate concluded the enquiry as directed by this Court and recorded the order dated 15th September, 1995 to forfeit the amount in favour of the State and the application of the petitioner to refund the amount was rejected. As already stated above, the appeal was dismissed by learned Additional Sessions Judge, Bhilwara. 4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner has contended that the amount in question was seized from the petitioner and unless contrary is proved, the presumption is in favour of the petitioner that he is the owner of the property as laid down in Section 110 of the Indian Evidence Act and therefore he is entitled to possession of the same under section 457 Criminal Procedure Code it is further argued that throughout the petitioner's case is that this amount was taken by him from one Shri Nana Lal Jain to purchase a truck. There is no material on the record to draw the conclusion that the said amount is suspected to have been stolen or there is suspicion of the commission of any offence. No one has appeared before the court to establish his claim within six months from the date of proclamation issued by the learned Magistrate. It is, therefore, vehemently contended that the petitioner is entitled to possession of the amount seized from him and it must be refunded to him. The impugned order passed by the learned Magistrate is erroneous on facts and law. 6. The learned Public Prosecutor supported the impugned orders. 7. If the police has reason to suspect certain property to be stolen or found under such circumstances as to create suspicion of the commission of any offence, it can be seized by it under section 102 Criminal Procedure Code Sub-section (3) of Section 102 Criminal Procedure Code contemplates that a police officer shall forthwith report the seizure to the Magistrate having jurisdiction. The procedure has been further prescribed under section 457 Criminal Procedure Code that when the report is made to the Magistrate and the property is not produced before a criminal court during an inquiry or trial, the Magistrate is empowered to make proper order for the disposal or delivery of the property to the person entitled to the possession thereof. The procedure has been further prescribed under section 457 Criminal Procedure Code that when the report is made to the Magistrate and the property is not produced before a criminal court during an inquiry or trial, the Magistrate is empowered to make proper order for the disposal or delivery of the property to the person entitled to the possession thereof. Sub-section (2) of section 457 Criminal Procedure Code lays down that a Magistrate can pass an order for delivery of the property on such conditions as the Magistrate thinks fit to the person so entitled if known and if such person is unknown the Magistrate may issue a proclamation requiring any person to appear and establish his claim within six months from the date of the proclamation. 8. The Magistrate has been conferred with the power under section 457 Criminal Procedure Code to deliver the property to the person entitled to the possession thereof or to make-such order as he thinks fit for the disposal of the property. The discretion given to the Magistrate under this Section should be properly exercised keeping in view the facts and circumstances of the case and the material brought before him. The person is entitled to possession if the property has been seized from him and he is not found to have committed any offence in respect of that property. The person is entitled to possession only when he has lawful right to hold the property. If it is found that no offence has been committed in respect of the property seized from a person then normally the property should be delivered to the person in whose possession it was at the time of the seizure because there is always a presumption under section 110 of the Indian Evidence Act that a person who is in actual physical possession of the property is the owner of such property unless contrary is shown or established. If a property is seized on suspicion of theft or commission of any other offence but on inquiry no offence is found to be committed then the person from whom the articles were seized is entitled to get back the property. 9. In the case in hand, it is indisputable that the money in question was seized from the possession of the petitioner. 9. In the case in hand, it is indisputable that the money in question was seized from the possession of the petitioner. It was seized from him on the suspicion of some commission of the offence that he was going to Bhilwara to purchase wine for transporting it to Ahmedabad. The police has investigated the matter but during the enquiry it has not been established against the petitioner to have committed any offence in respect of the property seized from him or that the property was to be used for commission of the offence. The police has not examined any witness during enquiry to prove the allegations against the petitioner. I am not inclined to agree with the learned Magistrate and the learned appellate court that the petitioner is not entitled to the possession of the seized property because he has not been able to convincingly establish the source of receiving the money. On perusal of the papers under investigation also it is shown that from the very beginning the petitioner stated before the police that the money was taken by him from Nana Lal Jain for purchasing a truck. Therefore, I am not inclined to agree with the finding of the learned trial court as well as the appellate court that the version given by the petitioner was an afterthought. The petitioner has examined Nana Lal as CW 1 and no material has been placed by the police to controvert this fact, the presumption has also to be drawn in favour of the petitioner under section 110 of the Indian Evidence Act. In view of the above discussion, I am of the view that the impugned orders passed by the learned Magistrate and the learned appellate court are not sustainable being erroneous on facts and law. The courts below have given stress in the orders about the right to ownership rather than the right to be in possession. 10. In the result, the revision petition is allowed. The impugned orders passed by the learned Additional Chief Judicial Magistrate, Gangapur and the learned Additional Session Judge, Bhilwara are hereby set aside. The application of the petitioner dated 7.9.94 is hereby accepted and it is hereby ordered that the seized amount of Rs. 1,55,000/- be returned to the petitioner.Petition Allowed. *******