JUDGMENT- Dr. PRATIBHA UPASANI, J.:---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. 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. 4.The learned Additional Sessions Judge, Pune, by his impugned judgment and Order dated 16th January, 1992, after discussing the reasons at length, came to the conclusion that the Magistrate has committed no error in passing the said order and also vacated the interim stay, which he had granted by his order dated 30th December, 1991. It is against this order that the present writ petition is filed. 5.Same grounds are taken in writ petition, which were argued before the learned Magistrate and the Sessions Court. According to the petitioner, the order was passed by the Magistrate in a hurry and no opportunity was given to the State Excise Department to file their say. This appears to be their main contention. However, if one goes through the judgment of the learned Additional Sessions Judge, altogether different picture appears. The learned Additional Sessions Judge has, inter alia, discussed the provisions of sections 132 and 129 of the Bombay Prohibition Act, 1949, and pointed out lapses committed by the Prohibition Officer. This appears to be their main contention. However, if one goes through the judgment of the learned Additional Sessions Judge, altogether different picture appears. The learned Additional Sessions Judge has, inter alia, discussed the provisions of sections 132 and 129 of the Bombay Prohibition Act, 1949, and pointed out lapses committed by the Prohibition Officer. 6.According to proviso (a) to section 132 of the Bombay Prohibition Act, 1949, if the property is attached in the prohibition raid and if the Prohibition Officer thinks that the said property is required as an evidence in the case and the persons arrested in such offence is forwarded to the Magistrate, then the property attached must be sent to the concerned Magistrate immediately. Thereafter the provision is, if it appears to the Prohibition Officer that such property is not required as an evidence in the matter, but it is liable to be confiscated, then in that case, he has to submit his report to the Collector and if it appears to the Prohibition Officer that such person has not committed offence in respect of attached property, then the said property must be returned to the person from whom it is attached. After pointing out this provision in the Bombay Prohibition Act, 1949, the learned Additional Sessions Judge, has observed that the report made by the Investigating Officer is very vague. He has also observed that at the same time, the report had been made by the Investigating Officer to the Magistrate about arrest of some of the accused and about registration of the offence against those persons, but he did not produce the said accused before the Magistrate, nor did he produce any property before him. The learned Additional Sessions Judge further observed that there was no evidence on record that the report had been made by the Prohibition Officer to the Collector contending that the property attached was actually not required in the case as an evidence but it was liable to be confiscated. The Prohibition Officer thus, did not take any steps in respect of the said property, nor did he produce it before the concerned Magistrate as required, nor did he make any report to the Collector that the said property was not required for evidence, but that it was liable to be confiscated. The Prohibition Officer thus, did not take any steps in respect of the said property, nor did he produce it before the concerned Magistrate as required, nor did he make any report to the Collector that the said property was not required for evidence, but that it was liable to be confiscated. Indeed there was no explanation whatsoever on behalf of the Prohibition Officer with respect to the purpose for which the property was to be detained in his custody only. Under these circumstances, the learned Additional Sessions Judge rightly thought that when the matter was already reported to the concerned Judicial Magistrate, First Class, with respect to the attachment of the property and the accused were also produced before the Magistrate, to whom the Magisterial Custody was granted, the Magistrate was certainly empowered to pass an order in respect of disposal of the said property as per the provisions of section 457 of the Code of Criminal Procedure. The Prohibition Officer did not file complaint with the concerned Police Station in respect of the said raid, nor did he intimate about the said fact to the Police and he directly produced the accused before the Judicial Magistrate, First Class with the First Information Report. 7.It appears from the record that the accused, who were arrested, were immediately produced before the Magistrate on 21st December, 1991. The absconding accused, Bahaddursingh, respondent herein, through his Advocate made an application before the very same Magistrate for return of the property. It is surprising why this accused could not be arrested by the Police or Excise Officer on the very same day when he was present in the Court on that day. It also appears that after an application was made by the applicant, the Excise Officers as well as Police Prosecutor were called upon to file their say. The Excise Officer, who was present in the Court, also received copy of the said application whereon he gave say that the I.O. in the matter was not present in the Court and, therefore, prayed for some time. Accordingly time was granted by the learned Magistrate. Thereafter the Prohibition Officer himself gave say on the application that within two days the Investigating Officer would be kept present before the Court to file say. However, the Investigating Officer never remained present before the Court to file his say. Accordingly time was granted by the learned Magistrate. Thereafter the Prohibition Officer himself gave say on the application that within two days the Investigating Officer would be kept present before the Court to file say. However, the Investigating Officer never remained present before the Court to file his say. There is no explanation whatsoever from the prosecution as to why the Investigating Officer was hesitating to be present before the Court and to file his say. It is observed by the learned Additional Sessions Judge that on the contrary, record showed that the say was filed by the Investigating Officer on 26th December, 1991, when the learned Magistrate had already passed the order, releasing the property on bond. It seems that the statements made by the prosecution that no time was granted to the State to file say and that no opportunity was given to the State to make any submission on the application of the respondent are incorrect. The record shows that two days' time was granted by the Magistrate and that this fact was known to the Police Prosecutor as well as the Excise and Prohibition Officer, who was Investigating Officer. The order passed by the learned Magistrate shows that the Investigating Officer did not file say in spite of granting time of two days. The learned Additional Sessions Judge, therefore, has rightly observed that the Magistrate had no other way except to pass an order on the said application under these circumstances. 8.There is also nothing to show that the order was passed by the Magistrate in the morning in a hurry. This appears to be a wild allegation of the petitioner. Assuming it to be correct, nothing prevented them from appearing before the Magistrate on the very same day and making an application to him. There is no document on record to show that on 23rd December 1991, only, the learned P.P. and the Investigating Officer appeared before the Magistrate and filed their say and that it was not considered by the Magistrate. However, there is no such document on record. This is the finding given by the Sessions Court. 9.The learned Additional Sessions Judge also rightly disbelieved the contention taken up on behalf of the prosecution that the accused was doing illegal business while carrying the said goods. However, there is no such document on record. This is the finding given by the Sessions Court. 9.The learned Additional Sessions Judge also rightly disbelieved the contention taken up on behalf of the prosecution that the accused was doing illegal business while carrying the said goods. According to the prosecution, in spite of reaching the said goods at destination, there was pilferage or siphoning of the material from one tanker to another. It is rightly observed by the learned Additional Sessions Judge that if this was the case of the prosecution, then in the complaint or F.I.R. submitted by the Investigating Officer, the prosecution could have specifically contended that the accused was found committing criminal breach of trust in respect of the said goods. On the contrary, the report of Investigating Officer clearly showed that the goods were delivered to the accused at Warna Co-operative Sugar Factory for carrying the same to Oswal Petro Chemicals, Chembur. Neither Warna Co-operative Sugar Factory, nor Oswal Petro Chemicals filed any complaint about misappropriation against the accused nor did any one of them came forward before the Court complaining of the alleged misdeed committed by any of the accused and, therefore, the question which goes to the root of the matter is that if the prosecution case was that the vehicle was required as an evidence in the matter, the report in respect of the said vehicle ought to have been sent to the Collector for confiscation and then it could have been said that the Magistrate had no jurisdiction to interfere with the custody of the said vehicle. This being not the case, both, the Magistrate was justified in passing the impugned order and the learned Additional Sessions Judge also did not commit any error in confirming the same. Hence the following order : Criminal Writ Petition No. 453 of 1992 is dismissed. Rule discharged. Interim order dated 15-9-1992 is hereby vacated. Petition dismissed. -----