Judgment ( 1 ) BAJIRAO Waghade, owner of Survey No. 73 applied to the Range Forest officer, Hingni, for permission to cut matured teak-wood trees standing in his land Survey no. 73. According to the petitioner, the revenue Officer conducted survey and recorded that 178 teak-wood trees are standing in the land Survey No. 73. The Forest Officials granted no objection for cutting of the trees. Proclamation was issued and no objections were received. The Range Forest Officer who is the Tree Officer did not decide the petitioner's application fora period of one year and 9 months, rather never decided the application. On 14-2-2001 petitioner served notice on Range Forest Officer calling upon him to grant permission and after expiry of 7 days, treating that he was entitled to cut the trees, cut off all the trees on 21-2-2001. Upon cutting the trees, he applied for transit pass, which is required for removal of the trees from the place it was cut off. On 1-3-2001 the Range forest Officer seized the timber, recorded primary offence No. 57/3. The action of seizure was challenged by the petitioner before the Sub- divisional Officer, Arvi, who decided the matter and held that the seizure was illegal and that the wood was liable to be returned within 7 days. The Range Forest Officer did not return the timber. ( 2 ) ONE of the simultaneous development was that the Range Forest Officer had filed a charge-sheet against the petitioner. The petitioner filed two applications, one was filed which is Exh. 21 u/s. 258, Cr. P. C. , for claiming discharge, and another application exh. 24, claiming property be returned i. e. the wood in the said criminal case, which applications were rejected. The petitioner then moved revision application before the Court of additional Sessions Judge, Wardha. His revision application was registered as Criminal revision Application No. 85/2000, which was heard and decided by Second Additional sessions Judge, Wardha, by judgment and order dated 13th May, 2002, and the same was dismissed, and gave a direction that the Regular criminal Case No. 38/01 to be heard and decided expeditiously. ( 3 ) THE petitioner has filed present petition wherein he has prayed for two reliefs, (i) that he should be discharged and (ii) that the property be released in favour of the petitioner on Supratnama, by allowing application Exh. 21 and Exh. 24 respectively. ( 3 ) THE petitioner has filed present petition wherein he has prayed for two reliefs, (i) that he should be discharged and (ii) that the property be released in favour of the petitioner on Supratnama, by allowing application Exh. 21 and Exh. 24 respectively. ( 4 ) IT is seen that the original land owner Bajirao Waghade is one of the accused while the present petitioner is another. The application for return of property was submitted by the present petitioner Kishor. It is thus, this accused i. e. Kishor alone has filed the present petition. ( 5 ) THE petition is based on the foundations namely- (I) that the Range Forest Officer's order of seizure of goods was illegal; (ii) the order of seizure was already set aside; (iii) that if the application for felling of tress under Section 3 (1) (c) was liable to be decided within 60 days from the date of receipt, and failure to decide the application raises a fiction of deemed permission. More particularly, when inspite of notice of 7 days, the application for permission for felling of trees was not decided, the petitioner was entitled to cut the trees. (iv) the criminal case- charge-sheet was filed after ten months. (v) the plea of the Forest Department that 138 teak-wood trees and 2 other trees were cut off from the Forest land Survey No. 214, while only 11 trees belonged to accused was incorrect, because as back as in June, 1999, 13796 trees were already cut of from the Forest land, and therefore, the story that trees were cut off from the Forest area was totally false. ( 6 ) THE learned Advocate for the petitioner then placed reliance on reported judgment, namely - 1996 Cr. L. J. 449 [m/s. Shastri Sales Corporation and others Vs. Income-Tax Officer], to contend that the prosecution was liable to be quashed if the failure complained of was at the same time capable of mitigation by fiscal penalty. ( 7 ) IN the midst of the hearing, the petitioner sought to produce similar orders passed by the Sub-Divisional Officer and obeyed by the Tree Officer. ( 8 ) THE petition has been opposed by the State by filing written submissions as well as by filing additional written submission. ( 7 ) IN the midst of the hearing, the petitioner sought to produce similar orders passed by the Sub-Divisional Officer and obeyed by the Tree Officer. ( 8 ) THE petition has been opposed by the State by filing written submissions as well as by filing additional written submission. The grounds of objection are namely :- (I) that there were 2 enactments which govern the issue, namely (a) The maharashtra Felling of Trees (Regulation) Act, 1964 and rules made thereunder, and (b) Indian forest Act, 1927. (ii) Section 69 of Indian Forest Act raises a presumption that unless and until the contrary is proved, every forest produce belongs to the Government. (iii) unless the ownership of property - subject matter of offence i. e. the forest produce is atleast prima facie proved before the Court, the return of property - subject matter of offence and delivery on supratnama is impermissible. (iv) By such cutting of trees, offence under Section 63 (b) and 63 (c) as well as section 33 (A) and 33 (H) has been committed. (v) That the Tree Officer has power to hold inquiry relating to ownership of trees, which has been held, and the inquiry has revealed that the petitioner has no ownership to the trees which have been felled. (vi) The Sub-Divisional Officer's order directing return of property is in excess of jurisdiction and void in as much as it is beyond the scope of powers of Appellate authority to pass any such order and does not bound to be obeyed. ( 9 ) LIMITED question that falls for consideration of this Court is mainly under criminal Procedure Code. As to what are the considerations while considering the return of property under Section 457 of Cr. P. C. ( 10 ) IT is alleged against the accused that as the field - Land Survey No. 73 is surrounded on three sides by forest land, by taking disadvantage of the situation, the petitioner has in fact removed the trees from the forest land, since from Survey No. 73 only 11 trees have been felled and all balance trees are taken from compartment No. 214. ( 11 ) THE present is a case where if the ownership of the property is in dispute, transfer of its possession by way of transfer of custody has to be considered in this background. ( 11 ) THE present is a case where if the ownership of the property is in dispute, transfer of its possession by way of transfer of custody has to be considered in this background. In the present case, there is a grave dispute as to ownership of the property. More over the balance of controversy has got a statutory tilt namely Section 69 of the Indian Forest Act, a presumption in favour of the State which is rather against the petitioner is raised by a statute. ( 12 ) THE next aspect is as to whether the petitioner is entitled to be discharged or that whether proceedings could be stayed as prayed for referring to Section 458 of Cr. P. C. In the present case, there is sufficient material on record to show that there are imputations adequate enough to involve the petitioner as co-accused. Even the present case is not of such nature where the petitioner dis-owns the entire nexus with the property, on the other hand, he upon the admission having felled that trees claimed legal right thereupon, while the case of State is that it is a case of felling the trees from the Government property. It is, therefore, not possible at this stage for any court of law to hold that there is no material against the accused and there are no grounds to proceed. ( 13 ) THE result is that the accused is claiming title to the forest produce - subject matter of offence, he thereby sets up a defence. The truthfulness and worth of defence is to be assessed at the end of trial. Petitioner is, therefore, not entitled for discharge. ( 14 ) THE orders passed by the Courts below, therefore, cannot be considered to be either in disregard of law or in failure of disobedience of any mandatory provision of law or in exercise of jurisdiction done so erroneously. ( 15 ) IT seems that the petitioner is shown as one of the accused in the Criminal case which has been filed. It is so because he was found to be a person who on the basis of power of attorney openly claims to have cut the trees. On his say, he is not a stranger. He would, therefore, be entitled to move the Court for quashing or discharge etc. It is so because he was found to be a person who on the basis of power of attorney openly claims to have cut the trees. On his say, he is not a stranger. He would, therefore, be entitled to move the Court for quashing or discharge etc. The question is whether such person is entitled to demand property in his own name representing his authority to be that of power of attorney. The power of attorney is not entitled in his own name the property - subject matter of offence. In so far as the present petitioner as well as his application Exh. 24 in the Trial Court is concerned which he has filed those in his own name and claims property in his title is not entitled to make such application. The present application in his own name with one amongst two prayers for return of property is also not maintainable on this ground also, apart that, on merit, he is found not entitled to receive the property for custody on Supratnama during pendency of criminal case. ( 16 ) IT is seen that forest produce - subject matter is liable to suffer threat to very existence by very nature thereof being perishable. The subject matter property, therefore, needs to be dealt with and disposed off as perishable goods after following due procedure laid down by law. In the event of either decision of case the property is liable to be disposed off by sale. It shall, therefore, be in interest of justice and of both the parties to apply to the trial Court for disposal of property by auction through bids - open or in sealed cover, and during any such auction, both accused shall have liberty to participate and place on record their offer, and avail of the opportunity if successful in the bid. in the result, petition fails, Rule is discharged, however, with direction as contained in this para. Petition dismissed.