bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 821 OF 2008 PETITION NO. 821 OF 2008 PETITION NO. 821 OF 2008 Suresh Keshav Pawar ... Petitioner v/s 1. Inspector of Police, City Police Station, Ratnagiri. 2. The State of Maharashtra ... Respondents Mr.P.D.Dalvi for the petitioner. Mr.D.P.Adsule, A.P.P. for the State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 26TH JUNE, 2008 26TH JUNE, 2008 26TH JUNE, 2008 P.C. P.C. P.C.: 1. The petition challenges the order passed by the Chief Judicial Magistrate, Ratnagiri in Criminal Application No.8 of 2008 rejecting the application filed by the petitioner for return of the properties seized from him. 2. The petitioner who runs a grocery shop placed an order for edible jaggery with a trade in the A.P.M.C. market at Gadhinglaj, Dist. Kolhapur. This jaggery was sent to the petitioner with the certificate issued by the A.P.M.C. market alongwith challan of the payment 2 made by the petitioner on 11.1.2008. While delivering the jaggery to the petitioner, who runs a shop in Ratnagiri District, the truck was stopped and the jaggery was seized under seizure panchanama dated 11.1.2008. The petitioner filed an application for return of the property which was rejected by the order dated 23.1.2008. The application was rejected as the report of the Chemical Analyzer was not available. The Sessions Court rejected the revision application filed by the petitioner on 11.2.2008. Thereafter on 12.3.2008, the report of the chemical analyzer was received by the police and, therefore, another application was preferred by the petitioner on 26.3.2008 for return of his property under Section 457 of the Cr.P.C. An application was also made by the respondent No.1 for disposal of the property by public auction. The petitioner’s application was rejected by the trial Court on 2.4.2008 by observing that the seized property was black jaggery. 3. The main contention of the learned advocate for the petitioner is that the property seized does not conform with the analytical standards of black jaggery which now has been included in the definition of molasses as contained in Section 2(28) of the Bombay Prohibition Act, 1949. He submits that the report of the chemical 3 analyzer indicates that the edible sugars in the samples seized was more than the analytical standards set for molasses which includes black jaggery. The learned advocate draws my attention to a circular issued by the office of the Commissioner of State Excise, Maharashtra State, Mumbai on 17.2.2007 under which the department has recognized the fact that, after the amendment of the definition of molasses under the Bombay Prohibition Act, several dealers of jaggery are facing unnecessary hardships while transporting jaggery from the A.P.M.C. to their shops. He submits that under the circular no F.I.R. is to be lodged unless an offence is established by obtaining a preliminary analysis of the sample from the local District Health Laboratory or any other laboratory authorized/approved by the Government and only after consultation with the Superintendent of Excise or the Divisional Deputy Commissioner concerned. The manner of conducting seizures is also delineated in a circular dated 13.11.2001 where the time within which the analysis of the sample has to be undertaken has also been stipulated. He submits that none of these requirements have been observed by the respondents while conducting the seizure and, therefore, the jaggery which has been seized should be returned to him as it is nothing but "an edible gur". 4 4. The learned A.P.P. submits that the property has rightly not been returned to the petitioner as it did not match the standard of edible jaggery. He submits that the report of the chemical analyzer indicates that the percentage of extraneous matter insoluble in water is greater than the standard set for edible jaggery. He urges that the property seized is black jaggery which is included in the definition of "molasses" under Section 2(28) of the Bombay Prohibition Act and not edible jaggery. He, therefore, submits that the application for return of the property had been rightly rejected by the trial Court. 5. The circular dated 13.11.2001 issued by the Home Department (State Excise) describing the procedure which is required to be followed while seizing jaggery which is being transported. Under Clause 7 of this circular, a sample of the jaggery is to be sent to the chemical analyzer and a report must be obtained within seven days of the seizure. It further stipulates that, in the event the report of the chemical analyzer indicates that the sample analysed does not match with the analytical standards contained in the definition of molasses, then the jaggery seized must be returned to the concerned person within 24 hours, after obtaining a receipt from him. In the present case, the seizure took place on 5 11.1.2008. The report of the chemical analyzer was received by the police on 12.3.2008. That report is dated 22.2.2008. The analysis of the sample has been conducted on the very day that it was received by the chemical analyzer. However, the requirement of Clause 7(3) of the circular that the sample must be analysed within seven days of the seizure has not been met in this case. If the Home Department itself has issued the circular stipulating the manner in which seizures are to take place while fixing a time limit for the analysis of a seized sample of jaggery, the police are expected to obey such a requirement. In the present case, it is obvious that the analysis having been conducted after seven days of the seizure, the report of the chemical analyzer would not give a true depiction as to whether the jaggery seized conforms to the analytical standards of molasses. 6. The circular dated 13.11.2001 issued by the office of the Commissioner of State Excise, provides the procedure to be followed under the Maharashtra Through Transport Rules, 1997 regulating transport of intoxicants from one State to another through the State of Maharashtra. The circular recognises the fact that the traders are often harassed while transporting the jaggery by the officials of the Department. The 6 circular stipulates that an F.I.R. should not be registered under the Bombay Prohibition Act unless the offence is prima facie established by obtaining a preliminary report of the analysis of the sample conducted either by the local District Health Laboratory or any other authorised and approved laboratory. Besides this, an F.I.R. is to be lodged only after the consultation with the Superintendent of Excise or the Divisional Deputy Commissioner concerned. In the present case, an F.I.R. has been lodged immediately on effecting the seizure, without waiting for the report of the chemical analyzer. 7. In view of the fact that the analysis of the sample has been conducted beyond the period of seven days from the date of the seizure, in my opinion, the report of the chemical analyzer cannot be accepted as there is no material on record to indicate that the sample tested by the chemical analyzer was of the same analytical standards as the jaggery when seized. 8. In this view of the matter, the order passed by the J.M.F.C. and the Sessions Court in Criminal Misc. Application No.8 of 2008 on 23.1.2008, must be set aside. 7 9. The jaggery seized will be returned to the petitioner on condition that he furnishes an undertaking before the Trial Court that he will not sell the jaggery to any distillery. The petitioner shall also furnish a bond before the trial Court before taking possession of the jaggery. 10. Writ petition allowed. 11. Rule made absolute in terms of prayer clauses (a) and (b).