1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (appa) NO. 111/2010 in CRIMINAL APPEAL NO.173/2009 ( State of Maharashtra VS. Arun Digambar Chopade and others) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. S R Deshpande, Spl.Counsel for State Mr M P Khajanchi,Adv.for intervenor-applicant CORAM : A.P. BHANGALE, J. DATED : 13 th September, 2010. Heard. 2. This application is filed by Dr. Nawalkishore Gowardhandasji Rathi who claims to be the owner of the truck bearing Registration No. MH-31 W- 3442 ( hereinafter referred to as “the said truck”), which was seized by the Range Forest Officer, Warora on 8.10.2001 on the allegation that it was involved in carrying carcasses of wild pigs. The applicant is a Radiologist, practicing at Chandrapur and has a high-ranking social status in the society. It is contended that the said truck was driven by one Jagat Meshram known to Vijay Sayankar at whose instance it is alleged that carcasses of wild pigs were transported via truck. The respondents/accused in Criminal Appeal No.173/2009 were prosecuted in Regular Criminal Case No.181/2001 in 2 the Court of Judicial Magistrate, F.C., Warora who, by judgment and order dated 20.1.2009, acquitted the respondents of all offences charged against them and the appellant-State was directed to hand over the seized truck to the applicant, who claims to be the owner of the said truck. The applicant herein was never named as an accused and is totally blameless in the crime. The said truck which belongs to the applicant, has been in custody of the Forests Department. Since it was seized and during the pendency of the case, the applicant had applied for release of said truck on Suprutnama. The learned J.M.F.C. Had rejected the application. The applicant had also moved Criminal Writ Petition No.356/2001 which was disposed of with a direction to the learned trial Magistrate for expeditious disposal of the trial. Accordingly, the learned trial Magistrate by the judgment and order which has been impugned by the State, also directed the complainant to hand over the said seized truck to its real owner -Dr. Nawalkishore Rathi R/o Chandrpaur after expiry of the appeal period. 3. Thus, the applicant is coming before this Court mainly on the ground that the trial Court specifically observed in concluding paragraph of the judgment that use of the vehicle in the commission of offence is not proved hence the said truck is not liable to be confiscated to the Government with specific observation that registered owner of the said truck is entitled to its possession. In view of the findings by the trial Court, the 3 applicant moved the instant application with prayer that appellant be directed to hand over the custody of the said truck to him pending hearing and final disposal of the appeal. 4. Learned counsel for the appellant opposed this application and contended that the judgment and order was stayed by this Court pending hearing and disposal of the appeal and further on the ground that under section 39 -clause (d) of the Wildlife Protection Act, the vehicle used for commission of offence shall be the property of the State Government. Therefore, the application is not tenable, furthermore, in fact there is no such observation by the trial Court that the said vehicle or truck has been used for committing an offence. That being so, interim stay order granted by this Court on 16th July 2009 and continued on 4.1.2010 needs modification, pending hearing and final disposal of the appeal. 5. For the reasons stated herein-above, since the said truck according to the learned trial Judge was not used in the commission of offence, during pendency and final disposal of the appeal, the registered owner of the truck is certainly entitled to its delivery subject to certain conditions imposed against him. Therefore, the following order is passed. The application is allowed. The stay order granted is modified to the effect that the Truck bearing No.MH-31 W-3442 be delivered to the applicant subject to condition 4 that he shall hold its custody till final disposal of the appeal and shall use it as a reasonably prudent person would use, preventing its waste, with written undertaking in bond in the sum of of Rs. 50,000/- that the truck shall be returned to the Court subject to final order in this appeal. This order is passed as a tentative arrangement to deny waste of the said property i.e. truck, pending hearing and final disposal of the appeal. Order accordingly. Application disposed of. JUDGE Sahare