The prayer of the Petitioner in this application u/s 482 Cr.P.C is to quash the impugned Order Dated 14.07.2008 passed in 2(b) C.C. No.5 of 2008 by the Learned S.D.J.M., Banki rejecting the Petitioners application u/s 457 Cr.P.C. for release of seized vehicle, i.e. Dumper bearing registration No. OSU-5993, & to release the seized vehicle in his interim custody.

Petitioner holds Power of Attorney executed by the registered owner of the vehicle Khirod Chandra Pradhan authorizing him to look after the affairs & management of his mining lease along with machineries & stock including the seized vehicle. The vehicle was seized from the possession of the driver on the allegation of violation of provisions of Section 27(d) & 39(d) of the Wild Life (Protection) Act (for short, the) punishable u/s 51 of the. It is submitted by the Learned Counsel for the Petitioner that the Learned Magistrate upon reference to provisions under the mechanically passed the impugned order. It is contended that pending disposal of the criminal proceeding instituted against the accused-driver, the Petitioner, being entitled to the possession thereof, ought to be given custody of the seized vehicle. Relying upon the decisions of the Honble Supreme Court in State of M.P. & Ors. V. Madhukar Rao, 2008 (1) Supreme 47 & of this Court in Birendra Mohan Gouda v. State of Orissa, (2006) 35 OCR 847, it is contended by the Learned Counsel for the Petitioner that seizure simplicitor of a vehicle on the accusation/allegation that the vehicle was used in the commission of offences under the does not in any way affect the Magistrates power to make an order of interim release of the vehicle. In Madhukar Rao (supra) it was held that the provision of Section 39(1)(d) of thecannot be used against exercise of the Magistrates power to release the vehicle during pendency of the trial. The provision of Section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation & the allegations made against accused as true & recorded the finding that the seized vehicle was, as a matter of fact; used in the commission of offence. Any attempt to operationalise Section 39(1)(d) of themerely on the basis of the seizure & accusations/allegations leveled by the departmental authorities would bring it into conflict with the constitutional provisions & would render it unconstitutional & invalid. In Birendra Mohan Gouda (supra) placing reliance on the decision of the Honble Supreme Court in Sundarbhai Ambala Desai v. State of Gujarat, (2003) 24 OCR (SC) 444, the vehicle seized for alleged commission of offences under the was directed to release in the interim custody of the registered owner.

Having heard from both sides & considering the facts & circumstances of the case, it is found that allowing the seized vehicle to remain idle & unattended would not be or any benefit to anyone. In view of the ratio of the decisions referred to above, it is found just to release the seized vehicle in the interim custody of the Petitioner, who is admittedly the power of attorney holder of the disposal of the proceeding, S.D.J.M., Banki shall release the seized vehicle in the interim custody of the Petitioner subject to the Petitioner furnishing property security of Rs. 50,000 & cash security of Rs. 20,000 which shall be kept in fixed deposit in the name of Judge-in-charge of Accounts till disposal of the case & the Petitioner further undertaking.

(i) not to transfer the vehicle & to produce it before the Court/authority as & when required;

(ii) not to change colour chasis number of engine number of the vehicle; &

(iii) not to allow the vehicle to be used for any unlawful purpose,

The CRLMC is, accordingly, disposed of. Urgent certified copy of the order be granted on proper application.

CRLMC disposed of.