Oral Judgment:

Rule. Heard finally, by consent.

2. Heard Mr. I.N. Choudhari, learned Advocate for the petitioner and Mr. S.S.Doiphode, learned APP for respondent-State. Perused the impugned order passed by the Magistrate as well as the learned Additional Sessions Judge.

3. The petitioner had filed an Application under section 457 of the Criminal Procedure Code for release of 349 bags of Mhowa flowers along with one weighing scale seized by the State Excise Department. The learned Judicial Magistrate, First Class, Gondia rejected the Application on the ground that Mhowa flowers found in possession of the petitioner were without any valid permit and, therefore, prima facie, the petitioner had contravened the provisions of Section 60 of the Bombay Prohibition Act, 1949, punishable under section 69 of the said Act. The matter was carried to the Sessions Court, Gondia. The learned Sessions Judge, Gondia rejected the Revision Application.

4. It is contended before this Court that the petitioner had 50 Mhowa trees in his field and that Mhowa flowers found in possession was the crop of the trees belonging to the petitioner. Learned counsel for the petitioner submitted that he is ready to produce the documents in that regard. However, it appears that this argument was not pressed into service either before the learned Judicial Magistrate or before the learned Sessions Judge. In fact, the order of learned Judicial Magistrate is highly superficial and has not taken into consideration the submissions made by either the petitioner or the State. The learned Judicial Magistrate was under obligation to consider the following issues:-

(i) Whether the notification issued by the State Government was applicable to the area where the alleged contraband was found;

(ii) Whether the Mhowa flowers prima facie appear to be the crop of the area where it was found or it was prima facie imported from other States like Madhya Pradesh, Chhatisgarh;

(iii) Whether the petitioner has prima facie established that he had capacity to grow so much quantity of Mhowa flowers in his field where he claims to have 50 trees of Mhowa,

(iv) Whether the petitioner has documents to establish prima facie that part of the Mhowa flowers were purchased by him from the local market.

5. As such the matter will have to be remanded back to the learned Judicial Magistrate for reconsideration and the orders of both the Courts below will have to be set aside. Hence, I pass the following order:

ORDER

The orders passed by the learned Judicial Magistrate, First Class on 17th July 2012 and the Sessions Judge, Gondia dated 10th September 2012 are set aside. The learned Judicial Magistrate, First Class, Gondia is directed to reconsider the prayer of the petitioner in the light of the observations made by this Court in the present order. The learned Judicial Magistrate is at liberty to take into consideration any other aspect which is needed to determine whether the petitioner was entitled to possess 349 bags of Mhowa flowers and, if yes, under what conditions. The petitioner is at liberty to make a fresh Application in the light of the present order.

Petition stands disposed of. Rule made absolute in the aforesaid terms.