Principles which Magistrate should follow for releasing Mhowa flower on Supratnama

 The learned Judicial Magistrate  was under obligation to consider 

(i)
the following issues :­
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 
(iii)
Madhya Pradesh, Chhatisgarh;
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,
Whether the petitioner  has documents to establish prima facie that part 
(iv)
of the  Mhowa flowers  were purchased by him from the local market. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

CRIMINAL  WRIT PETITION NO.  534  /2012 

Manohar  Gopal Kanoje  Vs  The State of Maharashtra 


CORAM:   M.L.TAHALIYANI,  J.
DATED :   23rd  November,    2012
Citation;2013 ALL M R (CRI)1375

Rule.   Heard finally, by consent.
Heard Mr. I.N. Choudhari,   learned   Advocate for the petitioner 
and  Mr. S.S.Doiphode,   learned  APP       for  respondent­State.     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 

(i)
the following issues :­
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 
(iii)

Madhya Pradesh, Chhatisgarh;
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,
Whether the petitioner  has documents to establish prima facie that part 
(iv)
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 
sahare
JUDGE