JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3. In this criminal writ petition, challenge is to the judgment and order dated 16.11.2022 passed by the learned Additional Sessions Judge-2, Kelapur, Yavatmal whereby the learned Sessions Judge rejected the revision application and confirmed the order dated 07.01.2022 passed by the learned Judicial Magistrate First Class, Wani. Learned Magistrate, Wani by his order dated 07.01.2022 rejected the application made by the petitioner under Section 457 of the Code of Criminal Procedure, 1973 for release of seized country liquor on supratnama.

4. The relevant facts are as follows:

The petitioner is having licence to run a liquor shop at Wani. The seized country liquor bottles were purchased by him from the distributor M/s. Shree Sai Enterprises, Yavatmal. The boxes of the liquor bottles, as per the transport pass, were to be transported in a vehicle bearing registration No. MH-29/BE-0179 to Wani by the route Wadgaon to Yavatmal Umari Wani. On 05.06.2021 on Ghugus to Chandrapur route at Chargaon Chowki, Taluka Wani, the officials of Shirpur police station intercepted the said vehicle. On search of the vehicle, the police found that it was containing country liquor bottles worth Rs.8,01,600/-. The police seized the country liquor bottles. Crime bearing No. 203 of 2021 was registered under Section 65(a) and (e) of the Maharashtra Prohibition Act, 1949 (hereinafter referred to as ‘the Prohibition Act’) and Sections 130(1) and 177 of the Motor Vehicles Act, 1988. It is the case of the prosecution that at the relevant time there was prohibition on sell of liquor in District Chandrapur. The liquor seized in this case instead of bringing to the Wani was being transported to Chandrapur. When the vehicle was intercepted it was not driven by the driver whose name was mentioned in the transport pass. The vehicle was taken in the direction of the Chandrapur by a route which was not at all mentioned in the transport pass. The driver and one more person were found in the vehicle. Later on, the investigation revealed that the petitioner illegally transported the liquor contrary to the transport pass to the co-accused Nidhansingh Jagatsingh Dhagadi, who are from Chandrapur. The seized liquor is lying in the custody of the police.

5. The petitioner, who is the owner of the liquor bottles, made the application for return of the liquor bottles on supratnama. It is his case that he is having a licence to run a liquor shop at Wani. He had purchased the liquor bottles from distributor. The liquor was being transported from Wadgaon to Wani. It is further stated that driver inadvertently taken the wrong route. The place where the vehicle was intercepted falls within the limits of Wani Taluka. It is submitted that he has right to sell the liquor. If the liquor is not handed over to him then he would suffer irreparable loss. His business would be affected. He is ready to furnish the undertaking for production of the liquor as and when directed by the Court.

6. The prosecution opposed the application. It is contended that there was breach of transport pass. The route mentioned in the transport pass was changed. The vehicle was intercepted on Chandrapur route at a distance of near about 13 Km away from Wani. It is further stated that the Chandrapur border was hardly 10-15 km away from the spot. It is stated that the huge quantity of liquor was being transported to Chandrapur District where there was prohibition on the sell of the liquor. It is further stated that apart from the substantive sentence for the commission of offence, Section 98 of the Prohibition Act provides for the confiscation of the liquor.

7. After hearing the parties learned Magistrate found that no case was made out for release of the liquor. The petitioner who is one of the accused challenged the said order by filing the revision application. Learned Additional Sessions