A search and seizure conducted on the basis of a search warrant issued by a magistrate without jurisdiction is invalid and the articles seized pursuant to such a search warrant must be restored to the person from whose custody they were seized.

( 1 ) THIS appeal has been filed against an order passed by a learned Judge of this Court dismissing the application filed on behalf of the appellant for a writ of mandamus directing the respondents to restore possession of the articles seized from the godown of the appellant, on the basis of a search warrant, issued without any authority in law by the Sub-Divisional Judicial Magistrate, Serampore.

( 2 ) ACCORDING to the appellant, it deals in iron and steel scrap rerolling and for that purpose from time to time it has been purchasing the condemned wagons, iron and steel scraps from railways.

( 3 ) ON 7/08/1988, Truck No. WBQ-754 was intercepted by the Railway Protection Force at Dankuni. The vehicle was seized and the driver and the khalashi were arrested. Thereafter a complaint was made, alleging that the goods seized were stolen railway property and had been unlawfully obtained, as such action be taken in accordance with the provisions of the Railway Property (Unlawful Possession) Act, 1966. On the basis of the said complaint a case (Bally R. P. F. Post Case No. 3 (8) of 1988) was registered. Thereafter an application was made before the Sub-divisional Judicial Magistrate, Serampore, for issuance of search warrant for search of the godown of the appellant at Howrah. The Sub-divisional Judicial Magistrate, Serampore, issued a search warrant, on the basis of which the godown of the appellant in the District of Howrah was searched on 13-8-1988 and articles in question were seized. Later the seized articles were removed from the godown of the appellant.

( 4 ) THE validity of the search and the seizure has been questioned on the ground that the godown of the appellant being within the District of Howrah, could not have been searched on the basis of a search warrant issued by the Sub-divisional Judicial Magistrate, Serampore which is within the District of Hooghly. According to the appellant as the Sub-divisional Judicial Magistrate, Serampore had no jurisdiction to issue a search warrant in respect of the godown of the appellant located in another District, the search and seizure amounted to a futile exercise on the part of the respondents, without any authority in law, as such the appellant was entitled to the possession of the articles so seized.

( 5 ) THE learned Judge has accepted the stand taken on behalf of the appellant that the Sub-divisional Judicial Magistrate, Serampore had no authority to issue the search warrant for the search of the godown of the appellant. But, according to the learned Judge, in view of S. 460 read with S. 94 of the Criminal P. C. (hereinafter referred to as "the Code"), the search shall not be illegal so as to vitiate the seizure of the articles in question. The learned Judge has directed that the case be transferred from the Court of sub-divisional Judicial Magistrate, Serampore to the Court of Sub-divisional Judicial Magistrate, Howrah who has jurisdiction over the area from where the goods had been seized.

( 6 ) IN order to appreciate the grievance made on behalf of the appellant it is proper to refer to some of the provisions of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "the Act" ). The object of the Act is to consolidate and amend the law relating to unlawful possession of railway property. The penalty for unlawful possession of railway property has been prescribed in S. 3. S. 6 vests power in the members of the Force to arrest any person who has been concerned in an offence punishable under the Act. The relevant part of S. 8 is as follows :"8. Enquiry how to be made against arrested persons.- (1) When any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Sec. 7, he shall proceed to inquire into the charge against such person. (2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer-in-ch