A person is entitled to the possession of property seized from him if he has not been found to have committed any offence in respect of that property and the presumption under section 110 of the Indian Evidence Act that a person in possession of property is the owner of that property has not been rebutted.

1. - This revision petition arises out of the order dated 25.4.96 passed by the learned Additional Sessions Judge, Bhilwara in Appeal No. 3/96 whereby the order dated 15th September, 1995 passed by learned Additional Chief Judicial Magistrate, Gangapur in Cr. Misc. Case No. 318/94 under section 102 Criminal Procedure Code was affirmed whereby the learned Additional Chief Judicial Magistrate after holding an inquiry under section 457 Criminal Procedure Code ordered to forfeit a sum of Rs. 1,55,000/- seized from the petitioner under section 102 Criminal Procedure Code.

2. The facts giving rise to this petition may be stated briefly that the petitioner was travelling in a truck HMQ 8867 on 1.9.94 from Udaipur to Bhilwara. The truck was stopped by constables Satya Narain and Kishan Lal of Police Station, Karoi on wireless message. Shri Devi Singh son of Ganesh Singh Rajput resident of Seti, District Chittorgarh was driving the truck and Manohar Lal Sharma was the khalasi of this truck. One Mohd. Salim was also sitting alongwith the petitioner in the truck. The truck was checked by the head constable of Police Station, Karoi and a sum of Rs. 1,55,000/- was seized from the possession of the petitioner. The allegation against the petitioner is that he was going to Bhilwara to purchase English wine from Sohan Lal and Co. for taking that English wine to Ahmedabad for sale. Since the said amount was kept by the petitioner for doing illegal trade in wine it was seized under section 102 Criminal Procedure Code After investigation a report was submitted under section 102(3) Criminal Procedure Code to Additional Chief Judicial Magistrate, Gangapur.

3. The learned Additional Chief Judicial Magistrate issued a proclamation under sub-section (2) of Section 457 Criminal Procedure Code Upon it the petitioner approached this Court through S.B. Criminal Misc. Petition No. 799/94 wherein it was ordered on 1.8.95 that the enquiry should be completed within a period of 45 days from the date of the order. Consequently, the learned Additional Chief Judicial Magistrate concluded the enquiry as directed by this Court and recorded the order dated 15th September, 1995 to forfeit the amount in favour of the State and the application of the petitioner to refund the amount was rejected. As already stated above, the appeal was dismissed by learned Additional Sessions Judge, Bhilwara.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The learned counsel for the petitioner has contended that the amount in question was seized from the petitioner and unless contrary is proved, the presumption is in favour of the petitioner that he is the owner of the property as laid down in Section 110 of the Indian Evidence Act and therefore he is entitled to possession of the same under section 457 Criminal Procedure Code it is further argued that throughout the petitioner's case is that this amount was taken by him from one Shri Nana Lal Jain to purchase a truck. There is no material on the record to draw the conclusion that the said amount is suspected to have been stolen or there is suspicion of the commission of any offence. No one has appeared before the court to establish his claim within six months from the date of proclamation issued by the learned Magistrate. It is, therefore, vehemently contended that the petitioner is entitled to possession of the amount seized from him and it must be refunded to him. The impugned order passed by the learned Magistrate is erroneous on facts and law.

6. The learned Public Prosecutor supported the impugned orders.

7. If the police has reason to suspect certain property to be stolen or found under such circumstances as to create suspicion of the commission of any offence, it can be seized by it under section 102 Criminal Procedure Code Sub-section (3) of Section 102 Criminal Procedure Code contemplates that a police officer shall forthwith report the seizure to the Magistrate having jurisdic