JUDGMENT :

S. Chandrashekhar, J.

1. In both the quash-petitions, the petitioners have challenged the entire criminal proceeding including the order taking cognizance dated 30.11.2016 in Gurabandha P.S. Case No. 22 of 2016 corresponding to G.R. No. 314 of 2016 now converted into S.T. No. 415 of 2016.

2. On the basis of a written report dated 2.9.2016 of Officer Incharge, Gurabandha P.S., a First Information Report has been lodged for the offences punishable under section 413, 414, I.P.C., under section 33 of the Indian Forest Act, 1927 and under section 4/21 of M.M.D.R. Act, 1957. Four persons were arrested at Tetuldanga Chowk in course of a raid conducted on a secret information that some persons are smuggling emerald. The petitioners are those who were arrested on the spot and from their possession emerald stones were recovered. They have disclosed complicity of other four persons who somehow escaped from the spot. After investigation, a charge-sheet has been submitted against these accused petitioners and Vishwajit Dubey who was also arrested on the spot. Investigation in respect of other four persons were kept pending at that time.

3. By an order dated 30.11.2016, the learned Magistrate has taken cognizance of the offences punishable under section 413, 414, I.P.C., under section 33 of the Indian Forest Act, 1927 and under section 4/21 of M.M.D.R. Act, 1957.

4. Contentions raised on behalf of the petitioners are primarily founded on the fact that there is no lab report on the seized article which is said to be emerald. It is contended that once it is not proved that the seized article is a forest produce no prosecution under section 33 of the Forest Act, 1927 can be launched and without having established that the seized stone is emerald offence under section 413 and 414, I.P.C. is not made out.

5. Referring to the decision in State (N.C.T. of Delhi) v. Sanjay 2014 (4) FLT 871 (SC), it is contended that in view of the bar under section 22 of the M.M.D.R. Act, 1957 prosecution for violation of section 4 of the Act except on the basis of a report by the authorized officer is not permissible and the order taking cognizance is illegal.

6. On the contentions raised on the basis of absence of a lab report on the seized article, it needs to be recorded that this is not the stage when the Magistrate is required to probe into the evidences brought before him, look into the contradictions and probabilities in the prosecution's case and come to a conclusion whether there is sufficient material for conviction of the accused persons. All that the Magistrate is required to look into at this stage is whether a prima-facie case has been made out or not. It is the prosecution's case that on a secret information when the police party arrived at Tetuldanga Chowk occupants of Bolero car and CBZ Motor-cycle started fleeing away, however, four of them were apprehended. From their possession emerald stones were seized. They have disclosed the name of other four persons who were involved in the crime. Three of them were sent to judicial custody except the accused-Mamta, who on account of her illness was not sent to jail. Seizure from these accused persons were effected in presence of two Choukidars. Offence under section 413 refers to habitually dealing in stolen property and offence under section 414 provides that whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property shall be punished. At this stage, on a reading of what has been recorded in the written report and in the charge-sheet, it cannot be concluded that no offence is made out. Reliance by the learned Counsel for the petitioners on the judgment in Inder Mohan Goswami and another v. State of Uttaranchal and others (2007) 12 SCC 1, in view of the facts brought on record even though there is no lab report on the seized stone is of no avail to the petitioners.

7. Whatever has been argued by the learned Couns