ORDER :

Vishal Dhagat, J.

Petitioner has filed this petition under Article 227 of Constitution of India, challenging order dated 5-8-2022 passed by Additional District Magistrate, Betul i.e. respondent No. 3.

2. Respondent No. 3 has initiated proceedings for confiscating of Scooty vehicle bearing No. MP-MV-3221 owned by Vijay, Son of Ravi. Petitioner was proceeded ex parte as he did not appear after service of notice. District Magistrate found that vehicle in question was used in transportation of 50 bulk litres of country made liquor without any licence or permit. In said circumstances vehicle was confiscated in favour of State Government.

3. Learned counsel for the petitioner has challenged impugned order on ground that vehicle in question, at the time of seizure was being driven by Mohit Mandal i.e. neighbour of petitioner. It is submitted that petitioner is not accused in the case, therefore, his vehicle cannot be confiscated. In these circumstances, prayer is made for setting aside impugned order. Learned counsel for the petitioner relied on judgment passed by Apex Court in the case of State of M.P. vs. Madhukar Rao , (2008) 14 SCC 624 . On strength of aforesaid judgment, it was argued that Magistrate cannot pass an order of confiscation until case has been finally decided by Magistrate.

4. Heard learned counsel for the parties.

5. Perused the order passed by the Apex Court. In aforesaid judgment passed by Apex Court question was “whether vehicle or vessel seized under section 50(1)(c) Wild Life (Protection) Act, 1972 is put beyond the power of Magistrate to direct its release during pendency of trial in exercise of power under section 451 Cr.P.C., 1973 ?”

6. Brief facts of said case was that vehicle Tata Sumo was seized as it was carrying 206 Kg. of antlers. Vehicle was owned by Madhukar Rao and it was submitted that vehicle was borrowed by his friend and neighbour Shri Lohiya to visit his ailing father. Case is registered against him and he is an accused in the case. Madhukar Rao was neither an accused in the case nor is he connected with the offence. In these circumstances he had filed an application before the Magistrate for release of his vehicle on supurdnama which was allowed.

(i). State Government challenged order of Magistrate in revision before Sessions Judge, Raipur. Sessions Court held that Magistrate disregarded section 39(1)(d) of Wild Life (Protection) Act and stated that court has no power to release the vehicle on supurdnama. Power under section 451 of Cr.P.C., can be exercised only in respect of vehicle seized by police officer and order of Magistrate was set aside.

(ii). State Government challenged order before High Court in writ petition. Full Bench of High Court held that Magistrate’s power to release the vehicle was not affected by the legislative changes in the Act relied upon by the State and in appropriate cases it was open to the Magistrate to pass an order of interim release of vehicle.

(iii). Order passed by High Court was challenged before Apex Court. Apex Court in its judgment held that High Court had correctly appreciated the facts of law. In the case it was held that provision under section 39(1)(d) of the Act, will come into play only after a court of competent jurisdiction found the accusation and the allegations made against the accused is true and recorded a finding that the seized vehicle was, as a matter of fact, used in commission of offence. Any attempt to operationalise section 39(1)(d) of the Act merely on basis of seizure and accusations/allegations levelled by the department authorities wou