P.K. Tare, C.J.
1. This is a petition under Article 226 of the Constitution of India, by a Contractor, dealing in purchase of Sal Seed/wherein he seeks the release of the Sal Seeds, which according to him, had been illegally seized by the respondent.
2. The petitioner had purchased the Sal Seeds from the forest area, which was under a lease to him. The respondent sealed his godowns on 3-10-1973. Thereafter the petitioner waited for quite good time. Subsequently, the Sal Seeds stored by the petitioner from 1-2-1974 to 9-2-1974, in all 9605 bags, were seized. Thereafter the petitioner moved this Court for a writ on 13-3-1974. It was after the admission of the present writ petition that the respondent filed an application before the Magistrate 1st Class for passing an order under Section 523 of the Code of Criminal Procedure in respect of the seized property.
3. The instant question had been exhaustively considered by us in Ram Kumar Agrawal v. State of M.P. Misc. Petn. No. 112 of 1974, D/- 23-4-74 (MP) wherein we had relied on the Supreme Court case of Wazir Chand v. The State of Himachal Pradesh AIR 1954 SC 415 : 1954 Cri LJ 1029. In that case it was laid down by their Lordships of the Supreme Court that even though the property may be produced before a Magistrate, Section 523 of the Code of Criminal Procedure would be inapplicable and the Magistrate would have no jurisdiction to order return of the goods, but as fundamental rights of the petitioner would be infringed as guaranteed by Articles 19 and 31 of the Constitution of India, the petitioner was entitled to be granted relief in exercise of the prerogative powers under Article 226 of the Constitution of India. It would, therefore, be clear that if prima facie it is established that the seizure is illegal and under no authority of law, the High, Court in exercise of prerogative powers would certainly be able to grant the relief to a petitioner irrespective of the fact that the property may have been produced before a Magistrate, who might be able to exercise the powers under Section 523, Criminal P. C, We may observe that the line of distinction will be this. If prima facie it is established that the seizure is without any authority of law, the High Court would certainly exercise its prerogative powers. On the other hand, if prima facie it appears to the High Court that the requirements of Sections 550 and 523, Criminal P. C, are fulfilled, the High Court will stay its hands and will leave the matter to the discretion of the Magistrate before whom the property may be produced.
4. In the present case the godowns of the petitioner had been sealed by the respondent on 3-10-1973 and there was ample time for investigation. Almost one year has passed and the learned Advocate-General has not been in a position to state as to what has been the result of the investigation. On the other band, the learned Counsel for the petitioner states that no challan has at all been filed. But on the other hand, the respondent has applied to the Magistrate, 1st Class, Ambikapur, for action under Section 523, Criminal P. C. Thus, it cannot be asserted on behalf of the respondent that the Sal Seeds had been illegally extracted by the petitioner or that the property seized might be suspected to be the subject-matter of a criminal offence. For this reason we hold that the seizure was without any lawful authority and as laid down by their Lordships of the Supreme Court in Wazir Chand v. State of Himachal Pradesh (Supra), this Court will not lose its jurisdiction to exercise the prerogative powers despite the fact that an application might have been made to the Magistrate for taking action under Section 523, Criminal P. C. Necessarily this Court is seized of the matter as the petitioner's fundamental rights under Articles 19 and 31 of the Constitution of India would be involved and under such circumstances, the Magistrate in any case will have no jurisdiction to pass an order despite the fact that an application under Section 523, Criminal Procedure Code may have been made to him. In Ram Kumar Agrawal v. State of M.P. (supra), we have already pointed out the distinction where the High Court will exercise its prerogative powers and where it will not. This is eminently a case where we would exercise our perogative powers and would not leave the matter to be debated before the Magistrate before whom an application under Section 523, Criminal Procedure Code has been filed by the respondent.
5. As a result of the discussion aforesaid, this petition succeeds and is accordingly allowed. By a writ of Mandamus the respondent is ordered to remove its seals from the godowns of the petitioner and release the property in favour of the petitioner within a fortnight from the date of passing of this order. However, under the circumstances, we make no direction as to costs, which shall be borne as incurred. The outstanding amount of the security deposit shall be refunded to the petitioner.