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TMI Blog2019 (3) TMI 1944X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Class2, Ambah dismissing an application Under Section 451 of the Code of Criminal Procedure seeking the release of a tractor and trolley which had been seized for being involved in the illegal excavation of sand from the Chambal river. 3. On 26 March 2011, the Forest Officer apprehended a tractor and trolley belonging to the Respondent alleged to have been carrying sand illegally excavated from a restricted area of Dalijeet Pura Ghat at the National Sanctuary, Chambal without permission and in the absence of a transit pass. The tractor and trolley was seized together with the sand by the officers of the Forest Department Under Sections 41, 52 and 52-A of the Indian Forest Act, 19273 and Sections 27, 29, 39(1)(d), 51 and 52 of the Wildlife Protection Act, 1972. Intimation of the seizure was given to the Magistrate Under Section 52 of the Indian Forest Act, 1927 on 27 March 2011. The Respondent moved an application4 Under Section 451 of the Code of Criminal Procedure5 before the JMFC, Ambah for interim release of the seized vehicle. The Magistrate dismissed the application by an order dated 21 April 2011. A Criminal Revision6 met with the same fate before the District and Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him of property seized or upon receipt of a report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may order in writing, for reasons to be recorded, the confiscation of the forest produce so seized together with all tools, vehicles, boats, chains or any other Article used in committing the offence; (ii) For the State of Madhya Pradesh, MP Act 25 of 1983 substituted the original provisions of Section 52 of the Forest Act, with certain conditions. Sub-section (3) of Section 52 as enacted by MP Act 25 of 1983, empowers the Authorised Officer to make an order in writing with reasons confiscating the forest produce so seized along with the tools, vehicles or any other Article used in committing the offence. Similarly, for the State of Madhya Pradesh, MP Act 25 of 1983 inserted Section 52-A which provides for an appeal against the order of confiscation to the Appellate Authority within thirty days of the order of confiscation being passed by the Authorised Officer; (iii) The High Court has erred in directing the release of the seized vehicle in exercise of its inherent jurisdiction Under Section 482 of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer under the Act"; (ii) The said Authorised Officer can proceed to satisfy herself whether a forest offence has been committed or not Under Section 52(3), only if the seized property is produced before the Authorised Officer. If Under Section 52(2), the report of the seizure has been sent to the Magistrate, the Authorised Officer cannot decide upon the commission of a forest offence, as the report of seizure is not before the Authorised Officer; (iii) Since Authorised Officers cannot apply themselves to whether the seizure was valid, the circumstance of the Authorised Officer passing an order of confiscation does not arise at all. It follows that the intimation Under Section 52(4) cannot be given when there is no confiscation; (iv) The bar on jurisdiction Under Section 52-C only applies after intimation Under Section 52(4) is given. Since the Authorised Officer cannot pass an order of confiscation, the jurisdiction for trial of a criminal offence and the power to deal with the property involved rests with the Magistrate; and (v) Therefore, there is no scope for parallel proceedings before both the Authorised Officer and the Magistrate, if the officer seizing the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orwarded without any undue delay to the Conservators of Forests of the forest circle in which the timber or the forest-produce, as the case may be, has been seized. (4) No order confiscating any property shall be made Under Sub-section (3) unless the authorized officer-- (a) sends an intimation in form prescribed about initiation of proceedings for confiscation of property to the magistrate having jurisdiction to try the offence on account of which the seizure has been made; (b) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorized officer to have some interest in such property; (c) affords an opportunity to the persons referred to in Clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and (d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under Clause (b), a hearing on date to be fixed for such purpose. (5) No order of confiscation Under Sub-section (3) of any tools, vehicles, boats, ropes, chains or any other Article (other than timber or forest-produce seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about the initiation of proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence; (ii) The issuance of a notice to the person from whom the property has been seized or any other person who appears to have an interest in the property; (iii) Affording a reasonable opportunity of making a representation against the proposed confiscation; and (iv) Furnishing of an opportunity of being heard to the officer effecting the seizure and to the person to whom a notice has been given. Sub-section (5) provides that no order for confiscation can be passed if the person to whom a notice has been issued under Clause (b) of Sub-section (4) proves that the tools, vehicles, boats or Article were used without her knowledge or connivance and that reasonable and necessary precautions had been taken against their use for the commission of a forest offence. 10. Section 52-A provides an appellate remedy to a person aggrieved to the Conservator of Forests, against an order of confiscation. Section 52-A provides as follows: 52-A. Appeal against the order of confiscation.-- (1) Any person aggrieved by an order of confiscation may, within thirty days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass an order of confirmation, reversal or modification order of the authorised officer: Provided that before passing any final order the Appellate Authority may if, it is considered necessary for proper decision of appeal or for proper disposal of "suo motu" action, make further inquiry itself or cause it to be made by the Authorised Officer, and may also allow parties to file affidavits for asserting or refuting any fact that may arise for consideration and may allow proof of facts by affidavits. (7) The Appellate Authority may also pass such orders of consequential nature, as it may deem necessary. (8) Copy of final order or of order of consequential nature, shall be sent to the Authorised Officer for compliance or for passing any order appropriate order in conformity with the order of the Appellate Authority. Significantly, Under Sub-section (4) of Section 52-A, the Appellate Authority is empowered to pass orders of an interim nature for the custody, preservation or disposal of the subject matter of the confiscation. Section 52-B provides for the remedy of a revision before the Court of Sessions against an order of the Appellate Authority. Section 52-B is in the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time being in force. Explanation.--Where under any law for the time being in force, two or more Courts have jurisdiction to try forest-offence, then receipt of intimation Under Sub-section (4) of Section 52 by one of the Courts of Magistrate having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts. (2) Nothing in Sub-section (1) shall affect the power saved Under Section 61. Section 53 deals with the power to release property which is seized Under Section 52: 53. Power to release property seized Under Section 52.- Any Forest-officer of a rank not inferior to that of a Ranger, who, or whose sub-ordinate, has seized any tools, boats, vehicles or any other Article Section 52, may release the same on the execution by the owner thereof, of a security in a form as may be prescribed of an amount equal to the value of such property, as estimated by such officer, for the production of the property so released, when so required, before the authorised officer Under Section 52 or the Magistrate having jurisdiction to try the offence on account of which the seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 52(4). 13. Section 55 provides that upon the conviction of the offender for a forest offence, the forest produce together with tools, boats, vehicles and other articles used for its commission shall be liable to confiscation, subject to the provisions of Sections 52, 52-A, 52-B and 52-C: 55. Forest-produce, tools, etc., when liable to confiscation.- (1) All timber or forest produce which in either case is not the property of the Government and in respect of which a forest-offence has been committed, and all tools, boats, vehicles, ropes, chains or any other article, in each case used in committing any forest-offence, shall subject to provisions of Sections 52, 52-A, 52-B and 52-C, be liable to confiscation upon conviction of the offender for such forest-offence. (2) Such confiscation may be in addition to any other punishment prescribed for such offence. 14. The intent of the State Legislature is emphasised by the provisions contained in the proviso to Section 54 as well as in Sub-section (1) of Section 55. Under Section 52(2) where it is intended to launch criminal proceedings against the offender immediately, the officer seizing any property under the Section has to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti (1980) 1 ALT 8 that the Andhra Pradesh Forest Act, 1967 contemplated two procedures, one for the confiscation of the goods forming the subject matter of the offence by an Authorised Officer Under Section 44 (2A)9 and the other for the trial of a person Accused of the offence so committed Under Section 20 or 2910. Explaining the purpose of the legislation, this Court noted with approval the view of the High Court in the above cases that the provision for confiscation by an Authorised Officer had been enacted in public interest to suppress an evil which the legislature wishes to avoid: 14. We find that a later division bench consisting of Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti [(1980) 1 ALT 8] approved of the view expressed by Jeewan Reddy, J. in P.K. Mohammad case [(1978) 1 APLJ 391], and held that the Act contemplates two procedures, one for confiscation of goods forming the subject-matter of the offence by the Authorized Officer Under Sub-section (2-A) of Section 44 of the Act, and the other for trial of the person Accused of the offence so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is made clear by the non obstante Clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Code of Criminal Procedure has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh. Relying on the earlier decisions of this Court including GV Sudhakar Rao (supra), Justice NV Ramana, speaking for the two judge Bench held: 23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle. 23. This leaves the Court to deal with a judgment rendered in 2008 by a two judge Bench of this Court in State of MP v. Madhukar Rao (2008) 14 SCC 624. The issue in that case was whether upon the seizure of a vehicle or vessel Under Section 50(1)(c)15 of the Wildlife Protection Act, 1972, the Magistrate has no power to direct its release Under Section 451 of the Code of Criminal Procedure during the pendency of a trial. Significantly, in that case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court considered a challenge to the constitutional validity of the state amendments to the Forest Act through MP Act 25 of 1983. Noticing that a criminal prosecution and a proceeding for confiscation are distinct, each with its own purpose and object, the High Court held: ...Criminal prosecution is not an alternative to confiscation proceedings. The two proceedings are parallel proceedings, each having a distinct purpose and object. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence. The object of the prosecution is to punish the offender.... Explaining the underlying purpose and object of the state amendment, the Division Bench noted: ...The scheme of the Central Act contemplating successful prosecution of the offender leading to confiscation has been drastically modified by the 1983 Act to provide for an additional procedure for confiscation, a procedure which is less cumbersome and more expeditious than the procedure of prosecution and at the same time, assuring necessary safeguards to the affected persons. The scheme of the Central Act provides for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity or Court of Sessions (Under Sections 52, 52A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized Under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings Under Sub-section (4)(a) of Section 52, the bar of jurisdiction Under Sub-section (1) of Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition Under Section 482 of the Code of Criminal Procedure, to the Magistrate to direct the interim release o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 634 of 2009 shall stand set aside and the appeal is accordingly allowed. Criminal Appeal Nos. 1362-63 of 2012: 31. For the reasons which have been indicated in the judgment delivered today in Criminal Appeal @ Special Leave Petition (Crl.) No. 2001 of 2012, the judgments and orders of the High Court dated 7 July 2011 and 21 September 2011 in MCRC No. 1751 of 2009 and MCRC No. 5673 of 2011 shall stand set aside and the appeals are accordingly allowed. Note: 1"CrPC" 2"JMFC" 3"Indian Forest Act" 4Application No. 9661 of 2009 5"Section 451 - Order for custody and disposal of property pending trial in certain cases. -- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation. -- For the purposes of this section, "property" includes-- (a) property of any kind or document which is produced befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the foregoing provisions of this Chapter or in any other law for the time being in force, where a forest offence is believed to have been committed in respect of the timber or other forest produce which is the property of the State Government, the Forest Officer or the police officer seizing the timber or other forest produce Under Sub-section (1) of Section 52, shall, without any unreasonable delay, produce the same, together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence, before an officer of a rank not inferior to that of an Assistant Conservator of Forests, authorized by the State Government in this behalf by notification in the Official Gazette (hereinafter referred to as the authorized officer)." Section 59-B provides the procedure for issue of notice before confiscation. Section 59C provides for a revision against the order of confiscation. Section 59D provides a right to appeal against the order of revision. Section 59E provides a savings provision for award of punishment under other provision of the Act. Section 59F provides that confiscated property and proceeds of sale to vest in Government. "Section 59-G. Bar of jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s behalf by the State Government from directing at any time the immediate release of any property seized Under Section 15." Section 15-D provides for confiscation of property when the produce is not the property of Government. 15"Section 50 - Power of entry, search, arrest and detention.- (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,... (c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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