TMI Blog2022 (3) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... st. At this stage, reference made to this Court's opinion in State of W.B. v. Sujit Kumar Rana [ 2004 (1) TMI 684 - SUPREME COURT] . Here it was emphasized on the need to maintain balance between statutes framed in public interest such as the Forest Act, 1927 (and the relevant insertions Under W.B. Act 22 of 1988) and the consequential proceedings, depriving a person of his property, arising therefrom. It was accordingly observed that commission of an offence is one of the requisite ingredients for passing an order of confiscation and an order of confiscation should not be passed automatically. Insofar as the submission of the State Counsel that the burden of proof is on the truck owner in the process of confiscation, it is observed that Section 13A of the 2004 Act, which shifts the burden of proof, is not applicable for the confiscation proceedings but for the process of prosecution. By virtue of Section 13A of the 2004 Act, the burden on the State authority to legally justify the confiscation order, cannot be shifted to the person facing the confiscation proceeding. The contention to the contrary of the State's counsel, is accordingly rejected. The confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red at Police Station Kannad, District Agar Malwa for offences Under Sections 4 and 9 of the 2004 Act read with Section 11(d) of the Prevention of Cruelty to Animals Act, 1960 (for short 'the 1960 Act'). The vehicle was seized and the Accused persons, including the truck owner, were charge sheeted for the aforementioned offences. 5. The Judicial Magistrate, First Class, Agar Malwa, formulated, inter alia, the following question for consideration as the trial Court: 1. Whether on the above date, time and place of occurrence Accused with motive of slaughter of 17 bulls or with knowledge that the bulls will be slaughtered, transported or aided in transportation or surrendered of the same for slaughter of the aforesaid bulls outside the territory of M.P. to Nasik? 6. Under the judgment dated 28.11.2016 (Annexure P-1), on evaluation of evidence, the learned Judge concluded that the prosecution had failed to establish the primary ingredient of the charge, that the cow progeny was being transported for the purpose of its slaughter and as such no offence was made out under the 2004 Act. Thus, the aforequoted question No. 1, as formulated by the Court, was specifically he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Arvind Mahajan (PW-4) who examined the animals to contend that there is adequate justification for confiscation of the truck, on the basis of the evidence of PW-4. 10. The High Court upheld the order of confiscation by the District Magistrate with the observation that separate proceedings before two Forums, one for prosecution of the Accused charged with the offence and the other for confiscation of the vehicles/equipment used for the commission of the offence, are legally maintainable. According to the High Court, the jurisdiction Under Section 482 of the Code of Criminal Procedure for quashing of the confiscation proceedings initiated under the 2004 Act, is not available to the Court. 11.1. The impugned judgment, relied on a line of cases under the Indian Forest Act, 1927, particularly, State of M.P. v. Smt. Kallo Bai (2017) 14 SCC 502 wherein, it was clarified that confiscatory proceedings are independent of main criminal proceedings and its main purpose is to provide a deterrent mechanism and to stop further misuse of the subject vehicle. 11.2. In the same case, in the context of the confiscation proceedings under the Indian Forest Act, 1927 and the local legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 29.4. The scheme contained in the amendments enacted to the 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 Code of Criminal Procedure, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction Under Section 451 Code of Criminal Procedure was not available to the Magistrate, once the authorized officer initiated confiscation proceedings. 13. The above would show that the powers of seizure, confiscation and forfeiture of produce illegally removed from forest is vested exclusively in Authorized Officers. As such, once the confiscation proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Magistrate to order interim release of confiscated vehicle Under Section 451 Code of Criminal Procedure, is not affected. The Court reasoned that withdrawal of the power of interim release conferred on the Authorities Under Section 50(2), cannot be construed to mean a bar on the powers of the Magistrate Under Section 451 of the Code of Criminal Procedure. It was next noted that a clear intention to the contrary can be found in the Act in Section 50(4) under which, any person detained, or things seized shall be taken before a Magistrate to be dealt with according to law (and not according to the provisions of the Act). 16. Pertinently, State of M.P. v. Madhukar Rao 2008 (14) SCC 624 affirmed the decision of the High Court in Madhukar Rao v. State of M.P. (2000) 1 MP LJ 289 (FB), wherein Justice D.M. Dharmadhikari, writing for the Full Bench, opined that the provision of Section 39(1)(d) of the Wildlife (Protection) Act, 1972, providing for absolute vesting of seized property with State Government, without a finding by the Competent Court that the property was being used for the commission of an offence, runs afoul of the Constitutional provisions. It is succinctly observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or punishment. Such an order, however, can be passed only in the event a valid seizure is made and the authorized officer satisfies himself as regards ownership of the forest produce in the State as also commission of a forest offence. An order of confiscation is not to be passed automatically, and in terms of Sub-section (3) of Section 59-A a discretionary power has been conferred upon the authorized officer in relation to a vehicle. Apart from the ingredients which are required to be proved in terms of Sub-section (3) of Section 59-A by reason of the proviso appended to Section 59-B, a notice is also required to be issued to the owner of the vehicle and furthermore in terms of Sub-section (2) thereof an opportunity has to be granted to the owner of the vehicle so as to enable him to show that the same has been used in carrying forest produce without his knowledge or connivance and by necessary implication precautions therefor have been taken. 19. Insofar as the submission of the State Counsel that the burden of proof is on the truck owner in the process of confiscation, we must observe that Section 13A of the 2004 Act, which shifts the burden of proof, is not applicable for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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