Red Sandal wood - Qualis Max Cab - interim custody - Police registered the case - but no form 66 was presented along with Vehicle before the Magistrate - Interim custody petition in the mean while - returned expressing no jurisdiction - Revision - High court held that since the property not produced before the Magistrate , the Magistrate has no jurisdiction to release the vehicle for interim custody and as such the order of trial court is correct =
the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle.
The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle.
The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.=
No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then. Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction. =
a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law. The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct. So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
13) The sum and substance of two expressions supra speak that,
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules. As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody.
The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan which followed the earlier expression in State of
Karnataka V. K.Krishnan that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle. It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11805
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1436 of 2014
07-08-2014
A.Sathisha.Petitioner
The State of A.P. rep. by the S.H.O Chagalamarri P.S.. Respondent
Counsel for the Petitioner : Sri V.Nitesh
Counsel for the Respondent: Public Prosecutor
<Gist :
>Head Note:
? Cases referred:
1. 1978(2) APLJ 191
2. 1996(2) ALT (Crl.) 699 = 1996(4) ALD 223
3. 1985(1) APLJ 47
4. (2004)4 SCC 129
5. 1980(1) ALT 8
6. 1978(1) APLJ 391
7. (2002)1 SCC 495
8. (2004)1 SCC 293
9. (2000)7 SCC 18
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1436 of 2014
ORDER :
1) This revision is filed by the petitioner/owner of the vehicle
under Section 397 and 401 Cr.P.C. aggrieved by the order dated
27.06.2014 in CFR No.2806 of 2014 in Crime No.106 of 2014 of
Chagalamarri Police Station registered for the offences punishable under
Sections 379 I.P.C and Sections 29(1)(b), 20(1)(3) and (1) of Indian Forest
Act, 1967, Rule 3 of A.P. Forest Products and Transit Rules and Rule 3 of
Red Sandal Wood Possession Rule 1970 under which the petition under
Section 451 of Cr.P.C filed by the petitioner was returned by the learned
Judicial Magistrate of the First Class, Allagadda, Kurnool District. The
petitioner shown his address as Mahadevapura Bande, Bangalore.
2) Brief facts are that the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle. The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle. The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.
4) The learned Public Prosecutor opposed the revision petition
stating the learned trial Magistrate is correct in his observation on want
of jurisdiction to entertain the application since it is the forest officials
having jurisdiction and thus there is nothing for this Court to interfere by
sitting in revision and sought for dismissal.
5) Heard both sides and perused the material on record.
6) Now, the points that arise for consideration are
(i) Whether the impugned order of the learned Judicial
Magistrate of the First Class, Allagadda covered by
order dated 27.06.2014 is not sustainable and to what
extent this Court to interfere while sitting in revision
against revision.
(ii) To what result?
POINT No.i:
7) A perusal of the panchanama dated 20.05.2014 shows that in
between C.K.Palli and Mutyalampadu villages near Birds school based on
information to the S.I. of Police, the Sub-Inspector with staff along with
the mediators proceeded to the said place reached by 17.15 hours and a
quails zeep with Meroon Red colour coming from Ahobilam area and on
seeing the police party of the Qualis vehicle reached nearby
apprehending interception within a distance of 10 feet away from the
police party, suddenly the vehicle reversed back to flee away. However,
the police party apprehended and could stop the vehicle from
proceeding further and noticed two persons therein besides the driver
and they were made to get down in so they noticed four logs of red
sandal which they were illegally transporting in the vehicle and the
driver is Chandran Sateesh of Bengaluru city, Old Madras Road and the
investigation show the modus operandi of him even earlier in so
transporting illegally the red sandal and the other two persons in the
vehicle are Amjad Pasha and Shabbir Pasha who also belongs to
Bengaluru and they also disclosed their identity by respective individual
interrogation which discovered the facts of their privy to the crime and
the Toyota Red colour quails jeep is bearing No.KA 04 A 6300 and the
police party called the Forest Settlement Officer and in the presence of
Forest Officials cause measured the red sandal weighing about 50 kgs
worth Rs.50,000/- and the further facts discovered disclosed the red
sandal logs purchased by these persons from other three persons of
Dornakottala village who were trading with the forest wood by uprooting
the trees. It is from registration of the crime and seizure of the
property under the panchanama including the vehicle with the red
sandal logs the police started investigation of the case.
8) Pending investigation, the application filed before the lower
Court by the petitioner claiming as owner of the vehicle saying the
driver who has taken the vehicle for rent from Bengaluru to Shemoga
misused the same in illegally transporting the red sandal logs against the
forest rules and the vehicle seized is by Chagalmarri Police and being the
owner of the vehicle is seeking interim custody undertaking not to
change the colour and utility. Hence to release.
9) The Learned Magistrate by endorsement dated 27.06.2014
returned the same holding that he has no jurisdiction to entertain the
petition as the offence is a Forest and Red Sandal Acts offence. It is
impugning the same as referred supra, the present revision is filed.
10) No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then. Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction. In this
regard the petitioner placed reliance upon a Division bench judgment of
this Court in W.A. No.66 of 1978 (Hazi Begum V. State of A.P ) wherein
it was held that the forest range officer, Hyderabad (south) near
Hussaini Alam Police Station intercepted the vehicle carrying red sandal
wood billets without permit against the red sandal wood and Sandal
Wood Transport Rules and the Andhra Pradesh Forest Act provisions and
the same were seized under panchanama and the Range Officer
produced the forest produce and the vehicle before D.F.O, Hyderabad
who lodged report in registering crime and submitted F.I.R to the
concerned Metropolitan Magistrate, also the arrested accused driver
with remand report and the vehicle also to judicial custody and the
accused was remanded for 15 days judicial custody and for the
absconding owner of the billets to secure, a bailable warrant was issued.
The writ appeallant Hazi Begum claimed as owner of the vehicle and
pending trial sought for delivery of the vehicle and the learned
Magistrate ordered interim custody of the vehicle to said claimant-Hazi
Begum subject to self-bond with two sureties and subject to the deposit
of the revision case of the vehicle in Court and to produce the vehicle on
every adjournment during enquiry/trial and not to transfer and not to
change use etc, conditions that order of the Magistrate was impugned in
W.P. No.5540 of 1977 by the Forest Range Officer showing the said Hazi
Begum as the 1st respondent to the writ petition and the writ petition
was allowed by the learned Single Judge setting aside the order of the
Learned Magistrate holding that he has no jurisdiction to release the
vehicle. Correctness of the said writ petition order was impugned in the
writ appeal. The Court ferred Section 53 of the Andhra Pradesh Forest
Act, 1967 (for short, the Act) besides Section 44, 45, 50, 58 and 58-A
including the Andhra Pradesh Forest Amended Act, 17 of 1976 and with
reference to the provisions observed that the wording of Section 53 of
the Act is indicating relating to arrest of the person by the Forest Officer
without orders of Magistrate and to produce before Magistrate for
Judicial Custody. It also speaks from para-4 of the Judgment that a
forest officer not below the rank of F.R.O can seize the forest produce
together with tools, ropes, chains, boats vehicles and cattle employed in
commission of the offence under Section 44 of the Act and after said
seizure put marks on the goods seized and keep in his custody or with
forest guard or village headman till offence is compounded or release of
seized article and when so required by Magistrate or until the orders of
the Court for disposal of the order is received and the goods otherwise
are to be produced before Assistant Conservator of the Forest who is
competent by Government notification to deal with seized goods. The
proviso to Section 44 of the Act speaks the property seized is that of the
Central or State Government and even after, if not even it shall be
reported to the D.F.O and where the Forest Officer seized the property
in respect of the forest offence he may order confiscation of the timber
or other produce so seized or produce together with all tools - - - -,
vehicles used in commission of the offence, after the person from whom
the property seized given notice informing grounds on which the
property proposed to be confiscated and opportunity of making written
representation, if any and of hearing before passing such order for
confiscation and if the owner of the vehicle or the like proves to the
satisfaction of the forest officer of the same used in carrying the
property without his knowledge or connivance in its use in commission of
the offence despite he has taken reasonable and necessary precautions
against such use and it is subject to that; the confiscation be made.
Against such confiscation order, for the aggrieved person within 30 days
from the date of communication of confiscation order there is right of
appeal in District Court within the jurisdiction there the property is
seized to hear and pass orders.
11) It is ultimately held in so referring that, for the Range Officer
there are two options either to produce before Forest Officer, the forest
produce with tools or make a report of seizure to the Magistrate and the
option is material for no obligation to report seizure to the Magistrate as
if the offence is not compounded by forest officials, the officials have
recourse to the procedure prescribed for confiscation which is no doubt
subject to right of appeal before the District Court for attaining finality.
Once there is report of seizure to the Magistrate, the Magistrate is
empowered to take such measures necessary besides trial of the accused
for disposal of the property and the powers thus enumerated are
dehorse on the powers of Magistrate under Section 45 Cr.P.C for
custody, disposal pending trial and order for disposal at conclusion of
trial as per the relevant chapter of Cr.P.C. It is observed that sub-
section (4) and (5) of Section 44 of the Act in terms are not compatible
of any ambiguity for power of Magistrate to dispose of the forest
produce and tools once a report is received by him and Sub-section (5)
speaks of the interim arrangements and thereby held that the learned
Magistrate cannot be held to have passed the order without jurisdiction
and allowed the writ appeal.
12) The other decision placed reliance is of a single Judge of this
Court in State of A.P. V. Anandmal Surajmal Sethia . In this case the
Forest Range Officer seized the lorry and produce before D.F.O, Kadapa
and the owner of the lorry approached the learned Magistrate, Rajampet
under Section 457 Cr.P.C for release of the vehicle for interim custody
and the learned Magistrate ordered for its release subject to conditions
including furnishing of bank guarantee and the same was when
challenged before the Court of Session by revision the same was
modified regarding the bank guarantee and to deposit registration
certificate book and other documents and to produce the vehicle as and
when required by Court or D.F.O. Against which, the matter reached
under Section 482 Cr.P.C before this Court where the Honourable Single
Judge of this Court observed that when the seized lorry was produced
before D.F.O and not before learned Magistrate under Section 44 of the
Act, it is only the Forest Officer of forest department that is competent
to confiscate or release the vehicle pending investigation and the
Magistrate or Learned Sessions Judge have no jurisdiction and for that
conclusion placed reliance upon earlier expression of a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law. The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct. So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
13) The sum and substance of two expressions supra speak that,
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules. As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody. Even the expression of the Apex Court in State of
West Bengal V. Sujith Kumar Rana in dealing with a forest case is that
when there is a power of a Magistrate under Cr.P.C for interim release
of vehicle involved in the West Bengal Forest Act offence concerned, it
was observed with reference to Section 52 and 59(g) of the West Bengal
Forest Act that the object of confiscation of the property involved in the
forest offences is to protect and to maintain the ecological balance and
to prevent the crimes under the Forest Act. The State Legislature made
provisions relating to seizure and confiscation by forest officials in order
to preserve the forest as national wealth and within the spirit of Articles
48(a) and 58(g) of the Constitution of India and the confiscation is
permissible once the ownership of the forest produce is clear and there
is a remedy against the order of confiscation taken care of by appeal and
procedure also made to follow for confiscation proceedings to
commence by ordering notice. Confiscation envisages a civil liability in
respect of the property, must be generally proceeded by a judgment of
conviction or the like. It was observed in para-31 that the criminal
Courts although have jurisdiction under Cr.P.C, but once confiscation
proceedings initiated it has no jurisdiction as said jurisdiction of criminal
Court excluded and once that is the case the High Court while sitting
against it, cannot exercise its inherent power even to assume
jurisdiction on criminal Court. At para-36 of the judgment of the Apex
Court, it referred to a division bench expression of this Court in
Md.Yasim V. Forest Range Officer that was also approved in another
bench in saying the procedure contemplated under Section 44 of the
Act-one is trial of a person accused of an offence under the Act and the
other is confiscation of the property which forming part of the subject
matter of the offence even by the Forest Officer and when the Act
provides a special machinery for confiscation of the forest produce etc,
by the forest officer concerned in the general public interest to suppress
the mischief to worthless exploitation of Government forests by illicit
felling and removal of valuable forest produce even acquittal of the
accused by trial Magistrate did not entail nullifying the confiscation
order of the seized property by the forest officer on his subject to
satisfaction and the same was quoted with approval of earlier Division
Bench expression in State of A.P V. T.K.Mohamood . At para-37 of the
Apex Court judgment, they referred another judgment of the Apex Court
in State of West Bengal V. Gopal Sarkar in saying the forest produce
which is property of State Government once produced before forest
officer in respect of an offence committed, he may pass order of
confiscation together with the tools, ropes, chains, boats and vehicles
and cattle etc, and the power of confiscation is independent of any
proceeding of prosecution for the forest offence committed. It also
referred at para-38 another expression of the Apex Court in State of
Karnataka V. K.A.Kunchidammed a case relating to sandal wood under
Karnataka Forest Act; saying for preserving the forest and forest produce
in the State, the provisions in the Act were made, where under the
forest officer of the forest department when empowered to confiscate
the seized forest produce in respect of the forest offence, the general
power vested in the Magistrate for dealing with the interim custody of
the seized vehicle under Cr.P.C has to go away. The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan which followed the earlier expression in State of
Karnataka V. K.Krishnan that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle. It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.
14) Having regard to the above, the law is fairly settled in saying
that because of the specific provision empowering the forest officials
the criminal Courts cannot assume the general jurisdiction conferred
under Cr.P.C for ordering interim custody or release of vehicle.
POINT No.ii:
15) In the result, the revision is dismissed holding that the
impugned order by return of the interim custody of the vehicle for want
of jurisdiction dt.27.06.2014 passed by the learned Magistrate in CFR
No.2806 of 2014 in Crime No.106/2014 of Chagalamarri Police Station no
way requires interference by sitting against. Consequently the
miscellaneous petitions pending, if any, shall stand closed.
_________________________
Dr. B. SIVA SANKARA R?O, J
Date: -08-2014
the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle.
The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle.
The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.=
No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then. Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction. =
a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law. The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct. So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
13) The sum and substance of two expressions supra speak that,
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules. As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody.
The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan which followed the earlier expression in State of
Karnataka V. K.Krishnan that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle. It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11805
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1436 of 2014
07-08-2014
A.Sathisha.Petitioner
The State of A.P. rep. by the S.H.O Chagalamarri P.S.. Respondent
Counsel for the Petitioner : Sri V.Nitesh
Counsel for the Respondent: Public Prosecutor
<Gist :
>Head Note:
? Cases referred:
1. 1978(2) APLJ 191
2. 1996(2) ALT (Crl.) 699 = 1996(4) ALD 223
3. 1985(1) APLJ 47
4. (2004)4 SCC 129
5. 1980(1) ALT 8
6. 1978(1) APLJ 391
7. (2002)1 SCC 495
8. (2004)1 SCC 293
9. (2000)7 SCC 18
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1436 of 2014
ORDER :
1) This revision is filed by the petitioner/owner of the vehicle
under Section 397 and 401 Cr.P.C. aggrieved by the order dated
27.06.2014 in CFR No.2806 of 2014 in Crime No.106 of 2014 of
Chagalamarri Police Station registered for the offences punishable under
Sections 379 I.P.C and Sections 29(1)(b), 20(1)(3) and (1) of Indian Forest
Act, 1967, Rule 3 of A.P. Forest Products and Transit Rules and Rule 3 of
Red Sandal Wood Possession Rule 1970 under which the petition under
Section 451 of Cr.P.C filed by the petitioner was returned by the learned
Judicial Magistrate of the First Class, Allagadda, Kurnool District. The
petitioner shown his address as Mahadevapura Bande, Bangalore.
2) Brief facts are that the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle. The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle. The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.
4) The learned Public Prosecutor opposed the revision petition
stating the learned trial Magistrate is correct in his observation on want
of jurisdiction to entertain the application since it is the forest officials
having jurisdiction and thus there is nothing for this Court to interfere by
sitting in revision and sought for dismissal.
5) Heard both sides and perused the material on record.
6) Now, the points that arise for consideration are
(i) Whether the impugned order of the learned Judicial
Magistrate of the First Class, Allagadda covered by
order dated 27.06.2014 is not sustainable and to what
extent this Court to interfere while sitting in revision
against revision.
(ii) To what result?
POINT No.i:
7) A perusal of the panchanama dated 20.05.2014 shows that in
between C.K.Palli and Mutyalampadu villages near Birds school based on
information to the S.I. of Police, the Sub-Inspector with staff along with
the mediators proceeded to the said place reached by 17.15 hours and a
quails zeep with Meroon Red colour coming from Ahobilam area and on
seeing the police party of the Qualis vehicle reached nearby
apprehending interception within a distance of 10 feet away from the
police party, suddenly the vehicle reversed back to flee away. However,
the police party apprehended and could stop the vehicle from
proceeding further and noticed two persons therein besides the driver
and they were made to get down in so they noticed four logs of red
sandal which they were illegally transporting in the vehicle and the
driver is Chandran Sateesh of Bengaluru city, Old Madras Road and the
investigation show the modus operandi of him even earlier in so
transporting illegally the red sandal and the other two persons in the
vehicle are Amjad Pasha and Shabbir Pasha who also belongs to
Bengaluru and they also disclosed their identity by respective individual
interrogation which discovered the facts of their privy to the crime and
the Toyota Red colour quails jeep is bearing No.KA 04 A 6300 and the
police party called the Forest Settlement Officer and in the presence of
Forest Officials cause measured the red sandal weighing about 50 kgs
worth Rs.50,000/- and the further facts discovered disclosed the red
sandal logs purchased by these persons from other three persons of
Dornakottala village who were trading with the forest wood by uprooting
the trees. It is from registration of the crime and seizure of the
property under the panchanama including the vehicle with the red
sandal logs the police started investigation of the case.
8) Pending investigation, the application filed before the lower
Court by the petitioner claiming as owner of the vehicle saying the
driver who has taken the vehicle for rent from Bengaluru to Shemoga
misused the same in illegally transporting the red sandal logs against the
forest rules and the vehicle seized is by Chagalmarri Police and being the
owner of the vehicle is seeking interim custody undertaking not to
change the colour and utility. Hence to release.
9) The Learned Magistrate by endorsement dated 27.06.2014
returned the same holding that he has no jurisdiction to entertain the
petition as the offence is a Forest and Red Sandal Acts offence. It is
impugning the same as referred supra, the present revision is filed.
10) No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then. Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction. In this
regard the petitioner placed reliance upon a Division bench judgment of
this Court in W.A. No.66 of 1978 (Hazi Begum V. State of A.P ) wherein
it was held that the forest range officer, Hyderabad (south) near
Hussaini Alam Police Station intercepted the vehicle carrying red sandal
wood billets without permit against the red sandal wood and Sandal
Wood Transport Rules and the Andhra Pradesh Forest Act provisions and
the same were seized under panchanama and the Range Officer
produced the forest produce and the vehicle before D.F.O, Hyderabad
who lodged report in registering crime and submitted F.I.R to the
concerned Metropolitan Magistrate, also the arrested accused driver
with remand report and the vehicle also to judicial custody and the
accused was remanded for 15 days judicial custody and for the
absconding owner of the billets to secure, a bailable warrant was issued.
The writ appeallant Hazi Begum claimed as owner of the vehicle and
pending trial sought for delivery of the vehicle and the learned
Magistrate ordered interim custody of the vehicle to said claimant-Hazi
Begum subject to self-bond with two sureties and subject to the deposit
of the revision case of the vehicle in Court and to produce the vehicle on
every adjournment during enquiry/trial and not to transfer and not to
change use etc, conditions that order of the Magistrate was impugned in
W.P. No.5540 of 1977 by the Forest Range Officer showing the said Hazi
Begum as the 1st respondent to the writ petition and the writ petition
was allowed by the learned Single Judge setting aside the order of the
Learned Magistrate holding that he has no jurisdiction to release the
vehicle. Correctness of the said writ petition order was impugned in the
writ appeal. The Court ferred Section 53 of the Andhra Pradesh Forest
Act, 1967 (for short, the Act) besides Section 44, 45, 50, 58 and 58-A
including the Andhra Pradesh Forest Amended Act, 17 of 1976 and with
reference to the provisions observed that the wording of Section 53 of
the Act is indicating relating to arrest of the person by the Forest Officer
without orders of Magistrate and to produce before Magistrate for
Judicial Custody. It also speaks from para-4 of the Judgment that a
forest officer not below the rank of F.R.O can seize the forest produce
together with tools, ropes, chains, boats vehicles and cattle employed in
commission of the offence under Section 44 of the Act and after said
seizure put marks on the goods seized and keep in his custody or with
forest guard or village headman till offence is compounded or release of
seized article and when so required by Magistrate or until the orders of
the Court for disposal of the order is received and the goods otherwise
are to be produced before Assistant Conservator of the Forest who is
competent by Government notification to deal with seized goods. The
proviso to Section 44 of the Act speaks the property seized is that of the
Central or State Government and even after, if not even it shall be
reported to the D.F.O and where the Forest Officer seized the property
in respect of the forest offence he may order confiscation of the timber
or other produce so seized or produce together with all tools - - - -,
vehicles used in commission of the offence, after the person from whom
the property seized given notice informing grounds on which the
property proposed to be confiscated and opportunity of making written
representation, if any and of hearing before passing such order for
confiscation and if the owner of the vehicle or the like proves to the
satisfaction of the forest officer of the same used in carrying the
property without his knowledge or connivance in its use in commission of
the offence despite he has taken reasonable and necessary precautions
against such use and it is subject to that; the confiscation be made.
Against such confiscation order, for the aggrieved person within 30 days
from the date of communication of confiscation order there is right of
appeal in District Court within the jurisdiction there the property is
seized to hear and pass orders.
11) It is ultimately held in so referring that, for the Range Officer
there are two options either to produce before Forest Officer, the forest
produce with tools or make a report of seizure to the Magistrate and the
option is material for no obligation to report seizure to the Magistrate as
if the offence is not compounded by forest officials, the officials have
recourse to the procedure prescribed for confiscation which is no doubt
subject to right of appeal before the District Court for attaining finality.
Once there is report of seizure to the Magistrate, the Magistrate is
empowered to take such measures necessary besides trial of the accused
for disposal of the property and the powers thus enumerated are
dehorse on the powers of Magistrate under Section 45 Cr.P.C for
custody, disposal pending trial and order for disposal at conclusion of
trial as per the relevant chapter of Cr.P.C. It is observed that sub-
section (4) and (5) of Section 44 of the Act in terms are not compatible
of any ambiguity for power of Magistrate to dispose of the forest
produce and tools once a report is received by him and Sub-section (5)
speaks of the interim arrangements and thereby held that the learned
Magistrate cannot be held to have passed the order without jurisdiction
and allowed the writ appeal.
12) The other decision placed reliance is of a single Judge of this
Court in State of A.P. V. Anandmal Surajmal Sethia . In this case the
Forest Range Officer seized the lorry and produce before D.F.O, Kadapa
and the owner of the lorry approached the learned Magistrate, Rajampet
under Section 457 Cr.P.C for release of the vehicle for interim custody
and the learned Magistrate ordered for its release subject to conditions
including furnishing of bank guarantee and the same was when
challenged before the Court of Session by revision the same was
modified regarding the bank guarantee and to deposit registration
certificate book and other documents and to produce the vehicle as and
when required by Court or D.F.O. Against which, the matter reached
under Section 482 Cr.P.C before this Court where the Honourable Single
Judge of this Court observed that when the seized lorry was produced
before D.F.O and not before learned Magistrate under Section 44 of the
Act, it is only the Forest Officer of forest department that is competent
to confiscate or release the vehicle pending investigation and the
Magistrate or Learned Sessions Judge have no jurisdiction and for that
conclusion placed reliance upon earlier expression of a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law. The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct. So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
13) The sum and substance of two expressions supra speak that,
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules. As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody. Even the expression of the Apex Court in State of
West Bengal V. Sujith Kumar Rana in dealing with a forest case is that
when there is a power of a Magistrate under Cr.P.C for interim release
of vehicle involved in the West Bengal Forest Act offence concerned, it
was observed with reference to Section 52 and 59(g) of the West Bengal
Forest Act that the object of confiscation of the property involved in the
forest offences is to protect and to maintain the ecological balance and
to prevent the crimes under the Forest Act. The State Legislature made
provisions relating to seizure and confiscation by forest officials in order
to preserve the forest as national wealth and within the spirit of Articles
48(a) and 58(g) of the Constitution of India and the confiscation is
permissible once the ownership of the forest produce is clear and there
is a remedy against the order of confiscation taken care of by appeal and
procedure also made to follow for confiscation proceedings to
commence by ordering notice. Confiscation envisages a civil liability in
respect of the property, must be generally proceeded by a judgment of
conviction or the like. It was observed in para-31 that the criminal
Courts although have jurisdiction under Cr.P.C, but once confiscation
proceedings initiated it has no jurisdiction as said jurisdiction of criminal
Court excluded and once that is the case the High Court while sitting
against it, cannot exercise its inherent power even to assume
jurisdiction on criminal Court. At para-36 of the judgment of the Apex
Court, it referred to a division bench expression of this Court in
Md.Yasim V. Forest Range Officer that was also approved in another
bench in saying the procedure contemplated under Section 44 of the
Act-one is trial of a person accused of an offence under the Act and the
other is confiscation of the property which forming part of the subject
matter of the offence even by the Forest Officer and when the Act
provides a special machinery for confiscation of the forest produce etc,
by the forest officer concerned in the general public interest to suppress
the mischief to worthless exploitation of Government forests by illicit
felling and removal of valuable forest produce even acquittal of the
accused by trial Magistrate did not entail nullifying the confiscation
order of the seized property by the forest officer on his subject to
satisfaction and the same was quoted with approval of earlier Division
Bench expression in State of A.P V. T.K.Mohamood . At para-37 of the
Apex Court judgment, they referred another judgment of the Apex Court
in State of West Bengal V. Gopal Sarkar in saying the forest produce
which is property of State Government once produced before forest
officer in respect of an offence committed, he may pass order of
confiscation together with the tools, ropes, chains, boats and vehicles
and cattle etc, and the power of confiscation is independent of any
proceeding of prosecution for the forest offence committed. It also
referred at para-38 another expression of the Apex Court in State of
Karnataka V. K.A.Kunchidammed a case relating to sandal wood under
Karnataka Forest Act; saying for preserving the forest and forest produce
in the State, the provisions in the Act were made, where under the
forest officer of the forest department when empowered to confiscate
the seized forest produce in respect of the forest offence, the general
power vested in the Magistrate for dealing with the interim custody of
the seized vehicle under Cr.P.C has to go away. The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan which followed the earlier expression in State of
Karnataka V. K.Krishnan that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle. It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.
14) Having regard to the above, the law is fairly settled in saying
that because of the specific provision empowering the forest officials
the criminal Courts cannot assume the general jurisdiction conferred
under Cr.P.C for ordering interim custody or release of vehicle.
POINT No.ii:
15) In the result, the revision is dismissed holding that the
impugned order by return of the interim custody of the vehicle for want
of jurisdiction dt.27.06.2014 passed by the learned Magistrate in CFR
No.2806 of 2014 in Crime No.106/2014 of Chagalamarri Police Station no
way requires interference by sitting against. Consequently the
miscellaneous petitions pending, if any, shall stand closed.
_________________________
Dr. B. SIVA SANKARA R?O, J
Date: -08-2014
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