Research › Browse › Judgment

Madras High Court · body

1977 DIGILAW 478 (MAD)

State of Karnataka v. B. G. Shivananda

1977-11-04

S.R.RANGE GOWDA

body1977
Order.- The respondent herein B.G. Shivananda is said to bo the registered owner of an Ambassador Car bearing No. MYQ 8646. On 4th May, 1977 at about 3-00 a.m. Thyamagondlu Police seized the said car presumably acting under sub-section (1) of section 62 of the Karnataka Forest Act, 1963, (hereinafter called the Act), on the ground that it was being used for committing offences under section 379, Indian Penal Code read with section 86 of the Act, and registered a case in Crime No. 26 of 1977 and reported the fact of seizure to the Chief Judicial Magistrate, Bangalore District, presumably acting under sub-section (3) of section 62 of the Act. Thereupon the respondent on 10th May, 1977 filed an application under section 451 of the Code of Criminal Procedure, 1973, before the said Magistrate requesting him to release the care and hand it over to him. The A.P.P. however resisted that application and inter alia contended that the Magistrate has no jurisdiction to make the order sought for and. that in view of the provisions of section 71-A of the Act (inserted by the Karnataka Forest (Second Amendment) Act, 1976) it is the authorised officer referred, to therein who can made an order of that kind; the argument submitted in support of that contention was that section 71-A of the Act empowers the authorised Officer referred to therein to order confiscation of the property seized under section 62(1) of the Act and therefore it is that authorised officer who can make an interim order regarding the custody of the car in question, and. not the Magistrate. The learned Magistrate, however, repelled that contention and observed thus: "There is nothing in the provisions of section 71(A) to section 71(F) which have been added by virtue of the Karnataka Forest (Second Amendment) Act 1976, relates to the interim custody of vehicle seized by the Police. The offence alleged in this case is one punishable under section 379, Indian Penal Code read with section 86 of the Karnataka Forest Act. The offence alleged in this case is one punishable under section 379, Indian Penal Code read with section 86 of the Karnataka Forest Act. Though section 71(A) gives the power of confiscation of the vehicle used in the commission of a forest offence to the officer authorised by the State Government under the provisions of section 71(A) there is no provision found in the entire scheme of section 71(A) to section 71(F) by which interim custody of a vehicle seized by the police can be given or has to be given by such authorised officer and ousting the jurisdiction of a criminal Court. In my opinion, there is considerable force in the contention urged on the side of he petitioner that even though section 71(A) of the Forest Act provides that the power to confiscate vests with the authorised officer appointed by the State Government, the powers of this Court to grant interim custody of the vehicle seized by the Police vests with this Court and has not been fettered in any manner or ousted by any of the provisions of sections 71(A) to 71(F) of the Forest Act. I am of the opinion that there is no impediment to pass an order regarding the interim custody of the vehicle seized, that is the car seized in this case, by this Court subject to certain conditions that have to be imposed to safeguard the interests of the State.” In the view he took he allowed the application of the respondent, by his order dated 24th September, 1977 the operative portion of which reads: “For the above reasons, I allow this application. The Car MYQ-8646 is given to the interim custody of the petitioner B.G. Shivananda on condition that he shall execute an indemnity bond for a sum of Rs. 25,000 (Rupees twenty-five thousand.) with one surety in like sum and on further condition that he shall not change the colour or the structure of the car in any manner until the disposal of the case and shall produce the car before the police as well as before the Court whenever called upon and he shall not dispose of the said car till the disposal of the case.” It is the legality of the said order that is assailed in this petition by the State. 2. 2. It was mainly contended that the provisions of section 71-A of the Act override the general provisions contained in section 451, Criminal Procedure Code and hence the learned Magistrate was in error in-making the impugned order exercising power under section 451, Criminal Procedure Code. To appreciate he contention it is relevant to refer to sections 62 63, 64, 65, 66 and 71-A of the Act and they read: “62. Seizure of property liable to confiscation-(1) When there is reason to believe that a fores, offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles or cattle used in committing any such offence may seized by any forest officer or Police Officer. (2) Any forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop he vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle. (3) Every officer seizing any property under this section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized and shall as soon as may be make a report of such seizure to the magistrate having jurisdiction to try the offeree on account of which the seizure has been made: Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. 63.Power to release property seized under section 62-Any Forest Officer of a rank not inferior to that of a Forest Ranger who or whose subordinate has seized any tools boats, vehicles or cattle under section 62 may release the same on the execution by the owner thereof a bond for the production of the property so released if and when so required before the Magistrate having jurisdiction. to try offence on account of which the seizure had been made. 64.Procedure on receipt by Magistrate of report of seizure.-Upon the receipt of any report under sub-section (3), of section 62, the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law. 65.Forest produce, tools, etc., token liable to forfeiture.-(1) All timber or forest produce which is not the property of Government and in. respect of which a forest offence has been committed and all tools boats, vehicles and cattle used in committing any forest offence, shall be liable by order of the convicting Court to forfeiture to the State Government. (2) Such forfeiture may be in addition to any other punishment prescribed for such offence. 66.Disposal, on conclusion of trial for forest offence, of produce in respect of which it was committed.-When the trial or any forest offence is concluded, any forest produced in respect of which such offence has been committed shall, if it is the property of Government or has been forfeited, betaken charge of by a Forest Officer, and, in any other case, may be disposed of in such manner as the Court may direct. 71-A Confiscation by forest officers in certain cases.-(1) Nothwithstanding anything contained in the foregoing provisions of this Chapter, where a forest offence is believed to have been committed in respect of timber, sandalwood, ivory, firewood and charcoal which is the property of the State Government, the officer seizing the property under subsection (1) of section 62, shall, without any unreasonable delay produce it together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence before an officer authorised by the State Government in this behalf by Notification in the official Gazette, not being below the rank of an Assistant Conservation of Forests (hereinafter referred to as the authorised officer). (2) Where an authorised officer seizes under sub-section (1) of section 62 any timber, sandal-wood, charcoal, firewood and ivory which is the property of the State Government or where any such property is produced before an authorised officer under sub-section (1) and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence." Section 63 of the Act empowers the officer referred to therein to release any vehicle seized under section 62 of the Act on the execution by the owner thereof a bond subject to the condition mentioned therein. But, there are no corresponding provisions empowering a police officer seizing any vehicle under section. 62 to release it on such terms, and all that he is required to do is to report the fact of seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. On receipt of the report, what the Magistrate is required to do is stated in section 64 of the Act, and from the provisions of that section it is clear that the Magistrate is with all convenient despatch required to take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law, and section 65 declares that all timber or forest produce which is not the property of Government and in respect of which a forest offence has been committed and all tools, boats, vehicles and cattle used in committing any forest offence shall be liable by order of the convicting Court to forfeiture to the State Government, and section 66 prescribes that when the trial of any forest offence is concluded any forest produce in respect of which such offence has been committed shall if it is the property of Government or has been forfeited be taken charge of by a Forest Officer, and in any other case may be disposed of in such manner as the court may direct. Coming to section 71-A of the Act, there is no provision taking away or curtailing the power of a Magistrate to make an order regarding the disposal of the property seized under section 62, subject of course to the provisions of sections 63 and 66. The mere fact that section 71-A confers power on the authorised officer referred to therein to make an order of confiscation does not take away the jurisdiction of the Magistrate to make an order under section 451, Criminal Procedure Code. The words ‘disposal’ and ‘according to law’ occurring in section 64 of the Act and the context in which they are used would have reference only to the provisions of the Code of Criminal Procedure, and the word ‘disposal’ is not defined either in the Act ‘or in the Code (Chapter XXXIV) and the dictionary meaning of that expression is ‘disposing of, getting rid of, setting dealing with, bestowal, assignment, sale, control, management, placing, arrangement’ (vide The Concise Oxford Dictionary page 347) and it is wide enough to cover even an order for the interim custody of the property seized as was done in the case on hand. Therefore, the contention of the State that the learned Magistrate has no jurisdiction to make ‘such an order under the provisions of the Code of Criminal Procedure must fail. 3. In the result, the impugned order is affirmed and this petition is dismissed.