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1981 DIGILAW 65 (KAR)

DIVL. FOREST OFFICER, MANGALORE v. A. ADRAMA

1981-02-19

M.S.NESARGI, M.S.PATIL

body1981
( 1 ) THIS petition has come up before this Division Bench by virtue of the order of reference dated 13-1-1981 passed by my learned brother Patil,j. ( 2 ) A few facts necessary for determination of the questions before us may be narrated as follows: - an Ambassador Car bearing registration No. MEX 5220 was seized by the Kadaba police on 29-4-1979 and subjected to property form No. 53 of 1979 in Crime No. 44 of 1979. The seizure was made as sandal wood pellets were being conveyed in the said car and offences punishable under S. 379, ipc and Ss. 86 and 87 of the Karnataka forest Act, 1963 (hereinafter referred to as 'the Act') had been committed according to the report of the police. The report of the seizure was made on 30-4-1979 before the Judicial Magistrate, First Class, Sullia. The police requested that permission be granted to them to retain the car and the other property pending investigation The judicial Magistrate, First Class, granted permission on 30-4-1979. Prior to 28-5-1979, seizure of the very car was reported to the Chief Judicial magistrate, Mangalore, and the Chief judicial Magistrate, Mangalore, passed an order that the car should be produced before a officer authorised by the State Government with, the powers of confiscation under" the Act as requested by the police and the same was produced and an acknowledgment received, before the District Forest officer, Mangalore, on 28-5-1979. Thereafter, the respondent who has remained absent though served with the copies of the criminal petition, filed an application before the Judicial magistrate, First Class, Sullia, i. e. , on 24-5-1979 praying that the vehicle be released in his favour as he was entitled to possession thereof being the registered owner of the car. The magistrate called for the report of the Circle Inspector of Police, heard the Assistant Public Prosecutor and passed his order dated 10-7-79 directing the release of the car in favour of the respondent. ( 3 ) THE State preferred Crl. R. P. No. 68 of 1979 in the Court of the Sessions judge, D. K. Mangalore, as against the said order of the Magistrate. It may be stated that all these facts are available in that order as well as the order of the Magistrate. ( 3 ) THE State preferred Crl. R. P. No. 68 of 1979 in the Court of the Sessions judge, D. K. Mangalore, as against the said order of the Magistrate. It may be stated that all these facts are available in that order as well as the order of the Magistrate. The learned sessions Judge concluded that the order passed by the Magistrate was an interlocutory order and therefore a revision was incompetent and that the order passed by the Magistrate was in accordance with law in view of the decision reported in State of Karnataka v. Shivannnda (1977) 2 Kar. L. J. 452. ( 4 ) ONE of the points referred is as to what would be the position in law in regard to passing of orders of releasing the property seized when the seizure has been made under the provisions of the Code of Criminal procedure and the offences alleged are puninshable both under the Penal code as well as the Act. ( 5 ) IN regard to the first conclusion of the learned Sessions Judge, it is crystal clear that the order passed by the Magistrate at Sullia is in exercise of his powers under S. 457 of Crl. P. C. That order is not in a pending proceeding which requires final disposal by him. Therefore in no sense can that order be characterised as an interlocutory order. Hence, the view taken by the learned Sessions Judge is not in accordance with the provisions of law. ( 6 ) IN regard to the second conclusion the same is to be considered along with the question raised as to what should happen if the seizure is made under the provisions of the Code of criminal Procedure where the offences alleged are punishable both under the penal Code and also under the Forest act. S. 62 of the Forest Act lays down that whenever property liable to confiscation under the provisions of the act is seized either by any forest officer authorised or a police officer, the seizure has to be reported to the magistrate having jurisdiction to try the offence on account of which the seizure has been made. It is plain that the offence referred to in this provision is an offence under the Act. If a seizure is made during an investi gation under Crl. It is plain that the offence referred to in this provision is an offence under the Act. If a seizure is made during an investi gation under Crl. P. C. in view of the offence alleged to have been committed under the Indian Penal Code, a report of the seizure has to be made by the police seizing any property as required by S. 457 of Crl. P. C. Therefore, whenever the offences alleged are punishable under the provisions of the Indian Penal Code and the Act and the seizure is made by a police officer, because one of the offences alleged is punishable under the Penal Code a report of the seizure has to be made as per the provisions of S. 62 of the act and S. 457 Crl. P. C. as well. This does not necessarily mean that two separate reports have to be made to the Magistrate having jurisdiction to try the offences. A single report containing all the facts pertaining to the seizure of the concerned articles will sub serve the purpose. When that is so, the concerned Magistrate will have power under S. 457 Crl. P. C. to pass an order in regard to disposal of the property at that stage though he cannot have a similar power under s. 62 of the Act. This is how the provisions of law stand as at this juncture. ( 7 ) THE aforementioned principle has to be applied to the fapts and circumstances of this case. The judicial Magistrate, First Class, Sullia permitted the police on seizure report under S. 457 Crl. P. C. to retain the car in question pending investigation. At an appropriate stage, the police sought permission of the Chief Judicial magistrrate, Mangalore, after reporting seizure to permit them to produce the car before the District Forest officer, Mangalore. who was an authority empowered by the State Government with 1he powers of confiscation. In this connection, it is to be noted that S. 71a of the Act mandatorily requires the production of the property seized for an alleged offence under the Act before such an officer. Under the facts and circumstances of the case, this report of seizure has to be under S. 62 of the Act. The Chief judicial Magistrate passed his order prior to 28-5-1979 presumably because of S. 71a of the Act. Under the facts and circumstances of the case, this report of seizure has to be under S. 62 of the Act. The Chief judicial Magistrate passed his order prior to 28-5-1979 presumably because of S. 71a of the Act. Therefore, prior to the impugned order passed by the judicial Magistrate, First Class, Sullia, on 10-7-1979, there has been an order by the Chief Judicial Magistrate as aforestated. That order could not have been brushed aside by the judicial Magistrate, First Class, Sullia without there being circumstances warranting such an act. Therefore, the only course that ought to have been adopted by the Judicial Magistrate, First Class, when the respondent filed his application on 24-5-79 was that too after it came to his notice that an order had been passed by the chief Judicial Magistrate and the car had been produced before the District Forest Officer on 28-5-79 as per the report of the Circle inspector of Police - to ask the respondent to approach the District forest Officer who was the officer empowered by the State Government to confiscate the properties under the act and make his request there because it was for that officer to consider as per the provisions of the Act. In this view of the matter, the order passed by the Judicial Magistrate, first Class, Sullia, on 10-7-79 on the application filed by the respondent on 24-5-79 is clearly unsustainable in law. Hence, the decision in State of karnataka v. Shivanada (1) rendered after considering the facts and circumstances of that case has no application to the case on hand. ( 8 ) IN the result, this petition is allowed and the order passed by the sessions Judge, Dhakshina Kanada, mangalore, on 16-4-80 in Criminal revision Petition No. 68 of 1979 is set aside and the order dated 10-7-79 passed by the Judicial Magistrate, first Class, Sullia, in Crime No. 44 of 1979 is quashed. --- *** --- .