RAMACHANDRA. B. K v. STATE OF KARNATAKA — 1983 DIGILAW 149 (KAR)

N. D. VENKATESH, J. ( 1 ) APPREHENDING that the petitioners were transporting fire-wood in violation of the relevant provisions of the Karnataka forest Act, 1963 (the Act) and the Karnataka forest Rules, 1969 (the Rules) the police of Belthangadi in DK Dist. . seized, at about 6 30 p. m. , on 5 6 1983, a lorry bearing registration No. KLU 9382 with fire-wood in it on Koyyur Belthangady road at a place called Malebettu. They registered a case in their Crime No. 90 of 1983. A first information report was sent to the Court of the JMFC, Belthangady, along with the property form, and the same were received by the Court on 6. 6. 1983. On that day the Police requested the learned Magistrate to permit them to produce two items out of the seized articles before the District Forest officer having jurisdiction over the area. The two items were the goods vehicle referred to above (KLU-9382) and the firewood pieces of the value of Rs. 1,000. In the requisition made to the Court the Sub-Inspector of Police stated that they propose to proceed against the accused re : these two items under S. 71a of the Act. and therefore they may be permitted to take the aforesaid two items before the dist. Forest Officer. On that requisition the learned Magistrate passed an order in these terms : ". . . . . . . . permitted to produce before the competent authority". ( 2 ) CHALLENGING the aforesaid order the petitioners have approached this Court under S. 397 read with S. 401 of the crl. PC, 1973 (the Code ). The 1st petitioner is said to be the registered owner of the lorry, and the second claims to run a fire-wood depot at a place called Laila in belthangadi Tq It is said that the second petitioner is in possession of the lorry under an agreement of sale entered into with the 1st petitioner. PC, 1973 (the Code ). The 1st petitioner is said to be the registered owner of the lorry, and the second claims to run a fire-wood depot at a place called Laila in belthangadi Tq It is said that the second petitioner is in possession of the lorry under an agreement of sale entered into with the 1st petitioner. What is further stated on behalf of the petitioners is that belthangadi PSI, is not well disposed of towards them ; that he has foisted a false case against them ; that they were not transporting any fire wood in violation of the rules as alleged ; that the lorry was parked near a fire-wood depot and was empty ; that the PSI, got it loaded with the fire wood, with a mala fide intention, from the depot and thereafter had created false records; that, even otherwise, assuming the facts placed by the police now are correct, it cannot be said that re: these properties an enquiry under S. 71a of the act was called for in view of the fact that nowhere have the police stated that the fire-wood was the property of the Government; and that, in the circumstances, the court below has erred in permitting them to produce the fire wood before the Dist. Forest Officer and, that it had done so without applying its mind and in violation of the relevant provisions of the Code. The learned counsel for the petitioners submitted that, in the circumstances, quashing the impugned order, the Court below may be directed to make an appropriate order after hearing the parties. ( 3 ) ON the other hand, the learned State public Prosecutor argued that this revision has to be dismissed in limine for the reason that there has been no order of the magistrate as such to call in question ; that the facts collected by the Police do disclose that the fire-wood was the property of the Government; that, therefore, the investigating officer had decided to proceed in accordance with S. 71a of the act; and that, if the petitioners' contention is that the fire-wood being private property cannot be dealt with under S. 71 A, they are entitled to raise this objection before the Dist. Forest Officer who is empowered, in law, to try this matter under S. 71a ; that, however, the Court below has no jurisdiction to go into this question at this stage ; and, therefore, the revision may be dismissed. ( 4 ) THESE rival contentions can be better understood if we know the penal consequences for violation of the Act or the Rules, the forums and authorities to try such offences, their powers and procedure, and the freedom of choice, if any, of the authority enforcing the law. At this stage it may be relevant to note that the act makes a distinction between timber or forest produce which is not the property of the Government, and the timber or forest produce which is the property of the Government. S. 65 of the Act says that if a forest offence is committed involving forest produce or timber which is not the property of the Government, such forest produce and timber and all tools, boats, vehicles etc. , used in committing any forest offence shall subject to S. 71g, be liable by an order of the convicting Court to forfeiture to the State Government Now, Ss. 71a and 71g be noted :"71a. Confiscation by Forest Officers in certain cases :- (1) Notwithstanding anything contained in the foregoing provisions of this Chapter or in any other law where a forest offence is believed to have been committed in respect of timber, ivory, fire-wood and charcoal which is the property of the State government or in respect of sandal-wood the officer seizing the property under sub-sec. (1) of S. 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 asst. Conservator of Forests (herein after referred to as the authorised officer ). (2) Where an authorised officer seizes under the sub-sec. (1) of S. 62 any timber, ivory, firewood, and charcoal which is the property of the State government or any sandalwood or where any such property is produced before an authorised officer under sub-sec. Conservator of Forests (herein after referred to as the authorised officer ). (2) Where an authorised officer seizes under the sub-sec. (1) of S. 62 any timber, ivory, firewood, and charcoal which is the property of the State government or any sandalwood or where any such property is produced before an authorised officer under sub-sec. (1) once 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, (3) (a) Where the authorised officer, after passing an order of confiscation under sub sec. (2), is of the opinion that it is expedient in the public interest so to do, he may, order the confiscated property or any part thereof to be sold by public action. (b) Where any confiscated property is sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under S. 71a is set aside or annulled by an order under Ss. 71c and 71d, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order". "71g. BAR of jurisdiction in certain cases:-Whenever any timber Ivory, firewood, or charcoal belonging to the state Government or any sandalwood, together with any tool, rope, chain, boat, vehicle or cattle used in committing any offence is seized under sub-sec. (1) of S. 62, the authorised officer under S. 71a or the officer specially empowered under S. 71c or the Sessions judge hearing an appeal under S. 71d shall have and, notwithstanding anything to the contrary contained in this act or in the Crl. PC, 1973 (Central Act 2 of 1974) or in any other law for the time being in force, any other officer, court, tribunal or authority shall not have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property". Thus, if the seized timber etc. PC, 1973 (Central Act 2 of 1974) or in any other law for the time being in force, any other officer, court, tribunal or authority shall not have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property". Thus, if the seized timber etc. , is the property of the Government it is only the authorised officer and not the Court that has powers to deal with the same, even if the investigating officer chooses to prosecute the alleged offender in the Court for an offence involving properties of the above nature, in the matter of disposal of such property he has no choice but to obtain the orders of the authf rised officer. ( 5 ) ELABORATING his arguments the learned counsel for the petitioners contended that when the IO, approached the court seeking its permission to produce these articles before the Dist. Forest Officer, the Court, before permitting in a mechanical way, should have notified his clients, heard them in the matter, and decided as to whether it wass in the circumstances re-quired that the police should place these articles before the Dist. Forest Officer to deal with the same under S. 71 A. In effect, what he says is that the Court should have decided, at that stage, whether the firewood, in relation to which its permission was sought for, was the property of the government or not. ( 6 ) THE learned State Public Prosecutor says that, at that stage, the Court below had no jurisdiction to go into this question. According to him the police did not even require the permission of the court, if it was their case that the firewood was the property of the Government, to place the same before the Dist. Forest officer for being dealt with under S. 71a. He argues that, though not required in law, they had sought for permission of the court and the" Court, though not empowered to act, had passed an order and, therefore, the petitioners need not make much of that fact. He drew my attention to a Division Bench decision of this Court in Divnl. Forest Officer, Mangalore v. Adrama (1 ). In fact, that decision was rendered on 19-2-1981. He drew my attention to a Division Bench decision of this Court in Divnl. Forest Officer, Mangalore v. Adrama (1 ). In fact, that decision was rendered on 19-2-1981. In some important aspects the Act was amended by the karnataka Forest (Amendment) Act, 1980 (Karnataka Act No. 1 of 1981) and this act came into force on 23rd Feb. , 1981. S. 71a is amended and S. 71g has been added on. Both these provisions are extracted above. As is clear therefrom (S. 71g ). "jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of "timber, ivory, fire-wood, and charcoal belonging to the State Government. " with the vehicle etc. , in relation to which an offence is registered, vests exclusively with the authorities named in Ss. 71c and 71d and not with any Court or authorities. It is for the investigating officer to form an opinion initially and to take a decision whether the forest produce or firewood seized is the property of the government or not. In the light of that opinion it is open to him to choose the appropriate forum. The accused or the person aggrieved can plead with the authorised officer that the forest produce produced is not the property of the government in which case that authority will have to decide that question and that decision would be final subject to the decision of the revisional and appellate authorities. (S. 71g of the Act ). In the instant case, at the time when the investigating officer approached the Magistrate the investigation was not complete and the choice in the matter still remained with the IO. The learned Magistrate need not have passed the impugned order when the investigation officer informed that the firewood, being Government property, he desires to produce the same before the dist. Forest Officer. He could have in formed, if need be, in writing, the investigating officer that it was left to him to take appropriate steps in the matter. The fact that the Magistrate has not done so but has passed an order permitting the investigating officer to produce these articles before the Dist. Forest Officer is, in the circumstances, not of much consequence. At that stage it was not for him to decide whether the offence committed was in relation to the property of the Government or not. The fact that the Magistrate has not done so but has passed an order permitting the investigating officer to produce these articles before the Dist. Forest Officer is, in the circumstances, not of much consequence. At that stage it was not for him to decide whether the offence committed was in relation to the property of the Government or not. ( 7 ) HOWEVER, the learned counsel for the petitioners submitted that even if that order is a nullity, declaring it as such, it may be quashed. It need not be. It has in no way prejudicially affected the rights of the petitioners. It is of no consequence to them. The learned Magistrate at that stage had no powers to decide the question involved. ( 8 ) FOR the reasons stated above this petition has to fail and, therefore, it is hereby dismissed. --- *** --- .