JUDGMENT - AGARWAL ASHOK, J.:---An attitude of avoidable confrontation has been taken by the Sub-Divisional Forest Officer, Palghar, in the matter of seizure of a tempo in respect of a forest offence which was allegedly committed on the 18th of April, 1989. On the said date at about 8.00 p.m. the said tempo bearing Registration No. MRQ/3305 was seized by the Sub-Divisional Forest Officer. This was on the Ahmedabad National Highway at some place between Virar and Manor. The said tempo was empty at that time. The Driver and the Cleaner of the said tempo came to be arrested. Two other persons were also apprehended from a nearby village. All the four along with the tempo were produced before the learned Judicial Magistrate, First Class, Vasai at 6.00 p.m. on the 20th of April, 1989 along with a remand application and the learned Magistrate was pleased to remand the four accused to magisterial custody till the 29th of April, 1989. 2. On the 25th of April, 1989, the owner of the tempo, who was not present at the time of the arrest of the aforesaid persons and the seizure of the tempo, applied to the learned Magistrate for return of the tempo. The learned Magistrate, after perusing the said application as also the say filed by the Forest Officer, was pleased to hold that vehicle in question was not used for commission of any forest offence. Pursuant to the said finding, he directed the Sub-Divisional Forest Officer to return the tempo to the owner on her executing a bond in the sum of Rs. 50,000/- with a condition to produce the same before the Court or before the investigating agency as and when required. This, apparently, the Sub-Divisional Forest Officer did not approve. The owner of the tempo, in pursuance of the said order, executed the necessary bond. She thereafter approached the Sub-Divisional Forest Officer on the 3rd of May, 1989 along with the aforesaid order of the learned Magistrate and prayed for return of the tempo. The Sub-Divisional Forest Officer, however, felt that the learned Magistrate had transgressed upon his jurisdiction in the matter of deciding upon the return of the tempo and refused to hand over the tempo to the owner. This led the owner to apply to the learned Magistrate to initiate proceedings for contempt of Court. The Sub-Divisional Forest Officer, however, felt that the learned Magistrate had transgressed upon his jurisdiction in the matter of deciding upon the return of the tempo and refused to hand over the tempo to the owner. This led the owner to apply to the learned Magistrate to initiate proceedings for contempt of Court. The learned Magistrate by his order dated the 4th of May, 1989 issued a show cause notice against the Sub-Divisional Forest Officer making the same returnable on the 15th of May, 1989. On the same day, the Sub-Divisional Forest Officer appeared before the learned Magistrate and prayed for stay of the order dated the 2nd of May, 1989 directing the release of the tempo as he desired to challenge that order in appeal. By an order passed on the same day, the learned Magistrate stayed his order upto the 11th of May, 1989. The Sub-Divisional Forest Officer thereafter carried the matter to the Sessions Court. Thane, by filing Criminal Revision Application No. 91 of 1989. In the said Revision Application the impugned order of the learned Magistrate was stayed pending the hearing and final disposal of the Revision Application. By judgment and order dated the 6th of June 1989, the learned Fourth Additional Sessions Judge, Thane, was pleased to dismiss the Revision Application mainly on the ground that the impugned order was an interlocutory order and hence the Revision Application was not maintainable. He further gave the following findings, which to a certain extent, are contradictory in themselves. They are to the following effect : "The sum and substance of the foregoing discussion, therefore, is first that Forest Officer apparently had no reason to seize the tempo in question. Secondly, the Magistrate was not entitled to say that Forest Officer was not justified in seizing the tempo and lastly, I have no jurisdiction to say that the Magistrate was in error in ordering release as he lacked jurisdiction. However, the result is that the revision fails and is dismissed." 3. After the aforesaid order, the owner had the order of the learned Magistrate directing the delivery of the tempo served upon the Sub-Divisional Forest Officer. Though this order was served on him on the 9th of June 1989, the Forest Officer declined to return the tempo. The owner was, therefore, constrained to move another application on the 12th of June 1989 for contempt. Though this order was served on him on the 9th of June 1989, the Forest Officer declined to return the tempo. The owner was, therefore, constrained to move another application on the 12th of June 1989 for contempt. By an order of the same day, the learned Magistrate issued a contempt notice with a direction to the Forest Officer to produce the tempo in Court on 16th of June 1989. On the 16th of June 1989, the Forest Officer attended the Court of the learned Magistrate along with the tempo. On that day the learned Magistrate directed him to obey the order regarding return of the tempo and adjourned the passing of the further orders on the contempt notice to the 21st June, 1989. Despite the aforesaid orders, the Forest Officer refused to deliver the tempo. This led the owner to move a further application on the 22nd of June, 1989 for contempt. In the meanwhile, the Forest Officer on the 16th of June, 1989 applied for stay of the order of delivery of tempo, which was rejected by the learned Magistrate on the very day. Finding herself in a position of helplessness despite the specific orders for the return of the tempo, the petition filed Criminal Writ Petition No. 721 of 1989 for a direction against the Forest Officer to return the tempo and for restraining him from taking steps in the matter of confiscation or forfeiture thereof. Pending this petition, the State of Maharashtra, instructed by the Sub-Divisional Forest Officer, filed Criminal Writ Petition No. 725 of 1989 seeking to challenge the order of the learned Magistrate directing the delivery of the tempo as also the order passed by the Sessions Court in Criminal Revision Application No. 91 of 1989. An interim relief of stay of the implementation of the impugned order of the learned Magistrate was also prayed for. Rule was issued in both the petitions and an order of status quo was passed pending the hearing and final disposal of these petitions. Since the subject-matters of both the petitions are the same, both the petitions are being disposed of by this common judgment. 4. It is common ground that when the tempo in question was seized, the same was empty and was accompanied only by its driver and cleaner. Since the subject-matters of both the petitions are the same, both the petitions are being disposed of by this common judgment. 4. It is common ground that when the tempo in question was seized, the same was empty and was accompanied only by its driver and cleaner. Hence, it is not disputed that the owner had not accompanied the tempo at the time and place of the incident. 5. It appears to be the case of the Forest Officer that certain forest-produce had been illegally cut and had been placed on the road side and the tempo in question had been brought there for the purpose of removing the said forest-produce. The short question that arise for our determination and which has been the subject-matter of the controversy raised by the contending parties, is whether a vehicle which has not actually been used for the purpose of committing any forest offence is liable for seizure and confiscation under the provisions of Chapter IX of the Indian Forest Act? The further question that has been raised by the contending parties is whether under the State Amendments, viz., sections 61-A to 61-G, it is the Forest Officer, who has exclusive jurisdiction to seize and further to confiscate any vehicle? It is the contention of the Forest Officer that he has the jurisdiction to the exclusion of the learned Magistrate. According to him, the impugned orders passed by the learned Magistrate are without jurisdiction. In other words, the learned Magistrate has transgressed upon his jurisdiction. Any order passed without jurisdiction is a nullity and he is not bound to comply with the same. Shri Chitnis, the learned Counsel appearing on behalf of the owner of the tempo, has strenuously challenged the validity of the seizure of the tempo by the Forest Officer. According to him, if regard is had to the provisions of section 52 of the Act, the seizure is wholly without jurisdiction. While pointing out the salient facts that it was not even the case of the Forest Officer that the tempo in question had actually been used in the commission of any forest offence, he submitted that the provisions of section 52 of the Act did not authorise the said seizure. In order to appreciate this contention, it may be convenient to reproduce section 52, which is as under: "52. In order to appreciate this contention, it may be convenient to reproduce section 52, which is as under: "52. Seizure of property liable to confiscation and forfeiture :---(1) When there is reason to believe that a forest 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 be seized by any Forest Officer or Police Officer. (1-A) 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, required the driver or other person in charge of such vehicle to stop the 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. (2) 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 offence on account of which the seizure has been made : Provided that, when the forest produce with respect of 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 : Provided further that, where the offence on account of which the seizure has been made is in respect of timber, sandalwood, firewood, charcoal or such other forest produce as may be notified by the State Government from time to time (hereinafter referred to as the "notified forest produce") and which is the property of the State Government such officer shall make a report of such seizure also to the concerned authorised officer under section 61-A. Explanation.---For the purposes of this Chapter, the expressions "property of Government" and "property of the State Government" include the property belonging to the Forest Development Corporation of Maharashtra Limited." The aforesaid provision, in our view, makes it clear that the power of any Forest Officer or a Police Officer to seize any vehicle can arise when there is reason to believe that a forest offence has been committed. (Emphasis provided). The aforesaid provision does not permit an officer to seize when a vehicle is likely to be used in the commission of a forest-offence. This would be clear from the wording of sub-section (1-A). (Emphasis provided). The aforesaid provision does not permit an officer to seize when a vehicle is likely to be used in the commission of a forest-offence. This would be clear from the wording of sub-section (1-A). Under the said sub-section the concerned officer is authorised, if he has reason to believe that a vehicle has been or is being used for the transport of the forest-produce in respect of which there is reason to believe that a forest offence has been or is being committed, to require the driver or a person in-charge of such vehicle to stop the same, cause it to remain stationary for the purpose of examining the contents of the vehicle and inspect all records relating to the goods carried which are in the possession of such driver of the person in-charge of the vehicle. (Emphasis provided). If one reads this provision in juxtaposition to the provisions contained in sub-section (1), it would follow that the concerned officer has been authorised to detain a vehicle for the purpose of examining its contents if he has reason to believe that the vehicle has been or is being used for the transport of the forest produce and this power can be exercised if there is reason to believe that a forest offence has been or is being committed. Hence, even though sub-section (1-A) authorises the concerned officer to detain a vehicle even if he has reason to believe that the vehicle is being used for the transport of a forest-produce, such a satisfaction would not justify the seizure of the vehicle under sub-section (1) as it is only when the concerned officer has reason to believe that a forest offence has been committed that the power of seizure is conferred upon him and this is particularly so because the phrase "or is being used" contained in sub-section (1-A) is conspicuously absent in sub-section (1) of the Act. 5-A. When an offence under the India Forest Act is alleged to have been committed, such an offence will be triable by the Magistrate. However, if the seizure is effected under section 52(1), the Forest Officer under section 61-B will have jurisdiction to take appropriate proceedings under sections 61-A and 61-B. 6. 5-A. When an offence under the India Forest Act is alleged to have been committed, such an offence will be triable by the Magistrate. However, if the seizure is effected under section 52(1), the Forest Officer under section 61-B will have jurisdiction to take appropriate proceedings under sections 61-A and 61-B. 6. Shri Chopda and Shri Lambe, the learned Public Prosecutors, on behalf of the Forest Department and the State, have drawn our attention to the material collected by the Forest Officer during the investigation of the alleged forest offence. They have placed reliance upon various statements recorded during investigation. They laid stress upon the statement of the driver and the cleaner of the tempo wherein the said witnesses have stated that they had brought the tempo for the purposes of transporting forest-produce which had been illegally cut. They also stated that the said tempo had been used for the transport of illegally felled forest produce in the past. Placing reliance on the statements to the above effect, they strenuously contended that the tempo in question was used in the past and was in the process of being used in committing a forest offence, hence provisions of section 52(1) of the Act had been duly attached. Hence no fault could be found with the seizure which is sought to be challenged by the owner. It was further submitted that the tempo has been produced before the learned Magistrate in compliance with the provisions of sub-section (2) of section 52 of the Act. However, the Forest Officer was further required to make a report of such seizure also to the concerned Forest Officer and this was in terms of the second proviso to section 52(2). Reliance was placed on the provisions of sections 61-A to 61-G and it was contended that once a vehicle had been seized under section 52, the confiscation proceedings had to be conducted by the Forest Officer. Before an order of confiscation is passed, the Forest Officer is required to issue a show cause notice, and an order of confiscation is subject to a revision by a Forest Officer not below the rank of Conservator of Forests. Before an order of confiscation is passed, the Forest Officer is required to issue a show cause notice, and an order of confiscation is subject to a revision by a Forest Officer not below the rank of Conservator of Forests. Any person aggrieved by an order of confiscation has a right to prefer an appeal to the Sessions Judge and this is in terms of sections 61-A, 61-B, 61-C and 61-D. Section 61-G, on which main reliance was placed by the learned Public Prosecutors, vests exclusive jurisdiction upon the Forest Officer to conduct the confiscation proceedings and excludes the jurisdiction of the Criminal Courts in that respect. The said provision is as under :- "Whether any timber, sandalwood, firewood, charcoal or any other notified forest-produce which is the property of the State Government, together with any tool, boat, vehicle, or cattle used in committing any offence is seized under sub-section (1) of section 52, the authorised officer under section 61-A or the officer specially empowered under section 61-C or the Sessions Judge hearing an appeal, under section 61-D shall have, and notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973, 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 and any tool, boat, vehicle or cattle." 7. In our judgment, the aforesaid provision of section 61-G would be attracted only when there has been a valid seizure under section 52(1) of the Act. It is only in that event that the authorised officer under section 61-A or the officer specially empowered under section 61-C of the Act shall have jurisdiction and it is only in that event that the jurisdiction of the Court in regard to custody, possession, delivery, disposal or distribution of such property and any tool, boat, vehicle or cattle will be excluded. It would be pertinent to note that section 61-G makes a reference to the seizure under section 52(1). It does not make a reference to section 51(1-A). Hence it would follow that before the authorised officer or the officer specially empowered is conferred with the exclusive jurisdiction and before the jurisdiction of the learned Magistrate is excluded, the necessary ingredients of section 52(1) have to be satisfied. It does not make a reference to section 51(1-A). Hence it would follow that before the authorised officer or the officer specially empowered is conferred with the exclusive jurisdiction and before the jurisdiction of the learned Magistrate is excluded, the necessary ingredients of section 52(1) have to be satisfied. The said ingredients are : (1) That there is reason to believe that a forest offence has been committed in respect of any forest-produce, and (2) that such forest-produce along with tools, boats, vehicles or cattle used in committing any such offence is traced. It is only in such a case that a Forest Officer is entitled to seize the same. We have gone through the investigation papers. Having regard to the material so far collected, we are unable to subscribe to the arguments advanced by the learned Public Prosecutors that the action of seizure is justified under section 52(1) of the Act. The material to the effect that the tempo in question had been brought to the scene of the alleged offence for the purpose of carrying away the forest-produce, in our view, cannot attract the provisions of section 52(1) as it cannot be said that the tempo was used in committing a forest-offence. If it was the intention of the Legislature to have authorised the seizure of the vehicle, which was intended to be used in committing such offence, nothing prevented the Legislature to have provided for the same by using the phrase "has been, is being or is about to be used in the commission of such offence". We find a similar phrase used in section 106 of the Customs Act which deals with the power to stop and search conveyances. Such a phrase, i.e., "is being or is about to be used" is conspicuously absent in section 52(1). Hence merely because certain statements to the effect that the tempo in question had been brought to the scene of incident for the purpose of removing the forest-produce have been searched, it cannot be held that the tempo was used in committing a forest offence. Similarly, the statements of the witnesses that the said tempo had been used for transport of forest-produce in the past cannot, in our view, justify an inference that the tempo was used in committing a forest offence with which the driver, cleaner and two others are being sought to be prosecuted. Similarly, the statements of the witnesses that the said tempo had been used for transport of forest-produce in the past cannot, in our view, justify an inference that the tempo was used in committing a forest offence with which the driver, cleaner and two others are being sought to be prosecuted. It is this offence for which the tempo has been seized. It has not been seized for carrying forest produce in the past. The user contemplated in section 52(1) has to be proximate and has to have a direct nexus to the prosecution of the offence with which we are concerned. A reference to a remote past incident unconnected with the offence for which the vehicle is seized cannot justify an inference that the vehicle is used in the commission of an offence for which it was seized. Similarly, no resort can be had to the phrase "has been or is being used" found in sub-section (1-A) of the Act for the purpose of justifying a seizure under section 52(1) of the Act. Such a phrase can be resorted to only for the purpose of requiring the driver or other person in-charge of such vehicle to stop the vehicle and to examine the contents thereof. Hence, in our view, the provisions of section 61-A to section 61-G are not attracted and consequently the learned Magistrate will have jurisdiction to pass appropriate orders it this behalf. 8. We are supported in the view taken by us by the case of (Manubhai Babubhai Patel v. Deputy Conservator of Forests)1, reported in 1985(2) Gujarat Law Reporter 536. In the said case the word "used" as appearing in section 61-A came up for consideration and it was held that the word "used" means "actual use". It was observed : "When the word 'used' is used in the aforesaid section, it would require that the factual and actual user thereof was made and not that it was about to be used or likely to be used. It would not include the intended use or preparation for the use. It also would not include within the scope of 'used' even an attempt to use if at no point of time even the slightest use thereof is made. It would not include the intended use or preparation for the use. It also would not include within the scope of 'used' even an attempt to use if at no point of time even the slightest use thereof is made. Therefore, the authorised officer will have the authority to seize along with the produce only tools, ropes, chains, boats, vehicles and cattle which are factually used committing the offence. Unless some actual user of the vehicle is made, at least by placing same material in the tempo, it cannot be seized and consequently it cannot be confiscated." 9. In this view of the matter, it will have to be held that the learned Magistrate was justified in holding that the vehicle in question was not used for the commission of an offence. Consequently, he was justified in directing the Forest Officer to return the same to its owner. It is apparent that the aforesaid findings arrived at by the learned Magistrate are prima facie findings and it is only on that account that the vehicle has been directed to be returned to the owner on executing an indemnity bond of Rs. 50,000/- with condition to produce the same before the Court or the investigating agency if required. We do not find any error in the said order. We have perused the investigation papers and we also find that it is not possible to hold on the strength of the material so far collected that the vehicle in question was used for the commission of the offence. If the vehicle was not used but was merely intended to be used, the same cannot justify the seizure under section 52(1). When the tempo was produced before the learned Magistrate in compliance with section 52(2) of the Act, it was open to the Magistrate to direct the same to be delivered to its owner, especially when he found that the tempo in question was not used for the commission of the offence and hence the seizure was not justified under section 52(1) of the Act. It may, however, be observed that had the seizure been justified under section 52(1), then, in view of the provisions of sections 61-A to 61-G, the jurisdiction of the learned Magistrate would have been excluded and it would have been the exclusive jurisdiction of the Forest Officer to conduct the confiscation proceedings and pass appropriate orders as permissible under the law. However, in view of our finding that the tempo in question was not used in committing a forest offence, no fault can be found with the order of the learned Magistrate. Consequently, the Sub-Divisional Forest Officer was duty bound to comply with that order. 10. Though it is true that the Sub-Divisional Forest Officer has refused to comply with the orders of the learned Magistrate despite contempt notices being issued against him, we are not inclined to take any serious view of the matter as it is possible that the Forest Officer may have bona fide believed, on the construction that he put on the relevant provisions of sections 61-A to 61-G of the Act, that it was he and not the learned Magistrate who had the jurisdiction to conduct the proceedings for confiscation. We do not think that any useful purpose would be served in pursuing the show cause contempt notices that were issued by the learned Magistrate against him. Having regard to the fact that it is not possible to hold that the act on the part of the Forest Officer was either wanton, deliberate or wilful disobedience of the impugned order of delivery of the tempo, the learned Magistrate would be well advised to discharge the contempt notice. The Sub-Divisional Forest Officer is, however, directed to deliver the tempo to the registered owner Mrs. Mangal Sarjerao Bharate in compliance with the order of the learned Magistrate on or before Monday, the 31st of July, 1989. Since the requisite bond has already been executed, it shall not be necessary to furnish any further security. 11. In the result, Criminal Writ Petition No. 721 of 1989 succeeds and the Rule is partly made absolute in terms of prayer Clause (a) with a further direction that the said tempo will be returned on or before Monday, the 31st of July, 1989. No orders in regard to prayer Clause (b) at this stage. 11. In the result, Criminal Writ Petition No. 721 of 1989 succeeds and the Rule is partly made absolute in terms of prayer Clause (a) with a further direction that the said tempo will be returned on or before Monday, the 31st of July, 1989. No orders in regard to prayer Clause (b) at this stage. It will be open to the petitioner in the event of confiscation proceedings being initiated to take such steps as may be permissible under law. Criminal Writ Petition No. 725 of 1989 fails and the rule therein is discharged. There shall be no order as to costs in both the writ petitions. Order accordingly. -----