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1999 DIGILAW 1873 (MAD)

The Public Prosecutor v. Devarapalli Surya Rao

1999-11-30

SHARFUDDIN AHMED

body1999
Order.- This petition seeks to revise the Order of the Additional Sessions Judge, Rajahmundry, dated 6th March, 1964, made in Criminal Miscellaneous Petition No. 45 of 1964, whereby he has set aside the order of the Sub-Magistrate, Rampachodavaram, in C.C. No. 1 of 1964 and directed him to hold an enquiry in regard to his order of confiscation of lorry. It appears that three persons were prosecuted under section 21(e) and (f). of the Madras Forest Act (V of 1882) hereinafter called the Act, for transporting firewood worth about Rs. 100 in a lorry bearing No. APP. 2930 on 5th December, 1963. They were found guilty and sentenced to pay a fine of Rs. 50 and also to suffer two weeks’ simple imprisonment on their admission. The learned Magistrate while passing the order confiscated the vehicle as per the requirements of section 43 of the Act. Thereupon, the respondent herein, Devarapalli Suryarao, filed an application under section 520, Criminal Procedure Code, before the Sessions Judge, East Godavari Division, claiming that he was the owner of the lorry in question and that he had hired it to one Putrayya on a rental basis in the course of his business. He was not aware of the fact that it had been used for transporting firewood in contravention of the provisions of the Forest Act and, therefore, requested that the lorry may be released in his favour. This petition was opposed by the Public Prosecutor. The learned Sessions Judge, however, on a consideration of the various sections of the Forest Act, came to the conclusion that the Magistrate has not strictly adhered to the provisions of the Act and. therefore, it was necessary to ascertain the ownership of the lorry and to pass an appropriate order thereafter. In that view, he set aside the order of confiscation and remitted the case to the lower Court for an enquiry by the Magistrate. It is against this order that the revision has been filed. The learned Public Prosecutor contends that according to the amended section 43 of the Act the Magistrate was bound to confiscate the lorry and as such the Sessions Judge was not justified in setting aside the order and directing any enquiry. It is against this order that the revision has been filed. The learned Public Prosecutor contends that according to the amended section 43 of the Act the Magistrate was bound to confiscate the lorry and as such the Sessions Judge was not justified in setting aside the order and directing any enquiry. Section 43 of the Act as amended reads thus: “Where a person is convicted of any forest offence, the Court sentencing him shall ord:r confiscation to the Government of the timber or the forest produce in respect of which such offence was committed, and also any tool, boat, cattle and vehicle and any other article used in committing such offence: Provided that it shall be open to such Court not to order confiscation of any tool, boat, cattle, vehicle or any other article used in committing such offence when the value of the timber of the forest produce in respect of which such offence was committed does not exceed fifty rupees.” From a plain reading of the section it is evident that the Magistrate is bound to confiscate to the Government the timber of the forest produce and so also any tool, boat, cattle or vehicle which had been used in committing the offence. Admittedly, in this case, the firewood was being transported in the lorry and the Magistrate was perfectly within his powers in ordering the confiscation of the property. The question is whether any remedy is open to an aggrieved ‘party other than the one convicted in the case. The respondent herein has come forward with the allegation that he was the owner of the vehicle which he had hired out to one Putrayya in the course of his lawful business and that he was not aware of the fact that it was used for transporting timber. If the order of the Magistrate under section 43 of the Act is final, no relief could be granted to aggrieved person, but sections 47 and 48 of the Act provided appeal from the orders made under sections 43, 44 and 45 of the Act. If the order of the Magistrate under section 43 of the Act is final, no relief could be granted to aggrieved person, but sections 47 and 48 of the Act provided appeal from the orders made under sections 43, 44 and 45 of the Act. Section 47 reads as under: “Any person claiming to be interested in property seized under section 41 may within one month from the date of any order passed under section 43, 44 or 45 present an appeal therefrom which may be disposed of in the manner provided by section 419, Code of Criminal Procedure.” The respondent is interested in the property seized in pursuance of the order under section 43 and within the prescribed period of one month he has filed an appeal to the Sessions Court as provided under section 419 of the Code of Criminal Procedure. The Sessions Judge was, therefore, competent to entertain the appeal and dispose it of according to law. Section 48 prescribes that where no appeal has been filed within the prescribed period or when on such an appeal being presented the appellate Court confirms such order in respect of the whole or a portion of such property or portion, it shall vest in the State free from all incumbrances. The provisions, therefore, contemplate disposal of the appeal on merits. The learned Public Prosecutor contends that the scope of the appeal has to be limited inasmuch as the provisions of section 43 are mandatory and that the appellate Court ought to have confined itself to the determination of the fact whether the vehicle was used for the commission of the offence and whether the value of the property seized was more or less than Rs. 50. I am not inclined to place such an embargo on the powers of the appellate Court. The appellate Court is certainly entitled to ascertain whether the property which has been confiscated by the Magistrate really belonged to the accused and whether the rights of third parties have been safeguarded by making the said order. 50. I am not inclined to place such an embargo on the powers of the appellate Court. The appellate Court is certainly entitled to ascertain whether the property which has been confiscated by the Magistrate really belonged to the accused and whether the rights of third parties have been safeguarded by making the said order. If the scope of the appeal is to be limited as per the contention of the learned Public Prosecutor, the aggrieved party will be precluded from putting forth any claim whatsoever, in regard to the interests in the property seized under section 43 and his ultimate remedy probably would be a civil suit against the persons who got the vehicle involved in the commission of the offence; but that could not be the object of the Legislature. No doubt, the Legislature by amending section 43 of the Act has taken away the discretion of the Magistrate in ordering confiscation of the property employed in the commission of the offence but by retaining the provisions in section 47 the powers of the appellate Court have not been curtailed. In that view, the learned Sessions Judge was justified in directing the enquiry as to the interest of the respondent in the property seized. It is to be noted that the Magistrate had not questioned the accused in the case as to the ownership of the lorry and there was nothing on record to show that the vehicle belonged to one or the other of the accused. The learned Sessions Judge was not quite correct in applying the provisions of section 45 of the Act to the present case, for that section pertains to a case where the offender is not known or cannot be found. In the instant case, the offenders were produced and they admitted the commission of the offence. Similarly, the observation of the learned Sessions Judge, that the Magistrate should have given a notice to the owner of the vehicle is neither covered by the provisions of the Act nor by any rules made thereunder. Obviously, the learned Sessions Judge has followed the decision in Kesavalu Naidu, In re,1 wherein the provisions of Madras Prohibition Act have been considered. Obviously, the learned Sessions Judge has followed the decision in Kesavalu Naidu, In re,1 wherein the provisions of Madras Prohibition Act have been considered. But, that decision was given with reference to section 99 of the Bombay Prohibition Act which contained specific provisions in regard to the procedure to be followed in the confiscation of the vehicles used in the transport of liquor. There is no analogous provisions in the Forest Act. Therefore, the observations contained in the said ruling are not strictly applicable to the facts of the instant case. However, as observed by the learned Judge in the said ruling justice and good conscience require that the provisions of the Forest Act should also be used in a humane and just manner and innocent persons should not be made to suffer or driven to expensive remedies when cheaper and expeditious mode of disposal of their claims is possible. I think, the impugned order does not call for interference, though not on the same conclusions as reached by the learned Sessions Judge. The revision case is accordingly dismissed. A.B.K. ----- Revision dismissed.