ORDER 27.8.2008 — Notice on behalf of the opposite parties has been accepted by Sri C.A. Rao, learned Standing Counsel for the Forest Department. We have heard learned counsel for the petitioner Sri Rabina¬rayan Nayak and the learned Standing Counsel for the Forest Department- opposite parties. Sri C.A. Rao has received instruction. However, counter affidavit has not been filed. Therefore, counter affidavit may be filed within two weeks. List this case in the week commencing 22nd of September, 2008 for final disposal at admission stage. We have considered the question of interim release of the vehicle, which is a Bus bearing Registration No.OR-02-AJ-8199. It appears that on 1.8.2008, 58 bundles of Kendu Leaves were found loaded on the roof of the above noted passenger bus. The Forest Officers raided the bus and recovered the Kendu Leave bundles and seized the same along with the passenger bus. For Kendu leaves in Orissa there is a special Act namely Orissa Kendu Leaves (Control of Trade) Act, 1961, in short “Act, 1961”, which provides specific provisions regarding offence as well as power of entry, search, seizures etc. and also the procedure according to which the provisions of Sections 102 and 103 of the Code of Criminal Procedure relating to search and seizure shall, so far as may be, apply to searches and seizures under that Section. The Act was enforced on 5th January, 1962. Thereafter the Orissa Forest Act, 1972 came into force with effect from 11.7.1972. In this case the question involved is whether the special laws for Kendu Leaves, Act, 1961 and the Rules framed thereunder, or the general law, i.e., the Orissa Forest Act, 1972, would be applicable in respect of seizure of Kendu Leaves and the afore¬said bus; more so when Section 74 of the Orissa Forest Act, 1972 (hereinafter referred to as “Act, 1972”) provides that “nothing in the Act shall be deemed to bar the prosecution of any person under any other law for any act or omission which constitutes a forest offence or from being liable under such other law to any higher punishment or penalty that provided under the Act or the Rules thereunder”. Sri C.A. Rao has vehemently opposed the interim release of the vehicle on the ground that Section 57 of the Act 1972 was deleted which provided the interim release of the vehicle and the proviso was added to Section 56 to the effect that the seized property shall not be released during pendency of the confisca¬tion proceeding or trial even on the application of the owner of the property for such release. However in Section 65 of the Act, 1972 it is provided that “nothing in this Act shall be deemed to prevent the Divisional Forest Officer from directing at any time to immediate release of any property seized under Section 56 and till withdrawal of any charge made in respect of such property in accordance with the provisions of Section 321 of the Code of Criminal Procedure, 1973”. But there is a proviso wherein it is provided that where a report has been made to the Magistrate of the property seized under Section 56, the Divisional Forest Officer shall not release the property without the consent in writing of such Magistrate if a case is pending before him, and in other cases, without previous intimation to him. No doubt, ‘Kendu Leave’ has been included in the definition of ‘Forest Produce’ in the Orissa Forest Act and the definition of the ‘forest offence’ is given as an offence punishable under the Forest Act or the Rules framed thereunder. But Sri C.A. Rao relying on the provision of the Orissa Timber and Other Forest Produce Transit Rules, 1980 which have been framed under the Act, 1972 submits that there was necessity to obtain a permit for transportation of Kendu Leaves. However Clause 5 of the aforesaid Rules, 1980 indicates the cases in which permit shall not be required, as under : 5. However Clause 5 of the aforesaid Rules, 1980 indicates the cases in which permit shall not be required, as under : 5. Cases in which permit shall not be required-(1) No trans¬it permit shall be required to cover transit of forest produce in the following cases, namely: (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx (h) xx xx xx (i) for transport of minor forest produce within the district except lac, tassar, myrabolans, gums and resin, root to patalaga¬ruda, sal seed, tamarind and hill brooms, subject to such limit of transport and storage without transit permit as may be noti¬fied by State Government in Official Gazette for different items : (j) xx xx xx” The above quoted rule 5(i) permits the movement of minor forest produce within the district. ‘Minor forest produce’ has been defined under sub-rule (h) of Rule 2 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 to mean “forest produce other than timber, fire-wood, charcoal and bamboos”. According to Sri C.A. Rao, ‘Kendu Leaves’ come under the Minor Forest Produce but even then the movement is permitted therein within the district without permit. This is also a matter of consideration as to whether the Orissa Timber and Other Forest Produce Transit Rules, 1980, which have been made under the Orissa Forest Act, shall be applicable to Kendu Leaves or not, for which special Act and Rules are in force and that too from prior to enforcement of Orissa Forest Act and the Rules. The case is arguable. It is also not the case of the opposite parties that the Kendu leave bundles in question were taken or recovered out of the district. However, as in Section 13 of Kendu Leave (Control of Trade) Act, 1961 it has been provided that the provisions of Sections 102 and 103 of the Code of Criminal Procedure relating to search and seizure shall so far as may be apply to searches and seizures under that Section. Therefore, we direct, as an interim measure, that the above mentioned vehicle shall be released on furnishing bank guarantee of Rs.2,00,000/- (Rupees two lakhs) by the peti¬tioner with the D.F.O., Rairakhole, but the same shall not be encashed without leave of this Court. Therefore, we direct, as an interim measure, that the above mentioned vehicle shall be released on furnishing bank guarantee of Rs.2,00,000/- (Rupees two lakhs) by the peti¬tioner with the D.F.O., Rairakhole, but the same shall not be encashed without leave of this Court. The petitioner shall also give an undertaking that she shall not sell or change the nature of the vehicle and diminish its value in any manner during pend¬ency of the writ petition and shall produce the same as and when required by this Court or the D.F.O. concerned. The misc. case is disposed of accordingly. Urgent certified copy of this order be granted as per rules. Misc. Case disposed of.