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2013 DIGILAW 411 (KAR)

B. Somnath Kotian v. State of Karnataka

2013-03-28

A.S.PACHHAPURE

body2013
ORDER A.S. Pachhapure, J.—In these petitions the petitioner has sought for quashing the order dated 16.1.2012 in Crime No. 189/2012 and the order dated 21.1.2013 in C.C. No. 19/2013 confirmed in Crl.R.P. No. 20/2013 by the learned Sessions Judge and for release of the two vehicles Mahindra Bolero seized in the course of the investigation. The facts relevant for the purpose of these petitions are as under: It is alleged against the petitioner that on 26.10.2012 he was transporting wooden logs in two Bolero Pick up vehicles bearing registration No. KA-21 A-6224 and KA-19 D-6262 and as the transportation was unauthorized, the police officials seized the aforesaid two vehicles loaded with the wooden logs and registered Crime No. 189/2012. After the investigation, a charge sheet is laid against the petitioner for the offence under Rule 165 r/w 144 of the Karnataka Forest Rules and Section 8 of the Karnataka Preservation of Trees Act. After registration of the crime, the petitioners submitted an application under Sections 451 and 457 Cr.P.C. to release the aforesaid two vehicles and vide order dated 16.11.2012 the said application came to be rejected directing the petitioner to approach the... authorities under Section 71-A of the Karnataka Forest Act. This order was not challenged. Later after filing a charge sheet, the petitioner again moved an application under Sections 451 and 457 Cr.P.C. in C.C. No. 19/2013 and vide order dated 21.1.2013 the said application was rejected on the ground that the earlier order referred to supra is not challenged and has attained finality. The order of the learned Magistrate was taken in revision to the Sessions Court in Crl.R.P. No. 20/2013 and the order of the learned Magistrate was confirmed. It is in these circumstances that the petitioner has approached this Court by filing both these petitions challenging both the orders of the learned Magistrate and that of the Sessions Judge under Section 482 Cr.P.C. requesting to release the vehicles. 2. I have heard the learned counsel for the petitioner in both the cases and also the learned High Court Government Pleader. 3. As could be seen from the records, seizure mahazar and also the charge sheet that have been filed, it is in respect of the wooden logs of CW7-Shivaram Hegde who had given the wooden logs to the petitioner and the trees grown in the non-agricultural land surrounding the house. 3. As could be seen from the records, seizure mahazar and also the charge sheet that have been filed, it is in respect of the wooden logs of CW7-Shivaram Hegde who had given the wooden logs to the petitioner and the trees grown in the non-agricultural land surrounding the house. Perusal of the seizure mahazar would reveal that the wooden log are of Mango tree and Uppalike tree. Admittedly, these wooden logs were owned by CW7-Shivaram Hegde and seized properties do not fall within the purview of Section 62(3)(a) of the Karnataka Forest Act, as this is neither the property mentioned in Clause(a) nor the property of the State Government. The question of approaching the Authorized Officer under Section 71-A of the Karnataka Forest Act does not arise. Therefore, as the said property do not fall within the purview of clause (a) aforesaid, under clause (b) of Section 62(3) of the Karnataka Forest Act, it is the Magistrate who has jurisdiction to try the offence and pass any orders in respect of the property seized. Therefore, the order passed by the learned Magistrate dated 16.11.2012 challenged in Crl.P. No. 1747/2013 directing the petitioner to approach the Authorized Officer under Section 71-A of the Karnataka Forest Act is illegal. Further his subsequent order rejecting the second application of the petitioner after the charge sheet was filed is also erroneous for the reason that he himself had jurisdiction to pass the orders under Sections 451 and 457 Cr.P.C. The order of the learned Sessions Judge confirming the order of the learned Magistrate is not valid in law. As the two vehicles are in the custody of the Authorized Officer as ordered by the learned Magistrate since long, they may lose the value in case if they are not kept in use and therefore in the interest of justice the petitioner is entitled to the interim custody. In the result, the petitions are allowed. The impugned orders are quashed. The petitioner is entitled to the interim custody of the vehicles bearing No. KA.21 A-6224 and KA.19 D-6262 on his executing indemnity bond in respect of each of the vehicles for a sum of Rs. 2,00,000/- with one surety for the likesum each and on condition that he shall produce the vehicle as and when necessary and shall not change the type of the vehicles. 2,00,000/- with one surety for the likesum each and on condition that he shall produce the vehicle as and when necessary and shall not change the type of the vehicles. The photographs of both the vehicles duly attested shall be kept in the records.