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2013 DIGILAW 583 (UTT)

State of Uttarakhand v. Satish Ghai

2013-09-06

ALOK SINGH

body2013
JUDGMENT : Alok Singh, J. Jeep No. UA 06 A 3515 along with forest product i.e. Sheesham and Sagon was seized by the forest officers under Section 52 of the Indian Forest Act for the offence of case crime no. 1093 of 2005 under Section 379, 411 IPC and under Section 26, 52, 65 of the Forest Act police station Nanakmatha. Application to release the Jeep bearing registration no. UA 06 A 3515 along with 28 frames of Sheesham and Sagon was moved before the Additional Judicial Magistrate, Khatima, which was dismissed by learned Additional Judicial Magistrate, Khatima vide order dated 28.02.2009. Feeling aggrieved, criminal revision being criminal revision no. 55 of 2009 was preferred by the respondent, herein, in the Court of Session, Udham Singh Nagar which was allowed vide order dated 07.12.2009 directing to release the vehicle on his furnishing a personal bond of ` 1,50,000/- and one surety of the like amount to the satisfaction of trial Magistrate. Feeling aggrieved, State has preferred this revision. None appears for the respondent, despite valid service. I have heard Mr. Vipul Painuly, learned AGA for the State / revisionist and have carefully perused the record as well as provisions of law. The short question arises in the present revision is as to whether any vehicle seized along with forest product under Section 52 of the Indian Forest Act can be released by a criminal court invoking provision of Code of Criminal Procedure. Section 52, 52A, 52B, 52C, 52D and 53 of the Indian Forest Act read as under: “Seizure of property liable to confiscation (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, vehicle, cattle, ropes, chains or other articles used in committing any such offence, may be seized by any Forest-officer or Police-officer. (2) Any Forest Officer or Police officer may, if he has reason to believe that a boat or vehicle has been, or is being, used for the transport of any forest produce in respect of which forest offence has been, or is being, committed, require the driver or other person in charge of such boat or vehicle to stop it, and he may detain such boat or vehicle for such reasonable time as is necessary to examine the contents in such boat or vehicle and to inspect the records relating to the goods transported so as to ascertain the claims, if any, of the driver, or other person in charge of such boat, or vehicle regarding the ownership and legal origin of the forest produce in question. (3) Every officer seizing any property under this section shall place on such property 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, and if the seizure is in respect of forest produce which is the property of State Government, shall also make a report to the authorised officer. 52A Procedure on Seizure - (1) Notwithstanding anything contained in this Act or any other law for the time being in force where a forest offence is believed to have been committed in respect of any forest produce, which is the property of the State Government. The Officer seizing the property under sub-section (1) of Section shall, without unreasonable delay, produce it together with all the tools, boats, vehicles, cattle, ropes, chains and other articles used in committing the offence, before an officer, not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles cattle, ropes, chains and other articles, may also confiscate them. (2) The authorised officer shall, without any undue delay, forward a copy of the order made under sub-section (1) to his official superior. (2) The authorised officer shall, without any undue delay, forward a copy of the order made under sub-section (1) to his official superior. (3) Where the authorised officer passing an order under sub-section (1) is of the opinion that the property is subject to speedy and natural decay, he may order the property or any part thereof to be sold by public auction and may deal with the proceeds, as he would have dealt with such property if it had not been sold and shall report about every such sale to his official superior. (4) No order under sub-section (1) shall be made without giving notice, in writing, to the person from whom the property is seized and to any other person, who may appear to the authorised officer to have some interest in such property: Provided that in an order confiscating a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objections, if any, will suffice. (5) No order of confiscation of any tool, boat, vehicle, cattle, rope, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, cattle, rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence. 52B Appeal – Any person aggrieved by an order of confiscation may, within thirty days of the date of communication to him of such order, prefer an appeal to the State Government and the State Government shall, after giving an opportunity of being heard to the appellant and the authorised officer pass such order as it may, think fit confirming, modifying or annulling the order appealed against and the order of the State Government shall be final. 52 C Order of confiscation not to prevent any other punishment – No order of confiscation under Section 52-A or 52-B shall prevent the indication of any punishment to which the person affected thereby may be liable under this Act. 52 C Order of confiscation not to prevent any other punishment – No order of confiscation under Section 52-A or 52-B shall prevent the indication of any punishment to which the person affected thereby may be liable under this Act. 52D Bar of jurisdiction in certain cases – 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, whenever any forest produce belonging to the State Government together with any tool, boat, vehicle, cattle, rope, chain or other article is seized under sub-section (1) of Section 52, the authorised officer under Section 52A, or the State Government under Section 52-B shall have jurisdiction to the exclusion of every other officer, court, Tribunal or authority, to make orders with regard to the custody, possession, delivery, disposal or distribution of the property. Section 53 - Power to release property seized under section 52 Any Forest-officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats [vehicles, cattle, ropes, chains or other articles] [under section 52, may subject to Section 61G release] the same on the execution by the owner thereof a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made [except in respect of cases falling under Section 52-A for which the procedure laid down in that section shall be followed]. As per Section 52 of the Indian Forest Act, any forest officer or police officer, having reason to believe that any vehicle has been, or is being, used for the transport of any forest produce in respect of which forest offence has been, or is being committed, may seize that vehicle. As per Section 52A of the Indian Forest Act read with 52B and 52C, vehicle and forest product, so seized, can be confiscated, after hearing the affected person / accused and any person feeling aggrieved from confiscation order may prefer an appeal under Section 52B of the Forest Act. Perusal of Section 52C would reveal that any order to confiscate shall be independent to the punishment for the forest offence. Perusal of Section 52C would reveal that any order to confiscate shall be independent to the punishment for the forest offence. Perusal of Section 53 makes it clear that any vehicle or forest product seized can only be directed to be released by the forest officer not below the rank of Ranger during the trial with sufficient security to produce the same before the trial court, as and when, required. Section 52D bars jurisdiction of court with regard to vehicle seized or confiscated under the Act, therefore, combined reading of the provisions reproduced, hereinbefore, shall demonstrate that regarding release of the vehicle or forest product jurisdiction vests only in the forest officer, not below the rank of Ranger and jurisdiction of any other court stands excluded. In view of the above, impugned judgment and order passed by Sessions Judge is without jurisdiction and does not sustain in the eyes of law. Therefore, present revision is allowed. Impugned judgment and order dated 07.12.2009 is set aside.