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2014 DIGILAW 645 (ALL)

Santosh Kumar v. State of U. P.

2014-02-20

VISHNU CHANDRA GUPTA

body2014
JUDGMENT Vishnu Chandra Gupta,J.: - Means of this petition under Section 482 of Criminal Procedure Code (hereinafter referred to 'Cr.P.C.'), petitioner Santosh Kumar has prayed to quash the order dated 11.02.2009 passed by learned Additional Sessions Judge/Fast Track Court-I, Bahraich in Revision No.654 of 2005 (State Vs. Santosh Kumar) whereby the order dated 15.09.2004 passed by learned Chief Judicial Magistrate, Bahraich, releasing the seized timber in Case No.630/XII/2005 having Range Case No.8 of 1992-93 in favour of the petitioner has been set aside. 2. Brief facts for deciding this petition are that on 02.08.1992, in pursuance of a search warrant, certain timber belonging to forest was recovered from the house of Kaushal Kishore, father of the petitioner. Thereafter, recovery memo (Annexure-2 to this petition) was prepared. On the basis of recovery, a Range Case No.8 of 1992-93 was registered against Kaushal Kishore and explanation was called for from Kaushal Kishore who submitted his reply stating therein that the seized timber was purchased by him from one Ashok Kumar Singh, Contractor. Instead of releasing the timber in favour of Kaushal Kishore on the basis of reply submitted by him, the Department recommended for trial. Thereafter, Kaushal Kishore, moved an application before learned Chief Judicial Magistrate, Bahraich to release the timber in his favour. Learned Chief Judicial Magistrate, Bahraich on furnishing a personal bond of Rs.1 lac with two sureties in the like amount directed to release the timber vide its order dated 08.02.2000. The order dated 08.02.2000 was assailed by the Forest Department in Criminal Revision No.302 of 2000. During the pendency of this revision filed by the Forest Department, Kaushal Kishore died and in absence of any provision of substitution, the court held that after death of Kaushal Kishore revision become infructuous and consequently, the revision was dismissed vide order dated 30.11.2004. Thereafter Santosh Kumar and others moved an application before learned Chief Judicial Magistrate, Bahraich being the sons of late Kaushal Kumar stating therein that they being the owners of the timber are entitled to get the timber released in their favour in pursuance of the order dated 08.02.2000. Thereafter, learned Chief Judicial Magistrate, Bahraich vide its order dated 15.09.2005 allowed the application moved by the petitioner to release the timber in compliance of the order dated 08.02.2000 holding that the order dated 08.02.2000 cannot said to be infructuous or unenforceable. Thereafter, learned Chief Judicial Magistrate, Bahraich vide its order dated 15.09.2005 allowed the application moved by the petitioner to release the timber in compliance of the order dated 08.02.2000 holding that the order dated 08.02.2000 cannot said to be infructuous or unenforceable. Aggrieved by the order dated 15.09.2005, the Forest Department again preferred Criminal Revision No.654 of 2005 before learned Sessions Judge. Learned Sessions Judge transferred the revision to learned Additional Sessions Judge/Fast Track Court No.1 who after hearing the parties allowed the revision vide order dated 11.02.2009. Aggrieved by the said order, the present petition under Section 482, Cr.P.C. has been filed by the petitioner. 3. Heard learned counsel for the petitioner and learned A.G.A. and perused the recorde. 4. While deciding the revision, the Revisional Court has held that learned Chief Judicial Magistrate has passed the order without considering the provisions of Section 52-D of the Indian Forest Act, which reads as under: "52-D. 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 52-A 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." 5. While dealing with almost similar question under the Karnataka Forest Act, the Apex Court in paragraph 23 and 24 in the case of State of Karnataka Vs. K.A. Kunchindammed; (2002) (9) SCC 90 has held as under: "23. From the order it is manifest that the High Court was persuaded to take the view that the power to order for interim custody of a vehicle seized which was found illegally transporting sandalwood oil is not vested in the Authorised Officer but in the Magistrate exercising jurisdiction in the area for the reason that while the expression sandalwood is included in the provisions vested in the exclusive jurisdiction of the Authorised Officer 'sandalwood oil' is not mentioned therein. Since the two terms have been separately mentioned in the inclusive definition of the term 'forest produce' the Court drew the inference that the power for interim custody of the vehicle is to be exercised only by the Jurisdictional Magistrate and not the Authorised Officer. The High Court failed to take note of the definition of the expression 'sandalwood' in Section 2(18) of the Act in which 'sandalwood oil' has been included within the term 'sandalwood' It follows that wherever the term 'sandalwood' is used under the Act it has to be understood in terms of the definition in Section 2(18). If the provisions relating to power of confiscation in Sections 71A, 71C, 71D and bar of jurisdiction in Section 71G are so read it is clear that 'sandalwood oil' is also included within the purview of the said sections and the distinction between the two terms and their specific inclusion or exclusion in the statutory provision does not exist. Perhaps the attention of the High Court was not drawn to the amended provisions of the Act. 24. The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the sections, is to vest power in the Authorised Officers of the Forest Department for proper implementation/enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose certain powers including the power of seizure, confiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the non-obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorised Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under the Cr.P.C. has to give way. The necessary corollary of such provisions is that in a case where the Authorised Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under the Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorised Officer under the Act and if he finds that such power is vested in the Authorised Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided." 6. The Apex Court in a recent judgment in the case of NCET, State of Delhi Vs. Narendra; JT 2014 (1) SC 274 while dealing with a case under Section 61 of the Delhi Excise Act, which contains almost similar provisions to the provisions contained in Section 52-D of the Indian Forest Act, observed that it is only the Authorised Officer who vested with the power to pass orders of interim custody of the vehicle and not a Magistrate. In Narendra Case (supra) considering the aforesaid aspect of the case the order passed for release of the vehicle by the High Court was set aside by the Apex Court holding therein that the provisions contained in Sections 451, 452 and 457 Cr.P.C. are not applicable 7. It is not disputed at Bar the seized property(Timber) is a forest produce within the meaning of Indian Forest Act. It is also not in dispute that Kausal Kishore died during trial for possessing the aforesaid forest produce. The bar contained in section 52-D for interim release of forest produce was operative when order of release was passed in favour of Petitioner by the Chief Judicial Magistrate on15.09.2005 . It is also not in dispute that Kausal Kishore died during trial for possessing the aforesaid forest produce. The bar contained in section 52-D for interim release of forest produce was operative when order of release was passed in favour of Petitioner by the Chief Judicial Magistrate on15.09.2005 . Therefore, in view of the facts and circumstances and the legal position discussed above no interference is need in the impugned order of the revisional Court. 8. In view of above, this petition lacks merit and is accordingly dismissed.