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2016 DIGILAW 579 (MAD)

S. Dhanasekarapandian v. District Forest Officer

2016-02-15

B.RAJENDRAN

body2016
ORDER : The prayer in the Writ Petition is for a Writ of Mandamus to direct the respondents to forward the articles seized under Wild Life Offence Report No.2/2014 dated 10.12.2014 by the respondents 1 and 2 to the jurisdictional Magistrate to decide the petitioner's application for the return of the seized articles in consideration of the petitioner's representation dated 18.12.2014. 2. Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 3. The grievance of the petitioner is that no doubt, he is involved in the Wild Life offence, but he has compounded the offence. Once he compounded the offence, according to him, the proceedings can go on or any offence is made out, he may undergo punishment including the confiscation of vehicle or gun. In this connection, he relied upon the judgment of the Honourable Supreme Court in Principal Chief Conservator of Forest and Another Vs. J.K.Johnson and others reported in (2012) 2 MLJ 257 (SC) wherein, the Honourable Supreme Court categorically held that the order of confiscation is wrong, at best the matter is remitted back to the Magistrate, who will deal in accordance with law insofar as the return of the property. 4, He further submits that in similar circumstances, I myself dealt with the same in G.Raja -vs- The Forest Range Officer, Pernambut Division, Gudiyatham Range and others reported in 2013 (1) LW (Crl) 450 for return of motor vehicle, where compounding has taken place. Therefore, he contended that the authorities have to produce the weapon, namely, rifle before the Magistrate concerned and he may be permitted to appear before the Magistrate and the Magistrate as well as the Officer is concerned and thereafter, pass appropriate orders in tune of the judgment of the Honourable Supreme Court. 5. On the other hand, the learned Additional Government Pleader submitted that the petitioner is a habitual hunter and he has been utilizing number of cartridges. Therefore, the respondents exercised the power to seize the articles. Further, he contended that they have taken steps to cancel the licence of the gun itself. 6. 5. On the other hand, the learned Additional Government Pleader submitted that the petitioner is a habitual hunter and he has been utilizing number of cartridges. Therefore, the respondents exercised the power to seize the articles. Further, he contended that they have taken steps to cancel the licence of the gun itself. 6. As simple points raised in the case as per the judgment of the Honourable Supreme Court, it is very clear that once the compounding is made, the authority cannot seize the vehicle or the gun and they have to only surrender the vehicle before the Magistrate concerned, who shall deal with it in accordance with law. The relevant portion of the order in Principal Chief Conservator of Forest and Another -vs- J.K.Johnson and others reported in (2012) 2 MLJ 257 (SC) in paragraph 31 reads as follows:- 31. In State of Madhya Pradesh and Others Vs. Madhukar Rao(supra), albeit, the question was little different but this Court considered the ambit and scope of Section 39(1)(d). That matter reached this Court from a Full Bench decision of the Madhya Pradesh High Court. The question before the Full Bench was whether as a result of deletion of Sub-section (2) of Section 50 withdrawing power of interim release, there existed any power with the authorities under the 1972 Act or the Code to release the vehicle used in the course of alleged commission of offence under the Act. The Full Bench of the High Court held that any property including vehicle seized on accusation or suspicion of commission of offence under the 1972 Act can be released by the Magistrate pending trial in accordance with Section 50(4) read with Section 451 of the Code. The Full Bench also held that mere seizure of any property including vehicle on the charge of commission of offence would not make the property to be of the State Government under Section 39(1)(d) of the 1972 Act. Against the decision of the Full Bench, the State of Madhya Pradesh preferred special leave petition in which leave was granted. The Full Bench also held that mere seizure of any property including vehicle on the charge of commission of offence would not make the property to be of the State Government under Section 39(1)(d) of the 1972 Act. Against the decision of the Full Bench, the State of Madhya Pradesh preferred special leave petition in which leave was granted. This Court extensively considered the statutory provisions and approved the view of the Full Bench of the High Court that deletion of Sub-section (2) and its replacement by Sub-section (3)(A) in Section 50 of the 1972 Act had no effect on the powers of the Court to release the seized vehicle during the pendency of trial under the provisions of the Code. While dealing with Section 39(1)(d), this Court also approved the view of the Full Bench of the High Court that Section 39(1)(d) would come into play only after a court of competent jurisdiction found that accusation and allegations made against the accused were true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence. This Court said: ...Any attempt to operationalise Section 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid.... 32. We are in complete agreement with the view of this Court in Madhukar Rao that on the basis of seizure and mere accusations/allegations, Section 39(1)(d) of the 1972 Act cannot be allowed to operate and if it is so done, it would be hit by the constitutional provisions. 39. It is true that by Act 16 of 2003, the Parliament has consciously deleted from Section 54 the provision concerning release of seized property liable to be forfeited on payment of value of such property but the plain language that is retained in Section 54(2) after amendment which reads, 'on payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person' does not show that the Legislature intended to empower the specified officer under Section 54 to forfeit the seized property used by the suspected person in commission of offence against the Act. There is no replacement of the deleted words by any express provision. Section 54 substituted by Act 16 of 2003 does not speak of seized property at all - neither its return nor its forfeiture – while providing for composition of offence. The property seized under Section 50(1)(c) and Section 50(3A) has to be dealt with by the Magistrate according to law. This is made clear by Section 50(4) which provides that things seized shall be taken before a Magistrate to be dealt with according to law. Section 54 substituted by Act 16 of 2003 does not empower the specified officer to deal with the seized property. In this view of the matter, we are unable to accept the submission of the learned senior counsel for the appellants that a comparative reading of pre-amended Section 54(2) and Section 54(2) as substituted by Act 16 of 2003 makes the legislative intent clear that seized articles shall be forfeited on composition of the offence under the 1972 Act. When the language of the statutory provision is plain and clear no external aid is required and the legislative intention has to be gathered from the language employed. In our view, neither Section 54(2) of the 1972 Act by itself nor Section 54(2) read with Section 39(1)(d) or any other provision of the 1972 Act empowers and authorizes the specified officer under Section 54, on composition of the offence, to deal with the seized property much less order forfeiture of the seized property used by the person suspected of commission of offence against the Act." In another judgment made by myself in G.Raja -vs- The Forest Range Officer, Pernambut Division, Gudiyatham Range and others reported in 2013 (1) LW (Crl) 450 in paragraph 9 reads as follows: 9. In this connection, it is relevant to refer to the decision of the Honourable Supreme Court Principal Chief Conservator of Forest and Another v. J.K. Johnson and Others (supra) wherein in para Nos. 37 and 39, it was held as follows: 37. Section 54(2) of the 1972 Act, prior to the amendment by Act 16 of 2003, authorized the empowered officer, on payment of value of the property liable to be forfeited, to release the seized property, other than the government property. The provision underwent changes w.e.f. 1.4.2003 and the provision for release of the seized property has been deleted. Section 54(2) of the 1972 Act, prior to the amendment by Act 16 of 2003, authorized the empowered officer, on payment of value of the property liable to be forfeited, to release the seized property, other than the government property. The provision underwent changes w.e.f. 1.4.2003 and the provision for release of the seized property has been deleted. Does the provision in new Section 54(2) authorize the empowered officer to order forfeiture of the seized property to the state government? We think not. In the first place, by deletion of such expression, it cannot be said that the Parliament intended to confer power on the specified officer to order forfeiture of the seized property which is nothing but one form of penalty in the context of the 1972 Act. Had the Parliament intended to do so, it would have made an express provision in that regard. Such conferment of power of penalty upon the specified officer cannot be read by implication in Section 54(2). Secondly, any power of forfeiture conferred upon Executive authority merely on suspicion or accusation may amount to depriving a person of his property without authority of law. Such power cannot be readily read by relying on the Statement of Objects and Reasons (Act 16 of 2003) without any express provision in the statute. 39. It is true that by Act 16 of 2003, the Parliament has consciously deleted from Section 54 the provision concerning release of seized property liable to be forfeited on payment of value of such property but the plain language that is retained in Section 54(2) after amendment which reads, on payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person' does not show that the Legislature intended to empower the specified officer under Section 54 to forfeit the seized property used by the suspected person in commission of offence against the Act. There is no replacement of the deleted words by any express provision. Section 54 substituted by Act 16 of 2003 does not speak of seized property at all - neither its return nor its forfeiture – while providing for composition of offence. The property seized under Section 50(1)(c) and Section 50(3A) has to be dealt with by the Magistrate according to law. Section 54 substituted by Act 16 of 2003 does not speak of seized property at all - neither its return nor its forfeiture – while providing for composition of offence. The property seized under Section 50(1)(c) and Section 50(3A) has to be dealt with by the Magistrate according to law. This is made clear by Section 50(4) which provides that things seized shall be taken before a Magistrate to be dealt with according to law. Section 54 substituted by Act 16 of 2003 does not empower the specified officer to deal with the seized property. In this view of the matter, we are unable to accept the submission of the learned senior counsel for the appellants that a comparative reading of pre-amended Section 54(2) and Section 54(2) as substituted by Act 16 of 2003 makes the legislative intent clear that seized articles shall be forfeited on composition of the offence under the 1972 Act. When the language of the statutory provision is plain and clear no external aid is required and the legislative intention has to be gathered from the language employed. In our view, neither Section 54(2) of the 1972 Act by itself nor Section 54(2) read with Section 39(1)(d) or any other provision of the 1972 Act empowers and authorizes the specified officer under Section 54, on composition of the offence, to deal with the seized property much less order forfeiture of the seized property used by the person suspected of commission of offence against the Act. 10. From a reading of the judgment of the Honourable Supreme Court, it is very clear that when once the respondents have allowed the offence to be compounded and compounding fee was also paid by the petitioner, the respondents have no authority to order for forfeiture or confiscating the vehicle and they have to only surrender the vehicle before the Magistrate concerned who shall deal with it in accordance with law. It has to be stated that mere possession of the scheduled animals under the Act is an offence and not the possession of the vehicle. Even though the vehicle was used in the commission of the offence and confiscation proceedings have been initiated, before initiating such proceedings, the petitioner has to be put on notice regarding the said proceedings. It has to be stated that mere possession of the scheduled animals under the Act is an offence and not the possession of the vehicle. Even though the vehicle was used in the commission of the offence and confiscation proceedings have been initiated, before initiating such proceedings, the petitioner has to be put on notice regarding the said proceedings. In the present case, even according to the respondents, on the date of occurrence itself, the vehicle was seized and confiscation proceedings have been initiated and they contend that the vehicle is the property of the government, Therefore, it is clear that the confiscation proceedings have been initiated without any notice to the petitioner. The respondents ought to have issued notice to the petitioner especially when the offence itself was compounded by payment of compounding fee. Therefore, I am of the view that the respondents ought to have produced the vehicle in question before the Magistrate concerned who shall deal with it in accordance with law. Even though the petitioner has filed an application for return of the property under Section 451 of Cr.P.C. it was dismissed by the Court below on the erroneous view that confiscation proceedings have been initiated, order has been passed thereon and the petitioner has to only challenge the confiscation proceedings when there cannot be any confiscation proceedings for the vehicle as the offence itself has been compounded. Therefore, the respondents have to be directed to produce the vehicle before the Magistrate concerned who shall deal with it in accordance with law. In view of the aforesaid discussion and in the light of the order passed by the Honourable Supreme Court referred to above, the Criminal Revision Case is allowed by setting aside the Order dated 22.2.2012 passed in C.M.P. No. 451 of 2012 on the file of the learned Judicial Magistrate, Gudiyatham. The respondents are directed to produce the two wheeler - Hero Honda Splendor bearing Registration No. TN-23-AU 5491 owned by the petitioner to the learned Judicial Magistrate, Gudiyatham, who in turn shall deal with it and pass orders in accordance with law for return of the same to the custody of the petitioner." 7. In this case, it has been kept in the custody of the Government and no specific word has been used as forfeiture. 8. In this case, it has been kept in the custody of the Government and no specific word has been used as forfeiture. 8. But as per the judgment of the Honourable Supreme Court, once compounding has been done, it is compounded. Therefore, the only remedy available is that the authority shall produce the seized articles before the Magistrate concerned and the petitioner shall apply before the Magistrate wherein the respondents can object it so after. 9. Accordingly, the writ petition is allowed, with liberty to the petitioner to approach the Magistrate concerned and the respondents also liberty to file objections, if any. No costs.