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Telangana High Court · body

2021 DIGILAW 414 (TS)

Lotavath Chandar Naikvs v. State of Telangana

2021-12-15

K.LAKSHMAN

body2021
ORDER : The present writ petition is filed seeking a direction to declare the action of respondents in registering the case in Preliminary Offence Report (POR) No. 05/01/2021 dated 13.10.2021 booked under Section 20(1)(c)(II)(III) and (VII) of the Telangana Forest Act, 1972 and Section 51(1) of the Wildlife Protection Act, 1972 and under Section 2 (II) and (III) of the Forest (Conservation) Act, 1980 and for a consequential direction to the respondents to release the petitioner’s vehicle JCB bearing No.TS 05FE 0566 by compounding the case. 2. Heard Mr. Ponnam Ashok Goud, learned counsel representing Mr. N. Uma Shankar, learned counsel for the petitioner and learned Government Pleader for Forest appearing on behalf of the respondents. 3. Facts of the Case: The Petitioner claims to be the owner of a JCB vehicle bearing registration No.TS05FE0566 and chassis No.RAJ3DXSSV02885808 (hereinafter ‘subject vehicle’). He offers the subject vehicle on a rental basis and earns his livelihood. According to the Petitioner, the said subject vehicle was seized by Respondent Nos. 6 and 7 when it was rented out to one Jatavath Thara Singh, accused in POR. The main relief sought by the Petitioner is to set aside the case registered, vide Preliminary Offence Report (POR) No. 05/01/2021 dated 13.10.2021 and release the subject vehicle. 4. Contentions of the Petitioner i) One Jatavath Thara Singh rented the said vehicle for developmental and cleaning activities on his patta land. The Petitioner had handed over the said vehicle in good faith. ii) Neither the Petitioner nor his agents were aware about the activities undertaken by the said JatavathThara Singh. They were also not aware about the area being Reserve Forest. iii) Under Section 44 of the Telangana Forest Act, 1967 (hereinafter the Act, 1967), an order of confiscation of property shall be preceded by a notice in writing informing the grounds of seizure to the person from whom the property is seized. The person from whom the property is proposed to be seized and confiscated shall be given an opportunity of hearing and making a representation. iv) Neither a notice was given nor any explanation was called for, nor any opportunity of hearing was given either to the owner or the accused persons before passing confiscation order. v) The Petitioner never indulged in any illegal activities and the seized subject vehicle is the only source and livelihood. iv) Neither a notice was given nor any explanation was called for, nor any opportunity of hearing was given either to the owner or the accused persons before passing confiscation order. v) The Petitioner never indulged in any illegal activities and the seized subject vehicle is the only source and livelihood. If the subject vehicle is not released, he and his family will suffer from injustice and financial constraints. vi) If the subject vehicle is kept idle for long period it will be damaged beyond repair and will end up as scrap. vii) The Petitioner is ready to pay the penalty of Rs.7660/- and undertakes not to be involved in a similar offence in future. viii) The Petitioner will not change the physical features of the subject vehicle and will not create any charge or mortgage or sell the subject vehicle. ix) The Court be pleased to release the subject vehicle forthwith on payment of compounding fees and suspend the operation of Preliminary Offence Report (POR) No. 05/01/2021 dated 13.10.2021. 5. Contentions of Respondents i) The said vehicle was seized on the grounds of illegal trespass by JatavathThara Singh in Reserved Forest area Compt No.126 of Yelamalamandha beat of Bollaram section (Amrabad Tiger Reserve) and clearance of jungle growth by removing tress of species Billudu and Jana for illegal cultivation. ii) The actions of Jatavath Thara Singh constitute an offence under Section 20(1)(c)(II)(III) and (VII) of the A.P. Forest Act, 1972 and Section 51(1) of the Wildlife Protection Act, 1972 and under Section 2 (II) and (III) of the Forest (Conservation) Act, 1980. iii) Under Section 51 (1-c) and 54 of the Wild Life Protection Act, the offences are not compoundable. iv) Any property including a vehicle seized for an offence committed under the Act, 1972 will be treated as Government property under Section 39. Such seized Government property cannot be released. v) The subject vehicle was seized in connection with the above POR and no confiscation order was passed as on date. 6. Analysis and findings of the Court i) According to the prosecution, prima facie, the actions of the accused i.e., Jatavath Thara Singh constituted an offence under Section 20(1)(c)(II)(III) and (VII) of the A.P. Forest Act, 1967, Section 51(1) of the Wild Life Protection Act, 1972 and Section 2 (II) and (III) of the Forest (Conservation) Act, 1980. 6. Analysis and findings of the Court i) According to the prosecution, prima facie, the actions of the accused i.e., Jatavath Thara Singh constituted an offence under Section 20(1)(c)(II)(III) and (VII) of the A.P. Forest Act, 1967, Section 51(1) of the Wild Life Protection Act, 1972 and Section 2 (II) and (III) of the Forest (Conservation) Act, 1980. ii) According to the Petitioner, the procedure under Section 44 of the Act, 1967 was not followed when the subject vehicle was seized and confiscated. There is a specific assertion to the said effect in paragraph No.7 of the writ affidavit. Perusal of record including POR, written instructions of Forest Range Officer, Wildlife Management, Devarkonda, would reveal that the authorities have not passed any confiscation orders. They have seized the subject vehicle. Issuance of POR will not amount to confiscation of property. A separate order of confiscation has to be passed in terms of Section 44 (2A) of the Act, 1967. Therefore, the contention of the learned counsel for the petitioner that no notice was given to the petitioner before passing confiscation order is misconceived. iii) On the other hand, the Respondents contended that the subject vehicle was seized under the Act, 1972. Both the Statutes provide different procedures for seizure and confiscation. Therefore, the first question to be decided is whether the vehicle was seized under the Act, 1967 or the Act, 1972. iv) To decide the said question, it is relevant to note that none of the parties dispute that a Preliminary Offence Report (POR) No. 05/01/2021 dated 13.10.2021 was issued in the name of Jatavath Thara Singh. The said POR was issued under Form A of Rule 3(1) of the Andhra Pradesh Forest Offences (Compounding and Prosecution) Rules, 1969. The issuance of the said POR clearly indicates that the vehicle was seized under the Act, 1967. This Court cannot accept the contention of the learned Government Pleader for Forest that the subject vehicle was seized under the Act, 1972. v) Since the subject vehicle was seized under the Act, 1967 it is apt to discuss the procedure of seizure/confiscation and release of the seized property under the Act, 1967. The relevant provisions under the Act, 1967 are extracted below: “44. v) Since the subject vehicle was seized under the Act, 1967 it is apt to discuss the procedure of seizure/confiscation and release of the seized property under the Act, 1967. The relevant provisions under the Act, 1967 are extracted below: “44. Seizure of property liable to confiscation and procedure thereupon:- (1) Where there is reason to believe that a forest offence has been committed in respect of any timber or forest produce, such timber, or forest produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any forest officer or police officer. (2) Every officer seizing any property under this section shall place on such property or the receptacle, if any, in which it is contained, a mark indicating that the same has been so seized and shall, except where the offender agrees in writing forthwith to get the offence compounded, without any unreasonable delay, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the Government in this behalf by notification (hereinafter refereed to as authorised officer) or make a report of such seizure to the Magistrate: Provided that where the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Central or State Government and the offender is not known, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to the Divisional Forest Officer. (2-A) Where an authorised officer seizes under subsection (1) any timber or forest produce or where any such timber or forest produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed, in respect thereof, he may order confiscation of the timber or forest produce so seized or produced together with all tools, ropes, chains, boats or vehicles used in committing such offence. (2-B) No order of confiscating any property shall be made under sub-section (2-A) unless the person from whom the property is seized is given,- (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) an opportunity of making a representation in writing within such reasonable time as may specified in the notice against the grounds for confiscation; and (c) a reasonable opportunity of being heard in the matter. (2-C) Without prejudice to the provisions of sub-section (2-B), no order of confiscation under sub-section (2-A) of any tool, rope, chain, boat or vehicle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used in carrying the property without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat or vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. (2-D) Any forest officer not below the rank of a Conservator of Forests empowered by the Government in this behalf by notification, may within thirty days from the date of the order of confiscation by the authorised officer under sub-section (2-A) either suo motu or on application call for and examine the record of that order and may make such inquiry or cause such inquiry to made and pass such orders as he may think fit: Provided that no order, prejudicial to any person, shall be passed without giving him an opportunity of being heard. (2-E) Any person aggrieved by an order passed under sub-section (2-A) or subsection (2-D) may, within thirty days from the date of communication to him of such order, appeal to the District Court having jurisdiction over the area in which the property has been seized, and the District Court shall after giving an opportunity to the parties to be heard, pass such order as it may think fit and the order of the District Court so passed shall be final. (3) Any forest officer not below the rank of a Forester, who or whose subordinate has seized any tools, ropes, chains, boats, vehicles or cattle under sub-section (1) and where he makes a report of such seizure to the Magistrate under sub-section (2) may 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. (4) Upon the receipt of any report under sub-section (2), the Magistrate shall, except where the offence is compounded, take such measures as may be necessary for the trial of the accused and the disposal of the property according to law. (5) The property seized under this section, shall be kept in the custody of the forest officer not below the rank of a Forest Guard or the Village Headman until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received.” “51. Saving of power to release, property seized:- Nothing in this Act shall be deemed to prevent the Divisional Forest Officer from directing at any time the immediate release of any property seized under Section 44, and the withdrawal of any charge made in respect of such property in accordance with the provision of Section 494 of the Code of Criminal Procedure 1898: Provided that where a report is made to the Magistrate of the property seized under Section 44 the Divisional Forest Officer shall not release the property without the consent in writing of such Magistrate, or without previous intimation to such Magistrate.” “59. Power to compound offences:- (1) Any forest officer, specially empowered in this behalf by the Government may accept a compensation from any person who committed or in respect of whom it can be reasonably inferred that he has committed any forest offence, other than an offence under Section 52 or Section 55- (i) a sum of money not exceeding fifty rupees where such offence is of a trivial nature; (ii) a sum of money which shall not in any case be less than the value of the forest produce, or more than four times such value as estimated by such forest officer, in addition to the value of the forest produce, where such offence involves any forest produce which in the opinion of the forest officer may be released. (iii) a sum of money which shall not in any case be less than the value of the forest produce or more than four times such value as estimated by such forest officer, where such offence involves forest produce which in the opinion of the forest officer should be retained by the Government. (2) On receipt of the sum of money referred to in subsection (1) by such officer:- (i) the accused person, if in custody, shall be discharged; (ii) the property seized shall, if it is not to be so retained, be released; and (iii) no further proceedings shall be taken against such person or property.” vi) The procedure under Section - 44 of the Act, 1967 was explained by the Supreme Court in Divisional Forest Officer v. G.V. Sudhakar Rao, (1985) 4 SCC 573 . The relevant paragraphs are extracted below: “9. Under the scheme of the Act, where a Forest Officer effects a seizure under sub-section (1) of Section 44 of the Act of any timber of forest produce together with the implements etc., when he has reason to believe that a forest offence has been committed in respect thereof, he has the discretion to either produce the property seized before the authorized officer or make a report of such seizure to the Magistrate. Where the timber or forest produce is seized by the authorized officer or the Forest Officer or where any such timber or forest produce is produced before him by any Forest Officer under sub-section (2), the Authorized Officer has to proceed to order confiscation thereof after following the procedure laid down in subsections (2-B) and (2-C). The order of confiscation passed by an authorized officer under sub-section (2-A) is liable to be interfered with within 30 days of the passing of such order by an officer not below the rank of Conservator of Forests empowered by the Government in that behalf under sub-section (2-D) either suo motu or on an application made by the person aggrieved after making such inquiry as he thinks fit. Under the proviso thereto, no order prejudicial to any person shall be passed without giving him an opportunity of being heard. Under the proviso thereto, no order prejudicial to any person shall be passed without giving him an opportunity of being heard. The person aggrieved by an order of confiscation passed under sub-section (2-A) or (2-D) has a right of appeal within 30 days from the date of communication to him of such order under sub-section (2-E) to the District Court having jurisdiction over the area in which the property had been seized. The District Court has been conferred the power to pass such order as it may think fit after giving an opportunity to the parties to be heard, and the order of the District Court so passed is final. 10. The Forest Department may also decide to prosecute the accused. In such a case, the Forest Officer shall, except where the offender agrees in writing forthwith to get the offence compounded, make a report of such seizure to the Magistrate under sub-section (2) of Section 44. As regards the implements used in committing any such offence i.e. tools, ropes, chains, boats, vehicles etc. seized by the Forest Officer under sub-section (1) and where he makes a report of such seizure to the Magistrate under sub-section (2), the Forest Officer is empowered by sub-section (3) to release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so required before the Magistrate. Sub-section (4) of Section 44 of the Act enjoins that upon receipt of any report from a Forest Officer under sub-section (2) thereof, the Magistrate shall except where the offence is compounded take such measures as may be necessary for the trial of the accused and the disposal of the property according to law. Subsection (5) directs that the property seized under sub-section (1) shall be kept in the custody of the Forest Officer until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received. Under Section 45, where a person is convicted of a forest offence the court sentencing him shall order confiscation to the Government of timber or forest produce in respect of which such offence was committed and of the implements etc. used in committing such offence, except where an order of confiscation has already been passed in respect thereof under Section 44. used in committing such offence, except where an order of confiscation has already been passed in respect thereof under Section 44. The words “except where an order of confiscation has already been passed in respect thereof under Section 44” appearing in Section 45 of the Act have the effect of curtailment of the power of the Magistrate to order confiscation on conviction of an accused of a forest offence under Section 45. It would therefore appear that there can be no conflict of jurisdiction between the Authorized Officer acting under subsection (2-A) of Section 44 of the Act to direct confiscation of the property seized under subsection (1) on his being satisfied that a forest offence has been committed, and the Magistrate making an order for confiscation of the property so seized on conviction of an accused for a forest offence under Section 45. The power of confiscation conferred on the Authorized Officer under sub-section (2-A) of Section 44 of the Act is separate and distinct from the power of the Magistrate to direct confiscation on conviction of an accused under Section 45. There is no overlapping of their respective jurisdictions as there is clear demarcation over the areas in which they operate. 11. True it is, where any property is produced by an officer before a criminal court in an inquiry or trial, the court may under Section 451 of the Code of Criminal Procedure, 1973 make any direction, as it thinks fit, for the proper custody of such property pending the conclusion of the inquiry or trial. At the conclusion of the inquiry or trial, the court may also under Section 452 of the Code make an order for the disposal of the property produced before it and make such other directions as it may think necessary. Where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. Where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. The general provision of Section 452 of the Code with regard to disposal of property by a criminal court such as by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, and that of Section 457 investing a Magistrate to make an order for disposal of property seized by a police officer and not produced before a criminal court during an inquiry or trial, must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal. In the instant case, admittedly, the illicitly felled teak trees seized by the Forest Range Officer, Adilabad were produced by him before the Divisional Forest Officer, Hyderabad who is the authorized officer under sub-section (2-A) of Section 44 of the Act, along with a report by him under sub-section (2) thereof that he had reason to believe that a forest offence had been committed by the respondents. Merely because the Forest Range Officer also later lodged a complaint before the learned Metropolitan Magistrate for trial of the respondents for commission of offences under Sections 20(1)(c)(iv) and (x) and 20(1)(d) read with Section 29(4)(a)(ii) of the Act, did not imply that the authorised officer was bereft of his power and authority to direct confiscation of the seized timber and the implements etc. under subsection (2-A) of Section 44 of the Act if he was satisfied that a forest offence had been committed. 12. A close, careful and combined reading of the various sub-sections of Section 44, Section 45 and Section 58-A of the Act as introduced or amended by Act 17 of 1976 leaves no doubt that the intendment of the Legislature was to provide for two separate proceedings before two different forums and there is no conflict of jurisdiction as Section 45, as amended by the Amendment Act, in terms curtails the power conferred on the Magistrate to direct confiscation of timber or forest produce on conviction of the accused. The conferral of power of confiscation of seized timber or forest produce and the implements etc. The conferral of power of confiscation of seized timber or forest produce and the implements etc. on the Authorized Officer under sub-section (2-A) of Section 44 of the Act on his being satisfied that a forest offence had been committed in respect thereof, is not dependent upon whether a criminal prosecution for commission of a forest offence has been launched against the offender or not. It is a separate and distinct proceeding from that of a trial before the court for commission of an offence. Under sub-section (2-A) of Section 44 of the Act, where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized timber before the authorized officer along with a report under Section 44(2), the authorized officer can direct confiscation to Government of such timber or forest produce and the implements etc. if he is satisfied that a forest offence has been committed, irrespective of the fact whether the accused is facing a trial before a Magistrate for the commission of a forest offence under Section 20 or 29 of the Act.” vii) To briefly sum up, the following procedure under the Telangana Forests Act, 1967 and Andhra Pradesh Forest Offences (Compounding and Prosecution) Rules, 1969 is to be followed by an authorised officer seizing the property on commission of a forest offence: a) The officer may seize all the tools, ropes, chains, vehicles, boats, etc. used if he has a reasonable belief that a forest offence in respect of timber or forest produce committed. b) If the authorised officer seizing the property is satisfied that a forest offence is committed, a forest offence is to be registered by way of issuing POR in Form A under the Rules, 1969. c) The property once seized can be released, if the offender agrees in writing immediately to get the offence compounded. The offender/accused has to give a written undertaking in terms of Form D of the Rules, 1969 expressing his willingness to get the offence compounded. d) Compounding of offences and payment of amounts shall be done in accordance with Section 59 of the Act, 1967 and the Rules, 1969. The offender/accused has to give a written undertaking in terms of Form D of the Rules, 1969 expressing his willingness to get the offence compounded. d) Compounding of offences and payment of amounts shall be done in accordance with Section 59 of the Act, 1967 and the Rules, 1969. e) If no compounding happens, the seized property must be marked indicating the seizure and shall be produced before the authorised officer or a report of such seizure shall be submitted to the magistrate under Section 44 (2) of the Act, 1967. If the offender is unknown a report is to be submitted to the Divisional Forest Officer. f) After registering the offence, if no compounding happens, the authorised officer shall order confiscation of the timber or forest produce along with all the tools, ropes, chains, vehicles, boats, etc. used to commit the offence. g) The order of confiscation cannot be made unless the person from whom the property is seized is given a notice in writing informing him the grounds on which the property is confiscated; an opportunity of making a written representation against the notice within reasonable time; and a reasonable opportunity of being heard. h) A confiscation order of tools, ropes, chains, vehicles, boats, etc., cannot be passed if the owner of such property proves to the satisfaction of the authorised officer that the seized property was being used without his knowledge or connivance and he and his agents have taken reasonable and necessary precautions against such use. i) The order of confiscation may be challenged under Section 44 (2-E) of the Act, 1967 within 30 days of such order by filing an appeal. j) The forest officer may release any seized tools, ropes, chains, vehicles, boats, etc. where a report is submitted to the magistrate by requiring the owner to execute a bond to produce the property, if and when required before the magistrate. k) If the offence is not compounded and the Magistrate has received a report under Section 44 (2) of the Act, 1967, he may take such necessary measures for the trial of the accused and disposal of the property. l) The property seized shall be kept in safe custody of forest officer not below the rank of a Forest Guard or the village headman till the compensation for compounding the offence is paid or the magistrate has directed its disposal. l) The property seized shall be kept in safe custody of forest officer not below the rank of a Forest Guard or the village headman till the compensation for compounding the offence is paid or the magistrate has directed its disposal. Provision for such safe custody is under Section 44(5) and the Rules, 1969. viii) It is relevant to note that the 1967, Act is a special enactment and the procedure under Code of Criminal Procedure, 1973 does not apply for interim release of property. Under the Act, 1967 only an authorised officer or the Divisional Forest Officer under Section 51 of the Act, 1967 can temporarily release any property used to commit an offence. The property can be released by the authorised officer either by compounding the offence under Section 59 or by requiring the owner to execute a bond to produce the vehicle as required under Section 44 (3) of the Act, 1967, where the seizure is reported to the magistrate under Section 44(2). A Divisional Forest Officer has been given an overriding power of interim release of the seized property. However, the Divisional Forest Officer cannot release the property where a report is made to the magistrate without such magistrate’s consent or without previous intimation as required under Section 51 of the Act, 1967. Therefore, the magistrate has no power to direct interim release of property under CrPC, once the authorised officer has seized and confiscated the property by following the procedure laid down under the Act, 1967. The said principle was held in G.V. Sudhakar Rao (Supra) and was reiterated in Geetha Decorticaters v. The State of Andhra Pradesh, 2021 (1) ALD 528 . ix) In view of the above said discussion and the law laid down in the above decisions, respondent Nos.6 and 7 have seized the subject vehicle in connection with the above POR for the offences under Sections 20(1)(c)(II)(III) and (VII) of the Act, 1967 and Section 51(1) of the Wildlife Protection Act, 1972 and under Section 2 (II) and (III) of the Forest (Conservation) Act, 1980. Respondent No.6 reported the seizure of the subject vehicle to the learned Magistrate, Devarakonda vide memo/letter dated 18.10.2021 (as per the seal). There is no dispute that the petitioner is the owner of the subject vehicle and he has filed copy of certificate of registration to the said effect. Respondent No.6 reported the seizure of the subject vehicle to the learned Magistrate, Devarakonda vide memo/letter dated 18.10.2021 (as per the seal). There is no dispute that the petitioner is the owner of the subject vehicle and he has filed copy of certificate of registration to the said effect. The petitioner is not an accused in the above POR. He is only the owner of the subject vehicle. Therefore, he cannot seek quashment of the above POR on the ground that notice under Section 44 (2) of the Act, 1967 was not issued. 7. Conclusion i) As discussed above, in the present case, there is no order of confiscation passed by the respondent authorities. They have already submitted a report to the Magistrate. The petitioner is not an accused and he is only an owner of the subject vehicle. Therefore, the question of compounding the offence does not arise. Thus, the petitioner has to approach respondent Nos.6 and 7 seeking release of subject vehicle by way of filing appropriate application. On receipt of such application, respondent Nos.6 and 7 shall release the subject vehicle in terms of Section 44 (3) or Section 51 of the Act, 1967. ii) With the aforesaid directions, the present Writ Petition is disposed of. However, there shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.