Madhya Pradesh High Court
Laxmi Chand vs State Of M.P. on 18 April, 1995
Equivalent citations: 1996CRILJ1118
ORDER Shacheendra Dwivedi, J.
1. This revision is directed against the order dated 9-12-88 passed by the lower Court on a revision preferred by the State challenging the delivery of the seized wood to the petitioner under the direction of Judicial Magistrate First Class, Lateri.
2. The house of the petitioner was searched on 14-11-86 by the Forest Department Officials and certain quantity of wood on the suspicion of the commission of Forest offence was seized. It is contended that as no further action was taken by the Forest Department against the petitioner in relation to the seized wood, the petitioner had moved an application under Section 457 of the Code of Criminal Procedure for the return of the seized wood to him.
3. The learned Judicial Magistrate of First Class issued the notice of the application to the department. Thereupon the Forest Department had filed the photostate copies of the documents along with a representation in the Court. Thereafter the evidence was directed to be adduced. None had appeared for the Forest Department and the petitioner alone filed some documents. The Magistrate on 26-7-88 held that although the stated wood was seized by the officials of the Forest Department (not by the police) on 14-11-86, yet the learned Magistrate directed the delivery of the so seized wood to the petitioner. In directing the delivery of the seized wood it was found that a prima facie case had appeared in favour of the petitioner.
4. It was further observed by the Magistrate that after the seizure of wood on 14-11-86, the Forest Department did not proceed against the petitioner nor there was any explanation in that regard. The Court found that the department made no effort also to justify the seizure of the wood.
5. The order of the Magistrate was challenged by the State in the Court of Session by filing the revision and the learned revisional Court from the record held that as under Section 52C of the Indian Forest Act, the learned Magistrate had the intimation of the confiscation proceeding in relation to the seized wood, his jurisdiction to pass any order with regard to the disposal of the property seized by the department was legally barred and, therefore, no order by the Magistrate in that regard could be validly passed. The order of the Magistrate was set aside by the Court by allowing the revision.
6. Aggrieved by the order of the lower Revisional Court, the petitioner has preferred this revision. It is mainly contended by the counsel for the petitioner that the lower Revisional Court wrongly applied the provisions of Section 52C of the Indian Forest Act, as no intimation was given to the Magistrate under Section 52(4) of the Indian Forest Act. It was also contended that as no action against the petitioner was taken by the Forest Department under Section 52(4) of the Act, although it was submitted by the petitioner himself that a challan was filed by the department against the petitioner under Sections 32A, 33 and 52 of the Indian Forest Act read with Section 35 of Public Properties Damages (Provincial) Act, 1984, there was no scope for initiating any proceeding under Section 52 of the Indian Forest Act against the petitioner with regard to the seizure of the property.
7. The records of the two Courts below are perused. Admittedly, before the Magistrate along with other documents, a copy of representation and copy of departmental proceedings were also filed by the Forest Department. Out of the documents, the proceedings of the Forest Department give the clear indication that after the seizure of the wood, the stock was brought to the rest house compound and had remained in the possession of the Forest Department. Thereafter the intimation of the proceedings in relation to the seized wood was sent to the petitioner but the notice was refused by him. The petitioner on the same day of the seizure of the wood, i.e. 14-11-86, had filed an application to the Forest Department for compounding the offences, under the Indian Forest Act, but thereafter he had not appeared in the inquiry and the department found that the seized wood as alleged by petitioner was not covered under the old permits issued to the petitioner by the department. It did not bear any hammer mark and therefore, it was found that the seized wood was the property of theft.
8. The copy of the proceedings and other documents such as the seizure-memo, the application to compound the offence, the representation of the department filed in the Court by Forest Department, very clearly indicated the prima facie commission of forest offence and that the department had taken steps and had drawn the necessary proceedings in relation to the seized wood. The documents gave sufficient indication and intimation to the Magistrate that the proceedings for the confiscation of the property were being initiated by the department. The department never sat silent after the seizure of the wood as observed by the learned Magistrate. The learned Revisional Court in the facts and circumstances rightly found that under Section 52C of Indian Forest Act, the jurisdiction of the Court was barred for passing the order in relation to the seized property.
9. The copies of above referred representation and the documents were filed by the Department before the learned Magistrate much earlier to his passing the order of the return of seized wood to the petitioner and were sufficient to take away the jurisdiction of its disposal by the Magistrate, as envisaged under Section 52-C of the Indian Forest Act. The order of the learned Revisional Court cannot therefore be faulted with.
10. There is yet another important aspect of the case. The learned Magistrate while acting under Section 457 Cr. P. C., directed the delivery to the petitioner of the property which was not produced before him, but was seized by the Forest Department officials. Section 457 Cr. P. C. may be reproduced with profit.
"457. Procedure by police upon seizure of property :- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such properly is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property of the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto to appear before him and establish his claim within six months from the date of such proclamation."
(Emphasis supplied by me.)
11. It is the Chapter XXXIV of Criminal Procedure Code which deals with 'Disposal of Property'. There is a trichotomy in the sense that where property has been seized by police, but not produced before the Court, the power to dispose of the same is covered by Section 457, Cr. P. C. Where after the seizure and/or otherwise, the property is produced before the Court in any inquiry or trial, its manner of disposal is governed by Section 451. When the question of disposal arises after the conclusion of . enquiry or trial of the property involved in the case, the governing provision is enumerated in Section 452 of Cr. P.C.
12. In the instant case the application was filed by the petitioner before the Magistrate concerned under Section 457. Section 457 empowers the Criminal Court to deal with the disposal of the property which has not been produced before the Court. But it has some more pre-requisites, i. e. the seizure by police and its report of the Court. In the instant case, the Magistrate acted under the section as the property was not produced before the Court. But the Magistrate failed to notice that the other limb of the section was not satisfied as the seizure of property was admittedly not done by the police. A forest officer cannot be deemed to be a police officer. The expression "Police Officer' under the scheme of the Code of Criminal Procedure as used in this section, should be interpreted strictly to mean only "Police Officer" and would not include a forest officer. The Central Excise Officer, within the meaning of Section 2 of the Evidence Act and Section 190 of Cr. P. C, having no power to submit a charge-sheet was held by Supreme Court in Badaku Joti v. State of Mysore, , not to be a police officer. A Custom Officer was not a police officer as found in Ramesh Chandra v. Stale of West Bengal, , and again in Ilias v. Collector of Customs, . In State of U. P. v. Durga Prasad, , an Officer of R. P. F. was held not to be a police officer.
13. Section 457 of the Cr. P. C, therefore, will have no application, when the property in question had not been seized by a police officer. Section contemplates exercise of jurisdiction by a Magistrate in a case where seizure of property is by any police officer.
14. For the foregoing reason also the learned Magistrate could not have exercised jurisdiction for the disposal of the seized property under Section 457 Cr. P. C. as the property was seized by the officials of Forest Department. The revision preferred by the State against the order of Magistrate was rightly allowed by the lower Revisional Court.
Consequently this revision preferred by the petitioner fails and is dismissed.