Kerala High Court
Shameer.P.M vs State Of Kerala on 30 June, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1171 of 2011()
1. SHAMEER.P.M., AGED 33 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.PRASUN.S
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/06/2011
O R D E R
'C.R.'
V.K.MOHANAN, J.
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Crl.R.P.Nos. 1171 & 1293 of 2011
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Dated this the 30th day of June, 2011
ORDER
Though the above two revision petitions are filed by different persons challenging different orders passed by different courts and though the facts and circumstances involved are different, as the orders impugned are issued under Section 457 of the Code of Criminal Procedure (for short 'the Cr.P.C.') and as the question of law and facts involved are identical, the above revision petitions are heard together and being disposed of by this common order.
2. Crl.R.P.No.1171 of 2011 is directed against the order dated 4.4.2011 in CMP No.1627 of 2011 (in O.R.No.4 of 2011 of the Kollengode Forest Range) of the court of the Judicial First Class Magistrate, Chittur under Section 457 of Cr.P.C. by which the prayer of the petitioner, who is an accused and R.C. owner of the vehicle bearing registration No.K.L.05/X 6336 involved in the above case Crl.R.PNos.1171 & 1293 of 2011 :-2-:
was rejected. As per the said order, though the learned Magistrate is of the opinion that the said court has ample power to order release of the vehicle under Section 457 of the Cr.P.C., but having regard to the particular facts and circumstances involved in the case, more particularly when the petitioner himself is allegedly involved in the illegal transport of the barks of kulamavu and wazhana in contravention of the provisions of law, the court was not inclined to order the release of the vehicle in favour of the petitioner, though he is the RC owner of the vehicle. The allegation in the above case is that the accused therein including the petitioner, who is the first accused, have committed the offences punishable under Section 27(1)(d)(e)(iii) & (iv) of the Kerala Forest Act, 1961 (hereinafter referred to for short as 'the Act' only) for illicit debarking, collection and removal of forest produce viz., the barks of kulamavu, wazhana/edana. As per the prosecution case, the total quantity of 6722 kg of kulamavu and wazhana barks mixed together were filled in 72 gunny bags and the Crl.R.PNos.1171 & 1293 of 2011 :-3-:
total value of the above 'forest produce' will fetch up to `.2,00,000/-.
3. Crl.R.P.No.1293 of 2011 is preferred against the order dated 8.4.2011 in CMP No.1324 of 2011 in O.R.No.1 of 2011 of the Poongode Forest Range, of the court of Judicial First class Magistrate, Wadakkanchery, whereby the request of the petitioner,who is the owner of the vehicle viz., mini lorry bearing Registration No.KL7-H 7083, for interim custody was declined under Section 457 of Cr.P.C.
The allegation in the above case is that the trees standing in the reserved forests were cut and removed and thereby, committed the offences punishable under Section 27(1)(d)(e)(iii) and (iv) of the Act and Rules 3,4 and 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995.
4. Heard Mr.Prasun.S. and Mr.Santhosh.P.Poduval the counsel for the petitioners in the above two revision petitions and Sri.V.Tek Chand,learned Public Prosecutor.
5. The specific contentions of the learned counsel appearing Crl.R.PNos.1171 & 1293 of 2011 :-4-:
for the petitioners in the above cases are that the courts below have ample power by virtue of Sections 451 and 457 of the Cr.P.C., and in view of the various provisions contained in the Act, viz., Sections 52,53,55,56,57 and 58 of the Act and particularly, in view of Section 54 of the above Act. According to the learned counsel, the reason assigned by the learned Magistrate in the impugned order that the confiscation proceedings have already been started is not a legal ground to decline the relief and refuse to exercise the jurisdiction under Section 457 of the Cr.P.C. According to the learned counsel appearing for the revision petitioners, the authorised officer for confiscation under the provisions of the above Act has no supremacy in power over the court of law.
6. Learned counsel for the revision petitioner Mr.S.Prasun, emphatically submitted that Section 61A of the Act is not applicable in his case since the 'bark' allegedly seized in the case will not come under any of the article enumerated in the said section. It is also the submission of the learned counsel that the prosecution has no claim Crl.R.PNos.1171 & 1293 of 2011 :-5-:
that the bark allegedly involved in the case is the Government property or taken from forest. According to Mr.Prasun, the proceedings contemplated under Section 61 A of the Act is concerned with more serious offences, particularly with respect to 'forest produce', but in the present case,the allegation is that the seized article is only bark, which is not a 'forest produce' and therefore, the vehicle is not liable to be confiscated and hence the same can be released for interim custody in favour of the petitioner under Section 457 of the Cr.P.C.. Same is the contention taken by Mr.Santhosh.P.Poduval, learned counsel appearing for the petitioner in Crl.R.P.No.1293 of 2011. In support of the above contentions,the learned counsel relied on the following decisions reported in John v.
D.F.O.,Kottayam (1996(2) KLT 984), State of Karnataka v. K.A.Kunchindammed (AIR 2002 SC 1875) and State of Kerala v. Ancy Philip (2008(3) KLT 477)(SC).
7. On the other hand, Sri.V.Tek Chand, Learned Public Crl.R.PNos.1171 & 1293 of 2011 :-6-:
Prosecutor, stoutly opposing the contentions raised by the counsel for the petitioners, submitted that the court of Magistrate has no jurisdiction to release the vehicle either by way of interim custody or otherwise in favour of the petitioners in view of the particular facts and circumstances involved in the case, especially in the light of the allegations contained in the cases involved and in view of the various provisions contained in the Cr.P.C. and in the Act. The arguments of the learned Public Prosecutor are two-fold. According to the learned Public Prosecutor, the Magistrate Court has no jurisdiction to release the vehicle for interim custody by exercising the jurisdiction either under Section 451 or under Section 457 of Cr.P.C. in view of the particular facts and circumstances involved in the case. The second fold of his argument is that none of the provisions enables the Magistrate to release the vehicle,which is involved/connected with the seizure of articles as contemplated under Section 52 or Section 61A of the Act,especially when in the present case, the vehicles in question are not produced before the court below. So,according to the learned Crl.R.PNos.1171 & 1293 of 2011 :-7-:
Public Prosecutor,the finding of the learned Magistrate in the order impugned in Crl.RP No.1171 of 2011 that the Magistrate court has jurisdiction to release the vehicles is per se illegal and contrary to the provisions of the law, Act and Code. It is also the submission of the learned Public Prosecutor that since the vehicles in question are produced before the officer authorised for the confiscation and the Act empowers such officers to give interim custody of the vehicle to deserved persons, the only course open to the petitioners is to approach such officer. Thus, according to the learned Public Prosecutor, no interference is warranted and there is no merit in the Crl.R.Ps.
8. I have carefully considered the arguments advanced by the learned counsel for the revision petitioners as well as the learned Public Prosecutor. I have perused the orders impugned and also carefully gone through the authorities cited during the course of argument.
9. In the light of the rival pleadings and in the light of the facts Crl.R.PNos.1171 & 1293 of 2011 :-8-:
and circumstances involved in the case, the question to be considered is whether the Magistrate court has jurisdiction, either under Section 451 or under Section 457 of Cr.P.C. to grant interim custody of the vehicle involved in the forest offence, especially when such vehicles are not produced before the Magistrate. Mr.Prasun, learned counsel for one of the petitioners, relying upon the decision of the Apex Court in State of M.P. v. Madhukar Rao (2008(2) KLT 105 (SC), has contended that the Magistrate has ample power to make an order of interim release of the vehicle under Section 451 of the Cr.P.C.
According to the counsel, in the said decision, the Apex Court has laid down the dictum after considering the various provisions including Section 50 of the Wild Life (Protection) Act,1972, a special Act and whereas in the present case, the case is covered by the various provisions of the Kerala Forest Act, 1961. It is also the contention of Mr.Prasun, learned counsel appearing for the petitioner that in the Kerala Forest Act, there is no provision ousting the jurisdiction of the Crl.R.PNos.1171 & 1293 of 2011 :-9-:
Magistrate Court to issue an order granting custody of a vehicle. According to the learned counsel, the Supreme Court in the State of Karnataka v. K.A.Kunchindammed (AIR 2002 SC 1875) has held that the competent authority to order interim custody is the authorised officer under the Act and not the Magistrate and such a dictum was laid down because of Sections 71A,71G,62(3)(b) of Karnataka Forest Act (Act 5 of 1964) and there is no such equivalent provision in the Kerala Forest Act.
10. In the light of the above contention of the learned counsel for the petitioner and the learned Public Prosecutor, it is absolutely necessary to have a close scrutiny of various provisions contained in the Act. The Kerala Forest Act 1961 (Act 4 of 1962) enacted with the following object that 'to unify and amend the law relating to protection and management of forests in the State of Kerala' and the same came into force with effect from 18.1.1962. This Court in the decision reported in State of Kerala v. Bharath Booshan Aggarwal Crl.R.PNos.1171 & 1293 of 2011 :-10-:
(2009(1) KHC 313) has held as follows:-
".......Our forest wealth and treasure are not exclusively for the present generation, but the coming generation has also got a traditional and ancestral right over it for its enjoyment and therefore, it is our hereditary obligation and duty to protect and preserve the same for the coming generation. Thus, it is the constitutional obligation of the State to protect and preserve the forest and forest produce, not only for the present time but for the coming generation also."
This Court has also held as follows:-
"...............A few among our society under crazy pursuit to mint money and during such pursuit they ignore, the constitutional values and social morality. Thus, they have chosen to exploit our national wealth like forest and forest produce stealthily and by illegal means and in violation of legal and statutory limitations. Unless and until such provision like Section 69 is incorporated, the Government will not be in a position to protect the forest and forest produces thereby to discharge its constitutional obligations.........."
Now-a-days, the illegal encroachment to forest areas is a sensational issue and the general public is alert and anxious about the same and it is also a headache for the rulers and now, it is a task to prevent such unauthorized occupation and encroachment. In spite of the Act and the various punitive provisions therein and the Indian Penal Code, the forest offences are being increased, but the rate of conviction with Crl.R.PNos.1171 & 1293 of 2011 :-11-:
respect to the forest offences is too low which disturbs the conscience of this Court. Recently, though in a different context, the Honourable Apex Court, in the decision reported in Indian Medical Association v. Union of India & Ors. (2011(4) Supreme 67), has held that while interpreting the statutes, the purpose that the Act seeks to achieve has to be kept in mind.
11. Now, let us examine the various provisions contained in the Act in the light of the above decision of the Supreme Court and the decision of this Court and the scenario indicated above. Section 2(e) defines 'forest offence' which means an offence punishable under the Act or any rule made thereunder. Section 2(f) defines 'forest produce', which reads as follows:-
"2(f) "Forest produce" includes--
(i) the following whether found in, or brought from, a forest or not, that is to say--
timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and
(ii) the following when found in, or brought from, a forest, that is to say,--
(a) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;
(b) plants not being trees (including grass, creepers, reeds and Crl.R.PNos.1171 & 1293 of 2011 :-12-:
moss) and all parts or produce of such plants; and
(c) silk cocoons, honey and wax;
(d) peat, surface soil, rock and minerals (including limestone,laterite,mineral oils and all products of mines or quarries);
(underline supplied) Section 27 deals with penalties for trespass or damage in Reserved Forests and acts prohibited in such forests. Sections 27(1)(d) and 27 (1)(e)(iii) reads as follows:-
"27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests.--(1) Any person who---
(a) xxxxx xxxxx xxxxx
(b) xxxxx xxxxx xxxxx
(c) xxxxx xxxxx xxxxx
(d) knowingly receives or has in possession of any forest produce illicitly removed from a Reserved Forest or a land proposed to be constituted a Reserved Forest; or
(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest--
(i) xxxxx xxxx xxxxx
(ii) xxxx xxxxx xxxxxxx
(iii) cuts or fells any trees or girdles, marks, lops,taps,uproots, burns,saws,converts or removes any trees including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;"
(underline supplied) In the present case,27(1)(d) and (e)(iii) is more relevant.
12. Chapter VIII of the Act deals with offences, penalties and Crl.R.PNos.1171 & 1293 of 2011 :-13-:
procedure. Section 52 reads as follows:-
"52. Seizure of property liable to confiscation.--(1) When there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or 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.
Explanation.-- The terms "boats' and 'vehicles' in this section, [Section 53, Section 55, Section 61A and Section 61B] shall include all the articles and machinery kept in it whether fixed to the same or not.
(2) Every officer seizing any property under sub-section (1) 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, 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;
Provided that, when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the Forest Officer makes, as soon as may be, a report of the circumstances to his official superior."
(underline supplied) On a reading of sub-section (1) of Section 52, it is crystal clear that any forest officer or Police Officer can seize, if there is reason for him to believe that a forest offence has been committed in respect of any timber or any other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in Crl.R.PNos.1171 & 1293 of 2011 :-14-:
committing any such offence. On a reading of sub-section (2), it reveals that it is incumbent upon the officer seizing any property under sub-section (1) to report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Neither in sub-section (1) nor in sub-section (2) of Section 52, there is any direction to produce the seized article before the Magistrate having jurisdiction to try the offence. From the proviso to sub-section (2) of Section 52, it is clear that if the offender is unknown, the officer, who makes seizure, need to report the circumstances to his official superior. Under Section 53, the power to release property seized under Section 52 is vested with any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has made the seizure, on security for the production of the property so released, before the Magistrate having jurisdiction to try the offence on account of which seizure has been made on demand. Section 54 prescribes the procedure on receipt of any report under Section 52 of the Act. As per Section 54, on receipt of any report, it is Crl.R.PNos.1171 & 1293 of 2011 :-15-:
for the Magistrate to take steps for the trial of the accused and also for the disposal of the property according to law.
13. Section 56 deals with the disposal on conclusion of trial for forest offence, of produce in respect of which the offence was committed,which reads as follows:-
"56. Disposal on conclusion of trial for forest offence, of produce in respect of which it was committed.-- When the trial of any forest offence is concluded any timber or other forest produce in respect of which such offence has been committed shall,if it is the property of the Central or State Government or has been confiscated,be taken possession of by or under the authority of the Divisional Forest Officer; and in any other case it may be disposed of in such manner as the Court may order."
As per the scheme of Section 56, the court of the Magistrate, who tried forest offence, can pass an order regarding the disposal of the property, according to the decision of the court, if the properties are not taken possession of by the authority of the Divisional Forest Officer or where the properties are of the Central or State Government or have been confiscated. Thus, as per Section 56, it is the Divisional Forest Officer, who is entitled to get possession, if the properties Crl.R.PNos.1171 & 1293 of 2011 :-16-:
belong to the Central Government or State Government, as the case may be or the property liable to be confiscated.
14. Section 60 prescribes as to when the property vests in Government. It is pertinent to note that Section 61 of the Act gives authority to the Forest Officer,who is not below the rank of Assistant Conservator of Forests holding charge of a Forest Division, from directing at any time the immediate release of any property seized under Section 52 and the withdrawal of any charge made in respect of such property. From the above section, it is crystal clear that the authority is vested with such officer to release the property, even if a report regarding the seizure under Section 52 is made to the court under Section 52(2) of the Act.
15. Further, Section 61A reads as follows:-
"61A. Confiscation by Forest Officers in certain cases.--- Notwithstanding anything contained in the foregoing provisions of this chapter,where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub- section(1) of Section 52 shall, without any unreasonable Crl.R.PNos.1171 & 1293 of 2011 :-17-:
delay, produce it, together with all tools,ropes,chains,boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette,not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer).
(2) Where an authorised officer seizes under sub-
section(1) of Section 52 any timber, charcoal,firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section(1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may,whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes,chains, boats,vehicles and cattle used in committing such offence." (underline supplied) By incorporating a non-obstante clause, with respect to the provisions in Section 61A in Chapter VIII, it is made mandatory on the Officer, who is effecting the seizure under Section 52, if he believes that forest offence has been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, to produce it, together with all tools,ropes,chains,boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf. Sub-section (2) of Section 61A authorises Crl.R.PNos.1171 & 1293 of 2011 :-18-:
such officer, before whom the forest produce and the properties are produced to order confiscation in terms of first part of Section 61A. It is also relevant to note that by Section 65 of the Act, the wrongful seizure or arrest is made punishable.
16. It is also relevant to note that in Section 52, it is mandatory on the Officer, who makes the seizure, to produce the articles before the confiscating officer, if the articles are coming within the category mentioned in Section 61A of the Act. Therefore, even if the officer, who is seizing the article, is a Police Officer, he has to follow the mandatory provisions that contained in Section 61A and under Section 52 of the Act.
17. Section 63 of the Act gives power to any officer or Police Officer to arrest without warrant on the grounds mentioned therein, even without orders from the Magistrate and without a warrant from the court. But, as per sub-section (2) of Section 63, the person so arrested shall be taken or sent to the nearest Police Station and then it is for the Officer-in-charge of such Police Station to take appropriate Crl.R.PNos.1171 & 1293 of 2011 :-19-:
action and procedure in accordance with law. So, on a comparison of Sections 52 and 63 of the Act, it is crystal clear that the person arrested is liable to be taken to the Police Station whereas the articles seized connected with such arrest shall be produced before the confiscating officers and there is no direction to produce the same before the court. Section 64 also gives power to any Forest Officer of a rank not inferior to that of a Ranger to release persons arrested on execution of bonds. Section 65 is a punishment clause for wrongful seizure or arrest. Section 66 of the Act gives power to Forest Officers or Police Officers to prevent commission of offence and the Forest Officers have the powers of the Police Officers for the purpose of investigation or prevention of forest offences and the collection of evidence.
18. Thus, the above survey of various provisions particularly, the provisions contained in Chapter VIII of the Act would reveal that the Kerala Forest Act,1961, particularly Chapter VIII, is complete and self-contained statute which prescribes the procedure and various Crl.R.PNos.1171 & 1293 of 2011 :-20-:
steps to be complied with by the officer making the seizure under Section 52 of the Act and such provisions are mandatory in nature. Thus, the various provisions earmark the authorities and jurisdiction of the court as well as powers and procedure of the officers concerned.
19. Now, let us examine the provisions, which are relevant, that contained in the Criminal Procedure Code. Chapter XXXIV of Cr.P.C. exclusively deals with disposal of property that involved in criminal cases, during the investigation, inquiry and trial. As the very caption of Section 451, which indicates "in certain cases" only, gives jurisdiction to the court for ordering custody and disposal of property pending trial. Section 451 reads as follows:-
"451. Order for custody and disposal of property pending trial in certain cases:-- When any property is produced before any Criminal Court during any inquiry or trial,the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.-- For the purposes of this Crl.R.PNos.1171 & 1293 of 2011 :-21-:
section, "property" includes--
(a) property of any kind or document which is produced before the court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
(underline supplied) Thus, from the words used in Section 451 and from the combined effect of the explanation thereto, it is crystal clear that the court will get jurisdiction under Section 451 of Cr.P.C., only if the property explained in the explanation thereunder, is produced before it, otherwise the property must be in its custody and such property is inclusive of any property with respect to an offence committed or the property used for commission of such offence. According to me, the words 'produced' and 'in custody' indicate the property physically produced or subjected to its custody by a report in lieu of producing the same considering the quantity or nature of properties concerned.
20. Another relevant provision contained in the Criminal Procedure Code is Section 457, which deals with the procedure to be Crl.R.PNos.1171 & 1293 of 2011 :-22-:
adopted by the Police upon seizure of property. Section 457 reads as follows:-
"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 property 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 or 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."
Thus, on a reading of the above provision, especially when the word "whenever" used, it can be seen that the provision essentially is mandatory in nature. The Police has to either report the seizure of the property to the court or to produce the same before the court competent to conduct inquiry or trial and in such a case, the learned Crl.R.PNos.1171 & 1293 of 2011 :-23-:
Magistrate can make such order as he thinks fit with respect to disposal of such property or the delivery of such property to the person entitled to the possession thereof and if such a person is not ascertained with respect to the custody or production of such property. The jurisdiction of a Magistrate under Section 457 can be exercised only when the Police, producing the property or making the report regarding the seizure of the property. A comparative study of Sections 451 and 457 of the Cr.P.C. would show that both the provisions are intended to confer jurisdiction on the criminal court to issue appropriate orders, as an interim measure, for the safe custody of the property, when produced or reported regarding the seizure of properties. Unless there is different intention and purpose, there need not be two different provisions for interim release of property involved in the criminal case. Besides Sections 451 and 457, there are other provisions in Chapter XXXIV of Cr.P.C. connected with the disposal of property. Section 452 deals with disposal of property at conclusion of trial. Section 453 deals with payment to innocent Crl.R.PNos.1171 & 1293 of 2011 :-24-:
purchaser of money found on accused. Section 454 is the appellate provision and Section 455 deals with destruction of libellous and other matters. Section 456 deals with power to restore possession of immovable property. Sections 458 and 459 are also provisions for final disposal of properties other than by way of interim measure. Thus it is clear that Sections 451 and 457 are incorporated with different intention. It is further seen that the above two sections are worded differently with different purposes and contemplating different procedures depending upon the nature of the offences alleged to have committed with respect to the seized property or the article or property used for commission of such offence, which is either produced or not, and again depends on the agency who conducted the prosecution either by the Police or by some other authority. However, the jurisdiction of the court under Section 451 need not necessarily be connected with any of the offences contemplated by the Indian Penal Code and need not be investigated by the Police. The court Crl.R.PNos.1171 & 1293 of 2011 :-25-:
contemplated under Section 451 includes all the 'criminal courts' and it does not confine to the court of Magistrate alone. But, Section 457 contemplates the procedure to be adopted by the Police upon the seizure of the property and the Police has to report the same before the 'Magistrate' even if the property is not produced in any 'criminal court' and the 'Magistrate' can pass appropriate orders. In short, all the criminal courts are given power under Section 451 of Cr.P.C. to order for custody and dispose of property as an interim measure, only if the property is produced before it. Otherwise, the power to release the property by way of interim arrangement can be exercised only under Section 457 of Cr.P.C., that too only on the basis of a report made by the Police, despite the fact that the property is not produced.
21. The distinct legislative intention in making the above two sections manifestly in different way can be easily distinguished and can be understood with the aid of sections 4 and 5 of the Cr.P.C. Section 4 of the Cr.P.C reads as follows:-
Crl.R.PNos.1171 & 1293 of 2011 :-26-:
"4. Trial of offences under the Indian Penal Code and other laws.--(1)All offences under the Indian Penal Code (45 of 1860) shall be investigated,inquired into,tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,inquired into, tried,and otherwise dealt with according to the same provisions,but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
On a reading of the above entire section, it can be seen that the offence under the Indian Penal Code shall be investigated, inquired into and tried as per the provisions of the Cr.P.C. As per sub-section (2) of Section 4, all offences under any other law shall be investigated, inquired into and tried as contemplated by sub-section (1) of Section 4, but if there are special provisions or any enactment which regulate the manner or place of investigating, inquiring into, trying or otherwise with respect to all other offences, under other law shall be in accordance with such special provision or enactment. So, sub-section (2) of Section 4 of Cr.P.C. makes it mandate, regulate and direct that which provisions of law to be followed, connected with an Crl.R.PNos.1171 & 1293 of 2011 :-27-:
offence other than I.P.C. offence and resultantly, the entire provisions or proceedings of the Cr.P.C. are not applicable with respect to the offences those are covered by other laws to the extent the same prescribes the procedure or direction. In this juncture, Section 5 of Cr.P.C. is more relevant, which is a saving clause of Cr.P.C. and the same reads as follows:-
"5. Saving.-- Nothing contained in this Code shall, in the absence of a specific provision to the contrary,affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed,by any other law for the time being in force."
Thus, as per Section 5 of Cr.P.C., the special or local law and its provisions to the extent it is not contrary to the provisions of Cr.P.C. are saved and the court trying the offences under Special Act or Local Law can proceed with the procedure contemplated by such special or local law. Thus, the resultant inference of close scrutiny of Sections 451 and 457 of Cr.P.C. with the aid of Sections 4 and 5 of the Cr.P.C. is that when a court of law conducting an enquiry or trial Crl.R.PNos.1171 & 1293 of 2011 :-28-:
connected with an offence contemplated by the special or local law, such court and the investigating agency are bound to follow the procedure prescribed by such special or local law.
22. From the survey of various provisions of the Kerala Forest Act,1961, as discussed above, I have already found that the special procedures are prescribed, particularly in Chapter VIII of the Act, as to how the property seized has to be dealt with. Thus, in this juncture, it is pertinent to note that as I observed in paragraph 19, the word 'certain cases' that contained in the very caption of Section 451, meant for the cases other than the cases/crimes contemplated by the Indian Penal Code. In short, the term 'certain cases' contemplated in Section 451 of Cr.P.C. are meant for the cases or crime or offence contemplated by any special Act or local law. Therefore, the jurisdiction of the criminal court under Section 451 of Cr.P.C. is with respect to the properties involved mainly with respect to the offences contemplated by any special act or local law and in such a case, such criminal court can invoke that section only when the properties are Crl.R.PNos.1171 & 1293 of 2011 :-29-:
produced or the report is filed in lieu of production of properties. In the decision reported in State of Punjab v. Baldev Singh [(1999) 6 SCC 172] , the Apex Court has held as follows:-
"14. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of NDPS Act. In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.PC in respect of search and seizure and particularly those of Sections 100,102,103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view."
(emphasis supplied) Thus, even in the case of seizure of properties by the Police, in which offences involved are under the provisions of the Forest Act, the Police has to adopt the procedure contemplated by the special or local Crl.R.PNos.1171 & 1293 of 2011 :-30-:
law. Thus, the jurisdiction of the court either under Section 451 or 457 and the procedural steps to be taken by the investigating agency are governed by Sections 4 and 5 of the Cr.P.C. in general and particularly, in accordance with the provisions of the special or local law. In short, the law making authority viz., the Parliament, when enacted Cr.P.C., Section 451 has been specifically designed so as to give effect and protect and save the provisions of special or local statute, governing the provision that deals with property involved in the offence contemplated by such special or local law and thus, Section 451 provides sufficient safeguards to suit the situation that may arise in view of Sections 4 and 5 of the Cr.P.C.
23. Having regard to the facts and circumstances involved in the case and in the light of the above discussion and various authorities, I am of the view that in the present case, the learned Magistrate has no jurisdiction to entertain a petition under Section 457 of Cr.P.C. and issue an order for interim release or custody of the property which is neither produced nor filed a report in lieu of Crl.R.PNos.1171 & 1293 of 2011 :-31-:
production of such property by the Police. Thus, as per Section 52, the Officer, who seized property under that Section need not produce the same before the court concerned, but, required to make a report to the court. In the present case, the properties are not produced in the court below, and no report is filed in lieu of production of property. But, an application was filed by the petitioners, for the release of the vehicle under Section 457 of Cr.P.C. though the vehicles were neither produced before the court nor a report is filed by the Police as contemplated by Section 457 of Cr.P.C. If that be so, in the light of the above discussion, the learned Magistrate has no jurisdiction, to proceed and deal with an application for interim custody of the vehicle filed under Section 457 of Cr.P.C., especially, when the vehicles are not produced before the court and no report is made by the Police and more particularly the seizure of property is effected by the forest officials other than the Police. In addition to that, as the offences involved in the present case are under the provisions of the Kerala Forest Act, 1961,which is a special and local Crl.R.PNos.1171 & 1293 of 2011 :-32-:
law and especially,when the special procedures are contemplated in the said Act regarding the seizure,release and confiscation of the properties, the disposal of the property either by way of interim custody or by way of final disposal can be made only in accordance with the procedure prescribed by the Kerala Forest Act,1961. From the above discussion, the inevitable conclusion that can be arrived is that the Magistrate will get jurisdiction to pass an interim order regarding the custody of properties, if the seizure is not effected by the Police, and by any other authority only when such properties are produced before the court or on a report in lieu of production of properties and such orders can be passed only under Section 451 of Cr.P.C. But, in the present case, no petition is filed under Section 451 of Cr.P.C. for interim release of property.
24. Mr.Prasun, learned counsel appearing for one of the revision petitioners emphatically submitted in the light of decision of the Apex Court reported in State of M.P. v. Madhukar Rao [2008 Crl.R.PNos.1171 & 1293 of 2011 :-33-:
(2) KLT 105 (SC)] that the Magistrate has power to release the vehicle under Section 451 of Cr.P.C. Learned counsel took me through the above decision. On a close perusal of the above decision, it is revealed that the Honourable Apex Court has laid down the dictum therein after considering the scope of Section 50 of the Wild Life (Protection) Act,1972. The discussion and findings of the Apex Court in paragraphs 11 and 12 of the above decision are quoted hereunder for convenience.
"11. We are unable to accept the submissions. To contend that the use of a vehicle in the commission of an offence under the Act,without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act, but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trial.
12. We are also unable to accept the submission that S.50 and the other provisions in Chap.VI of the Act exclude the application of any provisions of the Code. It is indeed true that S.50 of the Act has several provisions especially aimed at prevention and detection of offences under the Act. For example, it confers powers of entry,search, arrest and detention on Wild Life and Forest Officers besides police officers who are normally entrusted with the responsibility Crl.R.PNos.1171 & 1293 of 2011 :-34-:
of investigation and detection of offences; further sub-s.(4) of S.51 expressly excludes application of S.360 of the Code and the provisions of Probation of Offenders Act to persons eighteen years or above in age. But it does not mean that S.50 in itself or taken along with the other provisions under Chap.VI constitutes a self-contained mechanism so as to exclude every other provision of the Code. This position becomes further clear from sub-s(4) of S.50 that requires that any person detained, or things seized should forthwith be taken before a Magistrate. Sub-s(4) of S.50 reads as follows:-
"50(4). any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law [under intimation to the Chief Wild Life Warden or the officer authorized by him in this regard]."
It has to be noted here that the expression used in the sub- section is according to law and not according to the provisions of the Act. The expression according to law undoubtedly widens the scope and plainly indicates the application of the provisions of the Code." From the above passage,it can be seen that a particular provision viz., Section 50(4) is incorporated in the above referred Special Act. As correctly pointed out by the learned Public Prosecutor,such a provision is conspicuously absent in the Kerala Forest Act. In this juncture, it is relevant to note that Their Lordships have noted in the above decision as following, "It has to be noted here that the expression used in the sub-section is according to law and not according to the Crl.R.PNos.1171 & 1293 of 2011 :-35-:
provisions of the Act. The expression according to law undoubtedly widens the scope and plainly indicates the application of the provisions of the Code." The above observation and discussion is quite relevant in the present case also. As indicated earlier,there is no provision like Section 50(4) of the Wild Life (Protection) Act,1972, in the Kerala Forest Act 1961 directing the officer, who effected the seizure, to produce the person detained or things seized before the Magistrate to deal with according to law. On the other hand, in the Kerala Forest Act, the provision is very clear, which I shall repeat and refer hereagain for convenience.
"52. Seizure of property liable to confiscation.-- (1) xxx xxxx xxxx (2) Every officer seizing any property under sub-
section (1) 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,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:
Provided that,when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the Forest Officer makes, as soon as may be, a report of the circumstances to his official superior."
Crl.R.PNos.1171 & 1293 of 2011 :-36-:
So, in Section 52(2), as per the words emphasised therein, the mandatory duty of the seizing officer is to report such seizure to the Magistrate and not to produce the properties seized. Thus, according to me, the dictum laid down by the Apex Court in the above decision cited supra is not applicable in the present case and the provisions contained in the Special and Local Law has to be mandatorily followed by the Magistrate,especially in the light of the specific provisions contained in Sections 451,457,4 and 5 of the Cr.P.C.
25. In support of the contentions advanced by the petitioners, the learned counsel placed reliance upon another decision of the Honourable Apex Court reported in Ancy Philip's case (cited supra).
In the said decision, the Apex Court has held that disposal of property. in forest offence, need not be after physical production of timber before the Magistrate and the same can be done after obtaining necessary orders from the Magistrate under Section 54. The above decision is not applicable in the present case, since the subject matter Crl.R.PNos.1171 & 1293 of 2011 :-37-:
of the dispute in the above decision and the present case is entirely different. There, the accused, against whom the allegation is that they had cut and removed certain trees from the forest, during the course of trial, insisted that the timber, which is seized by the Forest Officials, shall be produced before the court. Accordingly, they approached this Court by filing a writ petition seeking the same relief and also a direction to issue pass and permit enabling the first petitioner therein to transport rosewood timbers and they also prayed for disposal of their representation. In that writ petition, the learned Single Judge of this Court issued a direction to the officer concerned for production of timber in question before the appropriate court. Against the above direction, the State and two Officers of the Forest Department filed writ appeal and by judgment dated 31.1.2006, a Division Bench of this Court dismissed the appeal upholding the order of the learned single Judge and it is against the said judgment of the Division Bench, the State preferred C.A.No.4333 of 2008 before the Apex Court. It is in that case, the Apex Court has held that in order to exercise the Crl.R.PNos.1171 & 1293 of 2011 :-38-:
jurisdiction under Section 61A of the Act, the seized article need not be produced before the court concerned, but the confiscation can be made after obtaining an order under Section 54 of the Act and the Apex Court has held that Section 54 of the Act which refers 'disposal of the property according to law' would necessarily mean that disposal of the property confiscated under the provisions of Section 61A has to be under the orders of the Magistrate. In the said decision, it is further held as follows:-
".........However, the Single Judge and the Division Bench had misinterpreted the above provision, namely S.54 and held that disposal can only be done after physical production of timber before the Magistrate and after obtaining necessary orders. This is a perverse finding. The same was not warranted by the provisions of law, as the prosecution has to produce the relevant records showing such seizure and the officer, who has seized those articles, has to satisfy that an offence has been committed by the accused........."
In the light of the foregoing discussion particularly based upon the various provisions of the Act and Sections 4,5,451 and 457 of the Cr.P.C., I have already found that the jurisdiction of the court to Crl.R.PNos.1171 & 1293 of 2011 :-39-:
release the articles either by way of interim measure or final disposal can be done only if the same are produced before the court below and in lieu of producing the articles before the court, the officers concerned can file a report as to why the articles are not produced and if so, the same can be treated as production of the articles or documents as contemplated under Section 451 of the Cr.P.C. But, the mere report regarding the seizure to the court under Section 52(2) cannot be treated as report in lieu of production of articles as contemplated under Section 451 of Cr.P.C., especially the special and local law prescribes the procedure to be followed by the seizing officer with respect to the property seized. Thus, according to me, in the present case, there is no illegality from the part of the Forest Officials in not producing the articles before the court of law and producing the same before the officer who is authorised for confiscation under Section 61A of the Act. In the light of the facts and circumstances involved in the case, the learned Magistrate has no jurisdiction to entertain the application filed either under Section 451 Crl.R.PNos.1171 & 1293 of 2011 :-40-:
or 457 of the Cr.P.C.
26. The other contention raised by the petitioners is that Section 61A is not applicable in the present case, especially in the light of the words contained in Section 61A. As per the definitions given under Sections 2(e) 'forest offence' and 2(f) 'forest produce', prima facie, I am of the view that such contention cannot be entertained at this stage because the stage of evidence is not reached and the disputed facts cannot be decided without evidence and any attempt in this regard will be premature and the same will affect the very route of the prosecution case. The petitioners can take such contentions at appropriate stage of trial or in any other appropriate proceedings. The petitioners can approach the confiscating authority authorised under the provisions of the Act for the release of the vehicle or they can resort to any other legally permissible procedure to redress their grievance, if any. Since I have already found that the Magistrate has no jurisdiction to entertain an application for release of the vehicle either under Section 451 or 457 of Cr.P.C. and in the absence of any Crl.R.PNos.1171 & 1293 of 2011 :-41-:
material or evidence,in support of the contention of counsel for the petitioners based upon Section 61A of the Act, the above contentions are left open.
In the result, these revision petitions are devoid of any merit and accordingly,the same are dismissed.
V.K.MOHANAN, Judge MBS/ Crl.R.PNos.1171 & 1293 of 2011 :-42-:
V.K.MOHANAN, J.
O.P.No. JUDGMENT Dated:..
Crl.R.PNos.1171 & 1293 of 2011 :-43-: