Andhra Pradesh High Court - Amravati
The Divisional Forest Officer, vs M. Kamalakamma, on 9 September, 2025
APHC010827822016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
Tuesday, the Ninth day of September, two thousand and twenty five
Present
The Honourable Ms. Justice B.S. Bhanumathi
Writ Petition No.21393 of 2016
Between:
The Divisional Forest Officer, ...Petitioner
Chittoor West Division, Chittoor
and
M.Kamalakannam ...Respondent
Counsel for the petitioner:
1. G.P. for Forests (A.P.)
Counsel for the respondent:
Nil
The Court made the following:
2
BSB, J
W.P.No.21393 of 2016
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to order passed on 07-01-2016 in Crl.R.P.No.23 of 2015 passed by the District and Sessions Judge, Chittoor, and declaring the same as illegal and contrary to law and quash the same and pass such other order or orders as this Court deems fit and proper.
2. The facts leading to filing of this writ petition, briefly stated, are as follows:
The Sub-Inspector of Police, Yadamari P.S booked a forest offence under Section 379 I.P.C. and Sections 32 and 39 of the A.P. Forest Act, 1967 (hereinafter referred to as 'A.P.F Act') and other related provisions with the allegation that ten (10 Nos.) of red sander logs and one Mahendra Xylo car bearing No.TN 19 K 5697 were seized and twelve accused persons were arrested while transporting the said red sander logs on 19.11.2014. The accused Nos.2 to 13 were produced before the IV Additional Judicial First Class Magistrate, Chittoor, and then, the case was transferred to the Forest Range Officer, Chittoor, West Range, along with the seized property, i.e., both the red sander logs and the Mahendra vehicle, upon which a case was registered by the F.R.O., Chittoor, as O.R.No.139/2014-2015 under Section 20(i)(c)(iii) of the A.P.F. Act r/w Rule 3 of the A.P. Sandal Wood & Red Sander Wood Transit Rules, 1969 and under Section 58 of the A.P.F Act read with Sections 2 & 3 of the Prevention of Damage to Public Property Act, 1984, Section 2(j) of the Preventive Detention Act, 1950 and other provisions of I.P.C. While so, the respondent herein, 3 BSB, J W.P.No.21393 of 2016 claiming himself to be the owner of the aforesaid vehicle, filed a petition in Crl.M.P.No.3891 of 2014 in Crime No.144 of 2014 of Yadamari P.S., before the IV Additional Judicial First Class Magistrate, Chittoor, to grant interim custody of the vehicle to him. The petition was allowed directing the petitioner to execute a bond for Rs.3,00,000/- with one surety for a like amount to the satisfaction of that Court and further that the vehicle should be produced as and when directed by the Court.
3. Aggrieved by the order of the learned Magistrate, the State, represented by the Assistant Conservator of Forests, Palamaner, Chittoor District, filed a revision petition in Crl. Revision Petition No.23 of 2015 against the writ petitioner herein as the respondent No.1 and the State of Andhra Pradesh, represented by the S.I. of Police, Yadamari P.S. as the respondent No.2.
4. The contention of the revision petitioner is that no notice was given to the Forest Department before passing the impugned order and further that there is no jurisdiction to the learned Magistrate to pass the order granting interim custody in view of Section 44(2) of the A.P.F. Act by which the power is vested with the Forest Officer to confiscate the vehicle involved in the commission of the offence under the A.P.F. Act.
5. Then, without going into the grounds raised in the revision on the above aspects, the District & Sessions Judge, by referring the order, dated 07.03.2014, in P.Velu Murugan Vs. The State of Andhra Pradesh1 of this High Court and another order of this High Court, dated 11.12.2012, in M/s. Amruthavarshini Dairy Farms Pvt. Ltd. Vs. State 1 Crl.R.C.No.1486 of 2013, dated 07.03.2014 4 BSB, J W.P.No.21393 of 2016 of Andhra Pradesh2 relied on by the learned Magistrate, dismissed the revision petition.
6. Aggrieved by the said dismissal order, this writ petition was filed by the Divisional Forest Officer, Chittoor West Division, Chittoor, again contending that as per Section 44(2) of the A.P.F. Act, the impugned order is liable to be set aside as the Magistrate of First Class has no jurisdiction to pass any such order. The writ petitioner referred to the decision of the Supreme Court in District Forest Officer Vs. G.V.Sudhakar Rao and others3 stating that it was held in that case that the provisions of the Criminal Procedure Code were said to be not applicable where confiscation proceedings under the Forest Act are taken up.
7. In spite of service of notice on the respondent, no appearance has been made.
8. Heard the learned Assistant Government Pleader for Forests representing the petitioner.
9. The learned Assistant Government Pleader submitted as per the written instructions of the District Forest Officer, Chittoor District, Chittoor, that the case OR No.139/2014-15 is under trial before the Special Court for Trial of Cases Related to Red Sanders Smuggling, Tirupati, vide RSSCC No.352/2023 and the next adjournment date is 24.09.2025. It is further represented that the seized vehicle Mahendra Xylo car bearing No.TN 19 K 5697 is still in the custody of Forest Department and it is not in road worthy condition.
2Crl.R.C.No.2484 of 2012, dated 11.12.2012 3 (1985) 4 SCC 573 5 BSB, J W.P.No.21393 of 2016
10. The order in M/s. Amruthavarshini Dairy Farms Pvt. Limited (2 supra) was passed in relation to seizure of a lorry in an offence registered under Section 7(A) read with Section 8(e) of the A.P. Prohibition Act, when a Magistrate returned the petition for release of the lorry on the ground that he had no power under that Act to return the vehicle. This Court, without deciding the question whether the Magistrate of First Class has power to return the vehicle in interim custody in a case registered under the above provisions of law, ordered release of a lorry to the petitioner for interim custody, subject to certain conditions. Therefore, this decision cannot be taken as a precedent to follow on the legal proposition that the First Class Magistrate has authority to return the property for interim custody in a case registered under the A.P. Prohibition Act, 1995.
11. In the decision in P. Velu Murugan (1 supra), a case was registered under Sections 29 & 30 of the A.P. Forest Act, 1967. The writ petitioner sought interim custody of the vehicle seized by the forest officials. The learned Additional Judicial First Class Magistrate, Chittoor, on the basis of the decision in Oruganti Seshachala Venkateshwarlu Vs. Government of Andhra Pradesh4 held that there is no jurisdiction under Section 457 Cr.P.C. to pass order for interim custody of the vehicle which was not produced before the Magistrate.
12. In P.Velu Murugan (1 supra), after referring to the decisions in Public Prosecutor Vs. G. Marimuthu Konar 5, Ulli Bhaskar Vs. State of A.P6., Chindura Muthaiah & Co., Kamareddy, Nizamabad District, 4 2003 (2) ALT 444 5 LAWS (APH)-1980-12-35/APLJ-1981-1-84 6 2004 (1) ALD (Crl.) 561 (AP) 6 BSB, J W.P.No.21393 of 2016 A.P. Vs. Deputy Commissioner of Prohibition and Excise, Karimnagar, A.P.7, it was held at paragraph No.8 as follows:
"Indeed, the vehicle involved in this case is under Sections 29 & 32 of the A.P. Forest Act. This Court has held in Public Prosecutor Vs. G.Marimuthu Konar (5 supra) when lorry was seized under the provisions of the Forest Act that the Magistrate has powers to dispose of the property under Section 44(4) of the Forest Act as well as under Section 457 Cr.P.C. However, in view of the decision of this Court in Crl.R.C.No.2484 of 2012, I consider that the Criminal Court has got jurisdiction to order the disposal of the property, more so, by way of interim custody."
13. Before proceeding further, it is pertinent to refer Section 44 of the A.P.F. Act, 1967, which reads as follows:
"44. Seizure of property liable to confiscation and procedure thereupon:-
(1) xx xxx xx (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 7 2006 (2) ALD 367 7 BSB, J W.P.No.21393 of 2016 the rank of an Assistant Conservator of Forests authorised by the Government in this behalf by notification (hereinafter referred to as the 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. xx xxx xxx 2-B. xx xxx xxx 2-C xx xx xxx 2-D xx xx xxx 2-E xx xx xxx (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.8
BSB, J W.P.No.21393 of 2016 (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) xx xxx xxx."
14. On the other hand, the learned Assistant Government Pleader for Forests, by referring to the decision of the Supreme Court in District Forest Officer Vs. G.V. Sudhakar Rao and others (3 supra) vehemently contended that the Magistrate has no jurisdiction to order delivery of the property in interim custody. She further submitted that the vehicle has not been taken, as per the instructions to her, in spite of an order in favour of the respondent and the interim order of suspension granted by this Court on 04.07.2016 was extended for four weeks only on 10.12.2019 and thereafter, there is no order of suspension in operation.
15. The decision of the Supreme Court in G.V.Sudhakar Rao (3 supra) was followed by the High Court of Judicature at Hyderabad (for the State of Telangana and the State of Andhra Pradesh) in Arun 8 Bacher Vs. State of Telangana & two others and after considering several decisions on this aspect, viz., A.Sathisha Vs. The State of A.P., 9 Haji Begum Vs. State of A.P.& others 10 , State of A.P. Vs. 8 2018 (3) ALD 549 9 2014 SCC OnLine Hyd 610 10 1978 SCC OnLine AP 113 9 BSB, J W.P.No.21393 of 2016 Anandmal Surajmal Sethia11, The D.F.O., Warangal Vs. The District Sessions Judge, Warangal12, State of West Bengal & Others Vs. Sujit Kumar Rana13, State of Karnataka Vs. K.A.Kunchinammed14, Section Forestor & Another Vs. Mansur Ali Khan 15 , State of Karnataka Vs. K. Krishnan16, State of M.P. & others Vs. Madhukar Rao17, Motilal Vs. C.B.I. & Another18, and the decision in Principal Chief Conservator of Forests & Another Vs. J.K. Johnson & others19, it was held at paragraphs Nos.24, 26, 27 and 28 as follows:
"24. Thus so far as the State of Andhra Pradesh and Telangana concerned, because of the specific provision u/sec. 44 of the AP Forest Act, 1967, only the Forest Officials got jurisdiction either to confiscate or to release including for any interim custody and the Magistrate court concerned has no jurisdiction either under Section 451 or 457 Cr.P.C. for ordering interim custody, once the vehicle seized produced before the Forest Officials and not produced before the Magistrate. Needless to say, in case of offence involving exclusively WLP Act, the Magistrate 11 1996 SCC OnLine AP 507 12 1984 SCC OnLine AP 171 13 (2004) 4 SCC 129 14 (2002) 9 SCC 90 15 (2004) 1 SCC 293 16 (2000) 7 SCC 80 17 (2008) 14 SCC 624 18 (2002) 4 SCC 713 19 (2011) 10 SCC 794 10 BSB, J W.P.No.21393 of 2016 got jurisdiction to pass orders for custody and disposal by virtue of the Apex Court's expressions in Madhukar Rao (2008) 14 SCC 624 : 2009(1) ALT 16.1 (DN SC) (supa), J.K. Johnson AIR 2012 SC 61 : 2012 (3) ALT 48.1 (DN SC) (supra) with reference to Sections 39 read with 50 of the WLP Act.
26. Thus what the learned Magistrate taken the decision in return of the petition for interim custody sought by the present writ petitioner for want of jurisdiction referring to a Single Judge expression of this Court in A. Satheesha supra is absolutely correct. It is because though under the WLP Act, the Magistrate got jurisdiction to pass order for interim custody pending final order for forfeiture or confiscation or release of the seized property including vehicle or vessel etc. so far as the A.P. Forest Offence concerned by virtue of Section 44 of the Act that too, once the vehicle and other property produced before the Forest Officials concerned, it is only the Forest Officials concerned that got jurisdiction for release of the vehicle for interim custody of the vehicle subject to any bank guarantee of its value and not by Magistrate concerned where the crime is pending, with or without filing of charge sheet for ordering any interim custody under Section 451 or 457 Cr.P.C., by the Magistrate. ....."
27. With above clarification and clearing cloud the order of the Magistrate returning application of the interim custody of the vehicle to the petitioner for want of jurisdiction in view of the vehicle seized in the offence under the WLP Act and AP Forest Act is upheld for 11 BSB, J W.P.No.21393 of 2016 remedy is to approach the District Forest Officer who has to pass orders under the AP Forest Act Section 44 from the vehicle produced before the Forest Officials initially from seizure in the crime and not before the Magistrate.
28. Accordingly and in the result, the Writ Petition is disposed of with a direction to the petitioner to approach the District Forest Officer who got jurisdiction to pass property disposal orders by conducting enquiry including for any interim custody. The District Forest Officer is directed to issue show cause notice, receive explanation of owner of vehicle and on enquiry pass an appropriate order within six weeks from date of receipt of the order. Any further grievance of writ petitioner is to approach the District Court by statutory civil appeal."
16. In the case of Arun Bacher (8 supra), the decision of the apex Court in G.V.Sudhakar Rao (3 supra) was also considered, but, the previous decisions in P.Velu Murugan or G. Marimuthu Konar (supra) were not discussed. However, since the decision in Arun Bacher (supra) was rendered by considering the decision of the Supreme Court which is directly on the issue but not considered in the previous decisions, this Court is of the view that the decision in Arun Bacher (supra) holds the field, and therefore, the learned Magistrate can only dispose of the property under Section 44(4) of the A.P.F. Act. But, insofar as release of property or vehicle in interim custody, it is the forest officer who is authorized under Section 44(3) of the A.P.F. Act is competent to grant the relief of release of the vehicle.
12BSB, J W.P.No.21393 of 2016
17. Since already a remedy of appeal to the District Court has been exhausted, the order passed by the learned Magistrate as well as the District & Sessions Judge are liable to be set aside and accordingly, they are set aside and the petition in Crl.M.P.No.3891 of 2014 is dismissed. The respondent can seek release of the vehicle as per Section 44(3) of A.P.F. Act.
18. In the result, the Writ Petition is allowed.
There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________ B.S. BHANUMATHI, J Date: 09.09.2025 Note:- L.R copy to be marked (B/o) RAR