Karnataka High Court
Sri. H B Krishna vs Range Forest Officer on 18 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
W.P. NOS. 85364-366/2013 (GM-FOR)
BETWEEN:
Sri. H.B. Krishna
S/o P. Ramappa,
Aged about 30 years,
Occ: Business,
R/o Gunda Village,
Hospet Taluk,
Bellary District-583 201,
Represented as GPA Holder
For Sri. Hanamantha S/o Dasappa. ... Petitioner
(By Sri. V.R. Datar, Adv.)
AND:
1. Range Forest Officer,
Sandur Circle,
Bellary Division,
Tq. Sandur,
Dist. Bellary-583 119.
2. The Court of Authorised
Officer and Deputy Conservator of
2
Forest, Bellary Division,
Bellary - 583 101. ... Respondents
(By Sri.V.M. Banakar, Addl. SPP)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO QUASH OR SET ASIDE THE
ORDER PASSED BY THE FOREST OFFICER AND
DEPUTY CONSERVATOR OF FOREST, BELLARY ON
THE APPLICATION FILED FOR RELEASE OF VEHICLE
IN F.O.C. NO. 10/12-13 BY ITS ORDER DATED
19.10.2012 VIDE ANNEXURE 'A' REJECTING THE SAID
APPLICATION; ORDER DATED 15.11.2012 PASSED BY
THE COURT OF J.M.F.C., SANDUR REJECTING THE
APPLICATION FILED U/S 457 OF CR.P.C. IN F.O.C.
NO.10/12 VIDE ANNEXURE 'C' AND THE ORDER
DATED 24.8.2013 PASSED BY THE II ADDL. SESSIONS
JUDGE, BELLARY IN CRIMINAL REVISION PETITION
NO. 235/2013 DISMISSING THE SAME AS NOT
MAINTAINABLE VIDE ANNEXURE 'D'.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING, THIS DAY THE COURT
PASSED THE FOLLOWING:
ORDER
These Writ Petitions are filed under very pecuniary circumstances having the petitioner being unsuccessful before the Authorised Officer and Deputy Conservator of 3 Forest, Bellary Division, Bellary and also before the learned Judicial Magistrate of First Class, Sandur and as well as before the 2nd Additional Sessions Judge at Bellary in getting the interim custody of his vehicle involved in F.O.C. No.10/2012-13 registered by a Forest Guard, Siddapura Beat, Sandur Range on 11.07.2012 for the offence under Section 2(7) iv, 62, 80, 79 of Karnataka Forest Act, 1963 and Under Rule 144 of Karnataka Forest Rule 1969.
2. The brief factual matrix that emanate from records are that, it is alleged that the petitioner used his truck bearing Registration No. KA-35/A-978 for committing a forest offence in lifting and transporting the 10 metric tonnes of iron ore from the forest range within the range forest of Sandur. The said vehicle was seized and the seizure was brought to the notice of the Hon'ble J.M.F.C., Sandur on 11.07.2012. The petitioner in fact, at the first instance approached the Authorised Officer 4 and Deputy Conservator of Forest, Bellary Division for interim custody of the said vehicle. By passing a detailed order, the Authorised Officer has come to the conclusion that he has no jurisdiction to pass any orders under Section 71A, 71C and 71D of the Karnataka Forest Act, as said power vest with the Judicial Magistrate of First Class, Sandur. On that ground, he rejected the application.
3. Having suffered the said order, the petitioner approached the Civil Judge and J.M.F.C., Sandur by way of an application under Section 457 of Cr.P.C. The learned Magistrate after hearing the parties, he has come to the conclusion that Judicial Magistrate has no jurisdiction to make any order regarding the release of interim custody of Forest produce or the vehicle seized under Section 62. The Magistrate gets jurisdiction only when the forest produce or the vehicle seized is also produced before him for enquiry or trial. 5
4. Having confused with these two orders, it appears the petitioner has approached the 2nd Additional Sessions Judge, Bellary in Crl. R.P. No. 235/2013 challenging the above said two orders. The learned Sessions Judge though entered into in detailed discussions with regard to the contentions raised, but ultimately he has come to the conclusion that it is only an order on the Interlocutory Application filed by the petitioner. Therefore, the Revision is not maintainable under Section 397(2) of Criminal Procedure Code. Consequently, he dismissed the petition. Being aggrieved by the series of the above quoted orders, the petitioner forced to approach this Court by way of writ petition.
5. On looking to the above said factual circumstances, the only question that would arise for consideration by this Court is, who is the competent 6 authority to pass interim order with regard to the release of the property of the petitioner alleged to be involved in commission of a forest offence. The learned Counsel for the petitioner brought to my notice several provisions of Karnataka Forest Act and as well as the definition of Forest produce. It is just and necessary to look into Section 2, 7 (b) (iv), which defines what are all the forest produce. It says that :
"Forest Produce includes.--7(b) the following when found in, or brought from, a forest, that is to say.--
(i) .....
(ii) .....
(iii) .....
(iv) Peat, surface oil, rock and minerals
(including limestone), laterite, mineral oils, and all produces of mines of quarries".
(Emphasis supplied) 7 Other portion of this provision is not applicable so far as this case is concerned, hence relevant portion is only extracted.
6. Looking to the above said definition, it is clear that the products of mines and minerals are also included in the definition of forest produce. Therefore, when it is alleged that the petitioner's vehicle was used for transporting Iron ore from forest, this provision is attracted to establish a forest offence.
7. Now, coming to Section 62 of the Act, which reads as follows :
"62. Seizure of property liable to confiscation.--(1) when there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles or cattle or any other property used 8 in committing any such offence, may be seized by any Forest Officer or Police Officer.
(2) Any Forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.
(3) Every officer seizing any property under this section shall, as soon as may be, make a report of such seizure.--
(a) where the offence on account of which the seizure has been made is in respect of timber, ivory, Gulmavu (machilus macrantha) bark, Dalchini bark, Halmaddi (exudation of Ailanthus malabaricum), canes) 9 firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned authorised Officer under Section 71-A; and
(b) in other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made:
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior".
8. Section 62(3)(b) is important so far as this case is concerned. It clearly mandates that the Officer who seizes the property under this section shall as soon as may be make a report of such seizure where the offence 10 on account of which the seizure has been made is in respect of timber, ivory, Gulmavu (machilus macrantha) bark, Dalchini bark, Halmaddi, etc., to the concerned authorised Officer under Section 71-A and 71-B. In other cases to the Magistrate having jurisdiction to try the offence on account of which seizure has been made, provided that when the 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 Officer makes, as soon as may be, a report of the circumstances to his official superior. Earlier, this Court has held that if it comes under Section 62(3)(b) then the Magistrate gets jurisdiction to pass appropriate orders with regard to the properties seized if it is brought to the notice of the Magistrate and report has been submitted to the jurisdictional Magistrate. However, Section 71 empowers the Empowered Officer to pass appropriate 11 orders with regard to the release of any property seized under Section 62 which is any property of the Government, and for custody of such property i.e. sought by any party in respect of such property.
9. On combined reading of the above said two provisions under Section 62 and 71, it removes out the doubt that Section 62 refers to the property which are the property of the State Government and if the properties comes under Section 62(3)(a) it empowers the Authorised Officer to pass appropriate orders and if it comes under Section 62 (3)(b) then it empowers the jurisdictional Magistrate to pass appropriate orders. But, in this particular case, the vehicle which is involved of the petitioner, this cannot be construed as the property of the Government. Therefore, the power vested with the Authorised Officer to release the vehicle is unfettered to Section 71 of the Act. In this regard, it is worth to note a decision of the Hon'ble Supreme 12 Court reported in AIR 2002 SC 1875 (A) Karnataka Forest Act.
10. The relevant para is at para 23 wherein the Hon'ble Supreme Court in detail dealt with the powers of the Authorised Officer, which reads thus :
"The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the Sections, is to vest power in the authorised officers of the Forest Department for proper implementation/enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose certain powers including the power of seizure, confiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the non-obstante clause in the relevant provisions giving 13 overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the authorised officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under the Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the authorised officer under the Act and if he finds that such power is vested in the authorised officer then he has no power to pass an order dealing with interim custody/release of the seized material. Thus, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the 14 seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided".
(Emphasis supplied)
11. In view of the above said observations of the Hon'ble Supreme Court, it is clear that whenever any vehicle is involved in commission of a forest offence and along with the vehicle any forest produce is also seized then it becomes the exclusive power of the authorised Officer to pass appropriate orders with regard to the release of the interim custody of the said forest produce and as well as the vehicle involved. The Hon'ble Supreme Court has categorically held that by the non abstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws, the necessary corollary of such provisions is that in a case where the authorised officer is empowered to confiscate the seized forest produce on 15 being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under the Cr.P.C. has to give way, that means special act overrides the General Laws.
12. In view of the above said observations, the order passed by the Authorised Officer holding that he has no jurisdiction is under wrong perception of law. Hence, it is just and necessary to direct the Authorised Officer to consider the application filed by the claimant/petitioner herein with regard to the release of the interim custody of the vehicle involved in the case in F.O.C. No. 10/2012-13, in accordance with law.
13. With these observations, the following Order is passed :
These writ petitions are hereby allowed.
Consequently, the order passed by the Authorised 16 Officer and Deputy Conservator of Forest, Bellary Division, Bellary in F.O.C. No. 10/2012-13 dated 19.10.2012 is hereby quashed. Further, the Authorised Officer is directed to consider the said application for interim custody of the vehicle of the petitioner afresh in view of the observations made in the above said Hon'ble Supreme Court decision and pass appropriate orders as early as possible within a period of six weeks from the date of receipt of this order.
Sd/-
JUDGE Rbv