Andhra HC (Pre-Telangana)
A.Sathisha vs The State Of A.P. Rep. By The S.H.O ... on 7 August, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1436 of 2014 07-08-2014 A.Sathisha.Petitioner The State of A.P. rep. by the S.H.O Chagalamarri P.S.. Respondent Counsel for the Petitioner : Sri V.Nitesh Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1978(2) APLJ 191 2. 1996(2) ALT (Crl.) 699 = 1996(4) ALD 223 3. 1985(1) APLJ 47 4. (2004)4 SCC 129 5. 1980(1) ALT 8 6. 1978(1) APLJ 391 7. (2002)1 SCC 495 8. (2004)1 SCC 293 9. (2000)7 SCC 18 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1436 of 2014 ORDER :
1) This revision is filed by the petitioner/owner of the vehicle under Section 397 and 401 Cr.P.C. aggrieved by the order dated 27.06.2014 in CFR No.2806 of 2014 in Crime No.106 of 2014 of Chagalamarri Police Station registered for the offences punishable under Sections 379 I.P.C and Sections 29(1)(b), 20(1)(3) and (1) of Indian Forest Act, 1967, Rule 3 of A.P. Forest Products and Transit Rules and Rule 3 of Red Sandal Wood Possession Rule 1970 under which the petition under Section 451 of Cr.P.C filed by the petitioner was returned by the learned Judicial Magistrate of the First Class, Allagadda, Kurnool District. The petitioner shown his address as Mahadevapura Bande, Bangalore.
2) Brief facts are that the petitioner is the owner of the Toyota Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was registered in Crime No.106/2014 of Chagalamarri Police Station for the offences punishable under the above sections of law for which the owner of the vehicle filed a petition under Section 451 Cr.P.C praying to release the vehicle. The grounds urged in the said petition that the petitioners vehicle was taken by driver for rent from Bangalore to Schemoga and misused the same by transporting of red sandal by violating forest rules and illegally transporting forest goods, upon which the police seized the vehicle. The learned Magistrate returned the petition on the ground that the Court has no jurisdiction to entertain the petition as the offence is under Forest Act and Red Sandal Act.
3) Aggrieved by the same, the petitioner preferred this revision on the ground that the trial Court erred in returning the petition without any valid or cogent reasons, that it ought not to have proceeded on the wrong premise with regard to the actual custody of the seized vehicle, for the custody could be either actual or symbolic, that the Judicial Magistrate of the First Class has jurisdiction as the report of seizure of the vehicle was made after registration of crime and more particularly the crime was registered by the police (Law and order) and prayed to release the vehicle as it is the only source of income for the petitioner.
4) The learned Public Prosecutor opposed the revision petition stating the learned trial Magistrate is correct in his observation on want of jurisdiction to entertain the application since it is the forest officials having jurisdiction and thus there is nothing for this Court to interfere by sitting in revision and sought for dismissal.
5) Heard both sides and perused the material on record.
6) Now, the points that arise for consideration are
(i) Whether the impugned order of the learned Judicial Magistrate of the First Class, Allagadda covered by order dated 27.06.2014 is not sustainable and to what extent this Court to interfere while sitting in revision against revision.
(ii) To what result? POINT No.i:
7) A perusal of the panchanama dated 20.05.2014 shows that in between C.K.Palli and Mutyalampadu villages near Birds school based on information to the S.I. of Police, the Sub-Inspector with staff along with the mediators proceeded to the said place reached by 17.15 hours and a quails zeep with Meroon Red colour coming from Ahobilam area and on seeing the police party of the Qualis vehicle reached nearby apprehending interception within a distance of 10 feet away from the police party, suddenly the vehicle reversed back to flee away. However, the police party apprehended and could stop the vehicle from proceeding further and noticed two persons therein besides the driver and they were made to get down in so they noticed four logs of red sandal which they were illegally transporting in the vehicle and the driver is Chandran Sateesh of Bengaluru city, Old Madras Road and the investigation show the modus operandi of him even earlier in so transporting illegally the red sandal and the other two persons in the vehicle are Amjad Pasha and Shabbir Pasha who also belongs to Bengaluru and they also disclosed their identity by respective individual interrogation which discovered the facts of their privy to the crime and the Toyota Red colour quails jeep is bearing No.KA 04 A 6300 and the police party called the Forest Settlement Officer and in the presence of Forest Officials cause measured the red sandal weighing about 50 kgs worth Rs.50,000/- and the further facts discovered disclosed the red sandal logs purchased by these persons from other three persons of Dornakottala village who were trading with the forest wood by uprooting the trees. It is from registration of the crime and seizure of the property under the panchanama including the vehicle with the red sandal logs the police started investigation of the case.
8) Pending investigation, the application filed before the lower Court by the petitioner claiming as owner of the vehicle saying the driver who has taken the vehicle for rent from Bengaluru to Shemoga misused the same in illegally transporting the red sandal logs against the forest rules and the vehicle seized is by Chagalmarri Police and being the owner of the vehicle is seeking interim custody undertaking not to change the colour and utility. Hence to release.
9) The Learned Magistrate by endorsement dated 27.06.2014 returned the same holding that he has no jurisdiction to entertain the petition as the offence is a Forest and Red Sandal Acts offence. It is impugning the same as referred supra, the present revision is filed.
10) No doubt the factual matrix show the crime is detected by the regular police and not by forest officials and the vehicle was also seized by them in detecting the crime along with the red sandal and it is a pre- liti interim custody sought by the petitioner as nothing to show the property produced before the learned Magistrate Court for its custody with Form No.66 required by law by then. Now, the question is whether the learned Magistrate got jurisdiction or it is the forest officials by virtue of the Forest Act offence that alone got jurisdiction. In this regard the petitioner placed reliance upon a Division bench judgment of this Court in W.A. No.66 of 1978 (Hazi Begum V. State of A.P ) wherein it was held that the forest range officer, Hyderabad (south) near Hussaini Alam Police Station intercepted the vehicle carrying red sandal wood billets without permit against the red sandal wood and Sandal Wood Transport Rules and the Andhra Pradesh Forest Act provisions and the same were seized under panchanama and the Range Officer produced the forest produce and the vehicle before D.F.O, Hyderabad who lodged report in registering crime and submitted F.I.R to the concerned Metropolitan Magistrate, also the arrested accused driver with remand report and the vehicle also to judicial custody and the accused was remanded for 15 days judicial custody and for the absconding owner of the billets to secure, a bailable warrant was issued. The writ appeallant Hazi Begum claimed as owner of the vehicle and pending trial sought for delivery of the vehicle and the learned Magistrate ordered interim custody of the vehicle to said claimant-Hazi Begum subject to self-bond with two sureties and subject to the deposit of the revision case of the vehicle in Court and to produce the vehicle on every adjournment during enquiry/trial and not to transfer and not to change use etc, conditions that order of the Magistrate was impugned in W.P. No.5540 of 1977 by the Forest Range Officer showing the said Hazi Begum as the 1st respondent to the writ petition and the writ petition was allowed by the learned Single Judge setting aside the order of the Learned Magistrate holding that he has no jurisdiction to release the vehicle. Correctness of the said writ petition order was impugned in the writ appeal. The Court ferred Section 53 of the Andhra Pradesh Forest Act, 1967 (for short, the Act) besides Section 44, 45, 50, 58 and 58-A including the Andhra Pradesh Forest Amended Act, 17 of 1976 and with reference to the provisions observed that the wording of Section 53 of the Act is indicating relating to arrest of the person by the Forest Officer without orders of Magistrate and to produce before Magistrate for Judicial Custody. It also speaks from para-4 of the Judgment that a forest officer not below the rank of F.R.O can seize the forest produce together with tools, ropes, chains, boats vehicles and cattle employed in commission of the offence under Section 44 of the Act and after said seizure put marks on the goods seized and keep in his custody or with forest guard or village headman till offence is compounded or release of seized article and when so required by Magistrate or until the orders of the Court for disposal of the order is received and the goods otherwise are to be produced before Assistant Conservator of the Forest who is competent by Government notification to deal with seized goods. The proviso to Section 44 of the Act speaks the property seized is that of the Central or State Government and even after, if not even it shall be reported to the D.F.O and where the Forest Officer seized the property in respect of the forest offence he may order confiscation of the timber or other produce so seized or produce together with all tools - - - -, vehicles used in commission of the offence, after the person from whom the property seized given notice informing grounds on which the property proposed to be confiscated and opportunity of making written representation, if any and of hearing before passing such order for confiscation and if the owner of the vehicle or the like proves to the satisfaction of the forest officer of the same used in carrying the property without his knowledge or connivance in its use in commission of the offence despite he has taken reasonable and necessary precautions against such use and it is subject to that; the confiscation be made. Against such confiscation order, for the aggrieved person within 30 days from the date of communication of confiscation order there is right of appeal in District Court within the jurisdiction there the property is seized to hear and pass orders.
11) It is ultimately held in so referring that, for the Range Officer there are two options either to produce before Forest Officer, the forest produce with tools or make a report of seizure to the Magistrate and the option is material for no obligation to report seizure to the Magistrate as if the offence is not compounded by forest officials, the officials have recourse to the procedure prescribed for confiscation which is no doubt subject to right of appeal before the District Court for attaining finality. Once there is report of seizure to the Magistrate, the Magistrate is empowered to take such measures necessary besides trial of the accused for disposal of the property and the powers thus enumerated are dehorse on the powers of Magistrate under Section 45 Cr.P.C for custody, disposal pending trial and order for disposal at conclusion of trial as per the relevant chapter of Cr.P.C. It is observed that sub- section (4) and (5) of Section 44 of the Act in terms are not compatible of any ambiguity for power of Magistrate to dispose of the forest produce and tools once a report is received by him and Sub-section (5) speaks of the interim arrangements and thereby held that the learned Magistrate cannot be held to have passed the order without jurisdiction and allowed the writ appeal.
12) The other decision placed reliance is of a single Judge of this Court in State of A.P. V. Anandmal Surajmal Sethia . In this case the Forest Range Officer seized the lorry and produce before D.F.O, Kadapa and the owner of the lorry approached the learned Magistrate, Rajampet under Section 457 Cr.P.C for release of the vehicle for interim custody and the learned Magistrate ordered for its release subject to conditions including furnishing of bank guarantee and the same was when challenged before the Court of Session by revision the same was modified regarding the bank guarantee and to deposit registration certificate book and other documents and to produce the vehicle as and when required by Court or D.F.O. Against which, the matter reached under Section 482 Cr.P.C before this Court where the Honourable Single Judge of this Court observed that when the seized lorry was produced before D.F.O and not before learned Magistrate under Section 44 of the Act, it is only the Forest Officer of forest department that is competent to confiscate or release the vehicle pending investigation and the Magistrate or Learned Sessions Judge have no jurisdiction and for that conclusion placed reliance upon earlier expression of a Division Bench of this Court in D.F.O, Warangal V. District Judge, Warangal and held that the decision referred by the learned Magistrate and Sessions Judge of 1981(2) A.W.R is no longer good law. The learned Single Judge of this Court referred supra observed that, the Legislature did not provide though wanted, the two forums one is Criminal Court which is in existence and the other is Forest Officer and once the seized authority has discretion to produce the seized forest produce and the crime vehicle either before forest officer or before Magistrate; the proceedings wherein respectively are also different and distinct. So long as the seized vehicle not produced before Magistrate and that too produced before D.F.O it is under the Forest Act, the D.F.O is only empowered to confiscate or release the vehicle and the produce and the learned Magistrate ordered release of the vehicle that is confirmed with modification by the Court of Sessions have no jurisdiction.
13) The sum and substance of two expressions supra speak that, unless the vehicle is produced by the authorities concerned before the Magistrate with Form No.66, the Magistrate has no jurisdiction to order for interim custody pendentiliti to say no pre-liti or pre-production jurisdiction; that too when the vehicle seized is while illegally transporting the forest wood which is a red sandal covered by the Rules made including Red Sandal Transit Rules. As such the return endorsement on the application for custody, made by the learned Magistrate to satisfy the query on jurisdiction for entertaining the application is justified for nothing to show the vehicle was produced with Form No.66 before the learned Magistrate to assume jurisdiction for its interim custody. Even the expression of the Apex Court in State of West Bengal V. Sujith Kumar Rana in dealing with a forest case is that when there is a power of a Magistrate under Cr.P.C for interim release of vehicle involved in the West Bengal Forest Act offence concerned, it was observed with reference to Section 52 and 59(g) of the West Bengal Forest Act that the object of confiscation of the property involved in the forest offences is to protect and to maintain the ecological balance and to prevent the crimes under the Forest Act. The State Legislature made provisions relating to seizure and confiscation by forest officials in order to preserve the forest as national wealth and within the spirit of Articles 48(a) and 58(g) of the Constitution of India and the confiscation is permissible once the ownership of the forest produce is clear and there is a remedy against the order of confiscation taken care of by appeal and procedure also made to follow for confiscation proceedings to commence by ordering notice. Confiscation envisages a civil liability in respect of the property, must be generally proceeded by a judgment of conviction or the like. It was observed in para-31 that the criminal Courts although have jurisdiction under Cr.P.C, but once confiscation proceedings initiated it has no jurisdiction as said jurisdiction of criminal Court excluded and once that is the case the High Court while sitting against it, cannot exercise its inherent power even to assume jurisdiction on criminal Court. At para-36 of the judgment of the Apex Court, it referred to a division bench expression of this Court in Md.Yasim V. Forest Range Officer that was also approved in another bench in saying the procedure contemplated under Section 44 of the Act-one is trial of a person accused of an offence under the Act and the other is confiscation of the property which forming part of the subject matter of the offence even by the Forest Officer and when the Act provides a special machinery for confiscation of the forest produce etc, by the forest officer concerned in the general public interest to suppress the mischief to worthless exploitation of Government forests by illicit felling and removal of valuable forest produce even acquittal of the accused by trial Magistrate did not entail nullifying the confiscation order of the seized property by the forest officer on his subject to satisfaction and the same was quoted with approval of earlier Division Bench expression in State of A.P V. T.K.Mohamood . At para-37 of the Apex Court judgment, they referred another judgment of the Apex Court in State of West Bengal V. Gopal Sarkar in saying the forest produce which is property of State Government once produced before forest officer in respect of an offence committed, he may pass order of confiscation together with the tools, ropes, chains, boats and vehicles and cattle etc, and the power of confiscation is independent of any proceeding of prosecution for the forest offence committed. It also referred at para-38 another expression of the Apex Court in State of Karnataka V. K.A.Kunchidammed a case relating to sandal wood under Karnataka Forest Act; saying for preserving the forest and forest produce in the State, the provisions in the Act were made, where under the forest officer of the forest department when empowered to confiscate the seized forest produce in respect of the forest offence, the general power vested in the Magistrate for dealing with the interim custody of the seized vehicle under Cr.P.C has to go away. The Apex Court there from upheld the order of the Magistrate confirmed by Sessions Court in revision of the Magistrate has no jurisdiction to pass any interim custody of seized vehicle but for the authorized officer of the Forest Department, it was observed by the Apex Court in para-39 referring to the other expressions in K.A.Kunchidammed (supra), second forester v. Mansoor Ali Khan which followed the earlier expression in State of Karnataka V. K.Krishnan that when a vehicle is involved in the forest offence, the same is not to be released to the offender or to the claimant as a matter of routine till the culmination of the proceedings which may include confiscation of such vehicle. It was therefrom the facts held that the confiscation order passed by the forest officials and sitting against by the learned District Judge against which while sitting by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for interim release of vehicle held is nothing but exceeding jurisdiction.
14) Having regard to the above, the law is fairly settled in saying that because of the specific provision empowering the forest officials the criminal Courts cannot assume the general jurisdiction conferred under Cr.P.C for ordering interim custody or release of vehicle. POINT No.ii:
15) In the result, the revision is dismissed holding that the impugned order by return of the interim custody of the vehicle for want of jurisdiction dt.27.06.2014 passed by the learned Magistrate in CFR No.2806 of 2014 in Crime No.106/2014 of Chagalamarri Police Station no way requires interference by sitting against. Consequently the miscellaneous petitions pending, if any, shall stand closed.
_________________________ Dr. B. SIVA SANKARA R?O, J Date: -08-2014