Rajasthan High Court - Jaipur
Harun vs . State Of Rajasthan on 23 September, 2015
Author: Anupinder Singh Grewal
Bench: Anupinder Singh Grewal
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R (1) D.B. CRIMINAL MISC. PETITION NO.76/2014 HARUN Vs. STATE OF RAJASTHAN (2) D.B. CRIMINAL MISC. PETITION NO.646/2014 SUSHIL JAJADA Vs. STATE OF RAJASTHAN (3) D.B. CRIMINAL MISC. PETITION NO.772/2014 AASHU Vs. STATE OF RAJASTHAN (4) D.B. CRIMINAL MISC. PETITION NO.953/2014 FAKRUDEEN Vs. THE STATE OF RAJASTHAN (5) D.B. CRIMINAL MISC. PETITION NO.956/2014 TAUFIQ Vs. STATE OF RAJASTHAN (6) D.B. CRIMINAL MISC. PETITION NO.1130/2014 RAJU SINGH Vs. STATE OF RAJASTHAN (7) D.B. CRIMINAL MISC. PETITION NO.1173/2014 BALA Vs. STATE OF RAJASTHAN (8) D.B. CRIMINAL MISC. PETITION NO.1215/2014 TARIF Vs. STATE OF RAJASTHAN (9) D.B. CRIMINAL MISC. PETITION NO.1415/2014 IQBAL Vs. STATE OF RAJASTHAN (10) D.B. CRIMINAL MISC. PETITION NO.1783/2014 ISMAIL KHAN Vs. THE STATE OF RAJASTHAN (11) D.B. CRIMINAL MISC. PETITION NO.1972/2014 VISHAMBAR Vs. STATE OF RAJASTHAN DATE: 23rd SEPTEMBER,2015 HON'BLE MR.JUSTICE AJIT SINGH, ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL Mr. Virendra Dave, Mr. Ritwick Dave, Mr. Manish Gupta, Mr. Deepak Soni, Mr. S.R. Chaudhary Mr. Ankit Khandelwal, Mr. K.K. Chhawal, for the petitioners. Mr. Anurag Sharma, Additional Advocate General Mr. Ashrut Sethi, for the respondents.
***** (Reportable) The following order of the Court was delivered by Hon'ble Mr. Justice Ajit Singh, Acting Chief Justce:
1. The petitioners claim themselves to be the owners of vehicles which have been seized either by a Forest Officer or a Police Officer not below the rank of a head constable on a reason to believe that forest offence under the Rajasthan Forest Act, 1953 has been committed. Also since forest offence has been registered against the persons alleged to have committed the same, they are being prosecuted before the Magistrate having jurisdiction to try such forest offence. The petitioners applied for interim release of their vehicles before the Magistrate under Section 451 of the Code of Criminal Procedure, but their applications have been rejected on the ground that no Court had jurisdiction to order for such interim release in view of bar under Section 52C of the Rajasthan Forest Act, 1953. Aggrieved, the petitioners have approached this High Court under Section 482 of the Code of Criminal Procedure for interim release of their vehicles. The learned Single Judge was however of the opinion that decisions of the Supreme Court in State (NCT of DelhI) Vs. Narender, 2014 (13) SCC 100, State of Madhya Pradesh Vs. Madhukar Rao, (2008) 14 SCC 624 and Principal Chief Conservator of Forests Vs. J.K. Johnson, (2011) 10 SCC 794, have led to diametrically opposed enunciation of law. He has, therefore, framed a question of law, to be answered by a Larger Bench. This is how the matter has been placed before us. And the question of law framed is as follows:-
Whether, the vehicle seized under the provisions of the Rajasthan Forest Act, 1953 can be released during pendency of the trial on superdgi to the registered owner by the criminal court where trial is pending or such a power can only be exercised by the competent authority named in the Act as per the amended Sections 52 to 55 of the Act?
2. The Rajasthan Forest Act, 1953 (in short, 'the Act') is a special statute enacted for the purposes of preserving the forest and forest produce in the State. For proper consideration of the question raised, it is necessary to refer some of the relevant Sections of the Act.
3. According to Section 2(3) of the Act, forest offence means an offence punishable under the Act or any other rule framed thereunder and under Section 67 of the Act, forest offence is triable by a Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of First Class specially empowered by the High Court in a summarily manner.
4. Section 52 of the Act deals with seizure of property liable to confiscation and procedure therefor. It enacts as follows:-
52. Seizure of property liable to confiscation and procedure therefor.- (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 machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any such offence, may be seized by any Forest Officer or a Police Officer not below the rank of a head constable.
(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter in this Chapter referred to as the authorised officer) or where it is, having regard to quantity or bulk or other genuine difficulty, not practicable to produce property seized before the authorised officer, make a report about the seizure to the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, 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 forest produce with respect to which such offence is belived to have been committed is the property of State 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.
(3) Subject to sub-section (5), where the authorised officer upon production before him of property seized or upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded, confiscate forest-produce so seized together with all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing such offence. A copy of order of confiscation shall be forwarded without any undue delay to the Chief Conservator of Forests of the region in which the forest produce has been seized.
(4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer-
(a) sends an intimation in prescribed form about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;
(b) issues a notice in writing to the persons from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property;
(c) affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and
(d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose.
(5) No order of confiscation under sub-section (3) of any machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article (other than timber or forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of objects aforesaid for commission of forest offence.
5. Section 52A of the Act provides for appeal against order of confiscation to the Chief Conservator of Forests and the Appellate Authority during the pendency of appeal, may pass under sub-section (3) such orders of interim nature for custody, preservation or disposal of the subject matter of confiscation, as may appear to be just and proper in the circumstances of the case. Also the Appellate Authority is empowered to pass an order of confirmation, reversal or modification of the order of confiscation.
6. In Section 52B of the Act, a revision is provided before the Court of Sessions against the order of Appellate Authority, which in turn may confirm, reverse or modify the order passed by the Appellate Authority. In sub-section (5), it is laid that an order of Sessions Court shall be final and shall not be called in question before any Court of law.
7. Section 52C of the Act which bars the jurisdiction of Court, etc. under certain circumstances and is important for answering the question of law framed, reads as follows:-
52C. Bar to jurisdiction of Court, etc. under certain circumstances.- (1) On receipt of intimation under sub-section (4) of section 52 about initiation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property, which is subject matter of confiscation, has been made, no court, tribunal or authority (other than the authorised officer, the Appellate Authority and the Court of Sessions referred to in sections 52, 52A and 52B), shall have jurisdiction to make orders with regard to possession, delivery, disposal, or distribution of the property in regard to which proceedings for confiscation are initiated under section 52, notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force.
Explanation.- Where under any law for the time being in force, two or more Courts have jurisdiction to try forest offence, then receipt of intimation under sub-section (4) of section 52 by one of the Courts of Magistrates having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.
(2) Nothing in sub-section (1) shall affect the power saved under section 61.
8. Section 53 of the Act deals with the power to release property seized under section 52. It reads as under:-
53. Power to release property seized under section 52.- Any forest officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized machinery, arms, tools, boats, cattle vehicle, ropes, chains or any other article used in committing any forest offence, shall, subject to the provisions of section 52 may release the same on the execution by the owner thereof of a bond for the production of the property so released, when and where required to produce the same.
9. Section 54 of the Act provides for subsequent procedure and it reads as under-
54. Subsequent Procedure.- (1) When a report is made by any officer under sub-section (2) of section 52 to his official superior, such official superior shall, with all convenient despatch, make a report of the seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.
(2) The Magistrate shall, upon receipt of a report under sub-section (2) of section 52 or under sub-section (1) of this section, take such measures including arrest as may be necessary for the attendance and trial of the offender and the disposal according to law of the property seized.
Provided that before passing any order for disposal of property, the Magistrate shall satisfy himself that no intimation under sub-section (4) of section 52 has been received by his Court or by any other Court having jurisdiction to try the offence on account of which the seizure of property has been made.
10. Section 55 of the Act makes a provision regarding confiscation of various forest produce, tools etc. It states as under:-
55. Forest Produce, tools etc. when liable to confiscation.- (1) All timber or forest produce which is not the property of State Government and in respect of which a forest offence has been committed, and all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any forest offence, shall, subject to the provisions of sections 52, 52A, 52B and 52C be liable to confiscation upon conviction of the offender for such forest offence.
(2) Such confiscation may be in addition to any other punishment prescribed for such offence.
11. In Section 56 of the Act, a provision is made regarding disposal on conclusion of trial for forest offence, of forest produce in respect of which it was committed. The Section reads as follows:-
56. Disposal on conclusion of trial for forest offence, of produce in respect of which it was committed.- (1) When the trial of any forest offence is concluded, any forest produce in respect of which such offence has been committed shall, if it is the property of [State Government] or has been confiscated, be taken charge of by a Forest Officer, and, in any other case, may be disposed of in such manner, as the Court may direct.
12. There is yet an another Section 61 in the Act and it saves the power to release the seized property. The Section enacts as under:-
61. Saving of power to release property seized.- Nothing hereinbefore contained shall be deemed to prevent any officer empowered in this behalf by the [State Government] from directing at any time the immediate release of any property seized under section 52.
13. Analysis of the above quoted provisions of the Act particularly Section 52 which deals with seizure and confiscation of vehicle makes it clear that any Forest Officer or Police Officer not below the rank of a head constable when has a reason to believe that a forest offence has been committed in respect of any forest produce, he is empowered to seize such forest produce, together with vehicle etc. used in committing the offence. The vehicle is then required to be produced before an Officer not below the rank of Assistant Conservator of Forests, who in turn, where it is intended to launch criminal proceedings against the offender, must immediately make a report of such seizure of vehicle to the Magistrate having jurisdiction to try the offence, And the authorized Forest Officer upon production of the vehicle before him when satisfied that a forest offence has been committed with the use of vehicle, he may confiscate the vehicle by order in writing and for reasons to be recorded. But, authorized Forest Officer cannot order for such confiscation unless he sends an intimation in a prescribed form about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. This restriction on ordering for confiscation is mandated in sub-section (4)(a) of Section 52. And Section 52C of the Act completely bars the jurisdiction of Court (including the Magistrate) to make orders with regard to possession, delivery, disposal or distribution of the property seized immediately on receipt of intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation. This bar to jurisdiction of Court is notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force.
14. It is important to note that although under section 54 of the Act, the Magistrate upon receipt of the report under sub-section (2) of Section 52 is empowered to take such measures including arrest as may be necessary for the attendance and trial of the offender and the disposal according to law of the property seized, he has been restricted to pass any order for disposal of property seized, if his Court or any other Court having jurisdiction to try the offence on account of which seizure of property has been made, has received an intimation provided under sub-section (4) of Section 52. The power to release property (including vehicle) in any manner seized under section 52 of the Act is vested only with a Forest Officer under section 53, which too is subject to the provisions of Section 52 and Forest Officer may release the same on the execution by the owner thereof a bond for the production of the property so released, when and where required to produce the same. Another extraordinary power to release the property seized under section 52 is also with the Officer who may be specially empowered by the State Government in this behalf notwithstanding anything contained in the Act.
15. These provisions of the Act thus clearly mandate that once the vehicle is seized for a reason to believe that it has been used in committing forest offence and the seized vehicle is subjected to confiscation proceedings upon prior intimation in a prescribed form to the Magistrate, no Court including the Magistrate shall have jurisdiction to order for release of such vehicle on supurdgi.
16. The Supreme Court in State of Karnataka V/s K.A.Kunchindammed (AIR 2002 SC 1875) while dealing with pari materia provisions of the Karnataka Forest Act and taking note of the purpose and scheme of the Act, held as under:-
24. 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 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. This, 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 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.
17. Recently also in State (NCT of Delhi) V/s Narender (supra), the Supreme Court while examining the provisions of Delhi Excise Act, particularly Section 61 of that Act, which bars the jurisdiction of Courts from releasing the seized vehicle used in the commission of offence, relied upon the decision in State of Karnataka V/s K.A.Kunchindammed (supra) in holding that general powers of the Magistrate under the Code of Criminal Procedure for releasing the seized vehicle had to yield where a statute makes a special provision with regard to its confiscation and disposal.
18. It is true that in State of Madhya Pradesh Vs. Madhukar Rao, (supra) and Principal Chief Conservator of Forest Vs. J.K. Johnson (supra), the Supreme Court has held that seizure of vehicle alleged to have been used in the commission of offence under the Wild Life (Protection) Act, 1972 had no effect on the powers of the Magistrate to release such vehicle during the pendency of trial under the provisions of Code of Criminal Procedure. But this, the Supreme Court has held because in that Act there is no bar to jurisdiction of Court to order for disposal of seized vehicle, as provided under Section 52C of the Act and Section 61 of Delhi Excise Act.
19. Also, unlike Section 54 of the Act, Section 50(4) of the Wild Life (Protection) Act does not restrict the Magistrate to take measure regarding disposal according to law of the property seized. As noticed above, under Section 54 of the Act, the Magistrate can only take measure for disposal of property seized if no intimation under sub-section (4) of Section 52 is received by his Court or by any other Court having jurisdiction to try the offence on account of which the seizure of property is made, whereas under section 50(4) of the Wild Life (Protection) Act, there is no such restriction on the Magistrate and he is empowered to deal with the property seized required to be brought in his Court forthwith.
20. Moreover, in Principal Chief Conservator of Forest Vs. J.K. Johnson (supra), the issue before the Supreme Court was whether a specified officer empowered under Section 54(1) of the Wild Life (Protection) Act, 1972 to compound offences has power, competence and authority, on payment of a sum of money by way of composition of the offence by a person who is suspected to have committed offence, to order forfeiture of the seized items and there is no such issue in the present bunch of petitions. The decisions of the Supreme Court in State of Madhya Pradesh Vs. Madhukar Rao, (supra) and Principal Chief Conservator of Forest Vs. J.K. Johnson (supra) do not deal with the special provisions of the Rajasthan Forest Act, 1953, particularly Section 52C, which bars the jurisdiction of Court including Magistrate from making order with regard to delivery of seized vehicle on receipt of intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation. We are therefore, unable to agree with the learned Single Judge that decisions of the Supreme Court in State (NCT of DelhI) Vs. Narender (supra), State of Madhya Pradesh Vs. Madhukar Rao, (supra) and Principal Chief Conservator of Forest Vs. J.K. Johnson (supra) have led to diametrically opposed enunciation of law.
21. We accordingly hold that vehicle seized under the provisions of the Rajasthan Forest Act, 1953 cannot be released during the pendency of trial on supurdgi to the registered owner by the Magistrate, where the trial is pending, in view of specific bar to jurisdiction of Court under section 52C of the Act. But, the bar to jurisdiction operates only when a Magistrate receives intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation.
22. With the above answer, the petitions are finally disposed of. The petitioners will be at liberty to apply afresh either before the competent Magistrate having jurisdiction or Authorized Forest Officer, as the case may be, for interim release of vehicle. Needless to mention that the Magistrate or Authorized Forest Officer shall pass speaking order on such application, having regard to our above answer to the question of law framed by the learned Single Judge. A copy of this order be placed in all the connected files.
(ANUPINDER SINGH GREWAL),J. (AJIT SINGH),ACTING C.J. /KKC/Parmar Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR, P.A.