Karnataka High Court
Channabasappa vs State By Arehally Police, Belur on 30 June, 1998
Equivalent citations: 1998CRILJ4293, ILR1998KAR3574, 1998(6)KARLJ53
Author: G. Patri Basavana Goud
Bench: G. Patri Basavana Goud
ORDER
1. Petitioner is the owner, being the R.C. holder of Lorry No. KA 05 1194. The said vehicle has been seized under Section 62 of the Karnataka Forest Act, 1963 ('Act' for short) as a vehicle used in the commission of a forest offence in respect of a forest produce, and its seizure was reported to the jurisdictional Magistrate viz., learned Judicial Magistrate First Class, Belur. The petitioner sought for interim custody of the said vehicle. The learned Magistrate by his order dated 17-12-1992, granted interim custody, on the petitioner executing a Bond for a sum of Rs. 1 lakh with one surety for like sum, subject to the condition that the vehicle shall be produced as and when called for, that the petitioner shall neither alienate nor shall alter the condition of the vehicle until disposal of the case. The respondent-State questioned this in revision before the learned Additional Sessions Judge, Hassan in Cr. R.P. No. 54 of 1993. The learned Sessions Judge by the order dated 20-8-1996, which is impugned herein, has set aside the said order of the learned Magistrate and has directed that the learned Magistrate should take the vehicle back to his custody and should direct the investigating officer to report the matter to the authorised officer. The petitioner being aggrieved with the said order of the learned Sessions Judge, has approached this Court under Section 397 of the Criminal Procedure Code.
2. The First Information Report is at Annexure-A. It is alleged therein thus: On 4-12-1992, at about 3.00 a.m., Police Sub-Inspector of Belur Police Station, along with the members of his staff, found the vehicle concerned herein coming from Musavar side and checked it and found that, there are two bite wood logs and 13 logs of honne wood being transported in the said vehicle. The driver informed the police officer that the said log's were being brought from a coffee plantation in Basur village and that the same were being transported to Kanakapura. There were no permits. The vehicle and the said logs were, therefore, seized. In the circumstances, the prosecution alleged commission of an offence punishable under Section 104-A of the Act read with Rule 127-A of the Karnataka Forest Rules, 1969 ('Rules' for short).
3. In the FIR, the police officer concerned did not say that the logs found in the vehicle concerned were the property of the State Government. On the contrary, a mention was made about the assertion of the lorry driver that the logs were from a coffee plantation in Basur village and being transported to Kanakapura. The commission of the alleged offence under Section 104-A of the Act read with Rule 127-A of the Rules was obviously for transporting the concerned logs without permit and in contravention of the above said provisions.
4. In his order the learned Magistrate refers to the contentions taken by the State while opposing the petitioner's application for interim custody of the vehicle. The emphasis was on transporting the logs concerned without permit. Nowhere in the statement of objections did the State say that the logs were its own properties. All that was being contended was that, in view of Section 71-G of the Act, the learned Magistrate had no jurisdiction.
5. In addition to the absence of assertion that the property belongs to the State Government, what is of significance, as noticed by the learned Magistrate was that, the seizing authority had also not reported the seizure to the authorised officer under Section 71-A of the Act.
6. In the background of the above said factual position, the learned Magistrate held that, he has the jurisdiction to direct interim custody of the vehicle under Sections 451 and 457 of the Criminal Procedure Code. In revision, the learned Sessions Judge, however, held that Section 71-G took the matter outside the jurisdiction of the learned Magistrate and that the learned Magistrate erred in assuming jurisdiction and directing interim custody. I am of the opinion that, in the factual position as narrated above, what the learned Magistrate has concluded is correct. It is for the following reasons:
7. Section 2(7) of the Act defines 'forest produce'. It is an inclusive definition, which includes timber, sandalwood etc. It also includes skins, tusks, horns, bones, honey and wax etc., when found in or brought from a forest. Section 2(20) defines 'timber' as including trees when they have fallen or have been felled and all wood whether cut up or sawn or fashioned or hallowed out for any purpose or not. The bite and home logs seized thus come within the definition of 'timber' under Section 2(20). Section 62(1) of the Act, inter alia, enables seizure of a forest produce in respect of which a forest offence has been committed, together with vehicle used in committing the said forest offence. Section 62(3), inter alia, provides for the seizing officer to make a report of such seizure. The said sub-section (3) makes two categories of the seized property in clauses (a) and (b). For certain categories of seized properties, such report is to be made to the authorised officer under Section 71-A of the Act. In other cases, such report is to be made to the jurisdic-tional Magistrate. Reference to the proviso to sub-section (3) is unnecessary for the present purpose. Clause (a), inter alia, refers to timber. It is not just reference to timber. It is to the timber which is the property of the State Government. Section 71-G of the Act, inter alia, bars jurisdiction of the Magistrate to make orders with regard to custody of the vehicle concerned, when the said vehicle is seized under Section 62(1) of the Act while transporting timber belonging to the State Government, and in respect of which any offence has been committed. Thus, both under clause (a) of sub-section (3) of Section 62, and Section 71-G of the Act, where the forest produce" concerned is timber, and where the said timber belongs to the State Government, then, its seizure has to be reported to the authorised officer, and it is only such authorised officer, and not the jurisdictional Magistrate who will have the jurisdiction to deal with the aspect of custody. Where the timber concerned is not the property of the State Government, then, it would be clause (b) of subsection (3) of Section 62 of the Act that would be applicable, requiring reporting of seizure to the jurisdictional Magistrate, who will have the power to deal with the custody of the vehicle used in transporting of such forest produce in terms of Sections 451 and 457 of the Criminal Procedure Code. The bar imposed by Section 71-G of the Act also would not be applicable to such a case.
8. Section 104-A of the Act, read with Rule 127-A of the Rules contemplate timber with a private person also. Rule 127-A inter alia provides for transporting of such private timber in accordance with the said Rules.
9. In the light of the above position, having regard to the factual position narrated earlier, the case put forth by the seizing officer is that, timber which is not the property of the State Government, was being transported in contravention of Section 104-A of the Act read with Rule 127-A of the Rules. It is with this understanding perhaps that no report of seizure had been made under clause (a) of sub-section (3) of Section 62 of the Act as pointed out by the learned Magistrate. Thus, on their own admission, the authorities concerned did not even whisper that the timber concerned was the property of the State Government.
10. Sri Marigowda, learned High Court Government Pleader refers to Section 53 of the Act and contends that the timber concerned herein must be deemed to be the property of the State Government. But, as rightly pointed out by Sri Jairaj, learned Counsel for the petitioner, Section 53 is not so wide so as to accept' the submission of Sri Marigowda. The said Section 53 refers to certain categories of timber like the timber found at drift, beached, stranded or sunk etc. It also refers to timber in general in an area as directed by the State Government. It is not the case of the authorities concerned that this is the area so directed by the State Government for the purposes of Section 53. The timber concerned, therefore, was never meant to be taken as the property of the State Government. Clause (a) of sub-section (3) of Section 62 of the Act applied only to the timber which is the property of the State Government and it is in respect of such timber which is the property of the State Government and the vehicle used in transportation of such timber, that Section 71-G of the Act bars the jurisdiction of the Magistrate to deal with the custody. The timber concerned herein being not the property of the State Government even according to the case put forth by the authorities, the learned Magistrate rightly exercised his jurisdiction under Sections 451 and 457 of the Criminal Procedure Code and the learned Sessions Judge erred in concluding that Section 71-G of the Act bars the jurisdiction of the learned Magistrate.
11. Having regard to the circumstances of the case, the order of the learned Magistrate directing interim custody on certain terms which have taken sufficient care to see that the vehicle is produced as and when called for, that it is not alienated and its condition is not altered in the meantime, same does not call for interference.
12. In the result, revision petition is allowed. Impugned order of the learned Sessions Judge is set aside and that of the learned Magistrate is restored.