Karnataka High Court
Divisional Forest Officer vs Kallur Rangappa on 27 February, 1986
Equivalent citations: ILR1986KAR1029, 1986(1)KARLJ348
ORDER
Jagannatha Shetty, Ag. C. J.
1. The common question raided in this batch of Writ Appeals is as to the validity of the orders made by the Learned Single Judge under Article 226 of the Constitution of India directing interim custody of the vehicles seized under Section 62 of the Karnataka Forest Act, 1963, ('the Act').
2. The vehicles have been seized by the concerned Forest Officer/Police Officer in the belief that the same had been used as carriers to smuggle forest produce belonging to the State. Those vehicles were produced before the Authorised Officer - Deputy Conservator of Forests. Thereupon, the respondents claiming to be the persons entitled to the possession of those vehicles, approached the Authorised Officer for interim custody of the vehicles. They pleaded that they were not aware of the use of the vehicles for committing forest offences; that they had no knowledge about the commission of offences; and that therefore the vehicles should be released to their custody pending final adjudication of the matter. The Authorised Officer, however, refused to release the vehicles as prayed for. So, the respondents approached this Court invoking the extraordinary jurisdiction under Articles 226 and 227 of the Constitution.
3. The Learned Single Judge before whom the Writ Petitions came up for hearing, directed the Authorised Officer in each of the cases to release the concerned vehicle to the respondents subject to certain conditions. Being aggrieved by such orders of the Learned Judge, the State has preferred these appeals.
4. The main contention urged by Sri M. R. Achar, Learned Government Advocate, is that the respondents could not have approached this Court by means of Writ Petitions under Article 226 of the Constitution nor this Court could have entertained the said petitions when there is adequate alternate remedy available for the parties under the Act. Elaborating the submission, Sri Achar has taken us through the relevant provisions of the Act and contended that the power to make an interim order relating to the custody of a vehicle used in the commission of a forest offence is within the exclusive jurisdiction of the concerned Authorised Officer and such an order is appealable to the Sessions Judge having jurisdiction over the area. It will not be therefore proper for the parties to bypass the statutory remedies provided under the Act and directly approach this Court.
5. In our opinion, the contention urged is well founded and must be accepted as correct. Section 62 of the Act prescribes the procedure for seizure of property liable to confiscation. Section 62(3) provides :-
"(3) Every Officer seizing any property under this section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized and 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, firewood or charcoal which is the property of the State Goverment or in respect of sandalwood, to the concerned authorised officer under Section 71 ; and
(b) in other cases, to the Magistrate having jurisdiction to try the offence on account of which (he seizure has been made."
Section 71A deals with the procedure for confiscation of such vehicles by the Authorised Officer, and it reads :-
"71A CONFISCATION BY FOREST OFFICERS IN CERTAIN CASES.
(1) Notwithstanding anything contained in the foregoing provisions of this chapter, or in any other law, where a forest offence is believed to have been committed in respect of timber, ivory, firewood and charcoal which is the property of the State Government or in respect of sandalwood, the officer seizing the property under Sub-section (1) of Section 62 shall without any unreasonable delay produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf by Notification in the Official Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer).
(2) Where an authorised officer seizes under Sub-section (1) of Section 62 any timber, ivory, firewood and charcoal which is the property of the State Government or any sandalwood, or where any such property is produced before an authorised officer under Sub-section (1) once he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.
(3) (a) Where the authorised officer, after passing an order of confiscation under Sub-section (2), is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction.
(b) Whereany confiscated property is sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall, where the order of confiscation made under Section 71A is set aside or annulled by an order under Sections 71C or 71D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order."
The order of confiscation made under Section 71A of the Act is appealable under Section 71D.
"71D. APPEAL.
(1) Any person aggrieved by any order passed under Section 71A or Section 71C may, within thirty days from the date of communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property to which the order relates has been seized and the Sessions Judge shall after giving an opportunity to the appellant and the authorised officer or the officer specially empowered under Section 71C, to be beard, pass such order as he may think fit, confirming, modifying or annulling the order appealed against.
(2) An order of the Sessions Judge under Sub-section (1) shall be final and shall not be questioned in any court of law."
Section 71G of the Act which has been inserted by Karnataka Act No. 1 of 1981 has taken away the jurisdiction of Courts of Tribunals or any authority other than the Authorised Officers and the sessions Judges to make orders with regard to the custody, possession, delivery, disposal or distribution of the property seized under Sub-section (1) of Section 62 of the Act.
6. It may be seen that the Act does not expressly empower me Authorised Officer to pass any order regarding interim custody of the seized vehicles said to have been used in the commission of forest offences.
But that doss not mean that the Authorised Officer cannot, if he deems fit and if the circumstances warrant, release such vehicles for proper custody and safety thereof.
7. When a status confers power on any officer to confiscate a property, it shall be assumed that it also impliedly confers on him ail the incidental powers to make ultimately an effective order of confiscation. Such power is always implied unless the statute expressly denies it.
8. In Income-tax Officer v. Mohd. Kunhi, AIR 1969 SC 430. the Supreme Court, while dealing with the scope of the power of the Appellate Tribunal to stay the recovery proceedings relating to penalty or tax which is the subject matter of appeal, observed :-
"It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Constitution, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. I, at page 88, it has been stated:-
'It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.' Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, eq quoqe concessa esse vindentur, sine quibus, jurisdictio explicari nonpotuit." An instance is given based on Ex-Partie, Martin, (1979) 4 QBD 212 at p. 491 that where an inferior Court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced."
9. It can, therefore, be stated that the Authorised Officer who has jurisdiction to confiscate the vehicles used in the commission of forest offences, has also the power to pass orders for interim custody of such vehicles. Such a power is inbuilt in Section 71A for effective adjudication of the matter. It is incidental and necessary to make the exercise of the power in Section 71A fully effective.
10. Any order made under Section 71A is appealable under Sections 71D to the Sessions Judge having jurisdiction over the area in which the offence is alleged to have been committed. Section 71D is wide in its amplitude and it takes within its fold "any person aggrieved by any order passed under Section 71A or Section 71C...........". Any order referred to thereunder includes also an interim order regarding the custody of the vehicle. Quite obviously the party aggrieved by the order of the Authorised Officer regarding interim custody of the property, can approach the Sessions Judge under Section 71D.
Needless to state that an order made by the Sessions Judge under Section 71D is also revisable by this Court under Section 397 read with Section 401 of the Code of Criminal Procedure. When there is such a specific remedy available to a party regarding interim custody of the vehicle, he cannot approach this Court under Article 226 of the Constitution.
11. Before parting with these cases, we must say a word about the apprehension of Sri. Kashinatharao Patil who is appearing for some of the respondents. The Counsel submitted that the Authorised Officers generally do not dispose of applications filed for interim custody of the vehicles. They neither make an order allowing the applications nor reject the same. They deliberately keep such applications pending for months and years. They keep the vehicles without even protection from rain or shine and so much so the vehicles become unfit for use even if it is ultimately held that they are not liable to be confiscated.
The apprehension of Sri. Kashinatharao Patil appears to be not unfounded since several instances of that nature have also coma to our notice. We would therefore like to impress upon the Authorised Officers that the statutory powers conferred upon them should be properly applied. They should complete the proceedings for confiscation of vehicles etc. as expeditiously as possible. If any application is made for interim custody of the vehicles seized in the case, they should immediately hear the parties and pass an appropriate order in the matter so that the aggrieved may approach the appellate authority for relief. They should not give an impression that they are interested in harassing the parties by delaying the disposal of such matters.
12. In the light of this enunciation, we dispose of these writ appeals without disturbing the impugned orders since the vehicles concerned have already been released pursuant to the orders of learned Single Judge.