Firoz vs State of M.P.

Alok Verma, J.—This application is filed under section 482 of Cr.P.C. for setting aside the order passed by learned First Additional Judge, to the Court of First Additional Sessions Judge, Mandleshwar (West Nimar) in Criminal Revision No. 105/2014 dated 12.8.2014 by which, learned Additional Sessions Judge confirmed the order passed by learned J.M.F.C., Kasrawad in Crime No. 177/2014 Police Station--Megaon District--Mandleshwar dated 2.6.2014 whereby, learned Magistrate dismissed the application filed by the present applicant under sections 451 of Cr.P.C. for ad interim custody of Earth Excavating Machine, commonly known as J.C.B. Machine. The factual background of the case is that, on 20.5.2014 at about 8:30 p.m. the machine was found being used for excavation of soil in reserve forest. The case was made out under the Indian Forest Act and while the machine and another vehicle tractor were being taken to Megaon, it is alleged that some people attacked the forest officials and, therefore, along with the Forest Act, a case under sections 353, 332 and 506/34 of I.P.C. was also registered. Subsequent to this, tractor and trolly seized in the matter were given on ad interim custody by learned 2nd Additional Sessions Judge, Mandleshwar, however, when the application is filed for taking in custody of the present machine, the same was dismissed on the ground that Superintendent of Police wrote a letter to the District magistrate, Khargone in which, superintendent of Police requested the District Magistrate to confiscate the above said machine. On the presumption that confiscation proceedings of the machine has been started, the application was dismissed and subsequently, the revision is filed against this Order. The First Additional Sessions Judge was disposed of the revision starting therein that under section 52(c) of the Indian Forest Act, once confiscation proceedings were started, the Court has no jurisdiction to grant ad interim custody etc. used in commission of the offence.

Against this order, present application is filed on the ground that the Courts below erred while holding that the confiscation proceedings in respect of the machine was started when they were dealing with the application. According to the present applicant, the proceedings can only be started by forest officer, who should not be below the rank of Extra Assistant Conservator of Forest and also is authorized by the State Government. In the present case, no intimation was issued by the Forest Officer and, therefore, the Courts below erred in presuming that the confiscation proceedings were in progress. On this ground inter alia, the applicant prays that the impugned order passed by the Courts below be set aside and ad interim custody of the machine should be granted to him.

For this, he placed reliance on the judgments of Hon''ble the Supreme Court in the case of General Insurance Council and Others Vs. State of Andhra Pradesh and Others, (2010) CriLJ 2883 : (2010) 4 SCALE 141 : (2010) 6 SCC 768 : (2010) AIRSCW 2967 : (2010) 3 Supreme 317 , in the case of Kailash Chand and Another Vs. State of Madhya Pradesh and Others, AIR 1995 MP 1 , and also, he placed reliance on the judgment in the case of Ahmadji Vs. State of Madhya Pradesh and Others, AIR 1986 MP 1 : (1985) ILR (MP) 135 : (1985) JLJ 482 : (1985) 30 MPLJ 243 . So far as the legal provisions are concerned, the vehicle tools boats etc. can be seized by Forest Officer or Police Officer when he has reason to believe that the same is used for commission of an offence under Indian Forest Act. The proviso appended to section 54 as amended in Madhya Pradesh provides that before passing any order for disposal of the 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.

Section 52(4)(a) of Indian Forest Act provides that intimation in prescribed form should be sent to the concerning Magistrate about initiation of proceedings of confiscation of the property. The proceedings should be started by a Forest Officer, who is authorized by the State Government on this behalf.

Applying these statutory provisions to the present case, it is apparent that the intimation was sent by Superintendent of Police who is not Forest Officer under Indian Forest Act to District Magistrate who is not a concerning Judicial Magistrate in this case. Many opportunities were granted to the State for production of the case diary and also the status of the confiscation proceedings if any, however, no intimation is produced before the Court and in such situation, an adverse inference maybe drawn that no confiscation proceedings are pending in respect of the seized machine in this case.

In this view of the matter, the application under section 482 of Cr.P.C. is allowed. The impugned orders passed by the Courts below are hereby set aside. It is directed that if the present applicant produce Supurdaginama for Rs. 22,50,000/- to the satisfaction of the concerning Magistrate, the machine (J.C.B. Machine) may be handed-over to the present applicant on undertaking being given by him that he would not sell or transfer the aforesaid machine to any person and he would produce the machine before the concerning Court or before the confiscation proceedings whenever he is asked to do so. With the aforesaid directions and observations, the application stands disposed of.