Kanhaiyalal vs State of M. P.

K.L. Shrivastava, J.—This revision petition u/s 401 of the Code of Criminal Procedure, 1973 (for short ''the Code'') is directed against order dated 2-5-85 passed by the judicial Magistrate First Class Sendhwa, District West Nimar in Criminal Case No. 63 of 1985 whereby the petitioners application u/s 451 of the Code for interim custody of the seized truck has been rejected.

For the purposes of the present petition, it is not in dispute that the logs of teak wood ''specified forest produce'' within the meaning of section 2(1) of the M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 (for short ''the State Act'') were found in the truck in question. The truck was seized by the Forest Officer who, as provided by section 52(4) as substituted by M. P. Amendments in the Indian Forest Act, 1927 (for short ''the Central Act'') has informed the Magistrate having jurisdiction about the initiation of the proceedings for its confiscation.

The circumstances giving rise to the petition are these : The truck in question bearing registration No. MHB 5995 belongs to the petitioner. It has been seized by the Forest Officer on 24-2-85 in connection with offences under sections 26 and 42 of the Central Act and also those under the State Act. The applicant moved the learned Magistrate by an application u/s 451 of the Code for interim custody of the truck on Suprednama, The application was opposed by the non-applicant on various grounds. One of the grounds was that in the circumstances of the case, in view of the provisions embodied in section 52-C inserted in the Central Act by M. P. amendment, the jurisdiction of the learned Magistrate with regard to the disposal of the property stands ousted.

After hearing the parties, the learned lower Court upholding the non-applicants contention has passed the impugned order.

The petitioner''s contention is that in view of section 22 of the State Act, provisions of the Central Act have no application and the Magistrate has the jurisdiction to pass order u/s 451 of the Code.

The point for determination is whether the impugned order deserves to be interfered with in revision.

Learned counsel for the petitioner relying on the decision in Criminal Revision No. 97 of 1984 decided on 27-8-84 by this Court (Indore Bench) contended that as the Forest authorities have not passed any orders confiscating the vehicle, the Magistrate has the jurisdiction to pass order u/s 451 of the Code though no complaint has been filed before him. In support of the submission he has also placed reliance on the decisions in Swaroopchandra Garg Vs. State of M.P. and Others, , and Hazarilal''s case 1984 MPLJ-SN 44.

Learned counsel for the State contends that the decisions relied upon relate to offences only under the State Act and cannot be pressed into service in the instant case, as in addition to the offences under the State Act, it involves offences under the Central Act.

It may be stated that the State Act has been brought on the Statute Book to make provision for regulating in public interest trade of certain forest produce by creation of the State Monopoly in such trade. Sec. 22 of the State Act on which reliance has been placed by the non-applicant is in these terms :-

S. 22. Indian Forest Act, 1927 and other laws not to apply to specified forest produce for purposes covered under Act-(1) Nothing contained in the Indian Forest Act 1927 (No. 16 of 1927) shall apply to specified forest produce in respect of matters for which provision are contained in this Act.

(2) Nothing contained in any other law, rule, order or any other thing having a force of law in any region of the State shall apply to the specified forest produce in respect of matters for which provision are contained in this Act.

It may be noted that exclusion of the Central Act and any other law, rule or order is not total but only to the extent stated in the aforesaid provision.

In the Division Bench decision in Swaroop chandra''s case (supra) the one is Santosh Kumar Mishra Vs. State of M.P. and Others, has been distinguished. Paragraph 3 of the decision refers to the alleged offences under the State Act and paragraph 6 deals with the relevant provisions in the State Act. With advertence to section 2(q) of the State Act it has been pointed out that the expression ''property liable to confiscation'' has not been defined in the Central Act and as section 55(1) thereof which provides in what cases the property is liable for confiscation is not applicable in view of section 22 of the State Act, the power u/s 19(1)(b) of the State Act vested in the forest officer to release the vehicle seized as liable to confiscation, on payment of its estimated value, cannot be exercised. It has also been stated that no such provision in the State Act was brought to the notice which provides that a vehicle used for transporting specified forest produce without a permit is liable to confiscation.

The decision in State of M. P. v. Narayan Singh 1971 JLJ 813 relates to some what similar question under the M. P. Excise Act, 1915 and the Code of Criminal Procedure, 1898. In the decision in Mirza Iqbal Hussain through Askari Begum Vs. State of Uttar Pradesh, with reference to section 4(2) of the Code, it has been pointed out that the Prevention of Corruption Act, 1947 being silent on the question of confiscation, the provisions of section 452 of the Code would apply in their full force. In the case in hand the State Act being silent on the question of confiscation and the extent of the exclusion of the Central Act by section 22 of the former being limited, I am of the view that on the authority of the Supreme Court decision in Mirza Iqbal Hussain''s case (supra) it may be held that the provision in the Central Act regarding confiscation would be applicable in their full force.

The applicability of the Central Act''s provision as to confiscation is even otherwise attracted in the instant case as I shall presently point out. I find that there is force in the contention sought to be canvassed by; the learned counsel for the State that the decisions relied upon by the petitioner can be of no avail to him in the instant case, which unlike those decisions involves offences also under the Central Act.

Forest Offence as defined in section 2(3) of the Central Act means an offence punishable under the Act or under any rule made thereunder. Sec. 26(1) ibid makes trespass in reserved forest punishable. A vehicle used in committing the offence of trespass shall be liable to confiscation u/s 55(1) ibid. Sec. 42 of the Central Act provides for penalty for contravention of rules made u/s 41 ibid. The truck in question has been, seized not only in relation to the offences under the State Act but also in relation to these offences under the Central Act and; therefore, in view of the limited extent of section 22 of the Act, the truck is certainly liable to confiscation, under the provisions of the Central Act in respect of offences not covered by the State Act.

At this stage it is apposite to reproduce section 52-C of the Central Act. It reads thus :-

S. 52-C. 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, Appellate Authority and Court of Session referred to in section 52, 52-A and 52-B) 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 u/s 52, notwithstanding anything to the contrary contained in this Act, or any other law for the time being in force.

In the S. B. decision in State of M. P. v. Kadu 1977 MPLJ SN 27 the question involved was as to the power of the Collector to confiscate property u/s 6-A of the Essential Commodities Act 1955 and the Magistrate''s jurisdiction u/s 516-A of the repealed Code of Criminal Procedure. In the D. B. decision in Rameshwar v. State of M. P. 1976 (1) MPWN 210 their jurisdiction has been held to be concurrent. In view of the express provision embodied in section 52-C of the Central Act, no such question of duality of jurisdiction arises in the instant case.

Before parting with the case reference may usefully be made to section 5 of the Code which provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, effect any special or local law in force. The Central Act by section 52, 53, 54, 55, 56 and 59 makes provisions for seizure, interim custody, disposal of seized property and appeal from orders. Sec. 68 ibid embodies provisions akin to those in section 19(1)(b) of the State Act.

In the decision in Ram Parkash Sharma Vs. State of Haryana, various sections in chapter 34 of the Code dealing with the disposal of the property have been adverted to and with reference to section 457 of the Code it has been pointed out therein that the Court has power to dispose of the property seized by the police but not produced before it. For disposal of the property u/s 451 of the Code it is necessary that the property is under the control of the Court. In the instant case, the truck has been seized not by the police but by the forest officer and it has not been produced before the Magistrate.

In the ultimate analysis I find that the applicability of section 52-C of the Central Act is attracted in the instant case and the Magistrate''s jurisdiction to make orders with regard to interim custody of the truck in question stand ousted.

In the aforesaid view of the matter, the impugned order has to be upheld as proper and the revision petition is liable to be dismissed. It is consequently dismissed.