Nepal Singh vs State Of M.P

This petition under Section 482 read with Section 457 of Cr.P.C. has been filed by the petitioner being aggrieved by the impugned order dated 11.07.2018 passed by learned 1st ASJ, Sagar (MP) in criminal revision No. 81/2018 whereby learned Additional Sessions Judge affirmed the order dated 20.06.2018 passed by the learned JMFC Sagar in Criminal Case No. 754/2018, whereby the learned JMFC Sagar has dismissed an application presented by the petitioner/accused under Section 457 of Cr.P.C. to release the vehicle No. MP-40-GA-1080 in his favour.

The case of prosecution in short is that Police Station Rahatgarh District Sagar received an information on 08.06.2018 that some cattle was carried by small pickup No. MP-40-GA-1080 for slaughtering, thereafter police officials reached the spot and stopped the said vehicle. On searching of said vehicle, it is found that five buffalo and three teak wood were loaded in the said vehicle. Thereafter FIR was registered against the present petitioner/accused under Section 9 and 11 of Animal Cruelty Act and Section 26-A and 41 of Indian Forest Act.

Petitioner/accused has no permission to transport the same. Thereafter, petitioner/accused filed an application to release the vehicle in his favour. Learned JMFC called the information about the confiscation of seized vehicle from the forest department and In charge of Police Station. Inchare of police was also informed to the forest department about said vehicle and teak wood. Thereafter learned Judicial Magistrate dismissed the application presented by the petitioner, thereafter petitioner filed a revision petition No. 81/2018 before the 1st ASJ, Sagar which was also rejected vide order dated 11.07.2018, it is held by the Revisional Court that information of confiscation is received, therefore, The Court has no jurisdiction under Section 52-C of Indian Forest Act to release the vehicle in supurdaginama.

Learned counsel for the petitioner/accused submits that Apex Court has passed an order in SLP (Criminal) No. 2745/2002, in case of Sunderlal Amba Bhai Desai and it is held that article are not be kept for a long time at police station in any case, for not more then 15 days to 1 months". He further submits that the seized vehicle was kept in upon place on police station and it is going to be damage. petitioner/accused was not transporting of of teak wood, therefore learned Court below have committed error to pass such type of order .

Alleged offence is not made out against the petitioner. Therefore, he is entitled to get the vehicle in his superdaginam. Therefore, he prays for setting aside the order of Courts below.

Learned counsel for the State submits that vehicle was seized under Indian Forest Act, confiscation proceeding has been initiated. Information to initiate the proceeding for confiscation has been sent by the Competent Authority to the Court, therefore, Court has no jurisdiction to release the vehicle. Therefore, order of Courts below are proper and no interference is warranted in this case.

Heard both the parties and perused the case diary.

In this regard, the corresponding provisions in the Forest Act for Madhya Pradesh for seizure and confiscation of the vehicle of the forest is reproduced herein as under:-

Madhya Pradesh.-For section 52 substituted the following section, namely:- "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 reserved forest and protected forest or forest produce, the produced, all tools, boats, vehicles, ropes, chains or any other article used in committing any such offence may be seized by any Forest-officer or Police Officer.

(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 Extra Assistant Conservator of Forest authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the 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 offence is believed to have been committed is the property of 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 of 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 tools, vehicles, boats, ropes, chains or any other article used in committing such offence. A copy of order on confiscation shall be forwarded without any undue delay to the Conservator of Forests of the forest circle in which the timber or forest produce, as the case may be, 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 form prescribed 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 person from whom the property is seizure, 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 tools, vehicles, boats, ropes, chains or any other article (other than the 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 tools, vehicles, boats, ropes, chains or other articles 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 the objects aforesaid for commission".

(6) The seized property shall continue to be under custody until confirmation of the order of the authorised officer by the Appellate Authority or until the expiry of the period for initiating "suo motu" action by him whichever is earlier, as prescribed under Section 52A.

(7) Where the authorised officer having jurisdiction over the case is himself involved in the seizure or investigation, the next higher authority may transfer the case to any other officer of the same rank for conducting proceedings under this section."

52A. Appeal against the order of confiscation.--

(1) Any person aggrieved by an order of confiscation may, within thirty days of the order, or if the fact of such order has not been communicated to him, within thirty days of date of knowledge of such order, prefer an appeal in writing, accompanied by such fee and payable in such form as may be prescribed, along with certified copy of order of confiscation to the conservator of forests (hereinafter referred to as Appellate Authority) of the forest circle in which the forest produce has been seized.

Explanation-(1) The time requisite for obtaining certified copy of order of confiscation shall be excluded while computing period of thirty days referred to in this sub section.

(2) The Appellate Authority referred to in sub-section

(1), may, where no appeal has been preferred before him, "suo motu" within thirty days of date of receipt of copy of order of confiscation by him, and shall on presentation of memorandum of appeal issue a notice for hearing of appeal or, as the case may be, of "suo motu action to the officer effecting seizure and to any other person (including appellant, if any) who in the opinion of the Appellate Authority, is likely to be adversely affected by the order of confiscation, and may send for the record of the case:

Provided that no formed notice of appeal need be issued to such amongst the appellant, officer effecting seizure and any other person likely to be adversely affected as aforesaid, as may waive the notice or as may be informed in any other manner of date of hearing of appeal by the Appellate Authority.

(3) The Appellate Authority shall send intimation in writing of lodging of appeal or about "suo motu" action, to the authorised officer.

(4) The Appellate Authority may pass such order of "Interim" nature for custody preservation or disposal (if necessary) of the subject matter of confiscation , as may appear to be just or proper in the circumstances of the case.

(5) The Appellate Authority having regard to the nature of the case or the complexities, involved, may permit parties to the appeal to be represented by their respective legal practitioner.

(6) On the date fixed for hearing of the appeal or "suo motu" action, or on such date to which the hearing may be adjourned, the Appellate Authority shall peruse the record and hear the parties to the appeal if present in person, or through any agent duly authorised in writing or through a legal practitioner, and shall thereafter proceed to pass an order of confirmation, reversal or modification of (order of the authrised officer)

Provided that before passing any final order the Appellate Authority may if it is considered necessary for proper decision of appeal or for proper disposal of "suo motu" action make further inquiry itself or cause it to be made by the authorised officer, and may also allow parties to file affidavits for asserting or refuting any fact that may raise for consideration and may allow proof of facts by affidavits.

(7) The Appellate Authority may also pass such orders of consequential nature, as it may deem necessary.

(8) Copy of final order on an order of consequential nature, shall be sent to the authorised officer for compliance or for passing any appropriate order in conformit with the order of Appellate Authority.

52B. Revision before Court of Sessions against order of Appellate Authority.--

(1) Any party to the appeal, aggrieved by final order or by order of consequential nature passed by the Appellate Authority, may within thirty days of the order sought to be impugned, submit a petition for revision to the Court of Sessions division whereof the headquarters of the Appellate Authority are situate.

Explanation.- In computing the period of thirty days under this sub section the time requisite for obtaining certified copy of order of Appellate Authority shall be excluded.

(2) The Court of Sessions may confirm, reverse or modify any final order or an order of consequential nature passed by the Appellate Authority.

(3) Copies of the order passed in revision shall be sent to the Appellate Authority and to the Authorised Officer for compliance or for passing such further order or for taking such further action as may be directed by such Court.

(4) For entertaining, hearing and deciding a revision under this section, the Court of session shall as far as may be, exercise the same powers and follows the same procedure as it exercises and follows while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

(5) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 the order of the Court of Sessions passed under this section shall be final and shall not be called in question before any Court.

52C of Madhya Pradesh. Amendment Bar to jurisdiction of courts etc. under certain circumstances:-

(1) On receipt of intimation under Sub-section 4 of Section 52 about initiation of the proceeding for confiscation of the property by the Magistrate having jurisdiction to try the offence on account of which the seizure of the property which is subject matter of confiscation, has been made, no court, tribunal or authority (other than the authorized officers, appellate authority and the court of Sessions referred to in Section 52, 52-A, and 52-B), shall have jurisdiction to make order with regard to possession, delivery, disposal of distribution of the property in regard to which proceedings for confiscation are initiated under Section 52, notwithstanding any thing to the contrary contained in this Act or 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 subsection 4 of Section 52 by one of the courts of Magistrate having such jurisdiction shall be construed to be in 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 save under Section 61."

Procedure thereupon-Upon the receipt of any such report the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law: 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."

The provisions of Indian Forest Act and the amendment incorporated therein was considered by the Coordinate Bench of this Court in the case of Ramniwas Vs. Game Range Chambal Santuary, Bhind, Headquarter, Ambah, District Morena reported in 2012(2) MPLJ 661. The Court compared analogous provisions in Bengal Amendment Act, 1927 and observed by placing reliance on the judgment of Hon'ble the Supreme Court in the case of State of West Bengal and others Vs. Sujit Kumar Rana reported in 2004(4) SCC 129 in para 17 reads as under:-

"17. The principles which can be culled out from the provisions of the 1927 Act and the judgment in Sujeet Kumar Rana's case (supra) are as under:-

(i) Forest Act is a Special Act;

(ii) M.P. Amendments provide a complete Code in itself by giving sufficient safeguards both substantive and procedural against any arbitrary exercise of power. It also prescribe hierarchy of adjudicatory bodies;

(iii) Section 52-C creates a bar on the jurisdiction of courts as described in it. Because of non-obstante clause used in Section 52-C it will have an overriding effect on other laws including general provisions of Cr.P.C.;

(iv) Once intimation of initiation of confiscation proceedings is given to Magistrate, the jurisdiction of Magistrate is ousted;

(v) Magistrate and revisions Courts can't grant interim custody of vehicle de hors the bar of Section 52-C.

(vi) Once confiscation proceeding is initiated, the jurisdiction of criminal courts in terms of Section 52- C of the 1927 Act is barred, the High Court also cannot exercise its jurisdiction under section 482 Cr.P.C. for interim release of such vehicle/property."

In view of the above said discussion and looking to the law laid down in the above cited judgments and this fact that confiscation proceeding has been initiated under Section 52-C of Indian Forest Act and intimation to initiate the proceeding for confiscation has been sent to the Court. Court has received the same. Therefore, Courts below has not jurisdiction to entertain the petition to release the seized vehicle in his favour.

Therefore, I am of the view that the order of Courts below are proper and in which no interference can be made by invoking the extra ordinary jurisdiction of the Court.

Hence, I do not find any merit in this petition and is hereby dismissed.