Ram Nish Bansal vs State of Rajasthan

V.S. Dave, J.—This application has been filed u/s 482 Cr. PC against the order, dated 13-1-1989, passed by Shri Bahadur Mal Solera, Munsif and Judicial Magistrate, Chhabra rejecting the application for giving interim custody of the truck alleged to have been seized by the officers of the Forest Department on 31-12-1988, bearing registration No. R.P.F. 2466 to the petitioner.

2 Brief facts leading to this petition are that one truck bearing registration No. R.P.F. 2466 is alleged to have been checked by the officers of the Commercial Taxation Department on 31-12-1988 while it was carrying 122 logs of wood. Carrier had no valid papers showing lawful possession of the same, as a result of which the truck was detained and was seized along with wood by Asstt. Commercial Taxation Officer, Special Circle (B), Kota u/s 22(A)(7) of the Rajasthan Sales Tax Act, 1955. On receiving information the Flying Squade of the Forest Department also arrived on the spot and Commercial Taxation Officer handed over the goods and the vehicle and prepared the documents. Police also prepared the seizure memo. Information of the seizure was given to ACJM Chhabra, on the same day. It is alleged that at the time of checking of the truck the driver Mehmood and Khalasi Brijendra were with the truck. The petitioner who is an unemployed graduate, had taken this truck on hire-purchase agreement. He moved an application before the learned Magistrate for delivery of the truck to him during the pendency of the enquiry and trial. Notice was given both to Forest Department and Commercial Taxation Department. Commercial Taxation Department had no objection to the delivery of the property on superdginama to the petitioner, but the officers of the Forest Department challenged the jurisdiction of the criminal court for entertaining an application for delivering the same. The learned Magistrate refused the application of the petitioner therefore, he has approached this Court.

Learned Counsel for the petitioner relying on 1986 Cri.L J 367 submitted that the custody of the truck may be given to him during the pendency of enquiry and trial. His submission is that the petitioner is an unemployed graduate who has started the business of plying the truck and without his knowledge the drives and the khalasi loaded the truck with the furniture wood for which there were no valid documents. He therefore cannot directly be involved as he is not concerned with the case. He submits that the truck is on hire-purchase agreement with Shri Ram Finance Ltd., Delhi and he had taken a loan of Rs. 2,23,543 on the same. It is submitted that Rs. 1,00,622/- have already been paid and the balance of Rs. 1,17,474/-is still outstanding against him In case possession of the truck is not given to him he will not only loose the truck but will also have to discharge the financial liability of the financing concern from his other property which would mean a complete ruining. It is further submitted that question of confiscation is always co-related with the involvement of the person and since he had no knowledge about truck being unused the question of confiscation has yet to be decided at is also submitted that the department is unable to run the vehicle and pay all instalments of the financer during the pendency of the case. On the contrary the department has also no such other place where the vehicle can be kept safely without being damaged. It is submitted that it is a matter of common knowledge that the vehicles seized are kept under open sky and nobody cares and by the time the case comes to an end they are merely reduced to scarp. So even if either party wins the case the result is a damaged vehicle. It is a national loss as a vehicle remains stand still and then reduced to scrap.

Learned Counsel for the department, Shri Prem Ashopa, has raised some legal objections. He has challenged the jurisdiction of criminal court in entertaining the application for interim custody and this Court u/s 482, Cr.PC. His submission is that Forest Act is a special Act which is a Code in itself and a procedure has been down about the delivery of the vehicle and confiscation during and after the case. It is submitted that Chapter 9 of the Forest Act deals with the procedure of seizure and subsequent to it It is submitted that Section 52 deals with the seizure of the property which is liable to confiscation and the property seized u/s 52 of the Act may be released by the persons specified in Section 53 of the Act His submission is that the property seized u/s 53 of the Act is neither being produced before the Magistrate nor is seized by the police therefore, provisions of Section 451 or Section 457 Cr. PC are not attracted. He submits that if the property is not dealt with in "accordance with the provisions of this chapter, then this chapter itself provides for appeals against that order of the department to higher authorities. Hierarchy of officers has been mentioned in the Act to deal with the case falling under the Chapter and no power express or implied lies in any court except for perishable property which is mentioned in Section 58 of the Act. His submission is that an exception has been carved out by the legislation where it intended the forum of a court to be invoked in this chapter. Learned Counsel has placed reliance on Assistant Collector of Customs, Customs House, Indraprastha Estate, New Delhi Vs. Tilak Raj Shiv Dayal, Dehradun, , Susanta Kumar Adhikary and Others Vs. The State of West Bengal, Santosh Kumar Mishra Vs. State of M.P. and Others, and Kanhaiya Lal v. State of Madhya Pradesh 1987 Cri. LJ 368. Relying on the aforesaid authorities his submission is that neither the Magistrate nor this Court u/s 482, Cr. PC has jurisdiction to deliver the property to the petitioner and the petitioner should be left to go to the departmental authorities,

Mr. G.C. Chatterjee, Government Advocate, appearing on behalf of the State while partially adopting the arguments advanced by the learned Counsel for the department, submitted that wider interpretation should be given to the provisions of Sub-section (2) of Section 451 Cr. PC and besides this harmonious construction should be given in the case like the one.

I have carefully considered the rival submissions and have perused the entire record.

I do not think, it would be essential for me to go in much details for adjudicating the points raised by learned Counsel for the respondent in view of the certain peculiar facts of this case. Apparently it appears that the officers of Forest Department have caught the persons with this truck committing theft of the wood and thereafter lodged the FIR and prepared the documents including inquest report seizure memo of the truck, site plan and the seizure of the wood. Copies of the documents have also been forwarded to the Addl. Chief Judicial Magistrate as contemplated. This all is purported to have been done under the provisions of Section 52 of the Rajasthan Forest Act. I have perused these documents and it is borne out that the same have been seized from the possession of the driver and the khalasi of the truck. The statements have also been recorded in shape of extra-judicial confession of the driver and the khalasi both, but it is extremely surprising that none of the documents prepared by officers of the department discloses the correct factual position. It is not borne out from any of the document that the documents have been prepared after the vehicle and the wood have been given on superdginama to the Forest Department. Correct facts borne out from entire record are that one Shri R.K. Singh Choudhary, Asstt. Commercial Taxation Officer, Special Circle, Kota, checked the truck which was going on Kumbhraj Road at 4 00 a.m. He checked the documents and since there were no valid papers with the driver and khalasi he seized the truck as well as she furniture wood which was being carried. It is at that stage after the seizure was complete that the flying squad arrived at the spot and intervened The Commercial Taxation Officer who could legitimately take the truck and the wood to their office though it could be given on superdginama to the officers of the Forest Department because offence under the Forest Act was also committed and that was the beginning for the proceedings to be drawn by the forest officers. In all fairness the forest department ought to base mentioned these facts accordingly in the documents they prepared that truck after having been handed over on superdagi to them the vehicle is also seized under the Forest Act, but not a word has been said. If the documents of the Forest Department are looked into including extra judicial confessions it would appear that they were sharp and smart in detecting a theft of furniture wood of such a big magnitude but apparently it is not. On their part truck had already been loaded and was going out of forest and it was the officers of the Commercial Taxation Department who checked and detained the vehicle Laurels are unnecessarily being taken by the officers of the Forest Department by preparing the incorrect documents and given an impression of their sharpness. In these circumstances I would not go into greater details excepting mentioning that argument is untenable that jurisdiction of the Magistrate and this Court is totally ousted, S.52 (1) is reproduced here:

Seizure of property liable to confiscation. When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, carts trucks, or any other vehicle, or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer not below the rank of a Head Constable.

A perusal of Sub-section (2) of the aforesaid section refers to a report which has to be prepared at the time of seizure and has to sent to the Magistrate concerned that is having Jurisdiction to try the offence and by a legislative amendment a similar copy is also to be forwarded to the official superior. According to Section 53 which is reproduced here under, any Forest Officer of a rank not inferior to that of Ranger who has seized vehicle under the aforesaid Section 52 of the Act may release the same:

Forest Officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, carts, trucks or cattle u/s 52, may release the same on the execution by the owner thereof a bond for the production of the property so released.

But a procedure has also been provided u/s 54 and Sub-section (2) of Section 54 which reads as under:

S. 54(2)--The Magistrate shall upon, receipt of a report under Sub-section (2) of section or under Sub-section (I) of this section take such measures including arrest as may be necessary for the attandance and trial of the offender and the disposal according to law of the properly seized.

cast three obligations on a Magistrate aforesaid section as soon as he receives the report purported to have been made under Sub-section (2) of Section 52, he has to take measures including arrest as may be necessary for the attendance of the accused and also about disposal of the property according to law. Thus, in may opinion a sort of supervisory jurisdiction has been provided to concerned Magistrate as soon as he receives report from an officer seizing the vehicle. His jurisdiction therefore, if not superior to is atleast concurrent with the affairs specified in S.53 and the legislative intentment is more clear by addition of the word ''to his superior officer''s as mentioned in Sub-section (2) i.e., Superior officers to the officer'' therefore, has powers, then the Magistrate has equally powers and as he has supervisory jurisdiction and is creation of the Code of Criminal Procedure. In may humble opinion he has power to deal with the cases and in case he has not given a proper relief which otherwise would have secured the ends of justice, this Court has ample jurisdiction u/s 482 Cr.PC to do the same. The cases cited by the learned Counsel, as submitted above, have no bearing in the facts and circumstances of this case.

This is a matter of common knowledge that the vehicles are more spoiled after seizure. I have observed in several cases and in this case also I have given an option to the learned Counsel for the State or the Department that the court will be willing to give the custody to anybody they like for the purposes of running the vehicle and disposing the money of the investor, but would not permit national waste by permitting the vehicle to be a scrap. I had expressed in more than one cases that it is high time that the State Government should consider for setting up a department for running the vehicles seized in various offences during the course of custody in the courts and should not permit them to be junk, The huge amount of the financing institutions is invested in these vehicles which are ultimately auctioned at the cost of scrap. It is taxpayer''s money which has to be saved and even if it is investor''s money even than it should not be permitted to be wasted in the manner it is done. Looking from any angle, I am of the opinion that ends of justice would meet in case the custody of the vehicle is given to the petitioner during the pendency of case.

For the reasons mentioned above, I accept this petition and direct that the vehicle R.P. F. 2466 shall be delivered to the petitioner on the executing a bond in the sum of Rs. 1,00,000/- with two sureties in the sum of Rs. 50,000/- each to the satisfaction of Add. Munsif and Judicial Magistrate, Chhabra with an undertaking to produce the truck before the court as & when required and with further undertaking that the truck shall not be sold, transferred and hypothecated in any manner during the pendency of the case. The petitioner shall also place along with the bond three coloured photographs of the cabinet size of the vehicle showing registration number and the engine number.

The petition is disposed of accordingly,