Safiya V. vs State Of Kerala And Anr

The petitioner is aggrieved by Annexure E order of the Judicial First Class Magistrate, Mannarkkad, dismissing the application seeking interim

custody of her Maruti Alto LXI Car bearing registration No.KL-50-H-8824. The brief facts, which led to the application for interim custody being

filed, are as under:

Forest Officials attached to the Ommala Forest Station, Palakkad, intercepted a motorcycle and seized sandalwood pieces on 21.07.2020, resulting in

registration of OR No.21 of 2020, for the offences under Sections 27(1) (e) (iii), (iv), 47C(1), 47G(1), 52(1) and 61A of the Kerala Forest Act, 1961.

Questioning of the three persons from whom the contraband was seized revealed that, on an earlier occasion they had cut and removed another piece

of sandalwood at the instance of one Asharaf in a Maruti Alto Car bearing registration No.KL-50H-8824. Based on the statement, Asharaf, who is

the petitioner's husband, was made an accused, the car belonging to the petitioner seized and confiscation proceedings initiated. Hence, the application

for interim custody under Section 451 Cr.P.C.

The application for interim custody was dismissed under Annexure E order, finding that the vehicle seized under Section 61A (1) of the Kerala

Forest Act was produced before the authorised officer for the purpose of ordering confiscation under Section 61A(2). It was held that disposal of the

properties, either by way of interim custody or final disposal can be made only in accordance with the procedure prescribed in the Kerala Forest Act.

Annexure E order is challenged on the ground that the petitioner's vehicle has no connection with the alleged offence and even going by the

admitted facts, neither Section 52 nor 61A, has application.

Sri.Babu S.Nair, learned Counsel for the petitioner contended that seizure of vehicles, tools, ropes etc under Section 52 can be effected together

with timber or other forest produce only and not independently. Reference was made to Section 61A(1), which stipulates production of timber,

charcoal, firewood or ivory, with respect to which a forest offence is believed to have been committed, together with all tools, ropes, chains, boats,

vehicles and cattle. It is hence contended that seizure of the petitioner's vehicle, without there being any timber or forest produce in it or anywhere

near it, is made in patent violation of the provisions. In such circumstances, the jurisdictional Magistrate is not denuded of power to order interim

release of the vehicle, is the contention.

Per contra, Sri.Sandesh Raja, learned Special Government Pleader, contended that the inherent jurisdiction of this Court under Section 482 Cr.P.C

cannot be exercised to set aside the confiscation proceedings and to direct the jurisdictional Magistrate to release the vehicle on interim custody.

Reliance is placed on the decisions of the Honourable Supreme Court in Divisional Forest Officer and another v. G.V.Sudhakar Rao and others

[(1985) 4 SCC 573] and State of West Bengal and others v. Sujit Kumar Rana [(2004) 4 SCC 129].

In reply, learned Counsel for the petitioner relying on the decision in Pepsi Foods Ltd v. Special Judicial Magistrate [(1998) 5 SCC 749] ,submitted

that the power conferred under the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits.

Section 52(1) of the Act dealing with seizure of property liable to confiscation reads as under:

“52. Seizure of property liable to confiscation.- (1) When there is reason to believe that a forest offence has been committed in respect of any

timber or other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such

offence may be seized by any Forest Officer or Police Officer.â€​

The next stage, which is confiscation of the seized articles, is under Section 61A, which is extracted hereunder:

“61A. Confiscation by Forest Officers in certain cases. - Notwithstanding anything contained in the foregoing provisions of this chapter, where a

forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which the property of the Government, the officer

seizing the property under sub-section (1) of Section 52 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 Government in this behalf by notification in the Gazette, not

being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer).

On a careful reading of the aforementioned provisions, I find substance in the contention of the learned Counsel that seizure and confiscation of

vehicles, tools etc can be affected together with contraband like timber or other forest produce, regarding which a forest offence is believed to have

been committed. The power to seize is dependent on the presence of contraband, indicative of the vehicles, tools etc, having been used for commission

of the offence. In the instant case, there was no contraband present inside or anywhere near the petitioner's vehicle, while seizure was affected. As

such, legality of the seizure is highly doubtful.

Then the question arises as to whether legality of the seizure is open to challenge in a proceeding under Section 482 Cr.P.C. The decisions in

G.V.Sudhakar Rao and Sujith Kumar Rana(supra) are clearly to the contrary. The exposition of the the Honourable Supreme Court, in Sujith Kumar

Rana, which is contextually relevant, is extracted here under;

“33. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case

where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending

before a court amounts to abuse of the process of court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the

High Court in relation to a matter pending before a court; which in the context of the Code of Criminal Procedure would mean “a criminal courtâ€

or whence a power is exercised by the court under the Code of Criminal Procedure. Once it is held that the criminal court had no power to deal with

the property seized under the Act, the question of the High Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure

would not arise.â€​

The legal position having thus been explicitly laid down, the impugned order cannot be faulted, or the second respondent directed to release the

petitioner's car, in exercise of the inherent power vested with this Court under Section 482 Cr.P.C. The observation in Pepsi Foods Ltd regarding the

magnitude of the power vested with the High Court, whatever be the nomenclature under which the petition is filed, was rendered under entirely

different factual circumstances.

The Crl.M.C is hence disposed of, leaving it open for the petitioner to challenge the seizure of her vehicle before the appropriate authority/forum.