State of MP and Another vs Tulsi Ram

Sujoy Paul, Judge

Mrs. Sangeeta Pachori, Public Prosecutor for the petitioners/State. She is heard on admission and IA No.603/2012 for suspension of impugned order dated 6.1.2012.

Learned Public Prosecutor submits that the offences are under Indian Forest Act, 1927. Relying on a recent interim order passed by this Court in Criminal Revision No. 24/2012 learned Public Prosecutor submits that the impugned order is bad in law.

This Court in the order dated 13.1.2012 in Criminal Revsion No. 24/2012 has held as under:-

This revision u/s 397/401 of Cr.P.C. is directed against the impugned order dated 22.12.2011 passed by Additional Sessions Judge, Ambah in Criminal Revision No. 211/2011.

The case of the petitioners is that on 14.12.2008 the forest official was petrolling in Kuthiyana, area of Chambal Sanctuary to check illegal mining of surface soil, sand. The forest official found a tractor of the respondent laden with sand, surface soil, the forest produce in the prohibited area, which was seized and a forest criminal case was registered against the respondent as Forest Crime No. 9656/2008 under sections 27, 29, 39(1)(d) of Wild Life (Protection) Act, 1972 (for short the ''Act of 1972'') and also under Sections 41 and 52 of the Indian Forest Act, 1927 (for short the ''Act of 1927''). The police has not registered any criminal offence in respect of said vehicle. The respondent submitted an application in the Court of Judicial Magistrate, Ambah for releasing the aforesaid vehicle on the ground of his being the registered owner of the vehicle. The said Court had dismissed the application and declined to release the vehicle. Against this order he preferred a revision before the court below, which allowed it by the impugned order.

Learned counsel submits that the subject matter of forest offence is surface soil, sand which was found laden in the tractor trolley of the respondent, which is a forest produce as defined in Section 4 of the Act of 1927. It is further submitted that the forest official u/s 52 of the Act of 1927 intimated to the Magistrate having the jurisdiction to try the offence, the initiation of confiscation proceedings by the revisionist vide its communication dated 15.12.2008. Lower Revisional Court committed an error in overlooking the intimation aforesaid and assumed the jurisdiction to release the vehicle involved in the forest offence.

It is further alleged that u/s 52 of the Act of 1927 the forest officials alone are empowered to deal with forest offences which in the present case is tractor laden with surface soil and Section 52-C creates a jurisdictional bar on criminal Court to try any forest offence of which the intimation u/s 52(4) is sent to the Magistrate. It is further submitted that Section 52-C of the Act of 1927 provides a hierarchy of the court and any interference can be made only in accordance with the aforesaid hierarchy provided in the law.

It is alleged that the Act of 1927 is a special law relating to the forest and creates a special jurisdiction with certain authorities as defined in Section 52-C of the Act of 1927. He submits that the court below has committed an error in examining the matter only from the angle of Section 39(1)(d) of the Act of 1972. Lastly, it is submitted that blind reliance on the order passed by this Court in Misc.Cri.Case No. 7937/2008 (Dilip v. State of M.P.) without examining that the said case did not deal with the provisions of Act of 1927, is bad in law.

I have heard the counsel and perused the record.

True it is that in Dilip''s case (supra) this Court while considering the Full Bench decision in Madhukar Rao Vs. State of M.P. and Others, , came to hold that vehicle can be released under Sections 451 and 457 of Cr.P.C. However, a bare perusal of Madhukar Rao shows that the Full Bench was dealing with the provisions of the Act of 1972 and the provisions of Code of Criminal Procedure. The special provisions under the Act of 1927 were not under consideration in Madhukar Rao''s case. The basic question in Madhukar Rao''s case was whether u/s 39(1)(d) of the Act of 1972 the seized property can be treated to be a property of the State and can be auctioned. The Full Bench opined that mere seizure of any property including vehicle on the charge of commission of offence would not make the property to be the State Government''s property u/s 39(1)(d) of the Act of 1972. The said judgment in Madhukar Rao is an authority for the questions which were dealt with by the Full Bench. The provisions of the Act of 1927 were not at all under consideration in Madhukar Rao''s case. This Court in Dilip (supra) followed Madhukar Rao''s case but the judgment shows that special provisions of the Act of 1927 were not taken into consideration.

It is profitable to quote Section 52-C of the Act of 1927, which reads as under:-

C- 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 u/s 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 sub-section 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.

(Emphasis supplied)

A bare perusal of the aforesaid provision of the Act of 1927 makes it crystal clear that there is a specific procedure prescribed under the Forest Act regarding confiscation, which provides a specific bar to the jurisdiction of the courts etc. under certain circumstances, which deals on the issue of distribution, delivery and custody of seized properties under the Act of 1927 including a vehicle. These specific provisions as contained in the Act of 1927 are not available in the Act of 1972. Therefore, prima facie, the analogy of Madhukar Rao''s case cannot be attracted for the purposes of interpreting and dealing with the provisions of the Act of 1927.

In Madhukar Rao''s case the Full Bench in paras 17 and 18 had examined the provisions of the Act of 1972. Para 17 of the judgment makes it crystal clear that it was dealing with Section 39(1)(d) of the Act of 1972. The Act of 1972 does not provide any special procedure for the confiscation of the properties seized u/s 50(1)(c) of the Act of 1972. In absence of this kind of procedure in the Act, it was rightly held by Full Bench that provisions of Code of Criminal Procedure regarding forfeiture of vehicle under the Act of 1972 would apply.

It is relevant to mention that the Apex Court had an occasion to deal with certain State amendments in the Forst Act 1927 of the State of West Bengal. They are the State amendments from Section 59-A to 59-G in the Act of 1927 in the State of West Bengal. Prima facie, provisions of Sections 59-A to Section 59-G of West Bengal are pari materia to the provisions of Section 52-C of Madhya Pradesh amendment in the Act of 1927.

In the State of West Bengal and others v. Sujeet Kumar Rana as reported in (2004) 4 SCC 159, it is held as under:-

The amendment carried by the State of West Bengal by reasons of Section 59-A to 59- G in the Indian Forest Act provide for a complete code. The validity or otherwise, of the said provisions is not in question before us. An order of confiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both confiscation and forfeiture of a property may be the same namely, that the property would vest in the State but nature of such order having regard to the statutory scheme must be held to be different. A proceeding for confiscation can be initiated, irrespective of the fact as to whether prosecution for commission of a forest offence has been lodged or not. A confiscation proceeding therefore is independent proceeding. We may also notice that the State has been made liable to refund the amount which has been deposited in pursuance to an auction held in respect of the confiscated property only in the event the order of confiscation is set aside or annulled u/s 59(A) (4-B) thereof. No provision has been made in the statute unlike Section 6-C of the Esssential Commodities Act, 1955, to the effect that the confiscated property or the amount deposited in the treasury pursuant to the auction of the confiscated goods would be returned to the owner thereof in the event, the criminal trial ends in an acquittal. This court in this case is not concerned with the effect of acquittal viz-a-viz a confiscation proceeding. There may be a case where a judgment of acquittal has been rendered not on merit of the matter but by way of giving the benefit of doubt or for certain reasons un-related to the adjudication on merit, as for example dropping of the proceedings as the prosecution witness did not turn up despite service of summons.

Sections 52, 52A, 52B and 52-C of the Act of 1927 constitute a complete code in itself in respect of the confiscation of properties seized thereunder. In these respect there is a big difference between the procedure for forfeiture and confiscation as detailed in the two Acts. The two procedures do not meet anywhere except at the end point where they

both stand as one denoting whereby the seized property as the property vested in the Government.

As per the said judgment it is clear that the scheme of Section 52 is a complete Code in itself in respect of confiscation of properties seized thereunder. The authorities are bound to follow the procedure and hierarchy laid down in Section 52-C of the M.P. amendment. Considering the aforesaid, I, prima facie, find force in the contention that the judgments in Madhukar Rao and Dilip (supra) have no application in the cases of confiscation under the Act of 1927.

Apart from this, in T.N. Godavarman Thirumalpad (through K.M. Chinnappa) Vs. Union of India (UOI) and Others, the Apex Court held as under:-

There may be boundless progress scientifically which may ultimately lead to destruction of man''s valued position in life. The Constitution has laid the foundation of Articles 48-A and 51-A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wildlife and to have compassion for living creatures.

Duty is cast upon the Government under Article 21 to protect the environment and the two salutary principles which govern the law of environment are:

(i) the principles of sustainable development, and

(ii) the precautionary principle. The Convention on Biological Diversity has been acceded to by the country and, therefore, it has to implement the same.

Thus, it is not only the statutory obligation, it is a constitutional mandate for the State, its functionaries and citizens to protect the wild life and forest. If the river banks are permitted to be exploited illegally, the result would be total loss of animals left in Chambal Sanctuary. This is a matter of common knowledge that crocodiles and tortoise lay their eggs in the sand in the banks of the river Chambal. If illegal and uncontrolled movement of vehicle/tractor trolleys etc. are permitted in the said area, the tortoise and crocodiles will not be able to come out of the river and lay their eggs in sand. If sand is also extracted in unscientific and illegal manner, which is not permissible in law, the same will have an effect of not providing ground to the said animals to lay their eggs. The result would be disastrous and beyond repair. Thus, under Forest International Convention and under our own constitutional scheme the State and its functionaries are under a mandatory obligation to stop this tendency with iron hands.

It appears that the Apex Court has observed this considering the aforesaid in the case of State of Karnataka Vs. K. Krishnan, , in following words:-

"The forest are not only the natural wealth of the country but the protector of human life by providing the clean and unpolluted atmosphere, we are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence the same shall not normally be returned to a party till the termination of all the proceeding in respect of such offence including confiscation proceeding if any, nonetheless if for any exceptional reason if a court is inclined to release the vehicle during such pendency, furnishing a blank guarantee should be minimum condition. No party shall be under the impression that the release of vehicle would be possible on easy terms when such vehicle is alleged to have been involved in commission of the forest offence.

(Emphasis Supplied)

The provisions of the Act of 1927 were considered by this Court in 1987 Cri.L.J. 368 (Kanhaiyalal v. State of M.P.) after considering the scheme of the Act of 1927 this Court opined in para 17 as under:-

In the ultimate analysis I find that the applicability of S. 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 stands ousted.

This Court in Rishi Nath Singh Vs. State of Madhya Pradesh and Others, while dealing with the provisions of the Act of 1927 held in para 9 as under:-

9........... Therefore, in my opinion, after the directions of this Court in writ petition the legal proceedings to acquire the vehicle on Supurdgi are not saved after the notice and intimation of confiscation of the seized truck under the provisions of Forest Act. Therefore, the Magistrate had no jurisdiction to deal and decide the application of the applicant for the same.

I find force in the contention of the petitioner that aforesaid two judgments on the Act of 1927 were not considered by this Court in Dilip''s case (supra). Reliance is placed on Union of India and others Vs. Raju Construction Company, Bhopal, . Para 16 of the said judgment reads as under:-

It is true that in Nandyal Coop. Spinning Mills Ltd. Vs. K.V. Mohan Rao, , a two Judge Bench of Supreme Court has taken the view that if the named person does not appoint arbitrator within 15 clear days then it will be deemed that the named person had abdicated the power of appointment of the arbitrator and the Court gets jurisdiction to appoint arbitrator u/s 8(1)(a) of the Act. There appears to be direct conflict between the two Benches of Co-equal strength. Therefore this court has an unenviable task of choosing between the two views. With great respect, the view taken in the case of Nandayal Cooperative Spinning Mills Ltd. (supra) was decided on 11.5.1993 without taking note of the earlier judgment in case of M/s. H.S.Tulli and Sons Builders Pvt.Ltd. vs. Union of India (supra) which was decided on 11.2.1992. It appears that this case was reported also prior to delivery of the subsequent Judgment. It appears to this Court that this subsequent decision is per incuriam in the sense that the earlier judgment was not brought to the notice of their Lordships. It is per incuriam for another reason that it does not discuss the essential terms of section 8(1)(a) of the Act that there should be consent of both the parties which was not there after delegation of power to the named authority. After analysing section 8(1)(a) of the Act in paragraph (8) of judgment and mentioning the condition No.4, regarding consent, their Lordships of the Supreme Court omitted to consider if condition No.4 was applicable to the facts of the case. The judgment rendered is sub silentio. Nor does the authority Union of India vs. Prafulla Kumar Sanyal, (1979) 1 SCC 631 was applicable to section 8. It is an authority on section 20(4) of the Act. The decision of the Bombay High Court in the case of Union of India Vs. M/s. Ajit Mehta and Associates, Pune and Others, , was distinguished but was not overruled. In the opinion of this Court, the decision of the Supreme Court in the case of Nandayal Cooperative Spinning Mills Ltd. (supra) is not binding on this Court as it is not law declared within the meaning of Article 141 of the Constitution.

(Emphasis supplied).

It is the case of the petitioner that the principle of sub silentio is applicable in this matter where earlier judgments on the subject, i.e. the Act of 1927, were not taken into consideration in the later judgment in Dilip''s case (supra). It is further stated that the subsequent judgment without considering the relevant provisions of the Act of 1927 is per incuriam. This is an arguable issue and I, prima facie, find force in the contention.

In view of the direct judgments on this statute, it is clear that the provisions of Section 52-C of the Act of 1927 will apply with full force in the cases of confiscation, release etc. under the provisions of the Act of 1927. Accordingly, prima facie, it appears that the provisions and the judgments delivered by this Court with regard to the Act of 1972 are wrongly pressed into service by the court below while granting relief to the respondent. The said judgment in Dilip''s case (supra) cannot be pressed into service in cases of offence under the Act of 1927.

In the light of aforesaid, prima facie, this Court finds force in the stand of the State and the order passed on 22.12.2011 blindly following the judgment in Dilip (supra) deserves to be stayed.

Accordingly, issue notice to the respondent on payment of process fees within seven days.

As an interim measure and subject to hearing the other side, till next date of hearing the effect and operation of order dated 22.12.2011 shall remain stayed.

In additional to that, learned Public Prosecutor submits that in the Indian Forest Act, 1927 there is a State amendment, i.e., Section 52. She submits that as per Section 52-C there exists a bar to the jurisdiction of the Courts etc. in certain circumstances. She submits that there is a paraphernalia available to the accused as per Section 52-C and as per this provision only the Sessions Court can entertain a revision/petition. She submits that the Magistrate had no jurisdiction and, therefore, against his order the revision was not tenable before the court below. In a revision which was not tenable, the interim order could not have been passed. She submits that when the law provides a thing to be done in a particular manner, it has to be done in the same manner and not otherwise at all.

Considering the aforesaid, prima facie this case is covered by the interim order passed by this Court in Criminal Revision No. 24/2012 (supra). I am prima facie of the opinion that neither the judgment of Full Bench in Madhukar Rao''s case (supra) nor the judgment of this Court in Dilip''s case (supra) could have been relied upon for the purposes of passing the impugned order by the court below. Accordingly, issue notice to the respondent on payment of process-fee within seven days.

As an interim measure, subject to hearing the other side, till next date of hearing the order dated 6.1.2012 shall remain stayed.

Certified copy as per rules.