(SUPREME COURT OF INDIA)
State of West Bengal and Ors.
Vs
Surjit Kumar Rana
HON'BLE JUSTICE
DORAISWAMY RAJU AND HON'BLE JUSTICE S. B. SINHA
20/01/2004
Criminal Appeal No. 453 of 1997 (with Crl. A. No. 454 to 459 of 1997)
JUDGMENT
S.B. SINHA, J.
INTRODUCTION :- Applicability of Section 482 of the Code of
Criminal Procedure, 1973 for quashing a proceeding for confiscation of
forest-produce etc. under the provisions of Indian Forest
Act, 1927 (hereinafter referred to as 'the Act') as amended by the State
of West Bengal is in question in these appeals which arise out of a common
judgment and order dated 27.6.1996 passed by the Calcutta.
Background Fact
2. Shortly stated, the fact of the matter is that the forest-produce belonging
to the State and/or the vehicles carrying the same were seized by the Forest
Officer. The report of such seizure was made to the authorized officer.
3. Except Criminal appeal No. 453 of 1997-State of West Bengal and Ors. Vs.
Sujit Kumar Rana. show cause notices issued by the forest authority purported
to the issued under the provision of Section 59-B of the Act, as amended by the
State of West Bengal or the seizure of the forest-produce or the vehicles
carrying the same, came to be questioned by the respondents before the Calcutta
High Court invoking its jurisdiction under Section 482 of the Code of Criminal
Procedure. In Sujit Kumar Rana's case, however, an order of confiscation was
passed by the authorized officer.
4. The factual matrix, for appreciating the points involved herein is being
noticed from Criminal Appeal No. 453 of 1997:
5. The truck of the respondent carrying forest-produce and said to be without
transit permit was detained and seized. Upon a report of the said seizure, show
cause notice was issued to the respondent by the authorized officer as to why
vehicle shall not be confiscated. The owner of the truck replied to the said
notice, praying for released of the same.
6. A writ petition was filed by the respondent herein under article 226 of the
Constitution of India before the High Court of Calcutta which was disposed of
on or about 15.09.1995 by it directing the Divisional Forest Officer to
complete the confiscation proceedings expeditiously and preferably within a
period of five weeks from the said date. On or about 5.1.1996, the High Court
of Calcutta passed an ex parte order directing that custody of the truck be
given to the owner on his executing a bond to the satisfaction of the
Divisional Forest Officer; with a further direction that the same would not be
taken out of the territorial limit of the State of West Bengal. The Divisional
Forest Officer filed an application for vacating the said order of the high
court, which was rejected by the High Court.
7. Before the High Court, a preliminary question as regard maintainability of
an application under Section 482 of the Code of Criminal Procedure was raised.
By reason of the impugned judgment the said contention was negatived.
Submission:
8. Mr. T.C. Ray, learned senior counsel appearing on behalf of the State of
West Bengal, inter alia, would contend that having regard to the fact that the
proceeding for confiscation of forest-produce and/or vehicles carrying the same
is not initiated under the provisions of the Code of Criminal Procedure, the
applications filed by the respondent herein purported to be under Section 482
of the Code of Criminal was not maintainable. The learned counsel would submit
that the High Court committed a manifest error in placing reliance upon the
Division Bench judgments of the said Court, ignoring the binding decision of
this Court in Divisional Forest Officer and another vs. G.v. Sudhakar Rao and
others [ ] which has been brought to its notice and wherein it has been
clearly held that the High Court had no jurisdiction to release the vehicles
when a confiscation proceeding is pending before the designated authority in
exercise of its power under Section 482 of the Code of Criminal Procedure.
9. Mr. Ray would urged that keeping in view the fact that admittedly the
decision of this Court in Sudhakar Rao (supra) was not brought to the notice of
the Division Bench of the Calcutta High Court when the earlier decision, which
the learned Single Judge preferred to follow was decision, the learned Judge
misdirected himself in ignoring the binding precedent of this Court.
10. The learned counsel would contend that in terms of the amendments made by
the State of West Bengal in the Forest Act whereby and whereunder Sections 50-A
to 59-G were inserted, a complete Code was laid down not only as regard
initiation of proceeding but also for confiscation and appeal against an order
of confiscation as also ouster jurisdiction of the Court. Mr. Ray would argue
that a criminal trial before a Magistrate in relation to an offence made under
the provisions of the Act stands on a different footing than a proceeding for
confiscation before the authorized officer.
11. Mr. U.U. Lalit, learned counsel appearing on behalf of the respondents in
Criminal Appeal No. 459 of 1997 and Mr. Sanjoy Kr. Ghosh, learned counsel
appearing on behalf of the respondents in Criminal Appeal No. 453, 457 and 458
of 1997 would contend that in the facts and circumstances obtaining in this
cases, this Court should not exercise its discretionary jurisdiction under
Article 136 of the Constitution of India. The learned counsel would contend
that it may be trued that the High Court should not interfere with the
proceeding for confiscation when merely a show cause notice was issued but
having regard to the fact that subsequently a criminal court arrived at a
finding that no forest offence has been made out, it would be futile to remit
the matter back to the authorized Officer.
12. Mr. Ghosh would also submit that in criminal Appeal No. 453 of 1997, the
appellate court has arrived at a finding that the notice issued by the
authorized officer was wholly illegal and bad in law and in that view of the
matter there does not exist any order of confiscation at present.
Statutory Provisions:
13. Section 2(3) of the Section reads thus:
"(3) "Forest-offence" means an offence punishable under this Act
or under any rule made thereunder;"
14. Sub-Section (2) of Section 52 of the Act provides as under :
"Every officer seizing any property under this section that place on such
property a mark indicating that the same has been so seized, and shall, as soon
as my be 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 such offence it
believed to have been committed in the property of Government, and the offender
is unknown, it shall be sufficient it the officer makes, as soon as may be, a
report of the circumstances to his official superior." *
15. Sub-section (2) of Section 52 of the Act has been amended by the State of
West Bengal in terms whereof the proviso thereto has been amended in the
following terms:
"Provision that it will not be necessary to make a report of such seizure
to the Magistrate in the following cases, namely:-
(i) When the forest-produce with respect to which each offence is believed to
have been committed is the property of the State Government and the offender is
unknown. It shall be sufficient to make a report of the Circumstances to the
official superior;
(ii) when the offence falls under the purview of Section 59-A;
(iii) when the offender agrees in writing to get the offence compounded;"
*
16. Section 55 of the Act reads as under:
"Forest-produce, tools, etc., when liable to confiscation. - (1) All
timber of forest-produce which is not the property of Government and in respect
of which a forest-offence has been committed, and all tools, boats, carts and
cattle used in committing any forest-offence, shall be liable to confiscation.
(2) Such confiscation may be in addition to any other punishment prescribed for
such offence."
*
17. The State of West Bengal inserted Sections 59-A to 59-G in the Principal
Act. Sub-section (1) of Section 59-A reads thus:
"59-A. Confiscation by Forest Officer of forest produce in the case of
forest offence believed to have been committed. - (1) Notwithstanding anything
contained in the foregoing provisions of this chapter or in any other law for
the time being in force, where a forest offence is believed to have been
committed in respect of the timber or other forest produce which is the
property of the State Government, the Forest Officer or the Police Officer
seizing the timber or other forest produce under sub-section (1) of Section 52,
shall, without any unreasonable delay, produce the same, together which all
tools, ropes, chains, boats, vehicles and cattle used in committing the
offence, before an officer of a rank not inferior to that of an Assistant
Conservator of Forests, authorized by notification in the official Gazette
(hereinafter referred to as the authorized officer)." *
18. Sub-section (3) of Section 59-A provides that if the authorized officer is
satisfied that a forest offence has been committed irrespective of the fact
whether a prosecution has been instituted for the commission of such offence or
not, he may direct confiscation of the property together with all tools, ropes,
chains, boats, vehicles and cattle used in committing the offence. Sub-section
4 (a) of Section 59-A empowers the authorized officer to sell such confiscated
property or any part thereof by public auction. Clause (b) of sub-section (4)
of Section 59-A, however, provides for refund of the amount fixed in the
auction in the event, the order of confiscation of such property or tools etc.
is set aside or annulled under Section 59-C or Section 59-D thereof.
19. Section 59-B postulates issue of notice to the owner of the property which
is sought to be confiscated. The proviso appended thereto provides that no
order of confiscation shall be made except after giving a notice in writing to
the registered owner thereof, it in the opinion of the authorized officer, it
is practicable to do so and considering his objections, if any. Sub-section (2)
of Section 59-B provides that in the event a person against whom an order of
confiscation has been initiated proves to the satisfaction of the authorized
officer that tool, rope or vehicle etc. was used in carrying the timber or
other forest-produce without the knowledge of connivance of the owner himself
or his agent, if any, or the person in charge thereof and that each of them had
taken all reasonable and necessary precautions against such use, no order
confiscating the same shall be made. Section 59-C provides for a revision.
Section 59-D provides for an appeal against such order to the District Judge
having jurisdiction over the area in which the property and the tools etc.
having been seized against an order of confiscation. The District Judge after
giving the appellant and the officer who passed the order an opportunity of
being heard, may pass an order confirming, modifying or annulling the order
appeal against. Sub-section (2) of Section 59-D attaches finality to the order
passed by the District Judge and further provides that the same shall not be
called in question in any court. Section 59-F provides that the confiscated
property and proceeds of sale shall vest in the Government. Section 59-G of the
Act creates a bar on the jurisdiction of court in certain cases, which is in
the following terms:
"59-G. Bar of jurisdiction in certain cases. - Notwithstanding anything to
the contrary contained in this Act or in the Code of
Criminal Procedure, 1973 (2 of 1974) or in any other law for the time
being in force, the officer authorized under Section 59-A or the Forest officer
specially empowered under Section 59-C or the District Judge to whom an appeal
my be preferred under Section 59-D shall have and any other officer or Forest
Officer or court, tribunal or authority shall not have jurisdiction to make
orders with regard to the custody, possession, delivery, disposal or
distribution of any property or tools, ropes, chains, boats, vehicles or cattle
seized under Section 52." *
20. Section 67 and 68 read as under :-
"67. Power to try offences summarily.- The District Magistrate or any
Magistrate of the first class specially empowered in this behalf by the State
government may try summarily, under the Code of Criminal Procedure, 1898 (5 of
1898), any forest-offence punishable will imprisonment for a term not exceeding
six months, or fine not exceeding five hundred rupees, or both.
68. Power to compound offences-(1) The State Government may, by notification in
the Official Gazette, empower a Forest Officer:-
(a) to accept from any person against whom a reasonable suspicion exists that
he has committed any forest-offence, other than an offence specified in Section
62 or Section 63, a sum of money by way of compensation for the offence which
such person is suspected to have committed, and
(b) when any property has been seized as liable to confiscation, to release the
same on payment of the value thereof an estimated for such officer.
(2) On the payment of such sum of money, or such value, or both, as the case my
be, to such officer, the suspected person, if in custody, shall be discharged,
the property, if any, seized shall be released, and no further proceedings
shall be taken against such proceedings shall be taken against such person or
property.
(3) A Forest Officer shall not be empowered under this section unless he is a
Forest Officer of a rank not inferior to that of a Ranger and is in receipt of
a monthly salary amounting to at least one hundred rupees, and the sum of money
accepted as compensation under clause (a) of sub-section(1) shall in no cause
exceed the sum of fifty rupees." *
Analysis:
21. The provisions of law referred to hereinbefore leave no manner of doubt
that upon seizure of forest produce, timber or vehicles etc. the concerned
authority has an option to report the factum of such seizure both to the
concerned Magistrate as also the authorized officer, save and except in the
cases which would fall within the purview of the proviso appended to
sub-section (2) of Section 52 of the Act, as amended by the State of West
Bengal. The report in relation to such seizure is required to be made either
for : (1) confiscation of the seized property; (2) prosecution of the offender;
or (3) for both. #
22. The legislature has inserted the aforementioned provisions with a
laudable object. Forest is a national wealth which is required to be preserved.
In most of the cases, the State is the owner of the forests and forest-produce.
Depletion of forests would lead to ecological imbalance. It is now well-settled
that the State is enjoined with a duty to preserve the forests so as to
maintain ecological balance and, thus, with a view to achieve the said object
forests must be given due protection. Statutes which provide for protection of
forests to maintain ecological balance should receive liable construction at
the hands of the superior courts. Interpretive exercise of such power should be
in consonance with the provisions of such statutes not only having regard to
the principle of purposive construction so as to give effect to the aim and
object of the legislature; keeping the principles contained in Article 48-A and
51-A(g) of the Constitution of India in mind. The provisions for confiscation
have been made as a deterrent object so that felling of trees and deforestation
is not made. #
23. In Indian Handicrafts Emporium & Ors. Vs. Union of India & Ors. [
], this Court was dealing with a situation where initially. 'ivory' was
legally imported, but the trade or possession thereof became subsequently
barred by amendment made in the Wild Life (Protection) Act except for bona fide
personal use. By reason of the provisions of the said Act, however, such
imported ivory did not vest in the Government. This Court despite aforementioned
situation applying the rule of purposive construction so as to give effect to
the intent and purport of the statute held :
"A trader in terms of a statute is prohibited from carrying on trade. He
also cannot remain in control over the animal article. The logical consequence
wherefor would be that he must be deprived of the possession thereof. The
possession of the animal article including imported ivory must, therefore, be
handed over to the competent authority. In a case of this nature where a statute
has been enacted in public interest, restriction in the matter of possession of
the property must be held to be implicit. If Section 49(7) is not so construed,
it cannot be given effect to. *
We, therefore, are of the opinion that the appellants have no right to possess
the articles in question. Keeping in view of the fact that the provisions of
the statute have been held to be intra vires the question of compensating the
appellants would not arise as vesting of possession thereof in the State must
be inferred by necessary implication." *
24. In Balram Kumawat vs. Union of India & Ors [ ], this Court
applied the dictionary meaning to the term 'ivory' to hold that even 'mammoth
ivory' will come within the purview thereof holding that the 'rule of strict
construction' of a regulatory/penal statute may not be adhered to, if thereby
the plain intention of the Parliament to combat crimes of special nature would
be defeated.
25. Recently, a Division Bench of this Court (of which one of us Raju, J. is a
member) in The State of Bihar & Anr. Vs. Kedar Sao & Anr. [(2003) 6
SCALE 639] observed that the provision of seizure and its procedure for the
property liable for confiscation as contained in Section 52 of the Indian
Forest Act as amended by Bihar Amended Act No. 9 of 1990 were made having
regard to the fact that not only the commission of forest offences are on the
increase but rampant acts involving large scale pilferage and depletion of
forest wealth not only causing serious onslaught on the nature and environment
causing ecological imbalance and irreparable loss and damage to public
property, were taking place and the States, therefore, had to take such drastic
legislative measures with a view to prevent commission of such offences.
26. This Court, however, is not oblivious of the fact that whereas the
courts must give purposive construction to the provisions of such statutes
which have been framed in public interest keeping in view the object thereof,
but it must also be borne in mind that illegal seizure amounts to deprivation
of property and by reason of an order of confiscation, the owner thereof is
deprived of his right of property as contained in Article 300-A of the
Constitution of India. The rights of the parties are, therefore, required to be
delicately balanced. #
27. An order of confiscation of forest-produce in a proceeding under Section
59-A of the Act would not amount either to penalty or punishment. Such an
order, however, can be passed only in the event a valid seizure is made and the
authorized officer satisfies himself as regard ownership of the forest-produce
in the State as also commission of a forest-offence. An order of confiscation
is not to be passed automatically, and in terms of sub-section (3) of Section
59-A a discretionary power has been conferred upon the authorized officer in
relation to a vehicle. Apart from the ingredients which are required to be
proved in terms of sub-section (3) of Section 59-A by reason of the proviso
appended to Section 59-B, a notice is also required to be issued to the owner
of the vehicle and furthermore in terms of sub-section (2) thereof an
opportunity has to be granted to the owner of the vehicle so as to enable him
to show that the same has been used in carrying forest-produce without his
knowledge or connivance and by necessary implication precautions therefor has
been taken.
28. Against an order of confiscation, an appeal is provided and only an
order of the appellate court, who is a judicial officer becomes final and
binding but attaching finality to an order of the appellate court would not
preclude a person aggrieved to move the High Court in judicial review.
29. Sufficient safeguards both substantive and procedural have, thus, been made
against an arbitrary exercise of power. #
30. The question as regard the power of the High Court to release a vehicle in
exercise of its power under Section 482 of the Code of Criminal Procedure is
required to be considered having regard to the aforementioned aspects in view.
31. Authorized officers under the Act have been granted a wide discretion as
regard choosing any of the three courses of action but exercise thereof would
have a direct bearing to the nature of offence. The provisions of the Indian
Forest Act and the amendments carried out in the provisions thereof by the
State of West Bengal, as noticed hereinbefore, point out to the said
discretionary power conferred upon the concerned authorities in this behalf.
Only in a vase where the forest authorities intend to proceed against an
offender both for confiscation of the property as also for his prosecution;
except in the cases which are covered by the proviso appended to sub-section
(2) of Section 52 of the Act, report of seizure is required to be made both to
the Magistrate as also to the authorised officer.
32. The said authority before passing a final order in terms of Section 59-A
(3) of the Act is required to issue notice and give opportunity of hearing to
the parties concerned. Unless such a notice is issued, the confiscation
proceeding cannot be said to have started. Once, however, a confiscation
proceeding is initiated; in terms of Section 59-G of the Act, the jurisdiction
of the criminal court in this behalf stands excluded. The criminal court
although indisputably has the jurisdiction to deal with the property which is
the subject-matter of offence in terms of the provisions of the Code of
Criminal Procedure but once a confiscation proceeding is initiated, the said
power cannot be exercised by the Magistrate.
33. The High Court cannot, thus, in such a situation exercise its
jurisdiction under section 482 of the Code of Criminal Procedure. # The
said provisions reads thus:
"482. Saving of inherent power of High Court.-Nothing in this Code shall
be deemed to limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order this Code, or to prevent
abuse of the process of any Court of otherwise to secure the ends of
justice." *
34. 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 Code of Criminal
Procedure would mean 'a criminal court' 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's exercising its jurisdiction under Section 482 of
the Code of Criminal Procedure would not arise. #
35. The amendments carried out by the State of West Bengal by reason of
Sections 59-A to 59-G in the Indian Forests 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 the nature of such order having regard to the statutory scheme
must be held to a different. A proceeding for confiscation can be initiated
irrespective of the fact that as to whether prosecution for commission of a
forest offence has been lodged or not. A confiscation proceeding, therefore, is
independent of a criminal proceeding. We may also notice that the State has
been made liable to refund the amount which has been deposited pursuant to an
auction held in respect of the confiscation property only in the event the
order of confiscation is set aside or annulled under Section 59-A (4) (b)
thereof. No provision has been made in the statute unlike Section 6-C of the Essential 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.
36. This Court, in this case, is not concerned with the effect of acquittal
vis-a-vis 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
benefit of doubt or for certain reasons unrelated to the adjudication on merits
as for example dropping of the proceeding as the prosecution witnesses did not
turn up despite service of summons. #
37. This court in Sudhakar Rao (supra), we may not, however, approved the
decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen
vs. Forest Range Officer, Flying Squad, Rayachoti [ 1980 (1) ALT 8 )
stating :
"14. We find that a later Division Bench consisting of Kondaiah, C.J. and
Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti,
(1980) 1 Andh LT 8 approved of the view expressed by Jeewan Reddy, J. in P.K.
Mohammad's case, (supra), and held that the Act contemplates two procedures,
one for confiscation of goods forming he subject-matter of the offence by the
Authorized Officer under sub-s. (2A) of S. 44 of the Act, and the other for
trial of the person accused of the offence so committed under S. 20 or 29 of
the Act. The learned Judged held that the Act provides for a special machinery
for confiscation of illicitly felled timber or forest produce by the Authorized
Officer under Sub-s. (2A) of S. 44 enacted in the general public interest to
suppress the mischief of ruthless exploitation of Government forests by illicit
felling and removal of teak and other valuable forest produce. They further held
that merely because there was an acquittal of the accused in the trial before
the Magistrate due to paucity of evidence or otherwise did not necessarily
entail in nullifying the order of confiscation of the seized timber or forest
produce by the Authorized Officer under sub-s. (2A) of S. 44 of the Act based
on his satisfaction that a forest offence had been committed in respect
thereof. We affirm the view expressed by Jeewan Reddy, J. in P.K. Mohammad's
case and by Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen's case." *
38. In State of West Bengal vs. Gopal Sarkar [) 84
), this Court followed Sudhakar Rao (supra) and on construction of sub-section
(3) of Section 59-A held :
"On a fair reading of the provision it is clear that in a case where any
timber or other forest produce which is the property of the State Government is
produced under sub-section (1) and an Authorised Officer is satisfied that a
forest offence has been committed in respect of such property he may pass order
of confiscation of the said property (forest produce) together with all tools,
cattle used in committing the offence. The power of confiscation is
independent of any proceeding of prosecution for the forest offence
committed..." $ *
[Emphasis supplied]
39. Yet again, in State of Karnataka vs. K.A. Kunchindammed ), this
Court observed that even the expression 'sandalwood' as contained in the
Karnatak Forest Act, 1963 would include 'sandalwood oil'. This court in no
uncertain terms held :
"The Karnataka Forest Act is a special statute enacted for the propose of
preserving the forests and the forest produce in the State. The Scheme of the
Act, as expressed in the Sections, is to vest power in the authorised officers
of the Forest Department for proper implementation/enforcement of the statutory
provisions and for enabling them to take effective steps for preserving the
forests and forest produce. For this purpose certain powers including the power
of seizure, confiscation and forfeiture of the forest produce illegally removed
from the forests have been vested exclusively in them. The position is made
clear by the non-obstante clause in the relevant provisions giving overriding
effect to the provisions in the Act over other statutes and laws. The necessary
corollary of such provisions is that in a case where the authorised officer is
empowered to confiscate the seized forest produce on being satisfied that an
offence under the Act has been committed thereof the general power vested in
the Magistrate for dealing with interim custody/release of the seized materials
under the Cr. P.C. has to give way. The Magistrate while dealing with a case of
any seizure of forest produce under the Act should examine whether the power to
confiscate the seized forest produce is vested in the authorised officer under
the Act and if he finds that such power is vested in the authorised officer
then he has no power to pass an order dealing with interim custody/release of
the seized material. This, in our view, will help in proper implementation of
provisions of the special Act and will help in advancing the purpose and object
of the statute. if in such cases power to grant interim custody/release of the
seized forest produce is vested in the Magistrate then it will be defeating the
very scheme of the Act. Such a consequence is to be avoided. *
From the statutory provisions and the analysis made in the foregoing paragraphs
the position that emerges is that the learned Magistrate and the learned
Sessions Judge were right in holding that on facts and in the circumstances of
the case it is the authorised officer who is vested with the power to pass
order of interim custody of the vehicle and not the Magistrate. The High Court
was in error in taking a view to the contrary and in setting aside the orders
passed by the Magistrate and the Sessions Judge on that basis."
*
40. We may notice that despite the fact that under the Karnataka Act, the
criminal court is not denuded of its power to pass an order releasing the
property as would be evident in K.A. Kunchindammed (supra), this Court in
Section Forester and Anr. Vs. Mansur Ali Khan 2
], following the decision in State of Karnataka vs. K. Krishnan [JT 200 (9) SC
356], held :
"6. While in regard to the power of the High Court to release the vehicle
in a given set of facts cannot be disputed, this Court as noticed by the High
Court itself has laid down that such power can be exercised for good reasons
and in exceptional cases only. In the instant case, the only reason given by
the High Court for the release of the vehicle is on the ground that same was in
the custody of the officers for more than one year and there was no likelihood
of immediate disposal of the pending case. This by itself, in our opinion would
not be a ground for the release of the vehicle because this would be the case
in almost all such cases involving forest offence. In exceptional cases the Act
itself has made a provision for interim release of the vehicle on the existence
of certain conditions mentioned therein. In the absence of such conditions
being fulfilled, we do not think that the High Court as a matter of course
could pass mechanical orders releasing such vehicles.
7. Taking into consideration the object of the Forest Act and other relevant
considerations, this Court in the above said case of State of Karnataka v. K.
Krishnan (supra) while allowing the said appeal held : *
"The courts cannot shut their eyes and ignore their obligations indicated
in the Act enacted for the purpose of protecting and safeguarding both the
forests and their produce. The forests are not only the natural wealth of the
country but also protector of human life by providing a 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 culmination of all the proceedings
in respect of such offence, including confiscatory proceedings, if any.
Nonetheless, if for any exceptional reasons a court is inclined to release the
vehicle during such pendency, furnishing a bank guarantee should be the minimum
condition. No party shall be under the impression that release of vehicle would
be possible on easier terms, when such vehicle is alleged to have been involved
in commission of a forest offence. Any such easy release would tempt the forest
offenders to repeat commission of such offences. It casualty will be the
forests as the same cannot be replenished for years to come."
8. From the above dictum of this Court, we find when a vehicle is involved in a
forest offence the same is not to be released to the offender or the claimant
as a matter of routine till the culmination of the proceedings which may
include confiscation of such vehicle."
*
41. In Shambhu Dayal Agarwala vs. State of West Bengal and Another [ ],
this Court interpreting sub-section (2) of Section 6A of the Essential
Commodities Act vis-a-vis Section 6E thereof, held that there could be no
question of releasing the commodity in the sense of returning it to the owner
or person from whom it was seized even before the proceeding for confiscation
stood completed and before the termination of the prosecution in the acquittal
of the offender. This Court observed that such a view would render clause (b) of
Section 7(1) totally nugatory. it was opined :
"... It seems to us that Section 6-E is intended to serve a dual purpose,
namely (i) to prevent interference by courts, etc., and (ii) to effectuate the
sale of the essential commodity under sub-section (2) and the return of the
animal, vehicle, etc., under the second proviso to sub-section (1) of Section
6-A. In that sense Section 6-E is complementary in nature..."
*
[See also Deputy Commissioner, Dakshina Kannada District vs. Rudolph Fernandes
- (200) 3 SCC 306 ].
42. In view of the aforementioned binding precedents, we are of the opinion
that the High Court exceeded its jurisdiction in releasing the vehicles in
exercise of its jurisdiction under Section 482 of the Code of Criminal
Procedure.
43. In view of our findings aforementioned, the contention of the learned
counsel that this Court may not exercise its jurisdiction under Article 136 of
the Constitution of India having regard to the purported findings of the
criminal court, will have to be judged. As indicated hereinbefore, their exists
a distinction between confiscation and conviction.
44. A confiscation envisages a civil liability whereas an order of forfeiture
of the forest-produce must be preceded by a a judgment of conviction. Although
indisputably having regard to the phraseology used in sub-section (2) of
Section 59-A, there cannot be any doubt whatsoever that commission of a forest
offence is one of the requisite ingredients for passing an order of
confiscation; but the question as to whether the order of acquittal has been
passed on that ground and what weight should be attached thereto is a matter
which, in our opinion, should not be gone into at this stage.
45. So far as the submission of Mr. Ghosh in Criminal Appeal No. 453 of 1997 is
concerned, it appears, the District Judge while exercising his appellate power
had set aside the order of confiscation on the ground that the notice issued to
the respondent herein was invalid in law, leaving at the same time and
directing also the Authorized Officer and Divisional Forest Officer West
Midnapore Division to decide the matter afresh in accordance with law.
Consequently, the right of the Authorized Officer is not foreclosed to claim
for the respondent that no action can be taken further in this regard.
46. Yet again a valid proceeding for confiscation of the vehicle can be
initiated only upon issuance of a proper notice and whereafter an order of
confiscation can be passed in accordance with law.
47. The upshot of our aforementioned discussion is that once a confiscation
proceeding is initiated the jurisdiction of the criminal court in terms of
Section 59-G of the Act being barred, the High Court also cannot exercise its
jurisdiction under Section 482 of the Code of Criminal Procedure for interim
release of the property. The High Court can exercise such a power only in
exercise of its power of judicial review.
48. For the foregoing reasons, the impugned judgment cannot be sustained which
is set aside accordingly. It, however, goes without saying that it will be open
to the parties to take such objections in the proceedings relating to
confiscation as are permissible in law. These appeals are allowed. #