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TMI Blog2019 (3) TMI 1944X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property Under Sub-section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. The order of confiscation Under Section 52(3) is subject to an appeal Under Section 52-A and a revision Under Section 52-B. Sub-section (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the Code of Criminal Procedure and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate Under Sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (Under Sections 52, 52A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al arises from a judgment of a learned Single Judge of the High Court of Madhya Pradesh at its Gwalior Bench dated 29 July 2011. Allowing a petition Under Section 482 of the Code of Criminal Procedure 19731, the High Court set aside a revisional order dated 16 June 2011 of the Additional Sessions Judge, Morena. The Additional Sessions Judge had confirmed an order of the Judicial Magistrate First Class2, Ambah dismissing an application Under Section 451 of the Code of Criminal Procedure seeking the release of a tractor and trolley which had been seized for being involved in the illegal excavation of sand from the Chambal river. 3. On 26 March 2011, the Forest Officer apprehended a tractor and trolley belonging to the Respondent alleged to have been carrying sand illegally excavated from a restricted area of Dalijeet Pura Ghat at the National Sanctuary, Chambal without permission and in the absence of a transit pass. The tractor and trolley was seized together with the sand by the officers of the Forest Department Under Sections 41, 52 and 52-A of the Indian Forest Act, 19273 and Sections 27, 29, 39(1)(d), 51 and 52 of the Wildlife Protection Act, 1972. Intimation of the seizure was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that: (i) Section 52 of the Forest Act provides that when a forest offence has been committed in respect of any forest produce, the produce together with all tools, boats, vehicles, ropes, chains or any other Article used in committing the offence may be seized by any Forest Officer. Section 52(3) provides that subject to Sub-section (5), where the Authorised Officer, upon production before him of property seized or upon receipt of a report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may order in writing, for reasons to be recorded, the confiscation of the forest produce so seized together with all tools, vehicles, boats, chains or any other Article used in committing the offence; (ii) For the State of Madhya Pradesh, MP Act 25 of 1983 substituted the original provisions of Section 52 of the Forest Act, with certain conditions. Sub-section (3) of Section 52 as enacted by MP Act 25 of 1983, empowers the Authorised Officer to make an order in writing with reasons confiscating the forest produce so seized along with the tools, vehicles or any other Article used in committing the offence. Similarly, for the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal trial under the Code of Criminal Procedure. In this context, it was urged that: (i) Under Section 52(2), where the intention is to launch criminal proceeding, the report is to be sent only to the Magistrate having jurisdiction to try the offence and not the Authorised Officer. The expression "officer seizing the property" needs to be distinguished from the expression "authorised officer under the Act"; (ii) The said Authorised Officer can proceed to satisfy herself whether a forest offence has been committed or not Under Section 52(3), only if the seized property is produced before the Authorised Officer. If Under Section 52(2), the report of the seizure has been sent to the Magistrate, the Authorised Officer cannot decide upon the commission of a forest offence, as the report of seizure is not before the Authorised Officer; (iii) Since Authorised Officers cannot apply themselves to whether the seizure was valid, the circumstance of the Authorised Officer passing an order of confiscation does not arise at all. It follows that the intimation Under Section 52(4) cannot be given when there is no confiscation; (iv) The bar on jurisdiction Under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before him of property seized or 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 of confiscation shall be forwarded without any undue delay to the Conservators of Forests of the forest circle in which the timber or the 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 authorized 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 seized, and to any other person who may appear to the authorized 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 reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property seized or on the receipt of a report about the seizure, order the forest produce so seized, together with all tools, vehicles, boats or Article used in the commission of the offence to be confiscated. No order of confiscation can be made unless the conditions mentioned Under Sub-section (4) are complied with. Those conditions are: (i) The Forest Officer must send an intimation in the form prescribed about the initiation of proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence; (ii) The issuance of a notice to the person from whom the property has been seized or any other person who appears to have an interest in the property; (iii) Affording a reasonable opportunity of making a representation against the proposed confiscation; and (iv) Furnishing of an opportunity of being heard to the officer effecting the seizure and to the person to whom a notice has been given. Sub-section (5) provides that no order for confiscation can be passed if the person to whom a notice has been issued under Clause (b) of Sub-section (4) proves that the tools, vehicles, boats or Article were used without her knowledge or connivance and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xities involved, may permit parties to the appeal to be represented by their respective legal practitioners. (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 order of the authorised 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 arise 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 or of order of consequential nature, shall be sent to the Authorised Officer for compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is subject matter of confiscation, has been made, no Court, Tribunal or Authority (other than the authorised officer, Appellate Authority and Court of Sessions referred to in Sections 52, 52-A and 52-B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated Under Section 52, notwithstanding anything contrary 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 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 saved Under Section 61. Section 53 deals with the power to release property which is seized Under Section 52: 53. Power to release property seized Under Section 52.- Any Forest-officer of a rank not inferior to that of a Ranger, who, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided 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 another Court having jurisdiction to try the offence on account of which the seizure of property has been made. This proviso is significant, because before passing any order for disposal of the property, the Magistrate must be satisfied that no intimation has been received Under Section 52(4). 13. Section 55 provides that upon the conviction of the offender for a forest offence, the forest produce together with tools, boats, vehicles and other articles used for its commission shall be liable to confiscation, subject to the provisions of Sections 52, 52-A, 52-B and 52-C: 55. Forest-produce, tools, etc., when liable to confiscation.- (1) All timber or forest produce which in either case is not the property of the Government and in respect of which a forest-offence has been committed, and all tools, boats, vehicles, ropes, chains or any other article, in each case used in committing any forest-offence, shall subject to provisions of Sections 52, 52-A, 52-B and 52-C, be liable to confiscation u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have taken recourse to Section 482 of the Code of Criminal Procedure to stay proceedings for the confiscation of illicitly felled forest produce which was seized under the Andhra Pradesh Forest Act, 1967 till the disposal of a criminal case pending before the Metropolitan Magistrate, for offences under the Act. This Court upheld the correctness of the view of a Single Judge of the Andhra Pradesh High Court in State of A.P. v. P.K. Mohammad (1978) 1 APLJ 391 and of a Division Bench in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti (1980) 1 ALT 8 that the Andhra Pradesh Forest Act, 1967 contemplated two procedures, one for the confiscation of the goods forming the subject matter of the offence by an Authorised Officer Under Section 44 (2A)9 and the other for the trial of a person Accused of the offence so committed Under Section 20 or 2910. Explaining the purpose of the legislation, this Court noted with approval the view of the High Court in the above cases that the provision for confiscation by an Authorised Officer had been enacted in public interest to suppress an evil which the legislature wishes to avoid: 14. We find that a later division bench consistin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of the Act, as expressed in the sections, is to vest power in the Authorized 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 Authorized 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 Code of Criminal Procedure 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 Authorized Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for confiscation of forest produce. 22. In 2017, a similar view has been taken by another two judge Bench of this Court in Kallo Bai (supra) while construing the provisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969. By virtue of the amendments made to the Adhiniyam, Sections 15-A to 15-D14 were introduced to provide for confiscation proceedings in line with the provisions contained in the Forest Act as amended in relation to the State of Madhya Pradesh. Relying on the earlier decisions of this Court including GV Sudhakar Rao (supra), Justice NV Ramana, speaking for the two judge Bench held: 23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure. The decision in Madhukar Rao involved legislation which had provisions distinct from the special provisions contained in the state amendment to the Forest Act enacted in relation to Madhya Pradesh. Indeed, the Court noted the distinction when it dealt with the earlier decision in Kunchindammed which arose in the context of the Karnataka Forest Act 1963. 24. In Kailash Chand v. State of M.P. (1995) AIR (MP) 1, a Division Bench of the Madhya Pradesh High Court considered a challenge to the constitutional validity of the state amendments to the Forest Act through MP Act 25 of 1983. Noticing that a criminal prosecution and a proceeding for confiscation are distinct, each with its own purpose and object, the High Court held: ...Criminal prosecution is not an alternative to confiscation proceedings. The two proceedings are parallel proceedings, each having a distinct purpose and object. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence. The object of the prosecution is to punish the offender.... Explaining the underlying purpose and object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 52-B. Sub-section (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the Code of Criminal Procedure and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate Under Sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (Under Sections 52, 52A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized Under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered today in Criminal Appeal @ Special Leave Petition (Crl.) No. 2001 of 2012, the judgment and order of the High Court dated 7 July 2011 in MCRC No. 1818 of 2009 shall stand set aside and the appeal is accordingly allowed. Criminal Appeal No. 1364 of 2012: 30. For the reasons which have been indicated in the judgment delivered in Criminal Appeal @ Special Leave Petition (Crl.) No. 2001 of 2012, the judgment and order of the High Court dated 7 July 2011 in MCRC No. 2634 of 2009 shall stand set aside and the appeal is accordingly allowed. Criminal Appeal Nos. 1362-63 of 2012: 31. For the reasons which have been indicated in the judgment delivered today in Criminal Appeal @ Special Leave Petition (Crl.) No. 2001 of 2012, the judgments and orders of the High Court dated 7 July 2011 and 21 September 2011 in MCRC No. 1751 of 2009 and MCRC No. 5673 of 2011 shall stand set aside and the appeals are accordingly allowed. Note: 1"CrPC" 2"JMFC" 3"Indian Forest Act" 4Application No. 9661 of 2009 5"Section 451 - Order for custody and disposal of property pending trial in certain cases. -- When any property is produced before any Criminal Court duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Under Section 71-D shall have and, 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, any other officer, court, tribunal or authority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property." 13"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 with 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 the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try the offence on account of which the seizure of property has been made. Explanation.--Where under any law for the time being in force, two or more Courts have jurisdiction to try offence under this Act, then receipt of intimation Under Sub-section (5) of Section 15 by one of the Courts of Magistrate having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts. (2) Nothing hereinbefore contained shall be deemed to prevent any officer authorised in this behalf by the State Government from directing at any time the immediate release of any property seized Under Section 15." Section 15-D provides for confiscation of property when the produce is not the property of Government. 15"Section 50 - Power of entry, search, arrest and detention.- (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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