The State Of Bihar, through Divisional Forest Officer-Cum-Dy. Director, Valmiki Tiger Project v. Sekhawat Ali

affirmed the order dated 23.12.2002 passed by the Additional Chief Judicial Magistrate, Bagaha for release of the tractor along with harrow as there was no dispute on the ownership of the tractor and on the ground that there was no confiscation proceeding was pending. This order was Patna High Court Cr.Misc. No.13689 of 2011 (7) dt.11-01-2013 2 challenged before the revisional court and the revisional court by the impugned order refused to interfere with the matter.

3. It appears from the record that the tractor of opposite party was seized by the Forest Authority on the ground of committing offence under the Forest Act within the forest area. Then tractor was seized but the accused fled away from the place of occurrence. An application for release of the tractor was filed but it appears from the record that Forester, namely, Janardan Singh vide his letter dated 23.7.2002 informed the Additional Chief Judicial Magistrate that the department had already initiated a confiscation proceeding in connection with the seized tractor vide Confiscation case No.32 of 2002.

4. Though typed copy of the letter dated 23.7.2002 has been annexed to this petition but learned counsel for the petitioner has produced the photocopy of the said letter and pointed out that there was endorsement of Additional Chief Judicial Magistrate with words “Seen dated 23.7.2002 at 2.30 P.M”. Learned counsel for the petitioner pointed out that in view of the endorsement by the Additional Chief Judicial Magistrate, Bagaha he has wrongly recorded that no Patna High Court Cr.Misc. No.13689 of 2011 (7) dt.11-01-2013 3 confiscation regarding the tractor was pending. He further submits that it is an error of record. The fact is that on the day of passing the order for release, the confiscation proceeding was already initiated by the concerned authority. He has relied on Section 52C of Indian Forest Act, 1927 State Amendments (Bihar Act 9 of 1990) which has been added by the Local Act debars the Judicial Magistrate to entertain application for release of tractor under the Code of Criminal Procedure in the event of commencement of confiscation proceeding. He also relied on the judgment of this Court in the case of Mohammad Akhtar Vs. The State of Bihar, reported in 1996(1) PLJR 77.

5. Learned counsel for opposite party submits that authorities concerned did not bring to the notice of the Chief Judicial Magistrate about pendency of confiscation proceeding before the authority concerned and as such the contention about pendency of confiscation proceeding should be rejected.

6. Having considered the rival contentions of learned counsel for the parties, on perusal of Annexure-B along with photocopy that has been placed before this Court it appears that there is endorsement of the Additional Chief judicial Magistrate where words “Seen” has been endorsed and date Patna High Court Cr.Misc. No.13689 of 2011 (7) dt.11-01-2013 4 and time has been mentioned. According to the endorsement this letter was produced before the Additional Chief Judicial Magistrate on 23.7.2002 where as the order has been passed on 23.12.2002, it will be presumed, he was well known about the pendency of the confiscation proceeding. Section 52-C of Act runs as follows: “52-C. Bar of jurisdiction of Courts etc. in certain circumstances, - (1) On receipt of intimation under sub-section (4) of section 52 about initiation of proceeding for confiscation of property by the magistrate having jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court or Tribunal (other than the authorized officer. Appellate Authority and Revisional Authority referred to in section 52, 52A and 52B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation or any other law for the time being in force.”

7. Section 52-C of the Act provides that when the confiscation proceeding is initiated in that circumstances the regular court under the Code of Criminal Procedure is debarred from exercising the power to release the seized vehicle or good under the Code of Criminal Procedure. This Court in the Mohammad Akhtar (supra) has specifically held, once confiscation proceeding started the Magistrate Patna High Court Cr.Misc. No.13689 of 2011 (7) dt.11-01-2013 5 would be ceased as per the Local Act to entertain any application for release of the goods which was seized by the Forester in connection with violation of the Act in forest area. It will be relevant to quote paragraph 41 of the aforesaid judgment: is held “41. Once that provision of confiscation as contained under section 52 of the Forest Act as amended by the State Amendment is applicable for confiscation to Katha and Khair wood and the vehicles used for transporting the same in contravention of the provisions of the Forest Act then in view of the provision of section 52C of the Indian Forest Act as amended by Bihar Amendment Act the jurisdiction of the criminal Court to release the vehicle during the pendency of the confiscation proceeding is barred provided other requirement of said section is fulfilled . learned In Magistrates application filed by the petitioners for release of the vehicles on the ground that once the confiscation proceedings have been initiated they have no power to release the same.” that view of the matter, rightly rejected

8. In this view of the matter, this Court feels that the court below has wrongly exercised the power in release of the vehicle i.e. tractor by the impugned order and accordingly the order dated19.6.2009 passed by the sessions court in Cr. Revision No. 33 of 2003 and the order dated 23.12.2002 passed by the Additional Chief judicial Magistrate are Patna High Court Cr.Misc. No.13689 of 2011 (7) dt.11-01-2013 6 quashed.

9. Accordingly this application is allowed. It is made clear that if the authority has already released the vehicle then they will have liberty to take action in accordance with law. Vinay/- (Shivaji Pandey, J)