ILLIYASKHAN FAIZMOHMMAD NAGORI.... v. STATE OF GUJARAT

Judgment

1. In present application under Section 482 of Criminal Procedure Code and Article 227 of the Constitution of India, the applicant has prayed, inter-alia, that: “17(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside order dated 15.10.2011 passed in Muddammal Application No.68 of 2011 by learned Magistrate, First Class, Amir Gadh (at ANNEXURE-F hereto) as well as order dated 23.05.2011 passed in Criminal Revision Application No.57 of 2011 by learned Additional Sessions Judge, Banaskantha in Revision Application No.57 of 2011 (at ANNEXURE-G hereto); 17(B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside condition No.8 imposed while passing order dated 16.05.2012 by respondent No.2 (at ANNEXURE-H hereto);

2. The applicant is aggrieved by order dated

23.5.2012 passed by learned Additional Sessions Judge, Banaskantha in Revision Application No.57 of 2011.

The applicant is also aggrieved by order dated

15.10.2011 passed in Muddamal Application No.68 of 2011 and by Condition No.8 imposed vide order dated

16.5.2012.

4. It emerges from the record that offence is also registered (and numbered as Manpuria Round C.R. No.4/2011) against the applicant under Section 61-A of Indian Forest Act, 1927 (hereinafter referred to as ‘the Act’) and the vehicle allegedly involved in the alleged offence is seized under a seizure panchnama R/SCR.A/2713/2012 CAV JUDGEMNT dated 26.7.2011.

4.1 According to the applicant, a false FIR being I CR No.43/2011 is registered with Amirgadh Police Station, alleging commission of offence punishable under Sections 504, 506(2) of Indian Penal Code and Section 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The Forest Officer is beat guard, i.e. Government employee.

4.2 It further appears that on or around

3.8.2011, the applicant submitted an application to respondent No.2 asking him to return the vehicle and the telephone instrument which, according to the applicant, was illegally seized. It also emerges from the record that respondent No.2 issued two notices dated 27.12.2011 and 21.1.2012 under section 61-A of Forest Act asking the applicant to show cause as to why the vehicle in question should not be confiscated. The said notices ware replied by the applicant vide his letter dated 4.2.2012. Subsequently, the applicant moved Muddamal Application No.68 of 2011 under Section 451 of the Code before the learned Judicial Magistrate (First Class), which came to be rejected vide order dated 15.10.2011 in light of the provisions under Sections 52, 61-A(2) and 61-G of Indian Forest Act, 1927, according to which the jurisdiction to return custody of the property/vehicle seized for an offence under the Act is not with learned Magistrate under Section 451 of the Code, but R/SCR.A/2713/2012 CAV JUDGEMNT the authority is conferred on the competent authority under the Act.

4.3 The said order dated 15.10.2011 was carried further by the applicant in Revision Application No.57 of 2011, which also came to be rejected vide order dated 23.5.2012. The applicant has challenged the said two orders in present application.

5. What is more relevant is the fact that in the meantime, respondent No.2 being the competent authority under Forest Act decided the application, which was submitted by the applicant for releasing the vehicle in question, and vide his order dated

16.5.2012, the respondent No.2 has already passed an order, pending the confiscation proceedings under provisions of the Indian Forest Act, releasing the vehicle in question subject to certain conditions mentioned in the said order.

6. The applicant is aggrieved by Condition No.8 of the said order, which requires the applicant to take permission from the Court.

6.1 So far as the applicant’s grievance against the said condition No.6 is concerned, the applicant has made grievance against the said condition so far as it requires the applicant to seek permission from the learned trial Court. The grievance and challenge raised by the applicant are to be found in paragraphs 12(E) and 12(G), which read thus: R/SCR.A/2713/2012 CAV JUDGEMNT “(E) Without prejudice to the aforesaid grounds, that respondent No.2 ought not to have imposed condition that the jeep in question shall be released only after getting permission from the Hon’ble Court since, there is no such r3quirement under the law to get such a permission. (G) That even as per the provisions of the Wildlife Protection Act, 1972 and the Indian Forest Act, 1927 there is no such requirement of getting permission from the competent court as is stipulated in the aforesaid condition.”

7. Mr. Majmudar, learned counsel has appeared for the applicant and submitted that the impugned orders passed by the learned Magistrate and Revisional Court are erroneous, unjustified and contrary to provisions under Indian Forest Act and Section 451 of the Code. He also contended that the vehicle in question cannot be said to have been seized under Section 52(1) of the Indian Forest Act and that, therefore, bar under Section 61-G would also not operate. He also submitted that the learned Magistrate ought to have released the vehicle under Section 451 of the Code. Lastly, he submitted that the condition to seek permission from the Court which is imposed in impugned order dated

16.5.2012, is unjustified, arbitrary and contrary to the provisions under the Indian Forest Act.

8. So as to appreciate the contentions raised by the applicant, it is relevant and necessary to take into account the provisions under Sections 52(1), 53, 61-A and 61-G of the Indian Forest Act and Section 451 of the Code. The said provisions read thus: The Indian Forest Act, 1927 “52. Seizure of property liable to confiscation – (1) R/SCR.A/2713/2012 CAV JUDGEMNT When there is reason to believe that a forest-offence has been committed in respect of any forest produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer. Every officer seizing any property under this (2) section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction try the offence on account of which the seizure has been made. Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. After sub-S (1), insert the following sub-section, [Gujarat]. – In its application to the State of Gujarat, – (1) for the word “carts” wherever it occurs, substitute “vehicles”. – Gujarat Act 15 of 1960, S.3, 4(2) (w.e.f. 8.12.1960). (2) namely – “(1-A) Any Forest Officer or Police may, if he has reason to believe that a vehicle has been or is being used for transport of forest-produce in respect of which there is reason to believe that a forest-offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle and inspection of all records relating to the forest-produce and in possession of such driver or other person in charge of the vehicle or any other person in the vehicle”; (3) In sub-S.(2), for the words “make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made”, substitute – “make a report of such seizure -- (a) where the offence on account of which the seizure has been made is in respect of the forest-produce which is the property of the State Government or in respect of which the State Government has any interest, to the concerned authorized officer under section 61-A, and (b) in other cases, to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made”. – Gujarat Act 19 of 1983, S. 2 (w.e.f. 24.5.1983).” Power to release property seized under section 52. – “53. Any Forest Officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, carts or cattle under section 52, may release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been R/SCR.A/2713/2012 CAV JUDGEMNT made.” “54. Procedure thereupon. – Upon the receipt of any such report, the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.” (omitted in Gujarat State vide Gujarat Act 19 of 1983, sec. 4 (w.e.f. 24.5.1983) Where an authorised officer seizes under sub- “61A. Confiscation by Forest-officer in certain cases. – (1) Notwithstanding anything contained in the foregoing provisions of this Chapter or any other law for the time being in force, where a forest-offence is believed to have been committed in respect of forest-produce which is the property of the State 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 State Government in this behalf, by notification in the Official Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the “authorised officer”). (2) section (1) of section 52, any forest-produce which is the property of the State Government or any such property is produced before the authorised officer under sub- section (1) and he is satisfied that a forest-offence has been committed in respect of such property such authorised officer may, whether or not a prosecution is instituted for the commission of such forest-offence, order confiscation of the property together with all tools, ropes, chains, boats, vehicles, carts, cattle used in committing such offence. (3) (a) Where the authorised officer, after passing an order of confiscation under sub-section (2), is of the opinion that it is expedient in the public interest so to do, he may, order the confiscated property or any part thereof to be sold by public auction. (b) Where any confiscated property is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under section 61A is set aside or annulled by an order under section 61C or 61D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.” “61C. Revision. – Any Forest-officer not below the rank of Conservator of Forests, especially empowered by the State Government in this behalf, by notification in the Official Gazette, may, before the expiry of thirty days from the date of order of the authorised officer under section 61A, su motu call for and examine the records of that order and may make such enquiry or cause such enquiry to be made and may pass such orders as he deems fit: Provided that no order prejudicial to a person shall be passed under this section without giving him an opportunity of being heard.” R/SCR.A/2713/2012 CAV JUDGEMNT “61G. Bar of jurisdiction in certain cases. – Whenever any forest-produce belonging to the State Government or any tool, rope, chain, boat, vehicle or cattle used in committing any offences is seized under sub-section (1) of section 52, the authorised officer under section 61A or the officer specially empowered under section 61C or the Sessions Judge hearing an appeal under section 61D shall have and, notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 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 custody, possession, delivery, disposal or distribution of such property.” The Code of Criminal Procedure, 1973 “451. Order for custody and disposal of property pending trial in certain cases. – When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation. – For the purposes of this section, “property” includes – (a) before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.” property of any kind or document which is produced

9. In light of the nature and scope of the application and the challenge raised in present application and in view of the fact that the proceedings related to the alleged offence are pending before the learned Magistrate, it is neither necessary nor proper to consider and/or discuss the issue as to whether alleged offence can be said to have been committed or not and/or whether the vehicle in question can be said to have been involved in the alleged offence or not and/or whether the proceedings against the applicant are sustainable or not.

10. The limited issue in present application is about releasing the property/vehicle (seized by the R/SCR.A/2713/2012 CAV JUDGEMNT authorised officer under the provisions of the Indian Forest Act) when confiscation proceedings of the said vehicle are pending before the competent authority.

11. The learned Magistrate has considered the application submitted by the applicant under Section 451 of the Code for releasing the vehicle in question/returning the muddamal pending the proceedings in light of aforesaid provisions under the Indian Forest Act and Section 451 of the Code as well as the authorities relied on by the concerned parties and rejected the application vide order dated

15.10.2011 holding, inter-alia, that the Court of Magistrate does not have jurisdiction to release the vehicle in question while proceedings for confiscation are pending before the competent authority.

11.1 The Revisional Court has, after hearing the parties and upon considering relevant provisions, refused to interfere with the order passed by the learned Magistrate and has confirmed the learned Magistrate’s order vide his order dated 23.5.2012.

11.2 In this view of the matter, it is necessary to consider the provisions under Section 52 and Section 53 of Indian Forest Act.

11.3 According to Section 52 of the Indian Forest Act, the authority under the Indian Forest Act is empowered to seize the property liable for confiscation and the power to release the property R/SCR.A/2713/2012 CAV JUDGEMNT seized under Section 52 Indian Forest Act is conferred by Section 53 of the Indian Forest Act on the authority specified under Section 53 of the Indian Forest Act. Section 61-G of the Indian Forest Act bars jurisdiction of any Court or Tribunal to pass any order with regard to custody, possession, delivery, disposal or distribution of any tool, rope, chain, boat, vehicle or cattle used in committing any offence which is seized under Section 52(1) of the Act.

11.4 Thus, on conjoint reading of section 53 and section 61G, it emerges that any authority or Court or Tribunal other than the competent authority under section 53 has no jurisdiction or authority to pass any order with regard to custody, delivery, possession, etc. of property/vehicle seized under section 52 of the Act.

11.5 When the material available on record of present application is examined in light of the contentions raised by the applicant, it emerges that seizure of the vehicle is effected by the authorized officer under the provisions of Indian Forest Act, 1927 and not by police authority.

11.6 It also emerges from the record that seizure panchnama was drawn on 26.7.2011.

11.7 Thereafter notice dated 27.12.2011 was issued under section 61A by the competent authority, which was followed by another notice dated 21.1.2012 R/SCR.A/2713/2012 CAV JUDGEMNT which also was issued under section 61A of the Act.

11.8 Under the said notices, the applicant was offered an opportunity to appear before the competent authority and submit his reply/explanation as to why the vehicle should not be confiscated since it was allegedly used/involved in alleged commission of offence under the Forest Act.

11.9 Accordingly, confiscation proceedings in accordance with the provisions of Indian Forest Act have been commenced and the said proceedings are pending.

11.10 It also emerges from the record that the applicant submitted his reply dated 4.2.2012 in response to the said notices. In this view of the matter and particularly in light of the fact that seizure panchnama was drawn by the authorized officer at the time when the vehicle was seized, the contention that the seizure was not effected in manner prescribed under the Act, prima facie does not appear to be acceptable at this stage of the pending proceedings – including the confiscation proceedings.

12. This Court would refrain from recording final conclusion in respect of the said and such other contention in view of the limited scope of present application and also for the reason that any observation or conclusion may not affect or influence the proceedings before the learned trial Court or R/SCR.A/2713/2012 CAV JUDGEMNT before the competent authority.

13. The fact remains that vehicle in question has been seized by the authorized officer under the Act and that the seizure of the vehicle has been made in connection with alleged commission of offence under the Act, wherein vehicle in question was allegedly used/involved and the fact also remains that seizure panchnama was drawn by the authorized officer under the Act and not by police authority and subsequently the competent authority has commenced proceedings for confiscation of the said vehicle under the Act and in accordance with the provisions of the Act. As of now, the confiscation proceedings, even as per the applicant’s submissions, are pending.

14. Under the circumstances, the applicant’s contention that seizure has not been effected in accordance with provisions under the Act, particularly the provision under section 52 of the Act, cannot be accepted at this stage.

15. When a property/vehicle is seized by the authorized officer for alleged commission of offence under the provisions of the Act, then the provisions under section 61 would be attracted and would be applicable and when the alleged commission of offence is an offence under the Act and actions in connection with such alleged offence are commenced under and in accordance with the provisions of the Act and when the procedure for confiscation of the property/vehicle R/SCR.A/2713/2012 CAV JUDGEMNT allegedly involved in the offence are pending, then in light of the provisions contained under section 61G read with sections 53 and 54 of the Act, any authority or Court or Tribunal, other than the competent authority constituted under the Act would not have jurisdiction to pass any order with regard to possession, custody or delivery, etc. of such property/vehicle and consequently, the power under section 451 of the Act would not be available to pass any order in connection with such property/vehicle in respect of which seizure order has been passed and confiscation proceedings are pending in accordance with the provisions of the Act and the learned trial Court would not be justified or competent to pass order under section 451 of the Code in such cases, i.e. when confiscation proceedings under and as per the provision under the Act are pending.

15.1 Consequently, the authority to release the vehicle would rest only with the competent authority under section 53 read with sections 61A and 61G of the Forest Act or with the officer specially empowered under section 61C or the Sessions Judge hearing an appeal under section 61D and any other officer or court or tribunal shall not have jurisdiction to make any order with regard to the custody, possession, delivery, disposal or distribution of such property/vehicle.

15.2 In light of the provisions under the Act, it becomes clear that when there is substantial R/SCR.A/2713/2012 CAV JUDGEMNT compliance, then even if it is presumed that there is some irregularity in following prescribed procedure then also mere irregularity in causing seizure of or in following the procedure prescribed for seizure of, the property/vehicle used in commission of offence under the Forest Act would not oust the jurisdiction of the competent authority to pass order under section 53 read with sections 61A, 61C and 61G of the Act and it will not confer jurisdiction on any other authority to pass order with regard to property/vehicle in custody for alleged commission of offence under the Act.

16. In present case, it is pertinent that the competent authority under section 61 read with section 53 of the Act has already passed an order dated

16.5.2012 in favour of the applicant and has directed release of the seized property/vehicle as per the terms mentioned in the said release order dated

16.5.2012.

16.1 In view of the said order dated 16.5.2012, the other contentions would now not survive and would pale into insignificance in the facts of present case.

17. However, the applicant has, in present application, now raised an objection against condition No.8 mentioned by the competent authority in the said order dated 16.5.2012. So far as the applicant’s grievance against condition No.8 prescribed by the competent authority vide order dated 16.5.2012 is R/SCR.A/2713/2012 CAV JUDGEMNT concerned, the applicant is aggrieved by, and has raised challenge only against or only with regard to the direction asking the applicant to seek permission from the learned trial Court. This aspect becomes clear from the applicant’s submissions and contentions in paragraphs 12(E) and 12(G), wherein the applicant has contended that: “(E) Without prejudice to the aforesaid grounds, that respondent No.2 ought not to have imposed condition that the jeep in question shall be released only after getting permission from the Hon’ble Court since, there is no such r3quirement under the law to get such a permission. (G) That even as per the provisions of the Wildlife Protection Act, 1972 and the Indian Forest Act, 1927 there is no such requirement of getting permission from the competent court as is stipulated in the aforesaid condition.”

17.1 Now so far as the order dated 16.5.2012 and the condition No.8 are concerned, the order passed by the competent authority is passed in exercise of power under section 53 of the Act and the said order cannot be said to be an order passed under provisions of the Code of Criminal Procedure and/or cannot be said to be an order passed by a court or authority acting in exercise of powers under the Code and that, therefore, such order cannot be subjected to, and cannot be set aside in exercise of, power under section 482 of the Code.

17.2 The power under section 482 of the Code would not be available, and cannot be exercised, to interfere with and to set aside an order passed in exercise of the provision (i.e. section 61 read with sections 52 and 53) of the Act. R/SCR.A/2713/2012 CAV JUDGEMNT

17.3 The said order dated 16.5.2012 being an order passed by the competent authority under section 53 read with section 61 in exercise of authority and power conferred by section 53 read with sections 61A and 61G of Indian Forest Act does not warrant interference by the Court in exercise of power under section 482 of the Code, when order is not passed under any provision of, and in exercise of power conferred by, Criminal Procedure Code, then such order and exercise of power under said provisions of Indian Forest Act cannot be interfered with by the Court in exercise of power under section 482 of the Code of Criminal Procedure.

17.4 Therefore, the Court is not inclined to accept this application under section 482 of the Code and interfere with the order dated 16.5.2012 passed by the competent authority appointed under Forest Act in exercise of power conferred on it by section 53 read with section 61 of the Act.

18. The applicant would contend that the authority who passed the order dated 16.5.2012, is the competent authority as per the provisions contained under section 61G of the Act and that, therefore, it has full authority and power to direct release of the vehicle hence such order need not be made subject to permission by the learned trial Court.

18.1 Ordinarily, such contention might be R/SCR.A/2713/2012 CAV JUDGEMNT justified necessary in present case, it is relevant and appropriate to note and take into consideration the fact that after the seizure panchnama was drawn on

26.7.2011, notices under section 61A were issued, it is the applicant who, even before submitting his reply dated 4.2.2012 submitted an application under section 451 of Criminal Procedure Code, before the learned Judicial Magistrate (First Class) and requested for order to release the vehicle.

19. Since the applicant had already approached the learned Court, the competent authority seems to have considered it appropriate to ask the applicant to also seek permission from the learned Court.

20. In that view of the matter and having regard to the fact that there is no dispute about the fact that (a) the said order has been passed by the competent authority and (b) there is no dispute about the fact that the said order dated 16.5.2012 has been passed (by the competent authority) in exercise of power conferred by the Act and not under any provision of the Code and (c) it is also not in dispute that the property/vehicle in question is seized in connection with the alleged offence under the Act and (d) it is also not in dispute that the property/vehicle in question has been seized by the authority under the Act and not by the police, the said order dated

16.5.2012 cannot be interfered with and/or set aside in exercise of power under section 482 of the Code, more so when confiscation proceedings are pending R/SCR.A/2713/2012 CAV JUDGEMNT before the competent authority. Besides this, when in the interregnum, by way of interim measure, the competent authority has passed the order for release of the vehicle, the Court is, otherwise also not inclined, in the facts and circumstances of the case, including the fact that the order in question was passed as back as in July 2012, to interfere with the said order.

21. When the confiscation proceedings (on ground that the property/vehicle is allegedly used/involved in or for commission of any offence under the Act), are pending, then such order does not warrant and does not call for or justify any interference and need not be set aside by the Court by exercising power under section 482 of the Code.

22. In light of the above discussion and for the foregoing reasons, the Court is not inclined to accept the application and to exercise power under section 482 to quash the order passed by the learned Judicial Magistrate (First Class). The application, for the foregoing reasons, fails and is accordingly rejected. Bharat* (K.M.THAKER, J.)