IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 14477 of 2009(Q) --------------------------------------- CRMP.567/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KOTHAMANGALAM .................... PETITIONER(S): --------------------- 1. DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. 2. FOREST RANGE OFFICER, KOTHAMANGALAM. BY SPL.GOVERNMENT PLEADER (FOREST) MR.P.M. PAULOSE. RESPONDENT(S): ------------------------- KUMARI, W/O.THANKAPPAN, MATTUPPARA THOTTATHIL HOUSE, VIRIPARA, MANKULAM VILLAGE, DEVIKULAM TALUK. BY ADV. MR.RENJITH THOMAS , MR.S.DILEEP (KALLAR), MR.RENJITH THOMAS, MR.S.DILEEP (KALLAR), MR.NAVEEN THOMAS, MR.A.H.NAJMAL, MR.M.A.SHIHAB, MR.UNNI BOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14477/2009-Q APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.OR.8/2009 DATED 12/03/2009 ADDRESSED BY THE FOREST RANGE OFFICER, KOTHAMANGALAM TO THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. EXT.P2: COPY OF THE NOTICE ISSUED BY THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM TO THE REGISTERED OWNER. EXT.P3: COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT REPORTED IN (2004) 1 SCC 293. EXT.P4: COPY OF THE PETITION FILED BY THE RESPONDENT CMP NO.567/09 IN OR NO.8/2009 BEFORE THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. EXT.P5: COPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE KL-17-C.9984 ISSUED BY THE RTO, MUVATTUPUZHA. EXT.P6: COPY OF THE CIRCULAR NO.89584/G3/2008/HOME DATED 05/01/2009. EXT.P7: COPY OF THE MEMO DATED 08/05/2009 IN CRL.M.P.567/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. EXT.P8: COPY OF THE MEMO DATED 04/05/2009 IN CRL.MP.NO.567/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO.KL-17/C-9984 ISSUED BY REGIONAL TRANSPORT OFFICE, IDUKKI. EXT.R1(a): COPY OF THE CONTRACT CARRIAGE PERMIT DATED 24/07/2008 ISSUED BY REGIONAL TRANSPORT OFFICER, IDUKKI. EXT.R1(b): COPY OF THE MOTOR INSURANCE CERTIFICATE CUM POLICY SCHEDULE. EXT.R1(c): COPY OF THE ORDER DATED 30/04/2009 OF JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM IN CMP NO.567/2009. EXT.R1(d): COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 24/04/2009. //TRUE COPY// P.S. TO JUDGE rs. M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.14477 of 2009 Q -------------------------- JUDGMENT A Bolero Van KL-17/C 9984 along with 153 kilograms of sandalwood was seized by the Flying Squad of Kothamangalam Forest Range on 11.3.2009 while illegally transporting sandalwood logs. O.R. No.8/2009 was registered for the offence under Section 27(1)(e)(iii) & (iv) of Kerala Forest Act (hereinafter referred to as 'the Act'). Petitioner, the mother of the first accused in that case, filed C.M.P.No.567/2009 under Section 451 of Code of Criminal Procedure, for interim custody of the vehicle. Under Exhibit R1(c) order dated 30.4.2009, learned Magistrate granted interim custody of the vehicle on executing a bond for Rupees Five lakhs with two solvent sureties each for the like sum directing further that the vehicle shall not be used for commission of similar offences and the Joint Regional Transport Officer shall enter in the registration certificate an endorsement to the effect that the vehicle is involved in O.R.No.8/2009 of Forest WPC 14477/09 2 Range Office, Kothamangalam in connection with illegal transportation of sandal wood. Pursuant to Exhibit R1 (c) order, Magistrate issued Exhibit P7 memo directing the Forest Range Officer, Kothamangalam to produce the vehicle before the court. This petition is filed under Articles 226 and 227 of Constitution of India to quash Exhibit P7 memo as well as the order granting interim custody of the vehicle to the respondent. 2. Learned Government Pleader appearing for the petitioners and learned counsel appearing for the respondent were heard. 3. Learned Government Pleader, relying on the decision of the Apex Court in State of West Bengal v. Sujit Kumar Rana (AIR 2004 SC 1851), argued that learned Magistrate should not have granted interim custody of the vehicle to the respondent when confiscation proceedings was already initiated as provided under Section 61A of the Act. It was argued that Exhibit P2 notice was earlier issued to the respondent, as the registered owner of Bolero Van, to deposit Rupees Two lakhs, being the value of the vehicle and in such circumstances, the order granting WPC 14477/09 3 interim custody and the direction to produce the vehicle before the Magistrate are to be quashed. Learned Government Pleader also argued that in any case, as held by the Apex Court in Section Forestor v. Mansur Ali Khan ((2004) 1 SCC 293), Magistrate should not have granted interim custody of the vehicle, without insisting for production of bank guarantee for the value of the vehicle. 4. Learned counsel appearing for the respondent argued that as is clear from Exhibit P7 memo issued by the Magistrate, after seizure, the vehicle was produced before the court and a 'T' number was given to it from the court and it was released to the forest officials and in spite of the custody given to the Forest Range Officer, the legal custody is with the court and therefore, no confiscation proceedings could be initiated under Section 61A of the Act. Learned counsel argued that under Section 61A of the Act, confiscation proceedings could be initiated only if the vehicle was produced before the authorised officer, without delay, after its seizure as provided under Section 52 of the Act and when the forest officials, WPC 14477/09 4 instead of producing the vehicle before the authorised officer, was produced before the Magistrate's Court and the vehicle was entrusted to the forest officials thereafter by the court only as an interim measure, confiscation proceedings cannot be initiated and if at all confiscation could be made, it can be only after disposal of the case and finding the accused guilty. It is, therefore, argued that writ petition can only be dismissed. Learned counsel also argued that in any case, there is no bar for interim custody of the vehicle by the Magistrate and in such circumstances, no interference is warranted with Exhibit R1(c) order. 5. Though learned Government Pleader relied on the decision of the Apex Court in Sujith Kumar Rana's case (supra), it is clear from the said decision that it was so held, relying on Section 59G of the Forest Act, as amended by the State of West Bengal. In the said decision, their Lordships, in paragraph 46 of the judgment, held that upshot of the aforementioned discussion is that once a confiscation proceedings is initiated, jurisdiction of the criminal court in terms of Section 59G of the Act being barred, the High court WPC 14477/09 5 also cannot exercise its jurisdiction under Section 482 of Code of Criminal Procedure for interim release of the property. 6. Section 59G of the Forest Act, as applicable to the State of West Bengal, reads: “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 authorised under Section 59A or the Forest Officer specially empowered under Section 59C or the District Judge to whom an appeal may be preferred under Section 59D 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, boards, vehicles or cattle seized under Section 52.” Similar provision is not there in the Kerala Forest Act. As the Kerala Forest Act does not bar the jurisdiction of any other Tribunal, Court or officer as is the case under Section 59G of the West Bengal Act, WPC 14477/09 6 the decision of the Apex Court that in view of the bar of jurisdiction under Section 59G of the said Act, jurisdiction of the Magistrate as well as the High Court is barred, has no application. Therefore, based on that decision, Exhibit R1(c) order passed by the Magistrate cannot be quashed. 7. But, there is force in the submission of the Learned Government Pleader that the Magistrate mechanically granted interim custody of the vehicle to the respondent, ignoring the settled legal position. As declared by the Apex Court in Mansur Ali Khan's case (supra), even though jurisdiction to grant interim custody by the court is not taken away, release of the vehicle during pendency of the proceedings is permissible only on good reasons and that also, only imposing minimum condition of furnishing bank guarantee, as contemplated under the Act. 8. Apex Court, in State of Karnataka v. K.Krishnan ((2000) 7 SCC 80), declared that courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce and the WPC 14477/09 7 forests are not only the natural wealth of the country, but also, protector of human life by providing a clear and unpolluted atmosphere. In such circumstances, when a vehicle is seized on the allegation that it was used for committing a forest offence, it shall not, normally, be returned to the parties till culmination of all the proceedings, including, confiscatory proceedings, if any and though, for any exceptional reasons, a court is inclined to release the vehicle during such pendency, furnishing of a bank guarantee is the minimum condition and no party shall be under the impression that release of the vehicle would be possible on easier terms and any such easy release would tempt the forest offenders to repeat commission of such offences. Unfortunately, this aspect was omitted to be taken note of by the Magistrate while granting interim custody of the vehicle. 9. Though learned counsel appearing for the first respondent challenged the very jurisdiction of the forest officials to initiate confiscation proceedings on the contention that the vehicle was not produced before the authorised officer and instead, was produced WPC 14477/09 8 before the Magistrate, I cannot agree with the submission. True, sub-section (2) of Section 61A of the Act enables an authorised officer, if he is satisfied that a forest offence has been committed in respect of the property, to order confiscation. The power under sub-section (2) could be exercised only if the property was seized under sub-section (1) of Section 52 and without any reasonable delay, was produced before the officer authorised by the Government in that behalf by notification in the Gazette, who is not below the rank of an Assistant Conservator of Forests. It does not mean that if the vehicle is firstly produced before the concerned Magistrate and thereafter got it released and produced before the authorised officer as provided under sub-section (1) of Section 61A, confiscation proceedings can be initiated under sub-section (2). Even if the argument of the learned counsel appearing for the respondent is that a 'T' number was assigned to the vehicle and it is taken that after seizure, the vehicle was produced before the Magistrate. Exhibit P7 memo itself shows that possession of the vehicle continued with the forest officials. Therefore, after WPC 14477/09 9 its production before the Magistrate and getting it released, it was produced before the authorised officer, in which case, on satisfaction, the authorised officer is competent to confiscate the vehicle. If that be so, it cannot be said that the vehicle is not liable to be confiscated. 10. In such circumstances, even though in the absence of a provision like 59G in the Forest Act, as amended by the State of West Bengal, considered by the Apex Court, barring the jurisdiction of the Magistrate to grant interim custody of the vehicle, it cannot be said that interim custody cannot be granted at all, especially, when the vehicle was seen produced before the Magistrate and therefore, Section 451 of Code of Criminal Procedure will apply. 11. Apex Court in Mansur Ali Khan's case (supra) also considered the jurisdiction of the High court to grant interim custody of the vehicle and it is stated that in exceptional cases, interim custody can be given. Therefore, it cannot be said that Magistrate is not competent to grant interim custody at all, but, interim custody could be granted in exceptional WPC 14477/09 10 circumstances alone. Exhibit R1(c) does not disclose any exceptional circumstances. Whatever it be, Exhibit P2 notice issued by the Divisional Forest Officer, Kothamangalam establish that the value of the vehicle is Rupees Two lakhs as assessed by the forest officials. Exhibit P2 notice also shows that the registered owner should be granted custody of the vehicle, on deposit of the value. True, in the light of Exhibit R1, copy of the registration certificate, it is clear that the registered owner shown in Exhibit P2 was not the registered owner of the vehicle, when it was seized under Section 52 of the Act and instead, it is the respondent, who is the registered owner. In such circumstances, respondent can seek interim custody of the vehicle from the authorised officer, as confiscation proceedings is already initiated. 12. As Exhibit R1(c) order was passed without considering the law laid down by the Apex Court, it is quashed. Respondent is granted liberty to approach the authorised officer for interim custody of the vehicle, if confiscation proceedings is not finally disposed within three months from today. Petitioners are WPC 14477/09 11 directed to complete the confiscation proceedings within three months and if not, the vehicle is to be released to the respondent on furnishing bank guarantee. Petition is disposed accordingly. 28th July, 2009 (M.Sasidharan Nambiar, Judge) tkv