IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH APRIL 2011 / 9TH VAISAKHA 1933 Crl.MC.No. 1045 of 2011() ------------------------- CMP.711/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD O.R.NO.1/11 OF PALAKKAYAM FOREST STATION .................... PETITIONER(S): --------------- FOREST RANGE OFFICER, MANNARKKAD. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR RESPONDENT(S): --------------- MADHAVAN, S/O.KRISHNAN, PADINHAREKKARA VEEDU, KANHIRAPPUZHA (PO), KANNARKKAD. ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 29/04/2011, ALONG WITH WPC NO. 11614 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ---------------------------------------------- Crl.M.C.No.1045 of 2011 & W.P(C).No. 11614 of 2011 ---------------------------------------------- Dated this the 29th day of April, 2011 O R D E R Crl.M.C.No.1045 of 2011 arises from the order dated February 26, 2011 passed by learned Judicial First Class Magistrate, Mannarkkad on C.M.P.No.711 of 2011 in O.R.No.1 of 2011 of Palakkayam Forest Station. The vehicle, allegedly belonging to the respondent who claimed to be its R.C owner, was seized in connection with O.R.No.1 of 2011 for alleged illicit transportation of reeds. Respondent filed C.M.P.No.711 of 2011 under Section 451 of the Code of Criminal Procedure (for short, 'the Code') for interim custody of the vehicle. He contended that he had taken all reasonable precautions to prevent the vehicle from being used for any illicit purpose. Petitioner opposed the petition. Learned Magistrate was impressed by the claim made by the respondent. Observing that Forest officials have not initiated any confiscation proceeding, learned Magistrate allowed C.M.P.No.711 of 2011 and directed that interim custody of the vehicle shall be given to the Crl.MC.1045/11 & WP(C).11614/11 - 2 - respondent petitioner on his executing bond for Rs.1,50,000/- with two solvent sureties subject to the conditions mentioned in the impugned order. The State has challenged the said order in Crl.M.C.No.1045 of 2011. It is contended that it is without proper application of mind that learned Magistrate passed the impugned order and at any rate, the observations made by learned Magistrate as if petitioner has taken all precautions to prevent illicit transportation of reeds in the vehicle is not correct. It is also contended that at any rate, learned Magistrate should have directed respondent to produce bank guarantee for value of the vehicle. This Court passed an interim order on 1.4.2011 directing that the vehicle shall not be released. The Divisional Forest Officer, Mannarkkad issued order dated 24.3.2011 stating that respondent can get release of the vehicle on deposit of Rs.85,000/- being value of the vehicle failing which, the vehicle will be subjected to public auction. Respondent in Crl.M.C.No.1045 of 2011 has challenged the said order in W.P(C).No. 11614 of 2011. 2. Parties are referred as petitioner and respondent as in Crl.MC.1045/11 & WP(C).11614/11 - 3 - Crl.M.C.No.1045 of 2011. I have heard learned Government Pleader, appearing for petitioner/State and learned counsel for respondent. 3. Learned Government Pleader has referred to me the decisions of Supreme Court in Seekon Forestor & another v. Mangur Ali Khan ( (2004)1 SCC 293) and State of Karnataka v. K.Krishnan ( (2000)7 SCC 80) to contend that learned Magistrate should not have disposed of the matter without proper application of mind in a light manner and at any rate, respondent should have been directed to produce bank guarantee for the value of the vehicle. It is contended by learned counsel for respondent that the said decisions concerned release of vehicles under orders of confiscation under the relevant provisions of the Karnataka Forest Act. According to the learned counsel, the D.F.O was not justified in issuing Exhibit P7 order (W.P(C).No.11614 of 2011). It is also pointed out that even under Section 53 of the Kerala Forest Act for release of vehicle, what is required is only to execute a bond. Crl.MC.1045/11 & WP(C).11614/11 - 4 - 4. It is seen from Exhibit P7, order in W.P(C).No.11614 of 2011 that the Department has valued the vehicle at Rs.85,000/-, whereas as per the impugned order in Crl.M.C.No.1045 of 2011, the learned Magistrate has directed respondent to execute a bond for Rs.1,50,000/- with two solvent sureties for the like sum each and with further direction that the sureties shall produce solvency certificates. It is relevant to note from the decisions cited by the learned Public Prosecutor that those decisions concerned release of vehicles which were confiscated under provisions of the relevant Forest Act, whereas in the present case, no confiscation proceedings have been initiated. Learned Government Pleader has not also pointed out any provision of law which required production of bank guarantee for release of the vehicle pending disposal of the proceeding. 5. In the circumstances, I am not inclined to accept the arguments of learned Government Pleader that respondent in Crl.M.C.No.1045 of 2011 (petitioner in WP(C).No.11614 of 2011) has to produce bank guarantee for the value of the vehicle. Crl.MC.1045/11 & WP(C).11614/11 - 5 - 6. Though it is contended by learned Government Pleader that learned Magistrate has not applied mind while allowing interim custody of the vehicle, I am not inclined to accept that argument as well in the light of the order passed by the learned Magistrate. It is seen that learned Magistrate has considered the relevant aspects and decided to give interim custody of the vehicle. I also bear in mind that even if the vehicle is liable for confiscation as per Section 61A of the Kerala Forest Act (for short, 'the Act'), there is no prohibition in the learned Magistrate exercising power under Section 451 of the Code and granting interim custody of the vehicle. 7. But, it appears to me that learned Magistrate has made certain observations in the impugned order beyond the scope of Section 451 of the Code. The question whether the vehicle is liable for confiscation under Section 61A of the Act and whether respondent has taken precautions to prevent illicit transportation of timber in the vehicle are not required to be decided under Section 451 of the Code. I must also bear in mind that as held by this Court in State of Kerala v. Mathew Crl.MC.1045/11 & WP(C).11614/11 - 6 - (1995(2) KLT 772), it is not sufficient that the owner of the vehicle shows that he had taken all reasonable care to prevent illicit transportation of forest produce etc. in the vehicle. He must also show that the person in charge of the vehicle also took such precaution. All these matters are to be decided by the appropriate authority under the Act. Having regard to the circumstances stated, what is required is to expunge all observations made by learned Magistrate in the order dated February 26,2011 on C.M.P.No.711 of 2011 as to whether the vehicle is liable to be confiscated and whether respondent in Crl.M.C.No. 1045 of 2011 has taken all precautions to prevent illicit transportation of reeds in the vehicle. At the same time, Exhibit P7 order in WP(C).No.11614 of 2011 passed by the Divisional Forest Officer cannot stand and is liable to be set aside. Resultently, the Criminal Miscellaneous Case and Writ Petition are disposed of in the following lines: Crl.M.C.No.1045 of 2011 All observations made by learned JFCM, Mannarkkad in the Crl.MC.1045/11 & WP(C).11614/11 - 7 - order dated February 26, 2011 on C.M.P.No.711 of 2011 in O.R.No.1/2011 of Palakkayam Forest Station whether the vehicle is liable for confiscation and whether respondent has taken precautions to prevent illicit transportation of reeds in the vehicle are expunged, making it clear that it is open to the appropriate authority to initiate appropriate proceeding for confiscation of the vehicle etc., if such authority is otherwise entitled to take such steps as per law. (2) It is directed that respondent shall produce the vehicle before learned Magistrate or before such other authority under the Forest Act as may be directed (in case the vehicle is ordered to be confiscated). (3) It is further directed that the respondent shall not transfer ownership or possession to any person or encumber the vehicle during the time the order dated February 26, 2011 remains in force. W.P(C).No. 11614 of 2011 (i) The Writ Petition is allowed and Exhibit P7 order is set aside. Crl.MC.1045/11 & WP(C).11614/11 - 8 - (ii) The vehicle shall be released to the respondent in Crl.M.C.No.1045 of 2011 on his executing bond as directed by the learned Magistrate subject to the conditions imposed in the order dated February 26, 2011 and in this order. THOMAS P. JOSEPH, JUDGE vgs