IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 1171 of 2011 B ---------------------------------------- (CMP.1627/2011 IN OR.4/2011 OF KOLLENGODE RANGE of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR) .................... REVN. PETITIONER(S): PETITIONER ------------------------------- SHAMEER.P.M., AGED 33 YEARS, S/O.MOIDEEN, PALAMADATHIL HOUSE, VARAYAL P.O., PERIYA VILLAGE, MANANTHAVADY TALUK, WAYANAD. BY ADV. SRI.PRASUN.S SRI.PAUL MATHEW (PERUMPILLIL) RESPONDENT(S): RESPONDENT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE FOREST RANGE OFFICER, KOLLENGODE. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/06/2011, ALONG WITH CRRP NO. 1293 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 'C.R.' V.K.MOHANAN, J. ---------------------------------------- Crl.R.P.Nos. 1171 & 1293 of 2011 ---------------------------------------- Dated this the 30th day of June, 2011 ORDER Though the above two revision petitions are filed by different persons challenging different orders passed by different courts and though the facts and circumstances involved are different, as the orders impugned are issued under Section 457 of the Code of Criminal Procedure (for short 'the Cr.P.C.') and as the question of law and facts involved are identical, the above revision petitions are heard together and being disposed of by this common order. 2. Crl.R.P.No.1171 of 2011 is directed against the order dated 4.4.2011 in CMP No.1627 of 2011 (in O.R.No.4 of 2011 of the Kollengode Forest Range) of the court of the Judicial First Class Magistrate, Chittur under Section 457 of Cr.P.C. by which the prayer of the petitioner, who is an accused and R.C. owner of the vehicle bearing registration No.K.L.05/X 6336 involved in the above case Crl.R.PNos.1171 & 1293 of 2011 :-2-: was rejected. As per the said order, though the learned Magistrate is of the opinion that the said court has ample power to order release of the vehicle under Section 457 of the Cr.P.C., but having regard to the particular facts and circumstances involved in the case, more particularly when the petitioner himself is allegedly involved in the illegal transport of the barks of kulamavu and wazhana in contravention of the provisions of law, the court was not inclined to order the release of the vehicle in favour of the petitioner, though he is the RC owner of the vehicle. The allegation in the above case is that the accused therein including the petitioner, who is the first accused, have committed the offences punishable under Section 27(1)(d)(e)(iii) & (iv) of the Kerala Forest Act, 1961 (hereinafter referred to for short as 'the Act' only) for illicit debarking, collection and removal of forest produce viz., the barks of kulamavu, wazhana/edana. As per the prosecution case, the total quantity of 6722 kg of kulamavu and wazhana barks mixed together were filled in 72 gunny bags and the Crl.R.PNos.1171 & 1293 of 2011 :-3-: total value of the above 'forest produce' will fetch up to `.2,00,000/-. 3. Crl.R.P.No.1293 of 2011 is preferred against the order dated 8.4.2011 in CMP No.1324 of 2011 in O.R.No.1 of 2011 of the Poongode Forest Range, of the court of Judicial First class Magistrate, Wadakkanchery, whereby the request of the petitioner,who is the owner of the vehicle viz., mini lorry bearing Registration No.KL7-H 7083, for interim custody was declined under Section 457 of Cr.P.C. The allegation in the above case is that the trees standing in the reserved forests were cut and removed and thereby, committed the offences punishable under Section 27(1)(d)(e)(iii) and (iv) of the Act and Rules 3,4 and 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995. 4. Heard Mr.Prasun.S. and Mr.Santhosh.P.Poduval the counsel for the petitioners in the above two revision petitions and Sri.V.Tek Chand,learned Public Prosecutor. 5. The specific contentions of the learned counsel appearing Crl.R.PNos.1171 & 1293 of 2011 :-4-: for the petitioners in the above cases are that the courts below have ample power by virtue of Sections 451 and 457 of the Cr.P.C., and in view of the various provisions contained in the Act, viz., Sections 52,53,55,56,57 and 58 of the Act and particularly, in view of Section 54 of the above Act. According to the learned counsel, the reason assigned by the learned Magistrate in the impugned order that the confiscation proceedings have already been started is not a legal ground to decline the relief and refuse to exercise the jurisdiction under Section 457 of the Cr.P.C. According to the learned counsel appearing for the revision petitioners, the authorised officer for confiscation under the provisions of the above Act has no supremacy in power over the court of law. 6. Learned counsel for the revision petitioner Mr.S.Prasun, emphatically submitted that Section 61A of the Act is not applicable in his case since the 'bark' allegedly seized in the case will not come under any of the article enumerated in the said section. It is also the submission of the learned counsel that the prosecution has no claim Crl.R.PNos.1171 & 1293 of 2011 :-5-: that the bark allegedly involved in the case is the Government property or taken from forest. According to Mr.Prasun, the proceedings contemplated under Section 61 A of the Act is concerned with more serious offences, particularly with respect to 'forest produce', but in the present case,the allegation is that the seized article is only bark, which is not a 'forest produce' and therefore, the vehicle is not liable to be confiscated and hence the same can be released for interim custody in favour of the petitioner under Section 457 of the Cr.P.C.. Same is the contention taken by Mr.Santhosh.P.Poduval, learned counsel appearing for the petitioner in Crl.R.P.No.1293 of 2011. In support of the above contentions,the learned counsel relied on the following decisions reported in John v. D.F.O.,Kottayam (1996(2) KLT 984), State of Karnataka v. K.A.Kunchindammed (AIR 2002 SC 1875) and State of Kerala v. Ancy Philip (2008(3) KLT 477)(SC). 7. On the other hand, Sri.V.Tek Chand, Learned Public Crl.R.PNos.1171 & 1293 of 2011 :-6-: Prosecutor, stoutly opposing the contentions raised by the counsel for the petitioners, submitted that the court of Magistrate has no jurisdiction to release the vehicle either by way of interim custody or otherwise in favour of the petitioners in view of the particular facts and circumstances involved in the case, especially in the light of the allegations contained in the cases involved and in view of the various provisions contained in the Cr.P.C. and in the Act. The arguments of the learned Public Prosecutor are two-fold. According to the learned Public Prosecutor, the Magistrate Court has no jurisdiction to release the vehicle for interim custody by exercising the jurisdiction either under Section 451 or under Section 457 of Cr.P.C. in view of the particular facts and circumstances involved in the case. The second fold of his argument is that none of the provisions enables the Magistrate to release the vehicle,which is involved/connected with the seizure of articles as contemplated under Section 52 or Section 61A of the Act,especially when in the present case, the vehicles in question are not produced before the court below. So,according to the learned Crl.R.PNos.1171 & 1293 of 2011 :-7-: Public Prosecutor,the finding of the learned Magistrate in the order impugned in Crl.RP No.1171 of 2011 that the Magistrate court has jurisdiction to release the vehicles is per se illegal and contrary to the provisions of the law, Act and Code. It is also the submission of the learned Public Prosecutor that since the vehicles in question are produced before the officer authorised for the confiscation and the Act empowers such officers to give interim custody of the vehicle to deserved persons, the only course open to the petitioners is to approach such officer. Thus, according to the learned Public Prosecutor, no interference is warranted and there is no merit in the Crl.R.Ps. 8. I have carefully considered the arguments advanced by the learned counsel for the revision petitioners as well as the learned Public Prosecutor. I have perused the orders impugned and also carefully gone through the authorities cited during the course of argument. 9. In the light of the rival pleadings and in the light of the facts Crl.R.PNos.1171 & 1293 of 2011 :-8-: and circumstances involved in the case, the question to be considered is whether the Magistrate court has jurisdiction, either under Section 451 or under Section 457 of Cr.P.C. to grant interim custody of the vehicle involved in the forest offence, especially when such vehicles are not produced before the Magistrate. Mr.Prasun, learned counsel for one of the petitioners, relying upon the decision of the Apex Court in State of M.P. v. Madhukar Rao (2008(2) KLT 105 (SC), has contended that the Magistrate has ample power to make an order of interim release of the vehicle under Section 451 of the Cr.P.C. According to the counsel, in the said decision, the Apex Court has laid down the dictum after considering the various provisions including Section 50 of the Wild Life (Protection) Act,1972, a special Act and whereas in the present case, the case is covered by the various provisions of the Kerala Forest Act, 1961. It is also the contention of Mr.Prasun, learned counsel appearing for the petitioner that in the Kerala Forest Act, there is no provision ousting the jurisdiction of the Crl.R.PNos.1171 & 1293 of 2011 :-9-: Magistrate Court to issue an order granting custody of a vehicle. According to the learned counsel, the Supreme Court in the State of Karnataka v. K.A.Kunchindammed (AIR 2002 SC 1875) has held that the competent authority to order interim custody is the authorised officer under the Act and not the Magistrate and such a dictum was laid down because of Sections 71A,71G,62(3)(b) of Karnataka Forest Act (Act 5 of 1964) and there is no such equivalent provision in the Kerala Forest Act. 10. In the light of the above contention of the learned counsel for the petitioner and the learned Public Prosecutor, it is absolutely necessary to have a close scrutiny of various provisions contained in the Act. The Kerala Forest Act 1961 (Act 4 of 1962) enacted with the following object that 'to unify and amend the law relating to protection and management of forests in the State of Kerala' and the same came into force with effect from 18.1.1962. This Court in the decision reported in State of Kerala v. Bharath Booshan Aggarwal Crl.R.PNos.1171 & 1293 of 2011 :-10-: (2009(1) KHC 313) has held as follows:- “.......Our forest wealth and treasure are not exclusively for the present generation, but the coming generation has also got a traditional and ancestral right over it for its enjoyment and therefore, it is our hereditary obligation and duty to protect and preserve the same for the coming generation. Thus, it is the constitutional obligation of the State to protect and preserve the forest and forest produce, not only for the present time but for the coming generation also.” This Court has also held as follows:- “...............A few among our society under crazy pursuit to mint money and during such pursuit they ignore, the constitutional values and social morality. Thus, they have chosen to exploit our national wealth like forest and forest produce stealthily and by illegal means and in violation of legal and statutory limitations. Unless and until such provision like Section 69 is incorporated, the Government will not be in a position to protect the forest and forest produces thereby to discharge its constitutional obligations..........” Now-a-days, the illegal encroachment to forest areas is a sensational issue and the general public is alert and anxious about the same and it is also a headache for the rulers and now, it is a task to prevent such unauthorized occupation and encroachment. In spite of the Act and the various punitive provisions therein and the Indian Penal Code, the forest offences are being increased, but the rate of conviction with Crl.R.PNos.1171 & 1293 of 2011 :-11-: respect to the forest offences is too low which disturbs the conscience of this Court. Recently, though in a different context, the Honourable Apex Court, in the decision reported in Indian Medical Association v. Union of India & Ors. (2011(4) Supreme 67), has held that while interpreting the statutes, the purpose that the Act seeks to achieve has to be kept in mind. 11. Now, let us examine the various provisions contained in the Act in the light of the above decision of the Supreme Court and the decision of this Court and the scenario indicated above. Section 2(e) defines 'forest offence' which means an offence punishable under the Act or any rule made thereunder. Section 2(f) defines 'forest produce', which reads as follows:- “2(f) “Forest produce” includes-- (i) the following whether found in, or brought from, a forest or not, that is to say-- timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and (ii) the following when found in, or brought from, a forest, that is to say,-- (a) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees; (b) plants not being trees (including grass, creepers, reeds and Crl.R.PNos.1171 & 1293 of 2011 :-12-: moss) and all parts or produce of such plants; and (c) silk cocoons, honey and wax; (d) peat, surface soil, rock and minerals (including limestone,laterite,mineral oils and all products of mines or quarries); (underline supplied) Section 27 deals with penalties for trespass or damage in Reserved Forests and acts prohibited in such forests. Sections 27(1)(d) and 27 (1)(e)(iii) reads as follows:- “27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests.--(1) Any person who--- (a) xxxxx xxxxx xxxxx (b) xxxxx xxxxx xxxxx (c) xxxxx xxxxx xxxxx (d) knowingly receives or has in possession of any forest produce illicitly removed from a Reserved Forest or a land proposed to be constituted a Reserved Forest; or (e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest-- (i) xxxxx xxxx xxxxx (ii) xxxx xxxxx xxxxxxx (iii) cuts or fells any trees or girdles, marks, lops,taps,uproots, burns,saws,converts or removes any trees including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;” (underline supplied) In the present case,27(1)(d) and (e)(iii) is more relevant. 12. Chapter VIII of the Act deals with offences, penalties and Crl.R.PNos.1171 & 1293 of 2011 :-13-: procedure. Section 52 reads as follows:- “52. Seizure of property liable to confiscation.--(1) When there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer. Explanation.-- The terms “boats' and 'vehicles' in this section, [Section 53, Section 55, Section 61A and Section 61B] shall include all the articles and machinery kept in it whether fixed to the same or not. (2) Every officer seizing any property under sub-section (1) shall place on such property or the receptacle, if any, in which, it is contained 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 to try the offence on account of which the seizure has been made; Provided that, when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the Forest Officer makes, as soon as may be, a report of the circumstances to his official superior.” (underline supplied) On a reading of sub-section (1) of Section 52, it is crystal clear that any forest officer or Police Officer can seize, if there is reason for him to believe that a forest offence has been committed in respect of any timber or any other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in Crl.R.PNos.1171 & 1293 of 2011 :-14-: committing any such offence. On a reading of sub-section (2), it reveals that it is incumbent upon the officer seizing any property under sub-section (1) to report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Neither in sub-section (1) nor in sub-section (2) of Section 52, there is any direction to produce the seized article before the Magistrate having jurisdiction to try the offence. From the proviso to sub-section (2) of Section 52, it is clear that if the offender is unknown, the officer, who makes seizure, need to report the circumstances to his official superior. Under Section 53, the power to release property seized under Section 52 is vested with any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has made the seizure, on security for the production of the property so released, before the Magistrate having jurisdiction to try the offence on account of which seizure has been made on demand. Section 54 prescribes the procedure on receipt of any report under Section 52 of the Act. As per Section 54, on receipt of any report, it is Crl.R.PNos.1171 & 1293 of 2011 :-15-: for the Magistrate to take steps for the trial of the accused and also for the disposal of the property according to law. 13. Section 56 deals with the disposal on conclusion of trial for forest offence, of produce in respect of which the offence was committed,which reads as follows:- “56. Disposal on conclusion of trial for forest offence, of produce in respect of which it was committed.-- When the trial of any forest offence is concluded any timber or other forest produce in respect of which such offence has been committed shall,if it is the property of the Central or State Government or has been confiscated,be taken possession of by or under the authority of the Divisional Forest Officer; and in any other case it may be disposed of in such manner as the Court may order.” As per the scheme of Section 56, the court of the Magistrate, who tried forest offence, can pass an order regarding the disposal of the property, according to the decision of the court, if the properties are not taken possession of by the authority of the Divisional Forest Officer or where the properties are of the Central or State Government or have been confiscated. Thus, as per Section 56, it is the Divisional Forest Officer, who is entitled to get possession, if the properties Crl.R.PNos.1171 & 1293 of 2011 :-16-: belong to the Central Government or State Government, as the case may be or the property liable to be confiscated. 14. Section 60 prescribes as to when the property vests in Government. It is pertinent to note that Section 61 of the Act gives authority to the Forest Officer,who is not below the rank of Assistant Conservator of Forests holding charge of a Forest Division, from directing at any time the immediate release of any property seized under Section 52 and the withdrawal of any charge made in respect of such property. From the above section, it is crystal clear that the authority is vested with such officer to release the property, even if a report regarding the seizure under Section 52 is made to the court under Section 52(2) of the Act. 15. Further, Section 61A reads as follows:- “61A. Confiscation by Forest Officers in certain cases.--- Notwithstanding anything contained in the foregoing provisions of this chapter,where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub- section(1) of Section 52 shall, without any unreasonable Crl.R.PNos.1171 & 1293 of 2011 :-17-: delay, produce it, together with all tools,ropes,chains,boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette,not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer). (2) Where an authorised officer seizes under sub- section(1) of Section 52 any timber, charcoal,firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section(1) of this section 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 so seized together with all tools, ropes,chains, boats,vehicles and cattle used in committing such offence.” (underline supplied) By incorporating a non-obstante clause, with respect to the provisions in Section 61A in Chapter VIII, it is made mandatory on the Officer, who is effecting the seizure under Section 52, if he believes that forest offence has been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, to produce it, together with all tools,ropes,chains,boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf. Sub-section (2) of Section 61A authorises Crl.R.PNos.1171 & 1293 of 2011 :-18-: such officer, before whom the forest produce and the properties are produced to order confiscation in terms of first part of Section 61A. It is also relevant to note that by Section 65 of the Act, the wrongful seizure or arrest is made punishable. 16. It is also relevant to note that in Section 52, it is mandatory on the Officer, who makes the seizure, to produce the articles before the confiscating officer, if the articles are coming within the category mentioned in Section 61A of the Act. Therefore, even if the officer, who is seizing the article, is a Police Officer, he has to follow the mandatory provisions that contained in Section 61A and under Section 52 of the Act. 17. Section 63 of the Act gives power to any officer or Police Officer to arrest without warrant on the grounds mentioned therein, even without orders from the Magistrate and without a warrant from the court. But, as per sub-section (2) of Section 63, the person so arrested shall be taken or sent to the nearest Police Station and then it is for the Officer-in-charge of such Police Station to take appropriate Crl.R.PNos.1171 & 1293 of 2011 :-19-: action and procedure in accordance with law. So, on a comparison of Sections 52 and 63 of the Act, it is crystal clear that the person arrested is liable to be taken to the Police Station whereas the articles seized connected with such arrest shall be produced before the confiscating officers and there is no direction to produce the same before the court. Section 64 also gives power to any Forest Officer of a rank not inferior to that of a Ranger to release persons arrested on execution of bonds. Section 65 is a punishment clause for wrongful seizure or arrest. Section 66 of the Act gives power to Forest Officers or Police Officers to prevent commission of offence and the Forest Officers have the powers of the Police Officers for the purpose of investigation or prevention of forest offences and the collection of evidence. 18. Thus, the above survey of various provisions particularly, the provisions contained in Chapter VIII of the Act would reveal that the Kerala Forest Act,1961, particularly Chapter VIII, is complete and self-contained statute which prescribes the procedure and various Crl.R.PNos.1171 & 1293 of 2011 :-20-: steps to be complied with by the officer making the seizure under Section 52 of the Act and such provisions are mandatory in nature. Thus, the various provisions earmark the authorities and jurisdiction of the court as well as powers and procedure of