IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 Crl.MC.No. 42 of 2008() ------------------------------------ CRMP.4976/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES),PUNALUR .................... PETITIONER: PETITIONER ------------------------------------------- AJESH,S/O.ASOKAN, AJEESH BHAVAN,PUNNALA PATHANAPURAM. BY ADV. SRI.S.RAJEEV RESPONDENTS: RESPONDENT ------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA (O.R.NO.2 OF 2007 OF SUB UNIT-2 KARAVOOR FOREST DIVISION) 2. ANEESH,S/O.V.VASUDEVAN BINU BHAVAN,34,VADAKKEKARA, EDAMON. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.42 of 2008 = = = = = = = = = = = = = = Dated this the 22nd day of January, 2008 ORDER The petitioner, who is a transferee of a jeep bearing Registration No.KL 5 D 4304 from its registered owner, challenges Annexure A2 order dated 5.12.07, passed by the J.F.C.M- II(Forest Offences), Punalur dismissing the application filed by him as Crl.M.P. No.4976/2007 under Section 451 Cr.P.C for interim custody of the vehicle, which is involved in O.R.No.2/07 of Sub Unit II, Karavoor. 2. The case of the prosecution is that on 27.07.07, accused Nos.1 to 5 in the O.R unauthorisedly trespassed into the reserve forest, collected acacia poles and attempted to remove the same in the jeep in question from Kumaramkudi 1999 Acacia Plantation and that the five accused persons thereby committed an offence punishable under Section 27(1)(e)(iii) of the Kerala Forest Act, 1961. 3. The seizure of the jeep together with the forest produce was reported to the Magistrate by the Seizing Officer namely Forest Range Officer, Pathanapuram under Section 55(2) of the Crl.M.C.No. 42 of 2008 2 Kerala Forest Act. The jeep in question was subsequently produced before the Authorised Officer under Section 61A(1) of the Forest Act. It was at that stage that the petitioner moved the learned Magistrate under Section 451 Cr.P.C. That petition was dismissed by the Magistrate for the reason that confiscation proceedings under Section 61(A) of the Kerala Forest Act have already been initiated. It is the said order which is assailed in the Crl.M.C. filed under Section 482 Cr.P.C. 4. Even otherwise the application filed under Section 451 Cr.P.C was misconceived, since the jeep in question was not produced before the Magistrate, in which case alone Section 451 Cr.P.C can be invoked. Even if the application filed by the petitioner were to be treated as one filed under Section 457 Cr.P.C, that also cannot come to the rescue to the petitioner, since the seizure was not reported under Section 102(3)Cr.P.C as envisaged by Sec.457 Cr.P.C, but under Section 52(2) of the Kerala Forest Act. 5. Even though the learned counsel for the petitioner attempted to distinguish the decision reported in 2004(4) SCC 129, contending, inter alia, that the reason for the Apex Court holding that interim custody of the vehicle could not be granted Crl.M.C.No. 42 of 2008 3 was on account of the amendment to the West Bengal Forest Act by the incorporation of Section 59(G) thereof which specifically excluded the power under the Criminal Procedure Code to grant interim custody of the vehicle. The learned counsel for the petitioner would argue that in the absence of any such embargo in the Kerala Forest Act, the application for interim custody under Section 457 Cr.P.C does not stand barred. 6. As indicated already, in order to attract Section 457 Cr.P.C there should be report of the seizure under the provisions of the Criminal Procedure Code, that is, under Section 102(3) Cr.P.C. Since there is no report of seizure under the provisions of the Criminal Procedure Code and the seizure was reported under Section 52(2) of the Kerala Forest Act, Section 457 Cr.P.C cannot be invoked by the petitioner. The learned counsel for the petitioner thereupon relied on Section 53 of the Kerala Forest Act to contend for the position that any authorised officer not below the rank of a Ranger is entitled to release the vehicle at any stage. 7. Sri.K.S.Sivakumar, the learned Public Prosecutor would contend that after amendment of the Kerala Forest Act by inserting Sections 61A to 61F with effect from 27.6.1975, Crl.M.C.No. 42 of 2008 4 Section 53 of the Act cannot have any operation particularly when Section 61A starts with a non-obstante clause which over- rides the foregoing provisions of the Forest Act including Section 53 thereof. 8. While there is some force in the submissions made by the learned Public Prosecutor, the said contention cannot be accepted in its entirety so as to foreclose an application under Section 53 of the Kerala Forest Act. Section 53 as it stands should have an area of operation. No doubt, where the seized vehicle along with forest produce has been produced before the authorised officer in accordance with Section 61A of the Kerala Forest Act, then it may not be permissible for any officer higher in rank to that of a Ranger and inferior in rank to that of the authorised officer to exercise his power under Section 53 of the Forest Act in respect of the vehicle produced before the authorised officer. But then, the authorised officer is of a rank not below that of the Asst.Conservator of Forest and that officer is also having the power under Section 53 to release the vehicle. Hence, as a measure of harmonious construction, it must be held that where the forest produce as well as the conveyance is produced before the authorised officer, and there is a likelihood Crl.M.C.No. 42 of 2008 5 of delay in the finalisation of the confiscation proceedings under Section 61A, that officer can exercise the power under Section 53 and release the vehicle in his discretion and subject to the execution of a bond as indicated in Section 53. In any view of the matter, an application for interim custody before the learned Magistrate will not lie in respect of a vehicle which is not produced before the Magistrate. I, therefore ,affirm the dismissal of the application filed by the petitioner before the learned Magistrate under Section 451 Cr.P.C. This Crl.M.C is accordingly dismissed without prejudice to the right of the petitioner to move the authorised officer for interim release of the vehicle in question by exercising his power under Section 53 of the Kerala Forest Act particularly in the light of the decision of the Apex Court in Sunderbhai Ambalal Desai v.State of Gujrat (AIR 2003 SC 638) . wherein the Apex Court showed concern over vehicles seized by various departmental authorities and which are lying exposed to the ambient weather and getting deteriorated in value. V. RAMKUMAR, JUDGE sj /True Copy/ P.A To Judge