STATE OF KARNATAKA v. K.A. KUNCHINDAMMED

Citation: [2002] 3 S.C.R. 162

Court: Supreme Court of India

Bench: D.P. MOHAPATRA, SHIVARAJ V. PATIL

Judgment text

STATE OF KARNATAKA v. K. A. KUNCHINDAMMED APRIL 16, 2002 [D. P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ. ] Karnataka Forest Act, 1963 Ss. 2(7), 2(18), 62(3)(a) and (b), 65 and 71-A-Forest produce-11/egaltransportation of-Seizure of-Power to pass interim order of release- ,'. Sandalwood oil-Seized alongwith vehicle illegally transporting it-Nobody claimed the seized articles-Authorised Officer ordered confiscation of sandalwood oil and vehicle-Confiscation confirmed and published in official . gazette-Later, owner of vehicle applied to Judicial Magistrate for interim custody ofvehicle-Application dismissed holding that power to grant interim custody vested in Authorised Officer-Sessions Judge, in revision upheld the view-High Court in exercise ofpowers under s. 482 Cr. P. C. directed Judicial Magistrate to dispose of application on merits holding that Magistrate concerned had jurisdiction t9 consider request for custody ofvehicle-Held, in view ofthe definition of 'sandalwood' in s.

2(18) including 'sandalwood oil' within the term 'sandalwood', wherever the term 'sandalwood' is used in the Act, it has to be urzd. erstood in terms ofthe definition in s. 2(18)-Accordingly 'sandalwood oil' is also included within the purview ofss. 71-A, 71-C, 71-D and 71-G. -The Magistrate and the Sessions Judge were right in holding that the Authorised Officer, and not the Magistrate, was vested with the power to pass order of interim custody ofthe vehicle-Besides, order of confiscation having not been challenged, has attained finality-Order of High Court set aside-Words and Phrases-'Sandalwood'- 'Sandalwood Oi/'-Explained CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 513 of 2002. From the Judgment and Order dated 7. 12. 2000 of the Kamataka High Court in Crl. R. No. 3670 of 2000. Harish N. Salve, Solicitor General (A. C. ) and N. Ganpathy for the A, Appellant. • The Judgment of the Court was delivered by D. P. MOHAPATRA, J. Leave granted.

The question that arises for determination in this appeal is-which authority has the power to pass order for interim release ofthe forest produce seized under the Karnataka Forest Act, 1963? (for short 'the Act'). Is it the Authorized Officer under the Act or the Magistrate under the Code ofCriminal Procedure? .. The facts of the case relevant for appreciating the question may be stated thus: A lorry bearing registration No. KL-IO-J-1728 carrying 5 barrels of sandalwood oil weighing 136. 5 kgs. was seized by the officials of the Forest Mobile Squad, Udupi on 2nd of March 2000 on the allegation of illegal transportation of the forest produce. FIR No. 08437 OR No. 108/99-2000 was registered on the same day. On 3rd March, 2000 a report about the seizure was submitted to the Authorized Officer and Deputy Conservator of Forests, Kundapur, under section 71A of the Act. By order of the Authorised ,...

Officer dated 7th March, 2000 custody of the seized material and the vehicle was entrusted to the Range Forest Officer, Udupi as whereabouts of the driver ofthe vehicle and its owner were not known to the Authorised Officer. Attempts were made to get the particulars from office ofthe Regional Transport Authority (RTA) concerned in the State of Kerala. Having failed to get any response from the RTO the Authorised Officer got published a notice on 3lst August, 2000 for information of all concerned particularly, the persons interested in the goods seized. The notice was published in the daily newspaper 'Udayavani' on 18. 9. 2000. Nobody came forward to claim eitherthe seized "' sandalwood· oil or the vehicle. Thereafter the authorized officer by order dated 31. 10. 2000 ordered confiscation of the seized vehicle and sandalwood oil. The said order was published in the official gazette on 9th November, 2000 and also published in the newspaper 'Udayavani' on 15. 11. 2000.

The order was not challenged in appeal under section 71-D of the Act or in any other proceeding. The order of confiscation stood confirmed under Section 71-F of the Act. The order of confiscation as confirmed was then. published in the official gazette on 4th January, 2001. . l or charcoal which is the property of the State Government or in respect of sandal wood, in other cases, under clause (b), reporting is to be made to the jurisdictional Magistrate. The Court further observed that so far as confiscation proceeding is concerned, Section 71-A confines it to timber, ivory, firewood or charcoal which is the property of the State Government or in respect of sandal wood together with, inter a/ia, the vehicle in which the said property • is being transported.

Considering the provision in section 71-G the Court found that in the said provision also timber, ivory, firewood or charcoal belonging to the State Government or any sandal wood together with the vehicle being used for transportation, that the Jurisdiction is exclusively vested in the Authorised Officer, and jurisdiction ofother fora is barred. From these provisions the Court held as follows: "This being the position, it could be seen that, sandal wood oil as such does not come either under the category of 'timber, ivory, firewood or charcoal, which is the property of the State Government, or even under the category of 'sandalwood', for the reason that, as already founding in Section 2(7) ofthe Act, in the inclusive defmition of 'Forest Produce', sandal wood and sandalwood oil are separately mentioned.

Sandalwood oil, therefore, is not one ofthe items referred to under Clause (a) of Section 62(3) of the Act, the reporting of which is required to be made to the Authorised Officer, nor is the said property, together with the vehicle concerned, liable fol confiscation under Section 71-A, nor the jurisdiction to deal with·the return of the same, otherwise vested in the jurisdictional Magistrate under provisions of the Criminal Procedure Code, barred by Section 71-G ofthe Act. In the circumstances, it is the jurisdictional Magistrate, by virtue of the relevant provisions of the Criminal Procedure Code read with clause, (b) of sub-section (3) of Section 62 of the Act, that has jurisdiction to consider the request for custody of the. vehicle allegedly used in transportation of sandal wood oil seized, whether interim or otherwise. The learned Magistrate and the learned Sessions Judge erred in holding to the contrary. " From the order it is manifest that the High Court was persuaded to.

take the view that the power to order for interim custody ofa vehicle seized which . was found illegally transporting sandalwood, oil, is not vested in the Authorised Officer but in the Magistrate exercising jurisdiction in the area for the reason that while the expression sandalwood is included in the provisions vested in the exclusive jurisdiction of the Authorised Officer 'sandalwood oil' is not mentioned therein. Since the two terms have been separately mentioned in the inclusive definition ofthe term 'forest product' the Court drewthe inference that the power for interim custody of the vehicle is to be exercised only by the Jurisdictional Magistrate and not the Authorised Officer. The High Court ... ·failed to take note of the definition of the expression 'sandalwood' in section ' 2(18) of the Act in which 'sandalwood oil' has been included within the tenn 'sandalwood'.

It follows that wherever the tenn 'sandalwood' is used under the Act it has to be understood in tenns of the definition in section 2(18). If the provisions relating to power of confiscation in Sections 71-A, 71-C, 71- D and bar ofjurisdiction in Section 71-G are so read it is clear that 'sandalwood oil' is also included within the purview ofthe said secti~ns and the distinction between the two tenns and their specific inclusion or exclusion in the statutory _, provision does not exist. Perhaps the attentio! ' of the High Court was not drawn to the amended provisions of the Act. The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the sections, is to vest power in the Authorised Officers of the 'Forest Department for proper implementation/enforcement of the statutory provisions and for enabling them to take effective steps for .

preserving the forest and forest produce. For this purpose certain powers including the power of seizure, confiscation and forfeitute ofthe forest produce illegally removed from the forests have been vested exclusively in them. The .. position is made clear by the non-obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorised Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/ • release of the seized materials under the Cr. P. C. has to give way.

The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorised Officer under the Act and if he finds that such power is vested in the Authorised Officer then he has no power to pass ' an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions ofthe special Act and will help in advancing. the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided. )- From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the ' ....

circumstances of the case it is the Authorised Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a vj,ew to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that I I .. basis. I Viewed from another angle also the order passed by the High Court is unsustainable. As stated earlier, the final order confiscating the seized sandalwood oil together with the vehicle used for transporting it had been passed on 31. l0. 2000 and the same was published in the official Gazette on 9. 11. 2000. The order being not challenged in any appeal or· any other proceeding it attained finality. In such circumstances the question of the Magistrate exercising power of interim custody of the vehicle did nqt arise.. The order passed by the High Court is unsustainable on this count as well. Accordingly, the appeal . js allowed. the order passed by the High Court on 7. 12.

2000 in Criminal petition No. 3670 of 2000 is set aside. R. P. Appeal allowed.