Manoj Kumar Agrawal v. State Of Chhattisgarh

AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 299 of 2017 Order reserved on 19/06/2020 Order delivered on 29/06/2020 Manoj Kumar Agrawal S/o. late Shri Mahadeo Prasad Agrawal, aged about 30 years, resident of Nichepara Kapu Road, Dharamjaigarh, District Raigarh, Chhattisgarh.

---Petitioner

Versus

State of Chhattisgarh, through : Divisional Forest Officer, Bakaruma, Tahsil Dharamjaigarh, District Raigarh, Chhattisgarh.

--- Respondent/State For Petitioner:- Mr. Surfaraj Khan, Advocate For State :- Mr. Animesh Tiwari, Dy. A.G.

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. Proceedings of this matter have been taken up for final hearing through video conferencing.

2. Petitioner's motor vehicle was found involved in commission of forest offence bearing PRO No. 6702/23 under section 52 (26) (1) (A) of Indian Forest Act, 1927 read with Section 41(3) of Chhattisgarh Van Upaj (Vyapar-Viniyam) Adhiniyam, 1989 and thereafter, on 27.06.2011, the authorized officer in exercise of power conferred

to him under section 52(4) of the Act of 1927 informed about the initiation of confiscation proceedings against the petitioner to the Judicial Magistrate 1st Class, Dharamjaigarh, District Raigarh.

3. Thereafter, the petitioner made an application for grant of interim custody under Section 451 of Criminal Procedure Code, 1973. Learned JMFC allowed the application and directed for release of vehicle in favour of petitioner which was questioned by the State by filing revision before the Court of sessions. Learned session judge, by its impugned order, allowed the revision petition in light of the provisions contained under Section 52-C of Indian Forest Act, 1927 (M.P. State Amendment) rejecting the application filed under Section 451 of Cr.P.C.

4. Questioning the order of learned sessions judge, this petition under Section 482 has been preferred stating that the impugned order is unsustainable and bad in law. The state has filed its return stating that the authorized officer has initiated confiscation proceeding and intimated the same fact to the Judicial Magistrate on 27.06.2011 under Section 52(4) of

the Act of 1927 and in that view of the matter, jurisdiction of Judicial Magistrate is ousted under Section 52-C of the Act of 1927 (M.P. State amendment), as such, the present petition under Section 482 of Cr.P.C. deserves to be dismissed.

5. Mr. Surfaraj Khan, learned counsel for the petitioner, would submit that Additional Sessions Judge is absolutely unjustified in allowing the revision and rejecting the application for interim custody filed by the petitioner. He would further submit that petitioner, being the owner of the vehicle, was never informed about the initiation of confiscation proceedings, therefore, section 52-C of the act of 1927 is not at all attracted and he would rely upon the decision of Madhya Pradesh High Court in the matter of Firoz Khan v. State of M.P1 to buttress his submission.

6. On the other hand, Mr. Animesh Tiwari, learned Deputy Advocate General would support the impugned order and submit that since the initiation of confiscation proceedings has been intimated to jurisdictional Judicial Magistrate, therefore, Section 52-C of the Act of 1927 is 1 2015(4) Crimes 94

squarely attracted and the present petition deserves to be dismissed as jurisdiction of concerned Magistrate is already ousted.

7. I have heard learned counsel for the parties, considered the rival submissions made hereinabove and went through the record with utmost circumspection.

8. In order to consider the plea raised at the bar, it would be appropriate to consider Section 52-C of the Indian Forest Act substituted by the M.P. Amendment Act No. 1983 with effect from 1st November, 1983.

9. At this stage, it would be appropriate to notice Section 52-C of the aforesaid act:- "52C. Bar of Jurisdiction of Courts etc. in certain circumstances.- (1) On receipt of intimation under sub-section (4) of section 52 about initiation of proceedings for confiscation or property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court, Tribunal or Authority (other than the authorised officer, Appellate Authority and Revision Authority referred to in sections, 52, 52A and 52B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated in this Act, or any other law for the time being in force.

Explanation.-Where under any law for the time being in force, two or more Courts

have jurisdiction to try forest offence, then on receipt of intimation under subsection (4) of section 52 by one of the Courts of Magistrate having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.

(2) Nothing in sub-section (1) shall affect the power saved under section 61."

10.A careful perusal of the aforesaid provision i.e. Section 52-C would show that when the forest produce and the vehicle is seized in commission of forest offence and proceedings for confiscation are initiated of which an intimation has been received under Section 52(4) of the Indian Forest Act, 1927 about initiation of proceedings for confiscation by the Magistrate having jurisdiction to try the offence, no Court, Tribunal or authority (other than authorized officer, Appellate Authority and the Court of Sessions referred in Sections 52, 52-A and 52-B) shall have jurisdiction to make orders with regard to possession, delivery, disposal of distribution of the property and as such section 451/457 of Criminal Procedure Code, 1973 will have no application as jurisdiction to consider the said application is ousted.

11.Even otherwise, this issue is no longer res integra and stands authoritatively and conclusively adjudicated by their Lordships of the Supreme Court in the matter of State of Madhya Pradesh v. Uday Singh2 in which their Lordships took note of the provisions contained in section 52-C of the Indian Forest Act, 1927 as substituted by State of Madhya Pradesh and clearly held that the jurisdiction under Section 451 of Criminal Procedure Code, 1973 is not available to the Magistrate once authorized officer initiate confiscation proceedings and it is intimated to the jurisdictional Magistrate being Judicial Magistrate First Class under section 52 (4) of the Act of 1927 and held as under :

"26. Our analysis of the amendments brought by MP Act 25 of 1983 to the Indian Forest Act 1927 leads to the conclusion that specific provisions have been made for the seizure and confiscation of forest produce and of tools, boats, vehicles and articles used in the commission of offences. Upon a seizure Under Section 52(1), the officer effecting the seizure has to either produce the property before the Authorised Officer or to make a report of the seizure Under Sub-section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorised Officer is empowered, for reasons to be recorded, to confiscate the 2 A.I.R. 2019 SC 1597

forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property Under Sub-section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence. The order of confiscation Under Section 52(3) is subject to an appeal Under Section 52-A and a revision Under Section 52-B.

Subsection (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the Code of Criminal Procedure and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate Under Sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (Under Sections 52, 52A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated.

Subsection (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized Under Section 52, as provided in Section 61.

Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition Under Section 482 of the Code of Criminal Procedure, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction Under Section 451 of the Code of Criminal Procedure was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings.

27. The Madhya Pradesh amendments to the Indian Forest Act 1927 are infused with a salutary public purpose. Protection of forests against depredation is a constitutionally mandated goal exemplified by Article 48A19 of the Directive Principles and the Fundamental Duty of every citizen incorporated in Article 51A(g)20. By isolating the confiscation of forest produce and the instruments utilised for the commission of an offence from criminal trials, the legislature intended to ensure that confiscation is an effective deterrent. The absence of effective deterrence was considered by the Legislature to be a deficiency in the legal regime. The state amendment has sought to overcome that deficiency by imposing stringent deterrents against activities which threaten the pristine existence of forests in Madhya Pradesh. As an effective tool for protecting and preserving environment, these provisions must receive a purposive interpretation.

For, it is only when the interpretation of law keeps pace with the object of the Legislature that the grave evils which pose a danger to our natural environment can be suppressed. The avarice of humankind through the ages has resulted in an alarming depletion of the natural environment. The consequences of climate

change are bearing down on every day of our existence. Statutory interpretation must remain eternally vigilant to the daily assaults on the environment."

12.Reverting to the facts of the case in the light of principles of law laid down in aforesaid judgment in the matter of Uday Singh(supra), it is quite vivid that in the instant case the Authorized officer/DFO initiated confiscation proceeding of the vehicle owned by the petitioner and on 26.06.2011 informed the initiation of confiscation proceeding to the Judicial Magistrate First Class, Dharamjaigarh by its memo dated 26.06.2011 which is filed as Annexure R-1 with the return which states as under :

ज्቎ शुददा सम्पतति । जजो वन अपरदाध म ्ቚयशु्ሹ ककी गई ह, कजो रदाज सदाति ................... करने ककी कदायरवदाहही ्ቚदारमभ करने ककी सूचनदानकदायदारलयनस्ቌम ्ቚदाधधककति अधधकदारही एवम उप वन मडलदाधधकदारही, लहलसूमगदा ्ቅमदाሯकरदाज./454 स्थदान बदाकदारूमदा तदनदाሯक 26/6/11 ्ቚतति, मदान. न्यदातयक दण्डदाधधकदारही ्ቚथम शनेणही, धरमजयगढ तवषयनपही०ओ०आर० ्ቅमदाሯक - 6702/23 तदनदाሯक - 26/06/2011 सने हए अपरदाध म अपरदाध करने म ्ቚयशु्ሹ वदाहन पहीकप (नम्बर नहह) इमजन नम. - 64681 GASIK कजो रदाजसदाति तनवनेदन ह तक मने भदा. वन अधधतनयम 1927 ककी धदारदा 26 (1) क कने धदारदा 52, अतभवहन वनजोपज तनयम 2001 धदारदा 41 तनयम 3 कने अनशुसदार वन अपरदाध म हए ्ቚयशु्ሹ हजोने वदालही पहीकप (महक्स) मतहन््ቖ & मतहन््ቖदा (नम्बर प्लनेट नहह) इमजन नम. - 64681 GASIK कजो रदाजसदाति करने ककी कदायरवदाहही ्ቚदारमभ कर दही ह, धजसककी सूचनदा तनम्न तववरण म दही जदा रहही ह ।

1. (अ) उस वस्तिशु कदा तववरण धजसकजो रदाजसदाति तकयदा जदानदा ्ቚस्तिदातवति ह - पहीकप (महक्स) मतहन््ቖ & मतहन््ቖदा (नम्बर प्लनेट नहह) इमजन नम.

- 64681 GASIK (ब) उन पररसस्थतियोሱ कदा समत्ቌ्቎ तववरण धजसम वह ज्቎ ककी गई पहीकप कदा नम. प्लनेट नहह, इमजन नम. - 64681, GASIK सदागगौन तचरदान 99 = 1.352 घन, सदाल तचरदान 41 = .261 घन 2.

ज्቎शुददा वस्तिशु कने मदाधलक कदा नदाम, तपतिदा कदा नदाम - शही महदावहीर / - S o जगतिरदाम अ्ቇवदाल, पत्थलगदाሯव तनवदास स्थदान, पनेशदा आतद व्यदापदार फरदार ह 3.

उस व्यत्ሹ कदा नदाम/तपतिदा कदा नदाम, तनवदासही धजसम कदालम 'अ' म दशदारयही सम्पतति ज्቎ ककी गई शही महदावहीर अ्ቇवदाल, पत्थलगदाሯव - फरदार 4.

ज्቎ही कदा तदनदाሯक, समय, स्थदान 26/06/2011, 12 बजने तदन, ततिलडनेगदा ्ቇदाम, महदावहीर कने गजोददाम कने सदामने 5.

उस अधधकदारही कदा नदाम/पद धजसने ऊपर वतणरति वस्तिशु ज्቎ ककी चन््ቖ तवजय धसमह धसददार, रहरूमदा 6.

ज्቎ शुददा वस्तिशुति कदा अनशुमदातनति मसूल्य वदाहन कदा . 3,00,000/- + Rs ईमदा. लकडही 17062/- .

Rs 7.

अपरदाध/अपरदाधोሱ कदा तववरण मय धदारदा व अधधतनयम धजनकने अमतिगरति अपरदाध हआ ह भदा.व.अ. 1927 ककी धदारदा (26) 1 व धदारदा 52, अतभवहन वनजोपज तनयम 2001 धदारदा 41 तनयम 3 8.

सूचनदा ्ቚनेषण कदा तदनदाሯक 26/06/2011 सहही/- स्ቌम ्ቚदाधधककति अधधकदारही एवम उप वनमडलदाधधकदारही लहलसूमगदा ्ቅ./रदाज./455 तदनदाሯक - 26/06/2011 ्ቚततिधलतपन-वन मडलदाधधकदारही धरमजयगढ वन मडल कजो सूचनदाथर सदादर सम््ቚनेतषति ह । वन परर्ቌने्ቔ अधधकदारही बदाकदारूमदा कजो सूचनदाथर, ्ቚकरण कने तित्थदात्मक एवम तवस्तिकति जदाሯच कर अतवलम्बर इस न्यदायदालय म ्ቚस्तिशुति करम । सहही/- स्ቌम ्ቚदाधधककति अधधकदारही एवम उप वनमडलदाधधकदारही लहलसूमगदा

13. Once the confiscation proceeding is initiated for confiscation of vehicle seized in forest offence and the initiation of confiscation proceeding has been informed under Section 52(4) of the Act of 1927 as amended by the State of Madhya Pradesh to concerned Magistrate, jurisdiction of Magistrate to grant interim custody under Section 451 is expressly barred and stand ousted by virtue of provision contained in Section 52-C of the Act of 1927.

14.Consequently, learned Session Judge is absolutely justified in setting aside the order of learned Judicial Magistrate First Class granting interim custody to the petitioner. I do not find any merit in this petition and it deserves to be and is accordingly dismissed. No order as to cost(s). Sd/- (Sanjay K. Agrawal) Judge Harneet