A. K. PARICHHA. J. :— Petitioner has challenged the order dated 28-8-2006 passed by the learned S. D. J. M., Angul in C. T, No, 1108 of 2006 rejecting his prayer for release of the Maruti Van bearing Registration No. OR-13-0242 in his interim zima.
2. The above noted Maruti Van which is under the registered ownership of the petitioner, was seized by the police authorities on 16-6-2006 at about 3.30 a.m. from the possession of Md. Imran, Md. Phiroj and Fakir Kansa when those persons were transporting 2.5 quintals of Kendu leaf in the said vehicle. After the seizure of the vehicle and Kendu leaf Nalco Nagar P. S. Case No. 56 of 2006 was registered for commission of offence under Ss. 379, 411/34 of the I. P. C, Sec. 4 of the Kendu Leaf Act and Sections 4, 14 and 21 of the Orissa Timber and other Forest Produce Transit Rules. The fact of seizure was intimated to the learned Magistrate, but the vehicle was given in the custody of the Forest Range Officer as the vehicle was involved in a forest offence and liable for confiscation under S. 56(1) of the Orissa Forest Act. When the matter stood thus, the petitioner filed an application under S. 457 of the Cr. P. C. to release the seized vehicle in his interim custody on the plea that he is the registered owner of the vehicle and the alleged offences were committed without his knowledge or consent. The State strongly resisted the prayer of the petitioner mainly on the plea that vehicle involved in commission of forest offences is not to be released during the pendency of the confiscation proceeding and that when confiscation proceeding is pending before the forest authorities the Magistrate in seisin of the criminal case has no jurisdiction to release the vehicle.
3. Learned S. D. J. M., Angul after hearing the learned counsel for the parties by the impugned order rejected the prayer of the petitioner with the observation that during the pendency of the confiscation proceeding he cannot assume jurisdiction to release the vehicle and that the vehicle involving commission of forest offence is not to be returned to the party liberally as that would encourage commission of forest offence resulting ultimately in destabilization of the environment and society.
4. Mr. S. S. Swain, learned counsel for the petitioner stated that the seizure having been made by the police authorities, and the criminal case pending before the learned S. D. J. M., Angul, confiscation proceeding was not a bar and learned S. D. J. M. had every authority to exercise the power u/S. 457 of the Cr. P. C. He further stated that the petitioner being the registered owner of the vehicle and not being involved in the criminal case, the seized vehicle ought to have been released in his interim custody as otherwise the vehicle will be completely damaged lying in the forest office campus exposed to sun and rain. In support of his contention Mr. Swain relied on the cases of State of Orissa v. Basant Nayak and others, (2000) 18 OCR 4; Sudhansu Kumar Das v. State of Orissa (2000) 19 OCR 63 and Section Forester and another v. Mansur Ali Khan (2004) 27 OCR 368 : (AIR 2004 SC 1251).
5. Mr. S. Behera, learned Addl. Govt. Advocate per contra contended that jurisdiction of criminal Court stood ousted once confiscation proceeding under S. 56(1) of the Orissa Forest Act was initiated. According to him, when any forest produce together with vehicle used in commission of any forest offence is seized and subjected to a proceeding under S. 56 of the Orissa Forest Act, the power to release the property seized lies with the forest authority and not with the Magistrate in exercise of its power under S. 457 of the Cr. P. C. In support of his stand Mr. Behera cited the cases of State of West Bengal and others v. Sujit Kumar Rana, AIR 2004 SC 1851; State of Karnataka v. K. Krishnan, AIR 2000 SC 2729 : (2000 Cri LJ 3971); Sarat Kumar Malu v. The State of Orissa, (1984) 57 CLT 381 : (1984 Cri LJ 984) and Divisional Forest Officer, Territorial Division, Sambalpur v. Ranjit Kaur Raina and two others, (1995) 2 OCR 526.
6. In the case of Sarat Kumar Malu (1984 Cri LJ 984) (supra) the truck in question was seized by the officials of the Forest Department on the allegation that teak logs were stealthily being removed in the said vehicle and thereby offence under the Orissa Forest Act was being committed. The petitioner filed an application before the S. D. J. M. for release of the truck in his favour. The prayer was rejected and the truck owner came to this Court against that order. This Court observed that when any forest produce together with vehicle used in commission of any forest offence is seized by any Forest Officer in exercise of his powers under Section 56 of the Orissa Forest Act the power to release the property seized lies with the authorities prescribed in the four corners of the provisions of the Forest Act and not with a Magistrate in exercise of his powers under the provisions of the Cr. P. C. It was also observed that Section 457, Cr. P. C. will have no application when the property in question is not seized by a Police Officer in the case. The ratio noted above is not applicable to the present case as in the instant case the vehicle along with the kendu leaves were seized by the police officers who after registering the case for the offences noted above, handed over the vehicle to the forest authorities for confiscation. In the case of State of Orissa v. Basant Nayak and others (supra) truck carrying sal logs without valid paper was seized by the Police. Case was registered under S. 379, I. P. C. and Sees. 46 and 56 of the Orissa Forest Act. Application filed under S. 457, Cr. P. C. by the registered owner was allowed by the Magistrate. That order was challenged on the plea that the Magistrate had no jurisdiction. This Court ruled that the Magistrate had jurisdiction to deal with the application under S. 457, Cr. P. C. and his jurisdiction was not affected merely because proceeding under S. 56 of the Orissa Forest Act had been initiated for confiscation of the vehicle. Similar view was also taken in the case of Sudhansu Kumar Das (supra). However, in the case of Divisional Forest Officer, Sambalpur v. Ranjit Kaur Raina (supra) this Court took a different view. There two trucks belonging to the opp. parties were seized by Dhanupalli Police Station when those trucks were proceeding with Kendu leaf from Redhakhol side towards Calcutta. Case under Sections 379, 411, 307, 332/34, IPC and Section 14 of the Orissa Kendu Leaf (Control and Trade) Act was registered. Then the matter was reported to the D.F.O. and he was requested to take possession of the seized truck and Kendu leaf for initiating confiscation proceeding. The accused persons were forwarded to the Court of learned S.D.J.M. Sambalpur. Petition u/S. 457, Cr. P.C. was moved for release of the trucks in question. Learned Magistrate allowed that prayer, but that order was challenged. In that matter this Court ruled that when a vehicle is seized by the Police Officer in connection with the commission of forest offence and the seized vehicle and the forest produce involved are handed over to the forest authorities, the Magistrate will have no jurisdiction to exercise his power u/S. 457, Cr. P.C. Similar view was also taken in the case of Aswini Kumar Patra v. State of Orissa (2005) 30 OCR 765 : (2005 Cri LJ (NOC) 65). In the case of State of West Bengal v. Sujit Kumar Rana, (AIR 2004 SC 1851 (supra) the Apex Court also observed that once a confiscation proceeding is initiated, the jurisdiction of the criminal Court gets barred and the High Court also cannot exercise its inherent jurisdiction u/S. 482, Cr. P.C. for interim release of the property.
7. From the above noted judicial pronouncements one can gather that in case of seizure of vehicle involved in a forest offence by forest official the Criminal Court would have no jurisdiction to release the vehicle in exercise of power u/S. 457, Cr. P.C. Similarly when the vehicle involved in forest offence is seized by the police authorities and the vehicle and the forest produce are handed over to the forest authorities for initiating confiscation proceeding then also the criminal Court would have no power u/S. 457, Cr. P.C. Such view is logical as otherwise this may lead to conflict of decision of the Magistrate and the Authorized Officer. Only when the vehicle involving in a forest offence is seized by the police authorities and is produced before the Magistrate and no confiscation proceeding is pending then and then only the Magistrate would have jurisdiction to pass any order in exercise of power u/S. 457, Cr. P.C.
8. In the case of K. Krishnan (2000 Cri LJ 3971) (supra) as well as in the case of Section Forest Officer, (AIR 2004 SC 1251) (supra) the Apex Court had the occasion to observe that vehicle seized for committing forest offence was not normally to be released to the party till culmination of all proceedings in respect of the said offence as liberal approach in the matter would perpetuate the commission of the more offences with respect to the forest and its produce which, if not protected is bound to affect the mother earth and the atmosphere surrounding it. It can be gathered from the observation of the Apex Court that in the face of the pendency of a confiscation proceeding related to forest offence, the concerned authorities as well as the criminal Court and High Court should be reluctant to release the vehicle in interim custody as that would be against the interest of the environment and society.
9. In the instant case admittedly Nalco Nagar Police Station authorities seized the Maruti Van with Kendu leaves and handed over the seized vehicle and kendu leaves to the forest authorities for initiation of the confiscation proceeding. In that situation, even though the criminal case is pending now before the S.D.J.M., Angul, the said Court would not have jurisdiction to release the vehicle in exercise of power u/S. 457, Cr. P.C. It is submitted that the petitioner is the registered owner of the Maruti Van and he had no knowledge or consent about the commission of the alleged forest offence. This plea of the petitioner can be adjudicated before the authorized officer in seisin of the confiscation proceeding as such issue involving fact and evidence cannot be adjudicated in a revisional forum.
10. For the aforesaid reason, the impugned order rejecting the prayer of the petitioner to release the seized vehicle in his interim custody, does not call for any interference.
11. Mr. Swain submits that as an alternative measure fine can be imposed in lieu of confiscation of the vehicle and in support of the argument relied on the case of Gurudev Singh Rai v. Authorized Officer -cum-Asstt. Conservator of Forest, Rairakhol Division, (1992) 5 OCR 169 : (AIR 1992 Orissa 287) where order of confiscation was substituted by imposition of fine. The ratio of Gurudev Singh's case is no more good law in view of the ruling of the Apex Court in the case of State of Jharkhand v. Gobind Singh, AIR 2005 SC 294 and therefore, order of confiscation cannot be substituted by imposition of fine. Be that as it may, the issue is premature as the confiscation proceeding is still pending before the Authorized Officer.
12. In the ultimate analysis, the revision is found to be without any merit and is accordingly dismissed. However, the petitioner is at liberty to put forth his plea before the Authorized Officer, which would be disposed of according to law.
Revision dismissed.
