2002 Supreme(SC) 493

2002(3) Supreme 361
SUPREME COURT OF INDIA
(From Karnataka High Court)
D.P. Mohapatra and Shivaraj V. Patil JJ.
State of Karnataka -Appellant
versus
K.A. Kunchindammed -Respondent
Criminal Appeal No. 513 of 2002
(Arising out of SLP (Crl.) No. 1471 of 2001)
Decided on 16-4-2002
Counsel for the Parties :
For the Appellant : Harish N. Salve, Solicitor General (A.C.) and N. Ganpathy, Advocate.

IMPORTANT POINT
It is, the authorised officer under Karnataka Forest Act, 1963 and not the Magistrate under Cr.P.C. who has the power to pass order for interim release of the forest produce seized and also seized vehicle used for transporting it illegally.

Headnote:Karnataka Forest Act, 1963-Sections 2(7), 2(18), 62, 65, 66, 71, 71A to 71-G-Definitions of Forest Produce, "Sandalwood" power of seizure, confiscation, interim custody-Cr.P.C.> 1973-Custody of seized vehicle used in Transportation of Sandalwood Oil illegally-Sandalwood oil confiscated by authorised officer under the Act and confiscation becoming final as not appealed against-Owner of the vehicle, who is the respondent herein, filed an application before Judicial Magistrate of Udipi under Cr.P.C. for interim custody of vehicle involved in illegal transportation of Sandalwood Oil -Magistrate dismissed it as interim custody of vehicle is vested in Authorised Officer-Upheld in Revision by Sessions Judge but reversed by High Court in petition under Section 482 Cr.P.C. and directed Judicial Magistrate to dispose of petition on merits-Appeal against to Supreme Court-Which authority has the power to pass order for interim release of the forest produce seized under the Karnataka Forest Act, 1963? Is it the authorised officer under the Act or the Magistrate under Cr P.C. (The former)-Result-Authorised Officer is also vested with power to pass order of interim custody of the vehicle and not the magistrate-Appeal allowed.

       Held : From the order it is manifest that the High Court was persuaded to take the view that the power to order for interim custody of a 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 of the term forest produce the Court drew the inference that the power of 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 term sandalwood . It follows that wherever the term sandalwood is used under the Act it has to be understood in terms 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 of jurisdiction in Section 71-G are so read it is clear that sandalwood oil is also included within the purview of the said sections and the distinction between the two terms and their specific inclusion or exclusion in the statutory provision does not exist. Perhaps the attention 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 forests and forest produce. For this purpose certain powers including the power of seizure, confiscation and forfeiture of the 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 of the 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 view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis. 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 31-10-2000 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 not arise. The order passed by the High Court is unsustainable on this count as well. Accordingly, the appeal is allowed. The order passed by the High Court on 7.12.2000 in Criminal Petition No. 3670 of 2000 is set aside. (Paras 22 to 26)