IMPORTANT POINT
Once a confiscation proceeding is initiated under the Indian Forest Act, the jurisdiction of the criminal Court in terms of Section 59-G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property.

Headnote:Indian Forest Act, 1927-Sections 59-A to 59G, 55, 52, 2(c), 67 and 68-Criminal Procedure Code, 1973-Section 482-Confiscation of forest produce by Forest Officer-Bar of jurisdiction of Court in certain cases-Applicability of Section 482 Cr.P.C.> for quashing a proceeding for confiscation of forest produce etc. under the Act as amended by State of West Bengal-Forest produce belonging to the State and/or the vehicles carrying the same were seized by the Forest Officer-Truck of respondent carrying forest produce said to be without transit permit was detained and seized-Confiscation proceedings-High Court releasing the vehicles in exercise of its jurisdiction under Section 482 of the Code-Whether order of the High Court is sustainable-(No)-Once a confiscation proceeding is initiated the jurisdiction of the criminal Court in terms of Section 59-G of the Act is barred.
       Held : Authorized officers under the Act have been granted a wide discretion as regard choosing any of the three courses of action but exercise thereof would have a direct bearing to the nature of offence. The provisions of the Indian Forest Act and the amendments carried out in the provisions thereof by the State of West Bengal, as noticed hereinbefore, point out to the said discretionary power conferred upon the concerned authorities in this behalf. Only in a case where the forest authorities intend to proceed against an offender both for confiscation of the property as also for his prosecution; except in the cases which are covered by the proviso appended to sub-section (2) of Section 52 of the Act, report of seizure is required to be made both to the Magistrate as also to the authorised officer. (Para 30)
       The said authority before passing a final order in terms of Section 59-A (3) of the Act is required to issue notice and give opportunity of hearing to the parties concerned. Unless such a notice is issued, the confiscation proceeding cannot be said to have started. Once, however, a confiscation proceeding is initiated; in terms of Section 59-G of the Act, the jurisdiction of the criminal court in this behalf stands excluded. The criminal court although indisputably has the jurisdiction to deal with the property which is the subject-matter of offence in terms of the provisions of the Code of Criminal Procedure but once a confiscation proceeding is initiated, the said power cannot be exercised by the Magistrate. (Para 31)
       The inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court amounts to abuse of the process of court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of Code of Criminal Procedure would mean a criminal court or whence a power is exercised by the court under the Code of Criminal Procedure. Once it is held that the criminal court had no power to deal with the property seized under the Act, the question of the High Court s execising its jurisdiction under Section 482 of the Code of Criminal Procedure would not arise. The amendments carried out by the State of West Bengal by reason of Sections 59-A to 59-G in the Indian Forests Act provide for a complete Code. The validity or otherwise of the said provisions is not in question before us. An order of confiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both confiscation and forfeiture of a property may be the same, namely that the property would vest in the State but the nature of such order having regard to the statutory scheme must be held to be different. A proceeding for confiscation can be initiated irrespective of the fact that as to whether prosecution for commission of a forest offence has been lodged or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. We may also notice that the State has been made liable to refund the amount which has been deposited pursuant to an auction held in respect of the confiscated property only in the event the order of confiscation is set aside or annulled under Section 59-A(4) (b) thereof. No provision has been made in the statute unlike Section 6-C of the Essential Commodities Act, 1955 to the effect that the confiscated property or the amount deposited in the treasury pursuant to the auction of the confiscated goods would be returned to the owner thereof in the event, the criminal trial ends in an acquittal. (Paras 33 and 34)
       In view of the aforementioned binding precedents, we are of the opinion that the High Court exceeded its jurisdiction in releasing the vehicles in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. (Para 41)
       A confiscation envisages a civil liability whereas an order of forfeiture of the forest-produce must be preceded by a judgment of conviction. Although indisputably having regard to the phraseology used in sub-section (2) of Section 59-A, there cannot be any doubt whatsoever that commission of a forest offence is one of the requisite ingredients for passing an order of confiscation; but the question as to whether the order of acquittal has been passed on that ground and what weight should be attached thereto is a matter which, in our opinion, should not be gone into at this stage. (Para 43)
       The upshot of our aforementioned discussion is that once a confiscation proceeding is initiated the jurisdiction of the criminal court in terms of Section 59-G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High Court can exercise such a power only in exercise of its power of judicial review. (Para 46)

JUDGMENT

S.B. Sinha, J.-

INTRODUCTION

Applicability of Section 482 of the Code of Criminal Procedure, 1973 for quashing a proceeding for confiscation of forest-produce etc. under the provisions of Indian Forest Act, 1927 (hereinafter referred to as the Act ) as amended by the State of West Bengal is in question in these appeals which arise out of a common judgment and order dated 27.6.1996 passed by the Calcutta High Court.

BACKGROUND FACT

2. Shortly stated, the fact of the matter is that the forest-produce belonging to the State and/or the vehicles carrying the same were seized by the Forest Officer. The report of such seizure was made to the authorized officer.

3. Except Criminal Appeal No. 453 of 1997 - State of West Bengal and Ors. Vs. Sujit Kumar Rana, show cause notices issued by the forest authority purported to be issued under the provision of Section 59-B of the Act, as amended by the State of West Bengal or the seizure of the forest-produce or the vehicles carrying the same, came to be questioned by the respondents before the Calcutta High Court invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. In Sujit Kumar Rana s case, however, an order of confiscation was passed by the authorized officer.

4. The factual matrix, for appreciating the points involved herein is being noticed from Criminal Appeal No. 453 of 1997 :

5. The truck of the respondent carrying forest-produce and said to be without transit permit was detained and seized. Upon a report of the said seizure, show cause notice was issued to the respondent by the authorized officer as to why vehicle shall not be confiscated. The owner of the truck replied to the said notice, praying for release of the same.

6. A writ petition was filed by the respondent herein under Article 226 of the Constitution of India before the High Court of Calcutta which was disposed of on or about 15.09.1995 by it directing the Divisional Forest Officer to complete the confiscation proceedings expeditiously and preferably within a period of five weeks from the said date. On or about 5.1.1996, the High Court of Calcutta passed an ex parte order directing that custody of the truck be given to the owner on his executing a bond to the satisfaction of the Divisional Forest Officer; with a further direction that the same would not be taken out of the territorial limit of the State of West Bengal. The Divisional Forest Officer filed an application for vacating the said order of the High Court, which was rejected by the High Court.

7. Before the High Court, a preliminary question as regard maintainability of an application under Section 482 of the Code of Criminal Procedure was raised. By reason of the impugned judgment the said contention was negatived.

SUBMISSION :

8. Mr. T.C. Ray, learned senior counsel appearing on behalf of the State of West Bengal, inter alia, would contend that having regard to the fact that the proceeding for confiscation of forest-produce and/or vehicles carrying the same is not initiated under the provisions of the Code of Criminal Procedure, the applications filed by the respondent herein purported to be under Section 482 of the Code of Criminal was not maintainable. The learned counsel would submit that the High Court committed a manifest error in placing reliance upon the Division Bench judgments of the said Court, ignoring the binding decision of this Court in Divisional Forest Officer and Another vs. G.V. Sudhakar Rao and Others [(1985) 4 SCC 573] which has been brought to its notice and wherein it has been clearly held that the High Court had no jurisdiction to release the vehicles when a confiscation proceeding is pending before the designated authority in exercise of its power under Section 482 of the Code of Criminal Procedure.

9. Mr. Ray would urge that keeping in view the fact that admittedly the decision of this Court in Sudhakar Rao (supra) was not brought to the notice of the Division Bench of the Calcutta High Court when the earlier decis

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2004 Supreme(SC) 75

Cases Referred (10)