1. The petitioner is the owner in possession of a proclain machine. He is operating a granite quarry. For clearing the granite quarry, he made use of the poclain machine and cut and removed and also uprooted some sandal wood saplings which was there in his own property. He has allegedly dumped soil on the uprooted sandal wood samplings. OR No.3/2017 of the Ezhattumugham Forest Station has been registered against him and four others for the offences under Sections 47B(1), 47C(1)(i) and Section 52 of the Kerala Forest Act, 1961(for short, 'the Act').

2. The poclain machine was seized from the possession of the petitioner and the same was produced before the Judicial First Class Magistrate's Court, Kalady. The petitioner filed CMP 1187/2017 before the court below for the release of the poclain machine to his interim custody under Section 451 Cr.P.C. The Forest Range Officer filed CMP No.1188/2017 for the return of the poclain machine to his custody for initiating confiscation proceedings under Section 61A of the Act. Both the said petitions were heard. The CMP filed by the petitioner was dismissed and the CMP filed by the Forest Range Officer was allowed. The said order is under challenge in these Crl.M.Cs.

3. Heard the learned Senior Counsel for the petitioner and the learned Special Government Pleader for Forest.

4. According to the learned Senior Counsel, this is not a case wherein confiscation proceedings can be initiated under Section 61A of the Act, when a forest offence has not been committed 'in respect of the property of the Government' within the meaning of Section 61A of the Forest Act. It has also been argued that Section 47H of the Act cannot also be pressed into service when the proclain machine involved has not been made use of for the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil, within the meaning of the said provision. The argument is that when it is not liable to be confiscated under Section 61A, being the registered owner, the poclain machine is liable to be released to the interim custody of the petitioner under Section 451 Cr.P.C. 5. Per contra, the learned Special Government Pleader for Forest has argued that the poclain machine is liable to be seized under Section 47H of the Act, independently of the fact that it has not been made use of, for the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil. The argument is that a purposive interpretation should be given to the provisions contained under Section 47H by interpreting the provision, with a view to protecting the preservation of sandal wood trees. It has been argued that the terms “or any other contrivance used in the manufacture or distillation of sandalwood oil, or in the process of sale of sandalwood or sandalwood oil” shall be read in isolation by treating as separate from the forgoing provisions of the said Section.

6. It has been further argued that the present claim of the petitioner is barred by the principles of res judicata, when another writ petition that was filed by the petitioner seeking the custody of the poclain machine was withdrawn and especially when no leave has been granted by this Court to have recourse to other proceedings in the same matter.

7. It has been further argued that where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, distilling unit, boiler-plant, tools, ropes, chains, boats or vehicles, should be liable for confiscation under Section 61A.

8. Another argument is that when confiscation proceedings have already been initiated under Section 61A, the criminal court shall ceased to have jurisdiction to entertain a claim under Section 451 Cr.P.C. in respect of the subject matter of confiscation.

9. Admittedly, Section 61A will come into play when a forest offence is believed to have been committed in respect of timber, charcoal, firewood or iv