Order.- The respondent herein B.G. Shivananda is said to bo the registered owner of an Ambassador Car bearing No. MYQ 8646. On 4th May, 1977 at about 3-00 a.m. Thyamagondlu Police seized the said car presumably acting under sub-section (1) of section 62 of the Karnataka Forest Act, 1963, (hereinafter called the Act), on the ground that it was being used for committing offences under section 379, Indian Penal Code read with section 86 of the Act, and registered a case in Crime No. 26 of 1977 and reported the fact of seizure to the Chief Judicial Magistrate, Bangalore District, presumably acting under sub-section (3) of section 62 of the Act. Thereupon the respondent on 10th May, 1977 filed an application under section 451 of the Code of Criminal Procedure, 1973, before the said Magistrate requesting him to release the care and hand it over to him. The A.P.P. however resisted that application and inter alia contended that the Magistrate has no jurisdiction to make the order sought for and. that in view of the provisions of section 71-A of the Act (inserted by the Karnataka Forest (Second Amendment) Act, 1976) it is the authorised officer referred, to therein who can made an order of that kind; the argument submitted in support of that contention was that section 71-A of the Act empowers the authorised Officer referred to therein to order confiscation of the property seized under section 62(1) of the Act and therefore it is that authorised officer who can make an interim order regarding the custody of the car in question, and. not the Magistrate. The learned Magistrate, however, repelled that contention and observed thus:

"There is nothing in the provisions of section 71(A) to section 71(F) which have been added by virtue of the Karnataka Forest (Second Amendment) Act 1976, relates to the interim custody of vehicle seized by the Police. The offence alleged in this case is one punishable under section 379, Indian Penal Code read with section 86 of the Karnataka Forest Act. Though section 71(A) gives the power of confiscation of the vehicle used in the commission of a forest offence to the officer authorised by the State Government under the provisions of section 71(A) there is no provision found in the entire scheme of section 71(A) to section 71(F) by which interim custody of a vehicle seized by the police can be given or has to be given by such authorised officer and ousting the jurisdiction of a criminal Court. In my opinion, there is considerable force in the contention urged on the side of he petitioner that even though section 71(A) of the Forest Act provides that the power to confiscate vests with the authorised officer appointed by the State Government, the powers of this Court to grant interim custody of the vehicle seized by the Police vests with this Court and has not been fettered in any manner or ousted by any of the provisions of sections 71(A) to 71(F) of the Forest Act. I am of the opinion that there is no impediment to pass an order regarding the interim custody of the vehicle seized, that is the car seized in this case, by this Court subject to certain conditions that have to be imposed to safeguard the interests of the State.”

In the view he took he allowed the application of the respondent, by his order dated 24th September, 1977 the operative portion of which reads:

“For the above reasons, I allow this application. The Car MYQ-8646 is given to the interim custody of the petitioner B.G. Shivananda on condition that he shall execute an indemnity bond for a sum of Rs. 25,000 (Rupees twenty-five thousand.) with one surety in like sum and on further condition that he shall not change the colour or the structure of the car in any manner until the disposal of the case and shall produce the car before the police as well as before the Court whenever called upon and he shall not dispose of the said car till the disposal of the case.”

It is the legality of the said order that is assailed in this petition by the State.

2. It

Click Here to Read the rest of this document