C.P. Sen, J.
1. In this writ petition thepetitioner is challenging the order ofconfiscation of truck dated 20-12-1982 passed.by the Divisional Forest Officer under Section 52 of Indian Forest Act, 1927.
2. The petitioner owned truck No. MPD 4822 which is a 1973 model Tata Mercedese truck. The petitioner carries on transport business with this truck. On the night intervening 19th and 20th September 1981 the said truck loaded with mango tree logs were seized from the saw MILL of Rathore Saw Mill, Bhawani Marg Road, Khandwa. One Idu Khan was in the truck. Since there was no transit pass as required under the M. P. Forest Produce (Transit) Rules, 1961, the truck and the logs of wood were seized under Sections 41 and 42 of the Act; read with rule 3 of the Transit Rules. Transportation of forest produce without transit pass is punishable under rule 29. By application dated 21-9-1981 Idu Khan expressed a desire to compound the offence. The Divisional Forest Officer by order dated 30-9-1981 compounded the offence and confiscated the truck, under Section 68 read with Section 55 of the Act. Earlier a due intimation was sent to the Magistrate concerned about the seizure of the truck. The petitioner then filed an application before the Chief Judicial Magistrate for release of the truck saying that he had given the truck on hire to Idu Khan who wanted to bring some logs of mango trees purchased from Bhumiswami Bhagwan from his field. By order dated 20-10-1981 the Chief Judicial Magistrate held that, since the matter has been compounded by Idu Khan, the Court has no jurisdiction to pass any order. In revision, the Additional Sessions Judge affirmed the order of the Chief Judicial Magistrate by holding that it cannot act as an appellate or revisional Court against the order of the Divisional Forest Officer confiscating the truck. The petitioner then filed Misc. Criminal Case No. 1404 of 1982 under Section 482 of the Code of CriminalProcedure in this Court for release of the truck. By order dated 30-10-1982 this Court directed that on a fresh application being made by the petitioner to the Chief Judicial Magistrate under Section 54 of the Act, the Magistrate can pass necessary order for release of the truck and held that the petitioner was not bound by the order of confiscation, as he was not given a show cause notice by the Divisional Forest Officer before passing the order of confiscation. A fresh application was moved by the petitioner before the Chief Judicial Magistrate for release of the truck and by order dated 17-12-1982 the Chief Judicial Magistrate directed release of the truck to the petitioner on his furnishing security andexecuting a bond. It appears that on 20-121982 the Divisional Forest Officer after giving a show cause notice again confiscated the truck and directed its release, on paying its price of Rs. 60,000. The petitioner then filed Misc. Cri. Case No. 537 of 1983 under Section 482 of the Code before this Court. This Court by order dated 20-1-1984 held that after the order of the Chief Judicial Magistrate releasing the truck, the Divisional Forest Officer has confiscated the truck and so the application has become infructuous and the petitioner's remedy is to file an appeal against the order of the Divisional Forest Officer. The petitioner instead of filing an appeal presented this petition under Articles 226 and 227 of the Constitution before this Court.
3. The only question for consideration is whether the Divisional Forest Officer had the jurisdiction to confiscate the truck under Section 55 of the Act. The logs of mango trees came within the definition of the forest produce. The logs of mango trees, although purchased from a private person, cannot be transported without a valid transit pass as required under Rule 3 of the Transit Rules. Evidently there was no transit pass for transporting the mango logs. It may be mentioned here that the mango wood is not a specified forest produce within the meaning of M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 and, therefore, the provisions of the Adhiniyam are not attracted in the present case. Under Section 52 of the Indian Forest Act, the forest authorities can seize the logs of mango trees and also the truck as there was reason to believe that a forest offence has been committed in respect of that forestproduce, but there is no power given to the forest officers to confiscate the truck under this section. The only section for confiscation is Section 55 which provides that all timber or forest produce which is not the property of Government and in respect of which a forest offence has been committed, and all tools, boats, vehicles and cattle used in committing any forest offence, shall be liable to confiscation and such confiscation may be in addition to any other punishment prescribed for such offence. According to us the order of confiscation under this Section can only be passed by a Magistrate trying the offence at the time of convicting the accused. This is clear from Section 59 which provides for an appeal against the order of confiscation to the Court to which normally the appeal lies from the order of the Magistrate. We are fortified in our view by two decisions in Empress of India v. Nathu Khan, (1882) ILR 4 All 417 it was held that an order directing the confiscation of forest produce not belonging to Government, in respect of which a forest offence has been committed, can only be made at the time the offender is convicted. In Aiunddi Sheikh v. Queen Empress, (1900) ILR 27 Cal 450 it was held that confiscation is by the term of that section declared to be a punishment, for it is in addition to other punishment prescribed for the offence; that, being a punishment, the order should have been passed simultaneously with the other punishment for the offence of which the accused have been convicted. Therefore, the Order of confiscation can only be passed by a Magistrate trying the offence and not by the Divisional Forest Officer under this section.
4. However, in view of the amendment in Sections 52 to 54 of the Indian Forest Act by the Indian Forest (M. P. Amendment) Act, 1983, the position has now changed from 1-11-1983 when this amendment came into force. Under the amended Section 52(3) the authorised forest officer can confiscate the forest produce and the vehicle used for committing the forest offence. There is an appeal provided to the Conservator of Forests under Section 52(a). There is a revision under Section 52B to the Court of Session against the order of the Conservator of Forests. Under Section 52C there is a bar of jurisdiction to the Court to proceed with the disposal of forest produce or vehicle used for committingthe forest offence after a due intimation has been received from the Divisional Forest Officer about initiation of proceedings for confiscation of the vehicle. The Magistrate is only empowered to pass an order regarding disposal of property under Section 54 if there is no intimation about confiscation proceeding. Under the amended Section 55, the order of confiscation to be passed by a Magistrate will be subject to Sections 52(2) to 52(C). But this amendment cannot be applied retrospectively. The seizure of the truck in the present case was on 19/20 September, 1981, before the amendment came into force and the Divisional Forest Officer had no jurisdiction to confiscate the truck.
5. With the result the petition is allowed and the order of confiscation of the track by the impugned order of the Divisional Forest Officer dated 20-12-1982 is quashed and the truck be released to the petitioner as per the order of the Chief Judicial Magistrate dated 17-12-1982 on the petitioner furnishing security to the tune of Rs. 60,000/- and executing a Supratnama for keeping the truck in the same condition and for producing the samewhenever required by any Court. There shall be no order as to costs of this petition. The outstanding amount of security deposit be refunded to the petitioner.