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Santosh Kumar Mishra Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1983CriLJ1378
AppellantSantosh Kumar Mishra
RespondentState of M.P. and ors.
Cases ReferredPremnarain v. State of M. P.
Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will..........in his truck no. mbj, from the forest area to jabalpur when the truck was intercepted by the forest officers, north mandla division, and the truck was seized under section 15 of m. p. vanupaj (vyapar viniyaman) adhiniyam, 1969. (hereinafter referred to as adhniyam). the truck was seized within 3 to 4 kilometers of village kohni which came within the jurisdiction of the chief judicial magistrate, jabalpur, there were about 8 to 10 passengers in the truck followed by the applicant in his jeep. six logs of teak wood did not bear any hammer marks nor the applicant possessed any transit pass. preliminary offence report was prepared. the statements' of the passengers and also that of the applicant were taken. the applicant admitted that the logs were illicitly cut from the forest area.....
Judgment:
ORDER

C.P. Sen, J.

1.This revision has been preferred by the applicant against the rejection of his application under Section 457 of the Cri. P.C. 1973. for release of the seized truck on his Supratnama by the Chief Judicial Magistrate.

2. The facts not in dispute are that on the night intervening 29/30 June 1982 the applicant was carrying six logs of teak wood covered with Gittis in his truck No. MBJ, from the forest area to Jabalpur when the truck was intercepted by the forest officers, north Mandla Division, and the truck was seized under Section 15 of M. P. VanUpaj (Vyapar Viniyaman) Adhiniyam, 1969. (hereinafter referred to as Adhniyam). The truck was seized within 3 to 4 kilometers of village Kohni which came within the jurisdiction of the Chief Judicial Magistrate, Jabalpur, There were about 8 to 10 passengers in the truck followed by the applicant in his jeep. Six logs of teak wood did not bear any hammer marks nor the applicant possessed any transit pass. Preliminary offence report was prepared. The statements' of the passengers and also that of the applicant were taken. The applicant admitted that the logs were illicitly cut from the forest area and were being taken to Jabalpur. Report of the seizure was made to the Chief Judicial Magistrate, Mandla. The applicant appeared before the Divisional Forest Officer. North Mandla Division, and expressed his desire to compound the offence and executed composition document which was accepted by the D. F. O. The applicant was then given a notice on 3-7-1982 by the D. F. O. as to why the truck should not be confiscated under Section 19 of the Adhiniyam and offered to release the same on payment of rupees one lac towards its price. The applicant did not reply to the show cause notice and by order dated 7-7-1982 the D. F. O. imposed composition fee of Rs. 500/-on the applicant, confiscated the truck and ordered its release on payment of price of rupees one lac. Thereafter the applicant moved an application before the Chief Judicial Magistrate. Mandla. for release of the truck but it was withdrawn after realising that the seizure was within the jurisdiction of the Chief Judicial Magistrate, Jabalpur, and another application was moved before him on 17-8-1982, The application was opposed by the forest authorities saying that the applicant has no right to apply for release of the truck under Section 457 after composing the offence. Besides, the criminal Court has no power to sit in judgment over the order of the D. F. O. and in support two Single Bench decisions of this Court were cited. It was also contended that since seizures were not by, police officer, Section 457 has no application. Accepting the contentions of the Forest Department, the learned C.J. M. held that (i) the application under Section 457 is not maintainable as the seizure was not by a police officer and (ii) in view of the composition of the offence by the applicant and the two decisions of this Court, the criminal Court cannot sit in judgment over the order of the D. F. O. and his remedy lies elsewhere.

3. We have, therefore, to see (1) whether the seizure by the forest anthorities of the truck in question under the Adhiniyam can attract Section 457 of the Code & (ii) what is the effect of the composition of the offence?

4. The Adhiniyam is a self contained' Code. This Adhiniyam has been enacted for regulating in the public interest trade of certain forest produce by creation of State monopoly in such trade. Admittedly, teak wood is a specified forest produce and the Adhiniyam has been made applicable to Mandla district. Section 2 is a. definition clause and sub-clause (g) provides that words and expressions used but not defined in this Act and defined in the Forest Act, 1927, shall have the meanings assigned to them in that Act. Section 5 imposes restrictions on purchase or transport of forest produce and no person other than the State Government or its officers or its agents can purchase or transport any specified forest produce. Section 15 empowers a Police Officer not below the rank of an Assistant Sub-Inspector or any other person authorised by the State Government to search and seize any specified forest produce which he suspects to have contravened any provisions of the Act or the rules. The provisions of Sections of 102 & 103 of the Code are made applicable as far as may be to such search and seizures. Section l6 imposes penalty for contravention of any of the provisions of the Act or the rules and the forfeiture of the specified forest produce. Under Section 18 no Court shall take cognizance of any offence punishable under this Act except on a report in writing by the Forest Officer not below the rank of a Divisional Forest Officer or by any other officer authorised by the State Government, Section 19(1)(a) empowers a Forest Officer to compound the offences on payment of such composition fee not exceeding Rs. 1.000/-. Under Clause 1 (b) of Section 19. when any property other than a specified forest produce has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer, Under Sub-section 2, on payment of such sum of money or such value or both, as the case may be. the suspected person shall be discharged and the property other than specified forest produce, if any, seized shall be released and no further proceedings shall be taken against such person and the property. Under Section 20 no suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or the rules. Section 21 gives powers to the State Government to make rules. Section 22 prescribes that nothing contained in the Forest Act shall apply to specified forest produce in respect of matters for which provisions are contained in this Act and nothing contained in any other law, rule or order shall apply to the specified forest produce in respect of matters for which provisions are contained, in this Act.

5. Section 457 of the Cri. P.C. provides that whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof respecting the custody and production of such property. The question is whether the seizure in question by the Forest Officer can be said to be a seizure by a Police Officer. 'Police Officer' has not been defined in the Code. The expression 'Police Officer' used in this section should, as the scheme of the Code shows, be interpreted strictly to mean only a police officer so called. The expression is not to be interpreted liberally as to include the officers of the other departments, on whom powers of the police officer may have been conferred for certain purposes. The Supreme Court in Badaku Joti v. State of Mysore : 1966CriLJ1353 has laid down that whether the officer concerned under the special Act has been invested with all the powers exercisable by an officer-in-charge of a Police Station. Under Chapter XIV of the Code qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge-sheet) under Section 173 of the Code, In order to bring him within the purview of a 'Police Officer' it is not enough to show that he exercises some or even many of the powers of that Police Officer conducting an investigation under the Code, It is true that under the Adhiniyam a Forest Officer has been given the powers of a Police Officer for purposes of search and seizure, but he has not been defined to be a Police Officer. The provisions of Sections 102 & 103 of the Code as far as may be have been made applicable. The Forest Officer making search and seizure Has no power of arrest nor he has the power to submit a charge-sheet under Section 173 of the Code. Cognizance of the offence can only be taken on a report in writing by an officer not below the rank of a D. F. 0. Here the seizure was not by the Divisional Forest Officer, Therefore, the Forest Officer seizing the truck of the applicant is not a Police Officer and although a report of the seizure was made to the C.J. M. that would not invest the C.J. M. the jurisdiction to adjudicate in the matter. The Supreme Court in Balkishan v. State of Maharashtra : 1980CriLJ1424 , has. held that an officer of the RPF making an enquiry under. Section '8 of the Railway Property (Unlawful Pos session) Act, 1966, does not possess several important attributes of an officer-in-charge of a police station conducting an investigation under Chapter XIV of the Code. The Character of the inquiry is different from that of an investigation under the Code, particularly, the Officer of the RPF has no power, to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating police officer. A Single Bench decision of this Court in State of M. P. v. Narayan Singh 1971 MP LJ 781, is clearly distinguishable. It was held that where an Excise Sub-Inspector seized a truck carrying contraband Mahua. Magistrate has power to order release of the truck under Section 523 of the Code (Section 457 of the present Code). The seizure was under C. P. Excise Act of. 1915. Section 55. of the Act invests an Excise Officer With the powers of the officer in-charge of a police station under provisions of Chapter XIV of the Code. He can not only search and. seize but arrest and submit a report under Section 56 which is deemed to be a police report. Under the, circumstances the. C.J.M. was, right, in holding that he has no jurisdiction to entertain, application, under Section 457 as the seizure of the truck in question was, not bya police officer.

6. The applicant had applied for com position of the offence under Section 5 of the Adhmiyam and had executed necessary document for composition The D. F. O. had compounded the offence and imposed composition fee of Rs. 500/- on the applicant. After giving a show cause notice he has also confiscated the truck and fixed its value at rupees one lac under Section 19. He has directed release of the truck on payment of that amount. The question remains whether the Criminal Court while invoking jurisdiction under Section 457 could sit in judgment over the orders of the D. F. O. even if the order in question may not be in accordance with law. It does appear that there is a lacuna in the Act as has been pointed out by the learned Counsel for the applicant; There is no provision for confiscation of any property other than specified forest produce, though Section 19(1)(b) provides that any property' other than specified forest pro-duce Which has been seized as liable to confiscation, the same may be released on payment of the value thereof as' estimated by the officer concerned, without there being any specified provision for confiscation. But this matter cannot be agitated in a proceeding under Section 457 and the remedy of the applicant is before some other forum. There is also no provision made for preferring an appeal against the order of the DFO under Section 19. This view is fortified by the two decisions of this Court. Navkar, J. in Bethi Sing v. Nisar Ahmad Cri R. No. 83 of 1979, D/- 10-12-1979, has held that the applicant may have any other remedy and Section 457 has no application and this section does not give any power to the Magistrate to enquire into the matter whether the offence was compounded or whether the compounding is, according to law. Taking the same view, Viiayvargiya J. in State of M. P. v. Kishansingh, Cri. R. No. 375 of 1981 D/- 3-12-1981. has held that the Magistrate could not sit in judgment over the orders passed by the Forest Officer under the Adhmiyam. If the order passed by the Forest Officer is illegal or invalid, the non-applicer ought to have taken proper steps for setting aside the order. In the face of the order passed by the Forest Officer confiscating the specified forest produce, the trial Magistrate had no jurisdiction regarding the custody of that produce. The contention is that in these 2 decisions a Division Bench decision of this Court in Premnarain v. State of M. P. 1979 MP LJ 545 has been overlooked. In the Division Bench case Navkar, J. was a party and he could not have overlooked the decision which. according to me, has no application. The D. B. had held that the composition fee payable under Section 19 of the Adhiniyam is not recoverable as arrears of land revenue as the amount is not a debt. Payment of money is a necessary step in the process of composition of offence. The section does not create civil liability in respect of the offer to compound the offence made by the suspected offender. The D. B. did not consider the effect of an order passed by a Forest Officer under Section 19 of the Act and whether the same was liable to be challenged before the Criminal Court.

7. Accordingly, the revision fails and it is dismissed. The applicant is freeto seek his remedy before appropriate forum for release of the truck.


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