Skip to content


State Vs. Nazirbhai Kasambhai Vora - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1495
AppellantState
RespondentNazirbhai Kasambhai Vora
Excerpt:
- - this argument is unconvincing. if this is not the correct interpretation of sections 54 and 56 of the act, it would mean that the magistrate is given the power to dispose of the property at the conclusion of the trial twice by section 54 as well as section 56 of the act, and in that event there would be a fallacy of superfluity and surplusage. mehta thus fail......application no. 52 of 1983 whereby he directed the release of a truck which was seized by the forest officer on the owner of the truck furnishing a surety of rs. 2, 000/-. but while rejecting the revision application, the appellate judge increased the amount of surety from rs. 2, 000/- to rs. 1, 00, 000/-(rupees one lakh). the appellate judge, while passing the final order, observed that, 'the truck is put to the constructive productive use by this order instead of it being kept idle by the order of forest officer resulting into deterioration of it and the non-productive keeping of it and therefore also on that count the interim order passed by the learned j. m. f. c. requires to be confirmed.'2. the respondent, nazirbhai kasambhai vora of kathlal, taluka kapadwanj, district kheda,.....
Judgment:

D.H. Shukla, J.

1. The petitioner, the State of Gujarat, has filed the present petition under Articles 226 and 227 of the Constitution of India to set aside the impugned judgment and order dated 7th June 1983 of the learned Additional Sessions Judge, Nadiad in Criminal Revision Application No. 94 of 1983, whereby he dismissed the Revision Application against the order of the learned Judicial Magistrate, First Class, Balasinor, in Criminal Misc. Application No. 52 of 1983 whereby he directed the release of a truck which was seized by the Forest Officer on the owner of the truck Furnishing a surety of Rs. 2, 000/-. But while rejecting the Revision Application, the Appellate Judge increased the amount of surety from Rs. 2, 000/- to Rs. 1, 00, 000/-(rupees one lakh). The appellate Judge, while passing the final order, observed that, 'The truck is put to the constructive productive use by this order instead of it being kept idle by the order of forest officer resulting into deterioration of it and the non-productive keeping of it and therefore also on that count the interim order passed by the learned J. M. F. C. requires to be confirmed.'

2. The respondent, Nazirbhai Kasambhai vora of Kathlal, Taluka Kapadwanj, District Kheda, filed an application against the State of Gujarat under Section 54 of the Indian Forest Act, inter alia, stating there-in that he is doing the business of transport, that be is the owner of the truck bearing No. GTK 2599, that it stands registered in his name in the office of R.T.O., that the Forest Officer of Virpur range has seized the truck under Section 52 of the Indian Forest Act on 7-5-1983, that the truck since then is in possession of the Forest Officer, that at the time of the seizure of the truck the respondent was not with the truck, that the truck is not used for transporting any contraband articles, that if the truck is kept unused for a long time it was bound to result into deterioration, that the family of the respondent was maintained from the rental income earned by him by giving the truck on rent and by using it on carting purpose, that the respondent be handed over the possession of the truck till the final disposal of the matter, that the respondent undertook to produce the said truck if and when directed by the Court.

3. The aforesaid application of the respondent was opposed by the Forest Officer by a written statement (Exh. 4) contending therein, inter alia, that the application was not maintainable; that the respondent was put to the proof of his being the owner of the truck; that the truck stood seized in relation to an offence committed under the provisions of the Indian Forest Act; that the truck was used for carting the contraband goods without pass or permit and looking to the nature and gravity of the offence, under Section 55 of the Indian Forest Act it was liable to be confiscated. It was also contended that it was only the Forest Officer who as per Section 53 of the Indian Forest Act was competent to release the truck at an interim stage and the Court had no powers to pass any order; that the provisions of Criminal Procedure Code do not apply.

4. Mr. J.U. Mehta, the learned Additional Public Prosecutor, argued this petition mainly on one count. He submitted that Section 54 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act') was not attracted as it did not authorise the learned Magistrate to pass the impugned order at an interim stage. Mr. Mehta submitted, in other words, that the learned Magistrate had no jurisdiction to pass the order which he did. Consequently, therefore, it could not be contended that the impugned order being an interlocutory order, the present petition could not be entertained. The only question which thus I am called upon to decide is as to whether the impugned order passed by the learned Magistrate is without jurisdiction.

5. Mr. Mehta submitted that the impugned order was passed on the basis of the receipt of the report sent by the Forest Officer under Section 52(2) of the Act, but there was no complaint filed yet. In the absence of a proper complaint, the Magistrate could not have taken cognizance of this application.

6. On the other hand, Mr. P. M. Thakkar, the learned Advocate for the respondent, submitted that a bare perusal of Section 54 of the Act made it evident that the Magistrate could exercise the powers conferred upon him under Section 54 of the Act after the receipt of the Report from the Forest Officer by him. Section 54 of the Act runs as under:

54. Procedure thereupon. - Upon the receipt of any such report, the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.

Thus, it is evident that upon the receipt of a report from a Forest Officer under Section 52(2) of the Act, Magistrate has the authority to take such measures as are necessary for the arrest and trial of the offender and the disposal of the property according to law. Mr. Thakkar submitted, and in my opinion rightly, that there is no provision in Chapter IX of the Act for the filing of the complaint and that the Magistrate is expressly empowered to take cognizance of the matter upon receipt by him of the report given by the Forest Officer under Section 52(2) of the Act.

7. In order to appreciate the powers conferred upon the Magistrate under Section 54 of the Act, it is necessary to appreciate the background as supplied by the preceding sections of this Chapter (Chapter IX) of the Act. Under Section 52(1) of the Act (with which Chapter IX starts) when there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, vehicles or cattle used in committing any such offence, may he seized by any Forest Officer or Police Officer. Section 52(2) of the Act provides that every officer seizing any property under this section shall place on such property, a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

8. The proviso to Section 52(2) of the Act is not germane for our present purpose.

9. Section 53 of the Act provides that any Forest Officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, vehicles or cattle under Section 52, may release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

10. We have already seen the provisions of Section 54 of the Act above Section 55 of the Act is not relevant for our purpose. Section 56of the Act provides that when the trial of any forest-offence is concluded, any forest-produce in respect of which such offence has been committed shall, if it is the property of Government or has been confiscated, be taken charge of by a Forest Officer, and, in any other case, may be disposed of in such manner as the Court may direct.

11. In view of the above sections, I do not find any merit in the argument of Mr. Mehta that the Magistrate had no jurisdiction to pass the impugned order since at the point of time when he passed the order, there was no complaint lodged yet by the Forest Officer. Section 54 of the Act expressly authorises the Magistrate to use the powers therein-stated upon the receipt of a report from the Forest Officer under Section 52(2) of the Act.

12. If the Magistrate had thus the jurisdiction to pass the impugned order there is no manner of doubt that the order is an interlocutory order. On the broad appreciation of the order as modified by the appellate Judge, it appears to me to be in consonance with substantial justice and consequently I would be loath to interfere with the interlocutory order. It is on this ground alone that the present petition deserves to be rejected.

13. However, I am also inclined to decide the second contention raised by Mr. Mehta that the impugned order under Section 54 of the Act could not have been passed by the Magistrate at an interim stage. This argument is unconvincing. The very scheme of the sections of Chapter IX of the Act indicates that Section 54 conferred upon the Magistrate the authority to take all such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law. The words 'take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law' make it clear that such powers are to be exercised at the interim stage. If this power is to be exercised only at the end of the trial, the section would not have authorised to 'take such measures as may be necessary...for the...trial of the offender.... ' The very words 'for the...trial of the offender' indicates that this power is not to be exercised at the end of the trial.

14. It is also to be seen that such power is also given to a Forest Officer under Section 53 of the Act, it is provided in Section 53 of the Act that, 'Any Forest Officer...has seized any...vehicle...under Section 52, may release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so require, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.' This power can be exercised, it appears, before the report is submitted to the Magistrate. Upon the receipt of the report, it is the Magistrate who is authorised to pass the necessary orders (pending the trial) with regard to the arrest of the offender, trial of the offender and the disposal of the property according to law.

15. The power given under Section 54 of the Act to the Magistrate may be seen in juxtaposition to the powers under Section 56 of the Act. It is provided therein that, 'When the trial of any forest-offence is concluded, any forest-produce in respect of which such offence has been committed shall, if it is the property of Government or has been confiscated, be taken charge of by a Forest-Officer, and in any other case may be disposed of in such manner as the Court may direct.' (emphasis supplied). Thus, Section 56 of the Act envisages an order regarding disposal of the forest-produce after the conclusion of a trial, whereas the power conferred by Section 54 of the Act upon the Magistrate is to be exercised before the trial begins. If this is not the correct interpretation of Sections 54 and 56 of the Act, it would mean that the Magistrate is given the power to dispose of the property at the conclusion of the trial twice by Section 54 as well as Section 56 of the Act, and in that event there would be a fallacy of superfluity and surplusage. That is obviously not the case if Sections 54 and 56 of the Act are read in the light indicated above.

16. It is further to be noted that whereas under Section 56 of the Act there is an express indication that the power is to be exercised under it at the conclusion of the trial, there is no such limitation under the phraseology of Section 54 of the Act. 1 do not mean to say therefore that power under Section 54 of the Act is to be exercised at the conclusion of the trial. When I say that there is no limitation, it does not mean that the Magistrate has the power to exercise it at any point of time. What I mean to convey is that the absence of the words 'at the conclusion of the trial' in Section 54 of the Act indicates that the powers arc to be exercised at the interim stage.

17. For the aforesaid reasons, I do not accept Mr. Mehta's contention that the impugned order is without jurisdiction as the Magistrate had no power to pass the same order at the interim stage.

Both the contentions raised by Mr. Mehta thus fail.

18. In the result, this Special Criminal Application is rejected. Interim stay vacated. Rule is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //