Divisional Forest Officer & ANR Vs.
G.V. Sudhakar Rao & Ors [1985] INSC 236 (31 October 1985)
SEN, A.P. (J) SEN, A.P. (J) MADON, D.P.
CITATION: 1986 AIR 328 1985 SCR Supl. (3) 680
1985 SCC (4) 573 1985 SCALE (2)897
ACT:
Andhra Pradesh Forest Act, 1967, ss. 44, 45
& 58A read with ss. 20 and 29 - Power vested in the Authorised Officer to
direct confiscation of seized timber or forest produce u/s.44 (2A) and the
power of Magistrate to direct confiscation of such property on conviction of
the accused - Whether separate and distinct powers - Stay of proceedings for
confiscation of seized forest produce before the Authorised Officer - Whether
permissible when criminal case is pending against the accused in respect of the
same forest offence or when accused is acquitted of the offence.
Code of Criminal Procedure, ss. 451, 452 and
457 - Power of Criminal Court to dispose of property - Scope of.
HEADNOTE:
The Forest Range Officer, Flying Squat,
Nirmal seized teak timber valued at Rs.. 1,71,000 from the residential house of
respondent no. l and produced the same before the Divisional Forest Officer,
Hyderabad who is the Authorised Officer under s.44 (2A) of the ALP. Forest Act,
1967 along with a report under sub-a.(2) thereof that he had reason to believe
that a forest offence had been committed, for purposes of confiscation of the
seized timber under sub-s.
(2A) of s. 44 of the Act. While the
confiscation proceedings were pending before the Authorised Officer under s.
44(2A) in relation to the seized timber, the Forest Range Officer
simultaneously lodged a complaint with the Metropolitan Magistrate, City Civil
Court, Hyderabad for trial of the respondents for commission of offences
punishable under 8.
20(1)(c)(iv) and (x) and y. 20(1)(t) read
with s.
29(4)(a)(ii) of the Act. The respondents
moved the High Court under s. 482 of the Code of Criminal Procedure, 1963 for
stay of the c proceedings before the Authorised Officer under 8. 44(2A) of the
Act in view of the pending criminal prosecution. Upon the view that the power
of the Authorised Officer to direct confiscation under sub-s. (2A) of 8- 44 of
the Act and that of the Metropolitan Magistrate under s. 45 of the Act were
mutually exclusive therefore there could not be simultaneous proceedings for
confiscation before the Authorised Officer under s. 44(2A) as also 681
prosecution of the respondents for commission of a fore t offence A under 8. 20
or 29 of the Act, a learned Single Judge by the impugned order directed stay of
the proceedings before the Authorised Officer under 8. 44(2A) till the disposal
of the criminal case by the Metropolitan Magistrate.
Allowing the appeal.
^
HELD:1. The power of the Authorised Officer
to direct confiscation of the seized timber or forest produce and the
implements etc. under sub-s.(2A) of s.44 of the Act produced before him by the
Forest Range Officer along with a report under sub-s.(2) thereof, if the
Authorised Officer i- satisfied that y for. t offence has been committed in
respect thereof, and the power of the Magistrate to direct confiscation of such
property under 8. 45 upon conviction of the accused for commission of a forest
offence under 8. 20 or 29 of the Act, are separate and distinct and there is no
overlapping of the same. The changes brought about by Act No.17 of 1976 clearly
contemplate for two separate proceedings before two independent forums. There
is no conflict of jurisdiction as 8.45, as amended by the Amendment Act, in
terms curtails the power of the Magistrate to direct confiscation of the seized
timber or forest produce on conviction of the accused, by the use of the words
'except where an order for confiscation has already been passed in respect
thereof under 8. 44' inserted in 8.45 of the Act.
2. The High Court was in error in holding
that there could not be simultaneous proceedings for confiscation before the
Authorised Officer under sub-s.(2A) of the Act and prosecution of the accused
for commission of forest offences under 8.20 or 29 of the Act.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 752 of 1985.
From the Judgment and Order dated 26.8.83 of
the Andhra Pradesh High Court in Crl. Misc. Petn. No. 1810 of 1983. G K.
Parasaran, Attorney General and G. Narashimulu for the Appellants.
P. Ram Reddy and A.V.V. Nair for the
Respondents.
The Judgment of the Court was delivered by H
682 SEN, J. This appeal by special leave raises a question whether the High
Court could have stayed under s. 482 of the code of criminal Procedure, 1973
the Proceedings for confiscation of illicitly felled teak timber trees by the
respondents from the reserved forests in Adilabad district, which were seized
under sub-s. (1) thereof, pending before the Divisional Forest Officer,
Hyderabad who is the Authorized Officer under 8. 44(2A) of the Andhra Pradesh
Forest Act, 1967 till the disposal of the criminal case pending against him
before the Court of XVIIth Metropolitan Magistrate, City Civil Court, Hyderabad
for commission of alleged offences punishable under s. 20 (1) (c) (iv) and (x)
and s. 20 (1) (d) read with s. 29 (4) (a) (ii) of the Act.
First as to the facts. On an information
being laid that the respondent G.V. Sudhakar Rao was indulging in widespread
illicit felling and removal of teak trees from the reserved forest in Adilabad
district, the Forest Range Officer, Flying Squad, Nirmal on July 18, 1982
seized teak timber measuring 42.7 cubic metres valued at Rs. 1,71,000 from the
residential house of the respondent under sub-s.
(1) of s. 44 of the Act. On July 19, 1982,
the Range Officer forthwith produced the seized timber before the Divisional
Forest Officer, who is the Authorized Officer under s. 44 (2A) of the Act,
along with a report that he had reason to believe that a forest offence had
been committed by the respondent in respect of the seized timber. While the
confiscation proceedings were pending before the Authorized Officer under
sub-s. (2A) of s.44 of the Act, on October 9, 1982 the respondent filed a
petition before the High Court under Art. 226 of the Constitution praying for
release of the seized timber but the Writ Petition was dismissed by a learned
Single Judge. In appeal preferred by the respondent, a Division Bench declined
to grant any interim relief but directed the Forest Department to decide either
to proceed with confiscation of the seized timber under s. 44 (2) of the Act or
file a complaint regarding the commission of a forest offence before a
Magistrate. Accordingly, the Forest Range Officer lodged a complaint before the
XVIIth Metropolitan Magistrate, City Civil Court, Hyderabad for trial of the
respondents for commission of alleged offences under s. 20 (1) (c) (iv) and (x)
and s. 20 (1) (d) read with s. 29 (4) (a) (ii) of the Act. On August 1, 1983,
the respondents moved an application before the High Court under s. 482 of the
Code for staying the proceedings before the Authorized Officer under s. 44 (2)
of the Act in view of the pending criminal prosecution. A learned Single Judge
(Ramachandra Raju, J.) by the impugned order directed stay of the proceedings
before the Authorized Officer 683 under 8. 44(2A) of the Act till the disposal
of the criminal case A by the learned Metropolitan Magistrate. Aggrieved, the
State has come up in appeal by way of special leave as the impugned order
passed by the learned Single Judge is of far-reaching consequences .
The precise question that falls for
determination is whether where a Forest Officer makes a report of seizure of
any timber or forest produce and produces the seized property along with a
report under s. 44 (2) that he has reason to believe that a forest offence has
been committed in respect of such timber or forest produce seized, can there
simultaneously be proceedings for confiscation to Government of such timber or
forest produce and the implements etc. by the Authorized Officer under 8. 44
(2A) of the Act if he is satisfied that a forest offence has been committed,
along with a criminal case instituted on a complaint by the Forest Officer
before a Magistrate of the commission of a forest offence under 8. 20 of the
Act. The appeal turns upon a proper construction of 88. 44 (2), 44 (2A) and 45
of the Act, as amended by Act 17 of 1976.
In order to deal with the question involved,
it is necessary to refer to the statutory changes brought about.
The Act, prior to its amendment by Act 17 of
1976 provided by 8. 44 insofar as material, as follows :
44(1) Where there is reason to believe that a
forest offence has been committed in respect of any timber or forest produce,
such timber, or forest produce, together with all tools, ropes, chains, boats,
vehicles and cattle used in committing any such offence, may be seized by any
forest officer or police officer.
(2) Every officer seizing any property under
this section shall place on such property, or the receptacle, if any, in which
it is contained a mark indicating that the same has been 80 seized and shall,
except where the offender agrees in writing forthwith to get the offence
compounded, make a report of such seizure to the magistrate :
Provided that where the timber or forest
produce with respect to which such offence is believed to have been committed
is the property of the Central or State 684 Government and the offender is not
known, it shall be sufficient if the officer makes, as soon as may be, a report
of the circumstances to the Divisional Forest Officer.
(3) *** *** *** *** (4) *** **** **** (5) The
property seized under this section, shall be kept in the custody of the forest
officer not below the rank of a Forest Guard or the village headman until the
compensation for compounding the offence is paid or until an order of the
magistrate directing its disposal is received.
Section 45 of the Act, prior to its
amendment, was in these terms :
45. Where a person is convicted of a forest
offence, the court sentencing him shall order confiscation to the Government of
timber or forest produce in respect of which such offence was committed and of
any tool, boat, vehicle other than a cart drawn by animals, vessel or other
conveyance or any other article used in committing such offence.
The change in the law was brought about with
a view to prevent the growing menace of ruthless exploitation of Government
forests by illicit felling of teak and other valuable forest produce by
unscrupulous traders, particularly from the reserved forests by providing for a
machinery for confiscation of illegally felled trees or forest produce by the
Forest authorities. Under s. 45 of the Act as it then stood, where a person was
convicted of a forest offence, the Court sentencing him was empowered to order
confiscation to the Government of timber or forest produce in respect of which
a forest offence was committed and of any tool, boat, vehicle other than a cart
draw by animals, vessel or other conveyance or any other article used in
committing such offence. Although there was a provision for seizure of such
articles in s. 44 of the Act, there was no provision in the Act enabling the
forest officers to confiscate such timber or forest produce and the implements
etc. used for committing forest offences even in a case where he was satisfied
that a forest offence had been committed. In view of this, the 685 Forest
Department was finding it difficult to curb the forest A offences effectively
and quickly inspite of the fact that large scale felling and smuggling of
forest produce was on the increase. Hence it was thought necessary to empower
the officials of the Forest Department seizing any property under sub-s.(l) of
s. 44, instead of merely making a report of the seizure to a Magistrate, also
to order confiscation of timber or forest produce seized together will all the
tools, boats, vehicles etc. used in committing such offence. Statement of
Objects and Reasons:
The intendment of the Legislature in enacting
Act 17 of 1976 was therefore to provide for two separate proceedings before two
independent forums in the Act, one, for confiscation by a departmental
authority exercising quasi-judicial powers conferred under sub-s. (2A) of s. 44
of the goods forming the subject matter of the offence, and the other for the
trial of the person accused of the offence so committed. It brought about the
following changes, namely, : (1) In sub- s.(2) of s. 44 of the Act in the
opening paragraph, for the words make a report of such seizure to the
magistrate: , the following words and brackets were substituted, namely :
Without any unreasonable delay either produce
the property seized before an officer not below the rank of an Assistant
Conservator of Forests authorized by the Government in this behalf by
notification (hereinafter referred to as the authorized officer) or make a
report of such seizure to the magistrate:
(2) After sub-s. (2), Sub-ss; (2A), (2B),
(2C), (2D) and (2E) were inserted. Sub-s. (2A), which is material for our
purposes,provides:
(2A) Where an authorized officer seizes under
sub- section (1) any timber or forest produce or where any such timber or
forest produce is produced before him under sub-section (2) and he is satisfied
that a forest offence has been committed in respect thereof, he may order
confiscation of the timber or forest produce 80 seized or produced together
with all tools, ropes, chains, boats or vehicles used in committing such
offence.
Sub-s. (2B) enjoins that no order
confiscating any property shall be made under sub-s. (2A) unless the person
from whom the property is seized is given (a) a notice in writing informing him
686 of the grounds on which it is proposed to confiscate such property; (b) an
opportunity of making a representation in writing within such reasonable time
as may be specified in the notice against the grounds for confiscation; and (c)
a reasonable opportunity of being heard in the matter. Sub-s.
(2C) provides that without prejudice to the
provisions in sub-s. (2B), no order of confiscation under sub-s. (2A) of any
tool, rope, chain, boat or vehicle shall be made after the owner thereof proves
to the satisfaction of the Authorized Officer that it was used in carrying the
property without his knowledge or connivance, or the knowledge or connivance of
his agent, if any, or the person in charge of the tool, rope, chain, boat or
vehicle in committing the offence and that each of them had taken all
reasonable and necessary precautions against such use. Sub-s. (2D) confers
power on an Authorized Officer not below the rank of a Conservator of Forests
empowered by the Government in that behalf, may within 30 days of the date of
the order of confiscation by the Authorized Officer under sub-s. (2A), either
suo motu or on an application call for and examine the record of that order and
may make such inquiry or cause such inquiry to be made and pass such orders as
he may think fit. Proviso thereto enjoins that no order prejudicial to any
person shall be passed without giving him an opportunity of being heard.
Sub-s.(2E) confers a right of appeal to the person aggrieved by an order passed
under sub-s.(2A) or sub- s. (2D). Such an appeal had to be preferred within 30
days from the date of communication to him of such order, to the District Court
having jurisdiction over the area in which the property had been seized. The
District Court was conferred the power after giving an opportunity to the
parties to be heard, to pass such order as it may think fit and the order of
the District Court so passed shall be final.
With the conferral of power on an officer not
below the rank of an Assistant Conservator of Forests authorized by the State
Government to order confiscation of the property seized under sub-s.(2A) of
s.44, there was a corresponding change made in s.45 of the Act. The amended s.
45 reads:
45. Where a person is convicted of a forest
offence, the court sentencing him shall order confiscation to the Government of
timber or forest produce in respect of which such offence was committed and of
any tool, boat, vehicle, vessel or other conveyance or any other article used
in committing such offence except There an order of confiscation has already
been passed in respect thereof under section 44." 687 The Act also
inserted s. 58A which reads :
58A. An order of confiscation under
sub-section (2A) or sub-section (2D) of section 44 shall not be deemed to bar
the imposition of any other penalty to which the person from whom the property
is seized is liable under this Act. B We cannot but accept the contention of
the learned Attorney General appearing on behalf of the State that the effect
of the amendments brought about by Act 17 of 1976 is that the Act, as amended,
does contemplate two separate proceedings before two different forums. It is
urged that there is no conflict of jurisdiction as s. 45 of the Act as amended
by the Amendment Act, in terms, curtails the power conferred on the Magistrate
to direct confiscation of timber or forest produce on conviction of the
accused. Emphasis was laid on the words except where an order for confiscation
has already been passed in respect thereof under 8.44 inserted by 8.3 of Act 17
of 1976. The submission, therefore, is that the power vested in the Authorized
Officer to direct confiscation of the seized timber or forest produce and the
implements etc. under sub-s.(2A) of 8.44 and the power of the Magistrate to
direct confiscation of such property on conviction of the accused under 8.45,
are two separate and distinct powers. According to his, the learned Single
Judge proceeded on a wrongful assumption that there is overlapping of the two
powers and therefore exceeded his jurisdiction under 8. 482 of the Code in
directing stay of the confiscation proceedings before the Authorized Officer
under s.44(2A) of the Act. In support of his submissions, the learned Attorney
General drew our attention to certain decisions of the High Court, particularly
to a decision of this Court in State of A.P. v. Smt.Haji Begum,(C.A. No. 1216
of 1979 decided on April 23, 1979) which, he says, the learned Single Judge has
wrongly tried to distinguish.
The contention to the contrary by learned
counsel appearing for the respondents is that under sub-s.(2) of s.44 as
amended, The Forest Officer has either to produce without any unreasonable
delay the property seized before any officer not below the rank of an Assistant
Conservator of Forests authorized by The Government in that behalf, or to make
a report of such seizure to the Magistrate. Much stress was placed on the use
of the Words either and or in sub-s.(2) of 8.44 of the Act for the arguments
that the power vested in the Authorized Officer to direct confiscation of
seized timber or forest produce and the 688 implements etc. under sub-s. (2) of
8.44 of the Act and the power of the Magistrate to direct confiscation of such
property on conviction of the accused under 8.44 were mutually exclusive and,
therefore, the Forest Department has the option of adopting either of the two
courses. He contends that the Forest authorities having elected to prosecute
the respondents for commission of the alleged offences under s. 20 (l)(c)(iv)
and (x) and s. 20(1)(d) read with s. 29(4)(a)(ii) of the Act, they cannot at
the same time proceed with the confiscation proceedings before the Authorized
Officer under s. 44 (2A) for confiscation of the timber or forest produce and the
implements etc. seized or produced before him. In other words, it is said that
there cannot be two parallel proceedings before two distinct forums empowered
to direct confiscation of the timber or forest produce seized under s. 44 (2A)
of the Act and s. 45 and this would give rise to an anamolous situation. The
submission is that the order of confiscation passed by the Authorized Officer
under s. 44(2A) on being satisfied that a forest offence had been committed
must necessarily be subject to the finding of the court in a criminal
prosecution as to whether such an offence under s.20 or s.29 has been committed
or not and in case the trial ends in an acquittal of the accused, the seized
timber or forest produce ant the implements etc. cannot be confiscated to the
Government. He tries to distinguish the decision of this Court in State of A.P.
v. Smt. Haji Begum, supra, and submits that the Court did not lay down that
after the Amendment Act the Magistrate has no jurisdiction to confiscate the
seized property. It is urged that the Court only held on the facts and
circumstances before it that the High Court in Smt. Haji Begum's case had taken
an erroneous view of the report made by the Authorized officer under sub- s.(2)
of s.44 of the Act while forwarding the accused to the Magistrate and hence the
proceedings before the Divisional Forest Officer had to go on. We are afraid,
these contentions cannot prevail.
Under the scheme of the Act, where a Forest
Officer effects a seizure under sub-s.(l) of s. 44 of the Act of any timber or
forest produce together with the implements etc., when he has reason to believe
that a forest offence has been committed in respect thereof, he has the
discretion to either produce the property seized before the Authorized Officer
or make a report of such seizure to the Magistrate.
Where the timber or forest produce 18 seized
by the Authorized Officer or the Forest Officer or where any such timber or
forest produce 18 produced b fore him by any Forest Officer under sub-s.(2),
the Authorized Officer has to proceed to order confiscation thereof after
Following the 689 procedure laid down in sub-ss. (2B) and (2C). The order of
confiscation passed by an Authorized Officer under sub-s.
(2A) is liable to be interfered with within
30 days of the passing of such order by an officer not below the rank or
Conservator of Forests empowered by the Government in that behalf under
sub-s.(2D) either suo motu or on an application made by the person aggrieved
after making such inquiry as he thinks fit. Under the proviso thereto, no order
prejudicial to any person shall be passed without giving him an opportunity of
being heard. The person aggrieved by an order of confiscation passed under
sub-s.(2A) or (2D) has a right of appeal within 30 days from the date of
communication to him of such order under sub-s.(2E) to the District Court
having jurisdiction over the area in which the property had been seized. The
District Court has been conferred the power to pass such order as it may think
fit after giving an opportunity to the parties to be heard, and the order of
the District Court 80 passed is final.
The Forest Department may also decide to
prosecute the accused. In such a case, the Forest Officer shall, except where
the offender agrees in writing forthwith to get the ofence compounded, make a
report of such seizure to the Magistrate under sub-s.(2) of s.44. As regards
the implements used in committing any such offence i.e. tools, ropes, chains,
boats, vehicles etc. seized by the Forest Officer under sub-s.(l) and where he
makes a report of such seizure to the Magistrate under sub-s.(2), the Forest
Officer is empowered by sub-s.(3) to 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. Sub-s.(4) of s.44 of the Act enjoins
that upon receipt of any report from a Forest Officer under sub- s.(2) thereof,
the Magistrate shall except where the offence is compounded take such measures
as may be necessary for the trial of the accused and the disposal of the
property according to law. Sub-s.(5) directs that the property seized under
sub-s.(l) shall be kept in the custody of the forest Officer until the
compensation for compounding the offence is paid or until an order of the
Magistrate directing its disposal 18 received. Under s. 45, where a person 18
convicted of a forest offence the Court sentencing him shall order confiscation
to the government of timber or forest produce in respect of which such offence
was committed and of the implements etc. used in committing such offence,
except where an order of confiscation his already been passed in respect
thereof under s.44. The words except where an order of confiscation has already
been passed in respect thereof 690 under s.44 appearing in s. 45 of the Act
have the effect of curtailment of the power of the Magistrate to order
confiscation on conviction of an accused of a forest offence under s.45. It
would therefore appear that there can be no conflict of jurisdiction between
the Authorized Officer acting under sub-s.(2A) of s.44 of the Act to direct
confiscation of the property seized under sub-s.(l) on has being satisfied that
a forest offence has been committed, and the Magistrate making an order for
confiscation of the property so seized on conviction of an accused for a forest
offence under s.45. The power of confiscation conferred on the Authorized
officer under sub-s.(2A) of s. 44 of the Act is separate and distinct from the
power of the Magistrate to direct confiscation on conviction of an accused
under s.45.
There 18 no overlapping of their respective
jurisdictions as there is clear demarcation over the areas in which they
operate.
True it is, where any property is produced by
an officer before a Criminal Court in an inquiry or trial, the Court may under
8. 451 of the Code of Criminal Procedure, 1973 make any direction, as it thinks
fit, for the proper custody of such property pending the conclusion of the
inquiry or trial. At the conclusion of the inquiry or trial, the Court may also
under 8. 452 of the Code make an order for the disposal of the property
produced before it and make such other directions as it may think necessary.
Where the property is not produced before a Criminal Court in an inquiry or
trial, the Magistrate is empowered under s.457 of the Code to make such order
as he thinks fit, respecting the disposal of the property. The general
provision of s. 452 of the code with regard to 'disposal of property by a
Criminal Court such as by destruction, confiscation or delivery to any person
claiming to be entitled to possession thereof, and that of 8.457 investing a
Magistrate to make an order for disposal of property seized by a Police Officer
and not produced before a Criminal Court during an inquiry or trial, must
necessary yield where a statute makes a special provision with regard to
forfeiture of any property and its disposal. In the instant case, admittedly,
the illicitly felled teak trees seized by the Forest Range Officer, Adilabad
were produced by him before the Divisional Forest Officer, Hyderabad who is the
Authorised Officer under sub- s. (2A) of s.44 of the Act, along with a report
by his under sub-s. (2) thereof that he had reason to believe that a forest
offence had been committed by the respondents. Merely because the Forest Range
Officer also later lodged a complaint before the learned Metropolitan
Magistrate for trial of he 691 respondents for commission of offences under ss.
20(1)(c)(iv) and A (x) and 20(1)(d) read with
s.
29(4)(a)(11) of the Act, did not imply that
the Authorised Officer was bereft of his power and authority to direct
confiscation of the seized timber and the implements etc.
under sub-s.(2A) of s.44 of the Act if he was
satisfied that a forest offence had been committed.
A close, careful and combined reading of the
various subsections of s. 44, s. 45 and s. 58A of the Act as introduced or
amended by Act 17 of 1976 leaves no doubt that the intendment of the
Legislature was to provide for two separate proceedings before two different
forums and there is no conflict of jurisdiction as s.45, as amended by the
Amendment Act, in terms curtails the power conferred on the Magistrate to
direct confiscation of timber or forest produce on conviction of the accused.
The conferral of power of confiscation of seized timber or forest produce and
the implements etc. On the Authorized officer under sub-s.(2A) of s.44 of the
Act on his being satisfied that a forest offence had been committed in respect
thereof, is / t dependent upon whether a criminal prosecution for commission of
a forest offence has been launched against the offender or / t. It is a
separate and distinct proceeding from that of a trial before the Court for
commission of an offence.
Under sub-s.(2A) of 8.44 of the Act, where a
Forest Officer makes a report of seizure of any timber or forest produce and
produces the seized timber before the Authorized Officer along with a report
under 8.44(2), the Authorized Officer can direct confiscation to Government of
such timber of forest produce and the implements etc. if he is satisfied that a
forest offences has been committed irrespective of the fact whether the accused
is facing a trial before a Magistrate for the commission of a forest offence
under 8.20 or 29 of the Act.
As to the scope and effect of sub-s. (2A) of
8. 44 of the Act, different views appear to have prevailed in the High Court.
In State of Andhra Pradesh v. P. Mohammed & Ors., (1978) A.P.L.J. 391,
Jeewan Reddy, J. held that the general power of the Court under 8. 452 of the
Code or that of the Magistrate under 8. 457 to direct disposal of seized
property, had to be read along with and in the context of the special procedure
prescribed by the Amendment Act 17 of 1976. In that case, the Forest Officer
produced the seized forest produce and the vehicle used for the commission of a
forest offence under sub-s. (1) of 8. 44 before the Authorized Officer along
with a report as contemplated by sub-s. (2) thereof for purposes of
confiscation, and thereafter 692 he produced the accused before a Magistrate
for trial for the commission of such offence. In those circumstances, the
learned Judge held that the Amending Act by sub-s. (2A) of s. 44 created the
Authorized Officer to be the competent authority to direct confiscation of any
timber or forest produce on his being satisfied that a forest offence has been
committed in respect thereof, and the seized property having been produced by
the Forest Officer before the Authorized Officer along with a report for
confiscation under sub-s.(2A) of s. 44 of the Act, the Magistrate could not
have any jurisdiction to pass an order under s. 457 of the Code for the
disposal of such property. A discordant note was, however, struck by a Division
Bench consisting of Sambasiva Rao, C.J. and Raghuvir, J. in Smt. Haji Begum v.
State of Andhra Pradesh & Ors., (1978) 2
A.P.L.J. 191. The learned Judges held that the power of the Authorized officer
to direct confiscation under sub-s.(2A) of s.44 of the Act and that of the
Magistrate under 8.45 were mutually exclusive and, therefore, there could not
be simultaneous proceedings for confiscation before the Authorized Officer
under sub-s. (2A) of s.44 and also the trial of the accused for commission of a
forest offence under s.20 or 29 of the Act. Their conclusion was based on the
use of the words 'either' and 'or' in sub-s.(2) of 8.44 of the Act and they
held that the Forest Department had an option to adopt either of the two
courses. The judgment of the High Court in Smt. Haji Begum's case was clearly
wrong and was reversed by this Court in State of Andhra Pradesh v. Smt. Haji
Begam (supra), where it was observed:
"In our opinion, on the facts and
circumstances of the case, the order of the High Court is not fit to be
sustained. The High Court has taken an erroneous view of the report of the
Forest Ranger to the Magistrate while forwarding the accused to him. The
proceeding as to the confiscation of the property seized as also the car has
got to go on before the Divisional Forest Officer.
We find that a later Division Bench
consisting of Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen & ors. v.
The Forest Range Officer, Flying Squad,
Rayachoti & Ors., (1980) 1 A.L.T. 8, approved of the view expressed by
Jeewan Reddy, J. in P.K. Mohammad's case (supra), and held that the Act
contemplates two procedures, one for confiscation of goods forming the
subject-matter of the offence by the Authorized Officer under sub-s.(2A) of
8.44 of the Act, and the other for trial of the person accused of the offence
so committed under 8. 20 or 29 of 693 the Act. The learned Judges held that the
Act provides for a special machinery for confiscation of illicitly felled
timber or forest produce by the Authorized Officer under sub-s.(2A) of 8.44
enacted in the general public interest to suppress the mischief of ruthless
exploitation of Government forest. by illicit felling and removal of teak and
other valuable forest produce. They further held that merely because there was
an acquittal of. the accused in the trial before the Magistrate due to paucity
of evidence or otherwise did not a necessarily entail in nullifying the order
of confiscation of the seized timber or forests produce by the Authorized
Officer under sub-s.(2A) of 8.44 of the Act based on his satisfaction that a
forest offence had been committed in respect thereof. We affirm the view
expressed by Jeewan Reddy, J. in P.K. Mohammad's case and by Kondaiah, C.J. and
Punnayya, J. in Mohd. Yaseen's case.
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