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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 932 OF 2017

(Arising out of Special Leave Petition (Criminal) No. 8861 of 2014)

THE STATE OF MADHYA PRADESH & ORS. … APPELLANTS

VERSUS

SMT. KALLO BAI … RESPONDENT

JU D G M E N T

N. V. RAMANA, J.

1.Leave granted.

2.This appeal is filed assailing the judgment, dated 21.01.2014, in M.Cr.C

No. 12750/2013, passed by the High Court of Madhya Pradesh at

Jabalpur, wherein the High Court has dismissed the appeal filed by the

appellant State by upholding the order of the lower court, which through

its order directed to release the confiscated vehicle during the pendency

of the main criminal case.

3.Brief facts of the case in nut shell are that the respondent is the owner

of the tractor bearing number (MP-22 AA-0736) and trolley bearing

number (MP 22 AA 0764). On 03.1.2012 while this vehicle was being

used to transport 1.054 cubic meters of teak wood from Saliwara to

Parasia Road, Reserve Forest Compartment No. 117. As the driver was

REPORTABLE

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not carrying the documents required for the transportation of teak wood,

the staff of Forest Development Corporation, at Dhuma District, Seoni,

after completion of formalities seized the teakwood and the aforesaid

vehicle, being tractor (MP-22 AA-0736) and trolley (MP 22 AA 0764).

Thereafter, the Project Range Officer registered the offence under

Section 5 and Section 15 of Madhya Pradesh Van Upaj (Vyapar Viniyam)

Adhiniyam, 1969 [hereinafter ‘Adhiniyam’ for brevity] read with Section

26 and Section 41 of the Indian Forest Act, 1927. The said case was

registered as Offence No. 251/2013. In relation to this, a charge sheet

was filed which was numbered as Criminal Case No. 269/2013 before the

trial court.

4.The Authorized Officer-cum-Sub Divisional Officer Lakhnadone, Forest

Division North (territorial), Seoni simultaneously initiated the

confiscation proceeding under Section 15 of the Adhiniyam. The same

was registered as Confiscation Case No. 9/2012.

5.In the process, the Authorized Officer-cum-Sub Divisional Officer

Lakhnadone, Forest Division North (territorial), Seoni, ordered

confiscation of tractor (MP-22 AA-0736) and trolley (MP 22 AA 0764) and

teak wood. The Authorized Officer-cum-Sub Divisional Officer held that

the vehicle operator and his companion had deliberately transported the

teak wood without the requisite permit or any valid document. Further,

he held that the owner was aware of the said illegal transport.

6.Aggrieved by the said order, the respondent carried the matter in appeal

before the Appellate Authority i.e. Appellate Authority-cum-Chief

Conservator of Forest, Seoni Circle, Seoni (M.P), who in turn dismissed

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the appeal and confirmed the order of the authority below by order

dated 06.12.2012.

7.The respondent having been unsatisfied with the order dated 6-11-2012

preferred revision before the additional sessions judge, Seoni, under

Section 15-B of the Adhiniyam. The additional sessions judge, Seoni, by

judgment dated 18.07.2013, allowed the revision and quashed the order

of confiscation and directed to release the vehicle. Moreover the court

was of the view that unless the guilt of the accused is proved, there

cannot be any confiscation of the vehicle and the forest produce. The

reasoning of the first revisional court is extracted as under:

14. As such, the order of Authorized Officer and Sub

Divisional Officer dated 09.04.2012 and order of Appellate

Authority and Designated Conservator of Forests dated

06.12.2012 in Appeal No. 7/2012 are violation of Section 55

of the Indian Forest Act, 1927 and also Adhiniyam, 1969. The

Sub Divisional Forest officer lakhnadon and Appellate

Authority without holding accused guilty in criminal

case no. 269/2012 had no right to confiscate the

vehicle and forest produce .

(emphasis supplied )

8.The State challenged the aforesaid order of the additional sessions

judge, Seoni, dated 18.07.2013, by filing a petition under Section 482 of

the Code of Criminal Procedure, 1973 being M.Cr.C No. 12750/2013

before the High Court of Madhya Pradesh at Jabalpur. The High Court, by

order dated 21.01.2014, dismissed the petition filed by the

appellant/state and affirmed the order of the lower court. Aggrieved by

the order of the High Court, the appellant/state has knocked on the

doors of this Court by way of special leave petition.

9.Heard the learned counsel for both parties and perused the material

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available on record.

10. Madhya Pradesh is famous for its abundant biodiversity. The rich

biodiversity generates minor forest produce such as tendu, harra, sal

seed and gum etc

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. These forest produce are a good source of revenue

for the state and provides employment opportunities for the people.

11. In order to facilitate development of a good forest policy, the State

of Madhya Pradesh enacted the Adhiniyam in the year 1969.

2

This

legislation was enacted with an object to regulate the trade of certain

forest produce in the State of Madhya Pradesh.

3

The Adhiniyam is a

statute enacted for the purpose of preserving certain forest produce in

the State of Madhya Pradesh. The Scheme of the Act, as expressed in

several provisions, is to empower the authorized officers of the Forest

Department for proper implementation/enforcement of the statutory

provisions and for enabling them to take effective steps for preserving

these forest produce. For this purpose certain powers including the

power of seizure, confiscation and forfeiture have been vested in them.

This position is made clear by giving overriding effect to the provisions

of the Act over other statutes and laws.

12. At this juncture it is important to have a glance at certain changes

the Adhiniyam has undergone over the years. Sections 15 and 22 (1)

were replaced by Section 15-A to 15-D by the State Act 15 of 1987.

Adhiniyam as originally enacted did not provide for separate

confiscatory proceedings. Original enactment only had penal provisions.

The newly introduced Sections from Section 15-A to 15-D were brought

1 Madhya Pradesh Development Report, Planning Commission (2011).

2 Preamble, Adhiniyam.

3 Ibid.

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in line with Indian Forest Act, as amended by the State of Madhya

Pradesh to provide for a separate confiscatory mechanism.

13. Before we delve into the issue, a brief reference to the overall

scheme of the Act is necessary. Section 2 of the Adhiniyam is the

definition clause. Under Sub-clause (d) of Section 2 various forest

produce have been elucidated. Section 3 of the Adhiniyam empowers

State Government to divide forest area into units for carrying out the

purposes of the Act. Section 4 of the Adhiniyam states that the State

Government may appoint requisite number of agents to trade in specific

forest produce. Further, Section 5 creates bar on individuals other than

the State Government or authorized officers of the State Government or

an agent appointed under Section 4, to purchase or transport such

specified forest produce in such area with certain exceptions as provided

under Sub-section (2) of Section 5. Furthermore, Section 7, 8 and 9 of

the Adhiniyam allows the State Government to fix prices, prescribe

procedures for opening depots, publication of price lists etc. at the

depot.

14. Section 10 and 11 of the Adhiniyam prescribes registration of

growers, manufacturers, traders and consumers of specified forest

produce respectively. Section 12 vests discretionary powers upon the

State Government to dispose of specified forest produce. Section 12-A

provides for re-sale of excess specified forest produce by manufacturer,

trader or consumer. Section 13 provides for the mode of retail sale of

specified forest produce. Section 14 empowers State Government to

delegate powers or functions under the Act.

15. It would be useful for the purpose of this case to reproduce Section

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15 of the Adhiniyam-

15. Search and seizure of property liable to confiscation

and procedure thereof - (1) Any Forest Officer as may be

notified by the State Government or any Police Officer not below

the rank of an Assistant Sub Inspector or any other person

authorized by the State Government may, with a view to

securing compliance with the provisions of this Act or the Rules

made thereunder or to satisfying himself that the said

provisions have been complied with,-

(i) stop and search any person, boat, vehicle or

receptacle use or intended to be used for the

transport of satisfied forest produced;

(ii)Enter and search any place.

(2)When there is reason to believe that any officer under this

Act has been committed in respect of any specified forest

produce, 3[Any Forest Officer as may be notified by the State

Government or any Police Officer not below the rank of an

Assistant Sub Inspector] or any person authorized by the State

Government in this behalf may, seize such specified Forest

Produce along with all tools, boats, vehicles, ropes, chains or

any other articles used in committing such offence under the

provisions of this Act.

(3) Any Officer or Person seizing any property under this

Section shall place on all such property a mark indicating that

the same has been so seized and shall, as soon as may be,

either produce the property seized before the officer not below

the rank of an Assistant Conservator or Forest authorised by the

State Government in this behalf, by notification (hereinafter

referred to as the Authorised Officer] or where it is having

regard to quantity or bulk or other genuine difficulty, not

practicable to produce the property seized before the

Authorised Officer, make a report about the seizure to the

Authorised Officer, or where it is intended to launch criminal

proceedings against the offender immediately make report of

such seizure to the Magistrate having jurisdiction to try the

offence account of which seizure has been made:

Provided that, when the specified Forest Produce with respect

to which such offence is believed to have been committed is the

property of Government and the offender is unknown it shall be

sufficient if the officer make as soon as may be a report of the

circumstances to his official superior.

(3A) Any forest officer of a rank not inferior to that of a

Ranger, who or whose subordinate, has seized any tools, boats,

vehicles, ropes, claims or any other article as liable for

confiscation, may release the same on the execution by the

owner thereof, of a security in a form as may the prescribed, of

an amount equal to double the value of such property, as

estimated by such officer, of the production of the property so

released, when so required, before the officer authorized order

the confiscation or the Magistrate having jurisdiction to try the

offence on account of which the seizure has been made.

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(4) Subject to the provisions of sub-section(6), where the

authorized officer upon production before him of the specified

forest produce or upon receipt of report about the seizure, as

the case may be, is satisfied that offence has been committed

in respect thereof, he may, by order in writing and for reasons

to be recorded confiscate the specified forest produce so seized

together with all tools, vehicles, boats ropes, chains or any

other articles used in committing such offence. A copy of order

of confiscation shall be forwarded without any undue delay to

the 1[Officer-in-charge of Forest Circle] in which the specified

forest produce has been seized.

(5) No order confiscating any property shall be made under

sub-section(4) unless the authorised officer, -

(a)sends an intimation in forms prescribed about intimation of

proceedings for confiscation of property to the Magistrate

having jurisdiction to try the offence on account of which

the seizure has been made;

(b)issues a notice in writing to the person from whom the

property is seized, and to any other person who may

appear to the authorised officer to have some interest in

such property;

(c)affords an opportunity to the persons referred to in clause

(b) of making a representation within such reasonable time

as may be specified in the notice against the proposed

confiscation; and

(d)gives to the officer or person effecting the seizure and the

person or persons to whom notice has been issued under

clause (b), hearing on the date to be fixed for such

purpose.

(5A) When the authorised officer having the jurisdiction over the

case is himself involved in the seizure of investigation, the next

higher authority may transfer the case to any other officer of

the same rank for conducting proceedings under this section.]

(6) No order of confiscation under sub-section (4) of any tools,

vehicles, boats, ropes, chains or any other articles (other than

specified forest produce seized) shall be made if any person

referred to in clause (b) of sub-section (5) proves to the

satisfaction of authorised officer that any such knowledge or

connivance or as the case may be without the knowledge or

connivance of his servant or agent and that all reasonable and

necessary precautions had been taken against use of objects

aforesaid for commission of an offence under this Act.

(6A) The seized forest produce or any other property, if ordered

to be released by the authorised officer, shall continue to be

under custody until confirmation of the order of the authorised

officer by the Appellate Authority or until the expiry of the

period for initiating “suomotu” action by him, whichever is

earlier, as specified under Section 15-A.

(7) The provisions of Sections 102 and 103 of the Code of

Criminal Procedure, 1973 (No.2 of 1974) relating to search and

seizures shall so far as may be apply to searches and seizures

and seizures under this section.

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Sub-section (1) of Section 15 empowers concerned forest officers to

conduct search to secure compliance of the provisions of the Adhiniyam.

On a plain reading of Sub-section (2), it is clear that the concerned

officer may seize vehicles, ropes etc, if he has reason to believe that the

said items were used for the commission of an offence under the

Adhiniyam. Confiscation proceedings as contemplated under Section 15

of the Adhiniyam is a quasi-judicial proceedings and not a criminal

proceedings. Confiscation proceeds on the basis of the 'satisfaction' of

the Authorized Officer with regard to the commission of forest

offence. Sub-section (3) of the provision lays down the procedure to be

followed for confiscation under the Adhiniyam. Sub-section (3A)

authorizes forest officers of rank not inferior to that of a Ranger, who or

whose subordinate, has seized any tools, boats, vehicles, ropes, claims

or any other article as liable for confiscation, may release the same on

execution of a security worth double the amount of the property so

seized. This provision is similar to that of Section 53 of the Indian Forest

Act as amended by the State of Madhya Pradesh. Sub-section (4)

mandates that the concerned officer should pass a written order

recording reasons for confiscation, if he is satisfied that a forest offence

has been committed by using the items marked for confiscation.

Sub-section (5) prescribes various procedures for confiscation

proceedings. Sub-Section (5A) prescribes that whenever an Authorized

Officer having jurisdiction over the case is himself involved in the

seizure, the next higher authority may transfer the case to any other

officer of the same rank for conducting confiscation proceedings.

Sub-section (6) provides that with respect to tools, vehicles, boats,

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ropes, chains or any other article other than timber or forest-produce

seized, confiscation may be directed unless the person referred in clause

(b) of Sub-section 5 is able to satisfy that the articles were used without

his knowledge or connivance or, as the case may be, without the

knowledge or connivance of his servant or agent and that all reasonable

and necessary precautions had been taken against the use of such

objects for commission of forest offence.

16. Section 15 A provides the remedy of appeal against the order of the

authorized officer under Section 15 in confiscation proceedings. Section

15-B of the Adhiniyam provides for revision before the Court of Sessions

against the order of the Appellate Authority in the confiscation

proceedings.

17. Under Section 15-C of the Adhiniyam, a jurisdictional bar on courts

and tribunals have been provided for, if the confiscation proceedings are

initiated under Section 15 of the Adhiniyam. Moreover Sub-section (2) of

Section 15-C provides that nothing hereinbefore contained shall be

deemed to prevent any officer authorized in this behalf by the State

Government from directing at any time the immediate release of any

property seized under Section 15. The necessary proposition which

follows such a provision is that, in a case where the Authorized Officer is

empowered to confiscate the seized forest produce on being satisfied

that an offence under the Act has been committed, the general power

vested in the Magistrate for dealing with interim custody/release of the

seized materials under the Cr. P.C. gives way. The Magistrate while

dealing with a case of seizure of forest produce under the Act should first

examine whether the power to confiscate the seized forest produce is

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vested in the Authorized Officer under the Act and if he finds so, then he

has no power to pass any order dealing with interim custody/release of

the seized material. Such ouster of jurisdiction would aid in proper

implementation of the Adhiniyam. If in such cases the power to grant

interim custody/release of seized forest produce is vested in the

Magistrate, then it will defeat the very scheme of the Act. Such a

consequence is to be avoided.

18. Another relevant provision which needs to be to be discussed is

Section 15-D of the Adhiniyam. It provides that:

15-D. Confiscation of property when the produce is not

the property of Government.- All specified forest produce

which in either case is not the property of the Government

and in respect of which a contravention of any provision of

the Act or the rules made thereunder has been committed

and all tools, boats, vehicles, ropes, chains or any other

articles, in case used in committing such contravention shall,

subject to the provisions of Sections 15, 15A, 15 B and 15 C

be liable to confiscation upon conviction of the offender for

such contravention.

19. The said section makes it clear that section 15-D subjects itself to

confiscation proceedings under Section 15, 15-A, 15-B and 15-C of Act.

Further Section 15-D speaks of confiscation of all tools, boats, vehicles,

ropes, chains or any other articles upon conviction of the offender for

such forest offence. This Section is equivalent to Section 55 of the Indian

Forest Act as amended by the State of Madhya Pradesh. In this Section

the confiscation after the conviction is subjected to separate

confiscation proceedings as contemplated under Section 15, 15-A, 15-C.

At the cost of repetition it should be noted that if a confiscation

proceeding under Section 15 has commenced and the confiscation has

already occurred, then there is no question of confiscation under Section

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15-D again. If the confiscation has not taken place under Section 15,

then the Court after final conviction can order confiscation under Section

15-D of the Adhiniyam.

20. The broad scheme of the Adhiniyam is to punish those who are in

contravention of the law at the hand of the criminal court. The

confiscation being incidental and ancillary to the conviction, State of

Madhya Pradesh, separated the process of confiscation from the process

of prosecution. The purpose of the enactment seems to be that the

power of the criminal court regarding the disposal of property is made

subject to the jurisdiction of the authorized officer with regard to that

aspect; the jurisdiction of criminal court in regard to the main trial

remains unaffected.

21. Before we deal with the question concerned in this appeal it would

be apt to have a look at three cases decided by this court. In Divisional

Forest Officer And Anr. Vs. G.V. Sudhakar And Ors.

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, this Court was

concerned with the question as to whether the proceedings for

confiscation of illegally felled timber by the respondent therein can be

continued till the disposal of main criminal case pending against him.

This Court after considering the various provisions of the Andhra Pradesh

Forest Act came to the conclusion that there is no doubt that the object

of the legislation was to provide for two separate proceedings before two

different forums and that there is no conflict of jurisdiction as Section 45,

as amended by the Amendment Act, in turn curtails the power conferred

on the Magistrate to direct confiscation of timber or forest produce on

conviction of the accused. This Court proceeded to observe-

4 (1985) 4 SCC 573

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The conferral of the power of confiscation of seized timber or

forest produce and the implements, etc. on the Authorized

Officer under Sub-section (2a) of Section 44 of the Act on his

being satisfied that a forest offence had been committed in

respect thereof, is not dependent upon whether a criminal

prosecution for commission of a forest offence has been

launched against the offender or not. It is a separate and

distinct proceeding from that of a trial before the Court for

commission of an offence. Under Sub-section (2A) of Section

44 of the Act, where a Forest Officer makes report of seizure

of any timber before the Authorized Officer along with a

report under Section 44(2), the Authorized Officer can direct

confiscation to Government of such timber or forest produce

and the implements, etc., if he is satisfied that a forest

offence 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 Section 20 or 29 of the

Act.

22. In the case of State of West Bengal vs. Gopal Sarkar

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, this Court

again had an opportunity to deal with the confiscatory proceedings

initiated for forest offences. This Court while relying on the judgment in

Divisional Forest Officer vs G. V. Sudhakar Rao (Supra) has come to the

following conclusion:

10. On a fair reading of the provision it is clear that in a case

where any timber or other forest produce which is the

property of the State Government is produced under

sub-section (1) and an Authorised Officer is satisfied that a

forest offence has been committed in respect of such

property he may pass order of confiscation of the said

property (forest produce) together with all tools, ropes,

chains, boats, vehicles and cattle used in committing the

offence. The power of confiscation is independent of any

proceeding of prosecution for the forest offence committed.

This position is manifest from the statute and has also been

held by this Court in Divisional Forest Officer v. G.V. Sudhakar

Rao [(1985) 4 SCC 573 : 1986 SCC (Cri) 34 : AIR 1986 SC

328] .

23. In the case of State of M.P. vs. S.P. Sales Agencies

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, the brief facts

5 (2002) 1 SCC 495

6 (2004) 4 SCC 448

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therein were a truck was intercepted by the police in the District of

Gwalior. It was found that 281 cases of Kuttcha manufactured by M/s

Harsh Food Products, respondent 2 therein were found in the truck.

These wood cases were being transported without requisite transit pass

under Rule 3 of M.P. Transit Rules thereafter; this matter was reported to

Sub-Divisional Forest Officer, Gwalior, who initiated confiscation

proceedings under Section 52 of the Act. This Court had an opportunity

to deal with the question as to whether confiscation proceedings can be

initiated under section 52 of the Act only after launching of the criminal

prosecution or is it open to the forest authorities upon seizure of forest

produce to initiate both or either. This Court relying on the cases in

Divisional Forest Officer vs. G. V. Sudhakar Rao and State of West

Bengal vs. Gopal Sarkar, came to the conclusion that the power of

confiscation is independent of any criminal prosecution for forest

offences committed.

24. In view of the foregoing discussions, it is apparent that Section 15

gives independent power to the concerned authority to confiscate the

articles, as mentioned there under, even before the guilt is completely

established. This power can be exercised by the concerned officer if he is

satisfied that the said objects were utilized during the commission of a

forest offence. A protection is provided for the owners of the

vehicles/articles, if they are able to prove that they took all reasonable

care and precautions as envisaged under Sub-section (5) of Section 15

of the Adhiniyam and the said offence was committed without their

knowledge or connivance.

25. Criminal prosecution is distinct from confiscation proceedings. The

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two proceedings are different and parallel, each having a distinct

purpose. The object of confiscation proceeding is to enable speedy and

effective adjudication with regard to confiscation of the produce and the

means used for committing the offence while the object of the

prosecution is to punish the offender. The scheme Adhiniyam prescribes

an independent procedure for confiscation. The intention of prescribing

separate proceedings is to provide a deterrent mechanism and to stop

further misuse of the vehicle

26. At the cost of repetition we clarify that confiscatory proceedings are

independent of the main criminal proceedings. In view of our detailed

discussion in the preceding paragraph we are of opinion that High Court

as well as the revisional court erred in coming to a conclusion that the

confiscation under the law was not permissible unless the guilt of the

accused is completely established.

27. Consequently the appeal is allowed and the judgment of the High

Court is set aside.

…………………………… .J.

(N. V. RAMANA)

…………………………… .J.

(PRAFULLA C. PANT)

NEW DELHI,

DATED : MAY 08, 2017

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ITEM No. 1A Court No. 11 SECTION IIA

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No. 932 of 2017

(Arising out of SLP(Crl) No. 8861 of 2014)

STATE OF M.P. & ORS. Appellant(s)

VERSUS

KALLO BAI Respondent(s)

Date : 08.05.2017 This matter was called on for pronouncement of

judgment today.

For Appellant(s) Mr. Mishra Saurabh, Adv.

For Respondent(s) Mr. Parmanand Gaur, Adv.

Mr. Sameer Kumar, Adv.

Mr. Ekansh Bansal, Adv.

Hon'ble Mr. Justice N.V.Ramana pronounced the

judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Prafulla C.Pant.

Leave granted

The appeal is allowed in terms of the signed

reportable judgment.

(Shashi Sareen)

AR-cum-PS

(S.S.R.Krishna)

Assistant Registrar

(Signed reportable judgment is placed on the file)