JUDGMENT
D.P. Mohapatra, J.
1. Being unsuccessful in persuading the Courts below to grant her prayer for interim release of the seized timber to hat, the petitioner filed this petition under Section 482 of the Code of Criminal Procedure to release the same in her favour.
2. The petitioner Smt. Karnam Laxmipati Padmini claims to be the proprietor of the firm M/s. Lotus Engineering Enterprises at Vishakhapatnam in Andhra Pradesh. It is her case that her firm purchased 749.57 cubic feet of timber comprising of 17.21 cubic feet non-sal and 732.36 cubic feet sized teak planks from M/s. Sarala Timbers at Laxmi Sagar in the District of Puri. When the said timber was being loaded in a wagon at Bhubaneswar Station by one Satish Chandra Parija on 5-5-1985 for being transported to Visakhapatnam the Range Officer Bhubaneswar seized the timber since no transit permit could be produced either by the railway staff or by the person who was loading the goods in the wagon authorising transport of the same to Visakhapatnam. The said Forest Officer also arrested the accused persons and released them on bail. He submitted a prosecution report in the Court of the Sub-divisional Judicial Magistrate, Bhubaneswar. (SDJM) under Section 45 of the Orissa Forest Act, 1972 (for short, “the Act”) and Rule 4 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 (for short ‘the Rules’). The case was registered as 2(b) C.C. No. 22 of 1986.
3. In the said case the petitioner filed an application purportedly under Section 56 (3) of the Act before the learned S.D.J.M. for interim custody of the seized timber claiming ownership over the same on the basis of her purchase from M/s. Sarala Timbers. The learned S.D.J.M. by his order dated 21-9-1987 rejected the prayer for interim custody of the seized articles on the grounds, inter alia, that the goods were in custody of the forest officials and they are not perishable commodities.
Against the said order the petitioner filed a revision petition, Criminal Revision No. 11/1 6 of 1987 in the Court of the Addl Sessions Judge, Bhubaneswar. The revisional authority by his order dated 20th of March, 1989 dismissed the revision petition on the ground that in the facts and circumstances of the case the learned S.D.J.M. had no jurisdiction to entertain and dispose of the application for interim custody of the seized goods. He placed reliance on the decision of this Court in the case of Sarat Kumar Malu v. The State of Orissa, reported in 57 (1984) CLT 381.
4. The facts discussed in the preceding paragraphs are not in dispute. Concededly the timber in question was seized by the Range Officer, Bhubaneswar under Section 56 of the Act who has submitted a prosecution report in the Court of the S.D.J.M., Bhubaneswar under Section 45 of the Act read with Rule 4 of the Rules. It is also not in dispute that the seized goods have not been produced before the learned S.D.J.M., they are in custody of the forest officials. There is no material to show that any proceeding for confiscation of the seized goods has been initiated. The question is in such circumstances whether a petition for interim custody of the seized goods could be filed before the learned Magistrate. In Sarat Kumar Malu’s case (supra) this question was answered in the negative. Therein this Court relying on the decision of the Supreme Court in Civil Appeal No. 1216 of 1979 (State of Andhra Pradesh v. Smt. Haji Begum and Anr.) held that the power to pass orders regarding release of the seized property lies with the authorities under the Forest Act and not in a Court by invoking the provisions of the Code of Criminal Procedure. This Court observed that when any forest produce together with the vehicle used in committing any forest offence is seized by any Forest Officer in exercise of his powers under Section 56 of the Act, the power to release the property seized lies with the authorities prescribed in the four corners of the provisions of the Act and not with a Magistrate in exercise of his powers Under the provisions of the Code of Criminal Procedure. Proceeding further this Court held that since the seized vehicle has not been produced before any Magistrate, therefore, in terms/Section 451 Cr. P.C. would have no application, similarly. Section 457 would have no application when the property in question has not been seized by a police officer in the case, but by a forest officer.
5. On a first look, the ratio in Sarat Kumar Malu’s case will appear to apply in all fours to this case, but there are two factual aspects which, in my view, are relevant and need to be noticed that there is no material to show that any proceeding for confiscation of the seized goods has been initiated by the competent authority under the Act and that Section 56 (3) expressly provides that the property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid, or until an order of the Magistrate directing its disposal is received (emphasis is mine). Section 57 empowers any Forest Officer of a rank not inferior to that of a Range Officer who or whose Subordinate has seized any tools, ropes, chains, boats, vehicles or cattle, under Section 56 and where a report of such seizure has been made to a Magistrate under Sub-section (2) of that section to release the same on the execution by the owner thereof or 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. This section does not cover the forest product in respect of which the allegation of offence under the Act is made, but it covers only tools, ropes, chains, boats, vehicles or cattle seized by forest officials. Therefore it cannot be said that for interim release of the forest produce in relation to which commission of the offence under the Act is alleged, there is any provision in the Act. The necessary fall-out of this is that the principle that in view of the specific provision (Section 57) in a special statute (the Act) the general provisions in Section 451 to 457 of the Code of Criminal Procedure will not apply does not hold good. It is relevant to notice here that in Sarat Kumar Malu’s case (supra) the truck in which the forest produce was alleged to have been illegally carried was seized and therefore this Court had no occasion to consider the question of release of the seized forest produce. To accept the reasons stated in the revisional order will, in my view, leave a party seeking interim release of seized forest produce in relation to which the forest offence is alleged to have been committed without any forum for relief. Therefore, in my view, the learned Addl. Sessions Judge was not right in holding that the learned S.D.J.M. had no jurisdiction to entertain the application for interim release of the seized forest produce. His order is unsustainable.
6. The further question that remains to be considered is whether the order passed by the learned S.D.J.M. rejecting the petitioner’s prayer for interim release calls for interference by this Court. As noted earlier, the learned Magistrate considering the facts and circumstances of the case particularly the nature of the goods seized was not persuaded to grant the prayer for its interim release. I am not satisfied that there was any serious illegality or infirmity in exercise of his discretionary power to grant interim release of the goods seized. He was, however, not right in treating the application filed by the petitioners under Section 56 (3) of the Act. The application could only be considered by him under Section 451 or Section 457 of the Cr.P.C. However, erroneous mention of the statutory provisions in the application is not relevant, it is the substance of the application which is to be taken into account. If the matter dealt within the application falls within the jurisdiction of the learned Magistrate he could not be said to have been deprived of jurisdiction to consider the same merely on the ground of erroneous mention of the statutory provisions. On consideration of the facts and circumstances of the case, I am persuaded to take the view that the prayer for interim release of the seized timbar should not be allowed, but the criminal case should be disposed of expeditiously.
7. Therefore while maintaining the order passed by the learned S.D.J.M., Bhubaneswar on 21-91896 rejecting the petitioners’ prayer for interim release of the seized timbar, I direct the learned Magistrate to dispose of the criminal case, 2 (h)C.C. No.22 of 1986 within three months from the date of receipt of the record from this Court.
The Lower Court Record be returned forthwith. The application is disposed of accordingly.