ORDER
G.D. Sharma, J.
1. This revision petition is directed against the order dated 7-11-1997 passed by the learned Chief Judicial Magistrate, Udhampur whereby the release of the trucks (bearing registration Nos. JKO1A-2825; JKO3-1133 and JKO3-352) sought under the provisions of Section 523, Cr. P.C. was refused. On 1-11-1997, the in charge Forest Officer, Forest Check Post, Sailan Talab, Udhampur had seized the trucks for the contravention of the provisions of Sections 6, 15 and 16 of the Forest Act. In the impugned order it is stated that the trucks were seized by a Forest Officer when they were found being used for transporting willow clefts in an unauthorised manner and as such liable to be confiscated under the provisions of the Forest Act and Section 523 of the Code of Criminal Procedure had no application. The petitioner Farooq Ahmed Butt was also found incompetent to make the petition under Section 523, Cr. P.C. as he was not the owner of the trucks which were owned by Abdul Razak Bhat s/o Abdul Gani Bhat R/o Kodwani Anantnag (Kashmir).
2. The said order has been challenged on the grounds that the willow cleft is not a forest produce and they were not removed illegally from any area of a demarcated Forest. The owner of the trucks is only a carrier of the willow clefts and not an offender. He has no knowledge about the commission of any offence and may not be deprived of livelihood.
3. Heard the arguments.
4. The learned Government Advocate has raised preliminary objection regarding the maintainability of the revision petition. According to him, the impugned order is only an interlocutory order and thus the revision is not maintainable. The plea has been controverted by the counsel of the petitioners by pleading that the impugned order in question deals with jurisdictional aspect of the controversy and finally determines the rights of the petitioner, therefore, it is not of preliminary nature. In support of their contention, the case of Khurshid Alam Khan v. State 1987 Srinagar LJ 503, has been cited. In the said case, it has been held that when the objection is taken to the jurisdiction of the Court, the decision on such a point goes to the very root of the case and cannot be termed as an interlocutory order. In the instant case lack of jurisdictional competency had debarred the Magistrate to take cognizance and the petition was not entertained. The decision had gone to the root of the controversy. Therefore, it cannot be said that impugned order is of interlocutory nature. The ratio decidendi of the abovestated case applies in all fours to the facts and circumstances of the present case.
5. Now, the question which remains to be determined is whether the provisions of Section 523, Cr.P.C. are applicable to the facts of the present case or not. It is an admitted fact that the vehicles in question were seized while transporting the willow clefts. The case of the prosecution is that Sections 6, 15 and 16 of the J. and K. Forest Act (hereinafter to be referred to as ‘Act’) were invoked in effecting the seizure. The Act has undergone tremendous change after the passing of J. and K. Forest (Amendment) Act, 1997, Section 26 relates to seizure of property liable for confiscation. Substituted with newly wordings and is reproduced as under:-
26. Seizure of property liable to confiscation.- (1) When there is a reason to believe that a forest offence has been committed in respect of any forest produce, ‘such produce together with all tools, arms, boats, carts, equipment, ropes,’ chains, machines, vehicles, cattle or any other article’ used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2) Any 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 before an officer not below the rank of the Divisional Forest Officer (hereinafter referred to as ‘authorised officer’):
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.
(3) Subject to Sub-section (5), where the authorised officer upon receipt of report about seizure, is satisfied that a forest offence has been committed in respect thereof, he may, by order in writing and for reasons to be recorded, confiscated forest produce so seized together with all tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles or any other articles used in committing such offence. Copy of the order of confiscation shall be forwarded without any undue delay to the person from whom the property is seized and to the Conservator of Forest Circle in which the timber or forest produce, as the case may be, has been seized.
(4) No order confiscating any property shall be made under Sub-section (3) unless the Authorised Officer :-
(a) sends an intimation in writing about the proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made but no order to be passed.
(b) issue 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) gives to the officer effecting the seizure and the person or persons to whom notice issued under clause (b) a hearing on date to be fixed for such purpose.
(5) No order of confiscation under Sub-section (3) of any tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles or any other article (other than timber or forest produce seized) shall be made, if any person referred to in clause (b) of Sub-section (4) proves to the satisfaction of authorised officer that any such tools, arms, boats, carts, equipment, ropes, chains machines, vehicles, cattle or any other 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 objects aforesaid or commission of forest offence.
(6) Where the cattle are involved in the commission of a forest offence, the same after seizure by any officer, as the case may be, shall be entrusted to any responsible person under a proper receipt on an undertaking to produce the same when required in case there is no cattle pound within a radius of five Kilometers from the place of such offence :Provided that notwithstanding anything contained in Section 30, in case of unclaimed cattle a Forest Officer not below the rank of Range Officer, after giving sufficient publicity in the vicinity of the place of offence for the owner to come forward to claim the cattle within seven days from the date when such publicity has been given, may dispose them of by public auction. The provisions of the Cattle Trespass Act, Samvat 1977, shall apply in respect of the charge to be levied for the upkeep and fee of the cattle.
6. In this section it has been provided that no order of confiscation can be made by the Forest Officer unless he sends an intimation in writing about the proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made but he has to pass the order after fulfilling the formalities of clauses (b) and (c), of abovestated Sub-section (4) and Sub-sections (5) and (6). Section 26-B provides revision before the Court of Session against the order of confiscation passed by the Forest Officer. Section 26-C creates bar to jurisdiction of Courts, which lays down that on receipt of report under Sub-section (4) of Section 26 about intimation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property which no Court, Tribunal or Authority (other than Authorised Officer and Court of Session referred to in Section 26 and (26-B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated under Section 26, notwithstanding anything to the contrary contained in this Act, or any other law for the lime being in force.
7. Section 27 of the said Act has also been amended and the insertion of the following has been made :-
(a) for the words ‘such report’ the words ‘report under Sub-section (2) of Section 26 shall be substituted’:
(b) at the end the following proviso shall be inserted, namely :-
Provided that before passing any order for disposal of property the Magistrate shall satisfy himself that no intimation under Sub-section (4) of Section 26 has been received by this Court or by any other Court having jurisdiction to try the offence on account of which the seizure of property has been made.
8. From the scheme of the abovestated amended provisions of the Act, it is crystal clear that Judicial Magistrate is left with the jurisdiction for passing any order about the disposal of the seized property only in case no proceedings under Section 26 of the Act are initiated before the Authorised Officer under the Act. When the Magistrate takes the cognizance for the disposal of the seized property, then under Section 27 of the Act he is further required to satisfy himself that no intimation under Sub-section (4) of Section 26 of the Act has been received by him or by any other Court having jurisdiction to try the offence on account of which the seizure of the property has been made. In the instant case, no plea was taken before the learned Magistrate that confiscation proceedings had been initiated by the concerned Forest Officer under the Act. Also, the Magistrate had received no such intimation from the concerned quarter. Under these circumstances, it was not expected from the experienced Magistrate of the present case to abdicate his jurisdiction, in favour of the prosecution while leaving the aggrieved party high and dry. In the absence of express provisions of law in this Special Act creating a bar for the application of procedural law; all the relevant provisions of the Code of Criminal Procedure were applicable including Section 523, Cr.P.C. for regulating the ‘trial of the case. The impugned order had resulted into preventing a party to seek redressal for the infringement of his rights. Such an order is not only illegal but perverse which has resulted in the miscarriage of justice. Accordingly, the revision petition is accepted and the impugned order is set aside. This Court has already temporarily entrusted the custody of the vehicles in question in favour of the petitioner Farooq Ahmed but now after full discussion they be finally entrusted in the custody of the rightful owner/owners after getting an undertaking that their ownership shall not be changed without proper permission of the trial Court and they shall be produced in the Court as and when so required. The undertaking be given to the satisfaction of the Registrar (Judicial) of the Court.