ORDER
1. Heard both parties.
2. The above revision is directed against the order dated 7.12.1994 in C.A.No.164 of 1992, on the file of the I Additional Sessions Judge, Madurai confirming the order of confiscation dated 9.12.1992 in C.C.No.2702 of 1990 on the file of the learned Judicial Magistrate Uthamapalayam, Madurai District wherein the lorry bearing registration No.TNN-4734 was confiscated by the learned Judicial Magistrate, by exercising power under Section 49-G of the Tamil Nadu Forest Act.
3. According to the prosecution the lorry bearing registration
No.TNN-4734, belonging to the petitioner was seized, when the lorry was
transporting a scheduled timber, namely teakwood covered with bags of
cabbage and potatoes, on 9.8.1990, from Mettupalayam to Madras. Therefore,
the confiscation proceedings were initiated by the concerned Forest Range
Officer before the learned Judicial Magistrate, Uthamapalayam, within whose
jurisdiction the said scheduled timber was seized, by exercising power under
Section 41(3), Proviso (b) read with Section 43 of the Tamil Nadu Forest Act.
The learned Judicial Magistrate, thus, by exercising power under Section
41(3) Proviso (B) read with Section 43 of the Tamil Nadu Forest Act,
confiscated the said lorry bearing registration No.TNN-4734, by his order
dated 9.12.1992, which was, on appeal in C.A.No.164 of 1992, confirmed by
the learned I Additional Sessions Judge Madurai in his order dated 7.12.1994
and hence the above revision.
4. The learned counsel for the petitioner contends that the said occurrence has taken place on 11.7.1990 and the order of confiscation was passed by the learned Judicial Magistrate on 9.12.1992 in C.C.No.2702 of 1990. However, in the meanwhile, on 13.12.1992 Section 49-G was introduced by Tamil Nadu Amendment Act 44 of 1992, under which only the Forest Officer under Section 49-A or the Forest Officer specially empowered under Section 49-C or the learned Sessions Judge, hearing on appeal under Section 49-D alone shall have the power to confiscate the vehicle notwithstanding Section 43 of the Tamil Nadu Forest Act. Therefore, he contends that the order of confiscation dated 9.12.1992 passed by the learned Judicial Magistrate in C.C.No.2702 of 1990, as confirmed by the learned I Additional Sessions Judge in his order dated 7.12.1994 in C.A.No.164 of 1992 is totally without jurisdiction.
5. Per contra, the learned Government Advocate contends that since the date of occurrence was admittedly on 11.7.1990, which is prior to the date of introduction of Section 43 of the Act, the learned Judicial Magistrate has got power and authority to pass order of confiscation, in view of Section 41(1) read with 41(3) Proviso (b) and therefore, contends that the order of confiscation dated 9.12.1992 does not suffer from any want of jurisdiction.
6. I have given careful consideration to the submissions of both sides.
7. In this connection, it is relevant to refer section 41, 43, and 49-G of the Tamil Nadu Forest Act. which reads as follows.
A1. Seizure properly liable to confiscation. (1) When there is reason to believe that a forest offence has been committed in respect of any umber or forest produce, such timber or produce together with all tools, ropes, chains, boats, (Vehicles) and cattle used in committing any such offence, may be seized by a Forest Officer or Police Officer.
(2) Any Forest Officer or Police Officer, may, if he has reason to believe that a vehicle has been, or is being used for the transport of any scheduled timber in respect of which there is reason to believe that a forest offence has been or is being committed, require the driver or the other person in charge of such vehicle to stop the vehicle and cause to remain stationary as long as may be reasonably for examination of the contents in the vehicle and inspection of all records relating to the scheduled limber and is possession of such driver or other person in charge of the vehicle or any other person in the vehicle.
(3) Every officer seizing any property under this Section shall place on such property or the receiptable (if any) in which it is contained a mark indicating that the same has been so seized and shall as soon as may be.
Provided that when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the (Central or the State Government) and the offender is unknown., it shall be sufficient if the officer makes, as soon as may be, (a report of the circumstances of case to his official superior).
(a) where the offence on account of which the seizure has been made is in respect of the scheduled timber which is the properly of the Government or in respect of which the Government have any interest to the concerned authorised officer under Section 49-A and
(b) in other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made.
Section 43: Timber forest produce tools etc. when liable to confiscation:- When any person is convicted of a forest offence all timber or forest produce in respect of which such offence has been committed and all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, shall subject to section 49-G be confiscated to the Government.
Section 49-G: Bar of jurisdiction in certain cases:- Whenever any scheduled timber belonging to the Government or any tool, rope, chain, boat, vehicle and cattle used for committing any offence in respect of any scheduled timber, is seized under section (I) of Section 41, notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) or in any other law for the time being in force,
(a) the authorised officer under section 49-A, or the Forest Officer Specially empowered under Section 49-C, or the Session Judge hearing an appeal under Section 49-D, shall have, and
(b) any other officer, court tribunal or authority shall not have, jurisdiction to make orders with regard to the custody possession, delivery, disposal or distribution
of such property.
8. A careful reading of Section 49-G makes it clear that it prevails over Sections 41 and 43, in view of non-obstante clause in section 49-G, introduced by the Tamil Nadu Act 44 of 1992, according to which notwithstanding anything contrary in this Act or in the Code of Criminal Procedure or in any other law in the time being force, the confiscation could be whenever any scheduled timber belonging to the Government or the vehicle seized under section 41(1) of the Act, only by the authorised officer under Section 49-A or the Forest Officer Specially empowered under section 49-C, or the learned Sessions Judge hearing on appeal under section 49-D. That apart, it is also clear that any other officer, court, tribunal or authority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property.
9. In view of the above expressed specific conferment of power, authority and jurisdiction as, mentioned under Section 49- G(a) and expressed bar provided under Section 49-G(b), I am satisfied that the contentions of the learned counsel for the petitioner that the learned Judicial Magistrate has no power, authority or jurisdiction to pass order of confiscation is well founded.
10. Therefore, the said order of the learned Judicial Magistrate dated 9.12.1992 in C.C.No.2702 of 1990, as confirmed by the learned I Additional Sessions Judge in his order dated 7.12.1994 in C.A.No.164 of 1992 are set aside. However, the matter is remitted back to the learned Judicial Magistrate, Uthamapalayam for appropriate, further action, if they deem fit and necessary under the facts and circumstances of the case.
11. In the result, revision is allowed. No costs.