Holding

The authorized officer, not the magistrate, is vested with the power to pass an order of interim custody of the vehicle and sandalwood oil because sandalwood oil is included within the definition of "sandalwood" under Section 2(18) of the Karnataka Forest Act, 1963.

Summary

The Karnataka Forest Act, 1963 authorized officers seized a lorry carrying sandalwood oil and later ordered its confiscation and that of the vehicle, publishing the order in the official gazette. The vehicle's owner applied to a Judicial Magistrate for interim custody, which was dismissed on the ground that only the authorized officer could grant such relief; this decision was upheld by the Sessions Judge. The High Court, interpreting Section 62(3)(b) of the Act and the CrPC, reversed the lower courts, holding that the magistrate had jurisdiction and that sandalwood oil was not covered by the provisions granting confiscation power to the authorized officer. The Supreme Court examined the definition of "sandalwood" in Section 2(18) and concluded that it expressly includes sandalwood oil, thereby bringing the oil within the ambit of Sections 71‑A, 71‑C, 71‑D and 71‑G. Consequently, the Court held that the authorized officer, not the magistrate, possessed the power to order interim custody of the seized vehicle and oil. The appeal was allowed, setting aside the High Court’s order.

Issues considered

Whether the authorized officer under the Karnataka Forest Act, 1963 has the power to pass an order of interim custody of seized sandalwood oil and the vehicle, or whether such power lies with the magistrate under the Criminal Procedure Code.
Whether sandalwood oil is included within the definition of "sandalwood" under Section 2(18) of the Karnataka Forest Act, thereby bringing it within the scope of Sections 71‑A, 71‑C, 71‑D and 71‑G.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Karnataka Forest Act, 1963s. 2(18), s. 2(7), s. 62(3)(a), s. 62(3)(b), s. 65, s. 71-A, s. 71-C, s. 71-D, s. 71-F, s. 71-G

Subjects

forest lawsandalwood oilconfiscationinterim custodyauthorized officermagistrate jurisdictionKarnataka Forest ActCriminal Procedure Codedefinition of sandalwood

Judgment

A STATE OF KARNATAKA
v.
K.A. KUNCHINDAMMED

APRIL 16, 2002

B [D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.]

Karnataka Forest Act, 1963

Ss.2(7), 2(18), 62(3)(a) and (b), 65 and 71-A-Forest produce-11/egal-
C transportation of-Seizure of-Power to pass interim order of release-
,'. Sandalwood oil-Seized alongwith vehicle illegally transporting it-Nobody
claimed the seized articles-Authorised Officer ordered confiscation of
sandalwood oil and vehicle-Confiscation confirmed and published in official
.gazette-Later, owner of vehicle applied to Judicial Magistrate for interim
D custody ofvehicle-Application dismissed holding that power to grant interim
custody vested in Authorised Officer-Sessions Judge, in revision upheld the
view-High Court in exercise ofpowers under s.482 Cr.P.C. directed Judicial
Magistrate to dispose of application on merits holding that Magistrate
concerned had jurisdiction t9 consider request for custody of vehicle-Held,
in view ofthe definition of 'sandalwood' in s.2(18) including 'sandalwood oil'
E within the term 'sandalwood', wherever the term 'sandalwood' is used in the
Act, it has to be urzd.erstood in terms of the definition in s.2(18)-Accordingly
'sandalwood oil' is also included within the purview of ss. 71-A, 71-C, 71-D
and 71-G.-The Magistrate and the Sessions Judge were right in holding that
the Authorised Officer, and not the Magistrate, was vested with the power to
F pass order of interim custody of the vehicle-Besides, order of confiscation
having not been challenged, has attained finality-Order of High Court set
aside-Words and Phrases- 'Sandalwood'- 'Sandalwood Oi/'-Explained

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
513 of 2002.
G
From the Judgment and Order dated 7 .12.2000 of the Kamataka High
Court in Crl. R. No. 3670 of 2000.

Harish N. Salve, Solicitor General (A.C.) and N. Ganpathy for the A,
Appellant.
H
162 •
STATE Of KARNATAKA v. KA KUNCHINDAMMED [D.P. MOHAPATRA,J.] 163

The Judgment of the Court was delivered by A
D.P. MOHAPATRA, J. Leave granted.

The question that arises for determination in this appeal is-which
authority has the power to pass order for interim release of the forest produce
seized under the Karnataka Forest Act, 1963? (for short 'the Act'). Is it the B
Authorized Officer under the Act or the Magistrate under the Code of Criminal
Procedure?
. The facts of the case relevant for appreciating the question may be
stated thus:
c
A lorry bearing registration No. KL-IO-J-1728 carrying 5 barrels of
sandalwood oil weighing 136.5 kgs. was seized by the officials of the Forest
Mobile Squad, Udupi on 2nd of March 2000 on the allegation of illegal
transportation of the forest produce. FIR No. 08437 OR No. 108/99-2000
was registered on the same day. On 3rd March, 2000 a report about the
seizure was submitted to the Authorized Officer and Deputy Conservator of D
Forests, Kundapur, under section 71A of the Act. By order of the Authorised
,... Officer dated 7th March, 2000 custody of the seized material and the vehicle
was entrusted to the Range Forest Officer, Udupi as whereabouts of the
driver of the vehicle and its owner were not known to the Authorised Officer.
Attempts were made to get the particulars from office of the Regional Transport E
Authority (RTA) concerned in the State of Kerala. Having failed to get any
response from the RTO the Authorised Officer got published a notice on 3 lst
August, 2000 for information of all concerned particularly, the persons
interested in the goods seized. The notice was published in the daily newspaper
'Udayavani' on 18.9.2000. Nobody came forward to claim eitherthe seized
"' sandalwood· oil or the vehicle. Thereafter the authorized officer by order F
dated 31.10.2000 ordered confiscation of the seized vehicle and sandalwood
oil. The said order was published in the official gazette on 9th November,
2000 and also published in the newspaper 'Udayavani' on 15.11.2000. The
order was not challenged in appeal under section 71-D of the Act or in any
other proceeding. The order of confiscation stood confirmed under Section G
71-F of the Act. The order of confiscation as confirmed was then. published
in the official gazette on 4th January, 2001.
.l<
The owner of the vehicle, who is the respondent herein, filed an
application before the Judicial Magistrate !st class, Udupi for interim custody
of the vehicle in question in Crime No. 108/99-2000. The learned Magistrate H
164 SUPREME COURT REPORTS [2002) 3 S.C.R.

A on 26.5.2000 dismissed the application holding that in the circumstances of·
the case the power to grant interim release custody of the vehicle is vested·.
in the Authorised Officer. The said order was challenged by the respondent
in Criminal Revision No. 234/2000 before the Sessions Judge, Dakshina
Kannad, Mangalore. The learned Sessions Judge by order dated 12th
September, 2000 upheld the order passed by the Magistrate and dismissed the
B revision petition. The respondent challenged the order of the Sessions Judge
by filing a petition under section 482 of the Criminal Procedure Code (for
short "Cr.P.C.) before the High Court of Karnataka, which is registered as
Criminal petition No. 3670/2000. The High Court by order dated 7.12.2000
...
allowed.the petition and issued a direction to the learned Magistrate to consider
c the request of the petitioner for interim custody of the vehicle on merits and
further directed disposal of the matter within two weeks. The said order is
under challenge in this appeal filed by the State of Karnataka represented by
Range Forest Officer, Udupi Range.

The High Court held that in the circumstances of the case it is the
D jurisdictional magistrate by virtue of the relevant provisions of Cr.P.C. read
with clause (b) of sub-section 3. of section 62 of the Act who has the jurisdiction
to consider the request for custody of the vehicle allegedly us~ in
transportation of sandalwood oil, whether interim or otherwise. Therefore the
learned Magistrate and learned Sessions Judge erred in holding to the contrary.
E The High Court was persuaded to take the view on the findings that
sandalwood oil was not an item of forest produce in respect of which the
Authorized Officer was competent to pass an order of confiscation. The
Court drew distinction between the expressions 'sandalwood' and 'sandalwood
oil' and held that these are distinct" items of forest produce and in the absence
of any provision vesting the power of confiscation in the Authorized Officer
F in respect of sandalwood oil, such power could not be exercised by him.

We have heard Shri Harish N. Salve, learned Solicitor General who has
appeared on behalf of the appellant. None has appeared for the respondent
despite service of notice.

G Before entering into the merits of the case, it will be convenient to note
the relevant provisions of the Act mater_ial for the purpose of the case. The
expression 'forest produce' is defined in section 2(7) as follows:

,. "(7) "Forest Produce" includes-

H (a) the following whether found in or brought from a forest or not,
+
STATE OF KARNATAKA v. K.A. KUNCHINDAMMED[D.P. MOHAPATRA, J.] 165

that is to say- A
timber, charcoal, caoutchouc, catechu, (sandal wood) lootikai
(Capparis Mooni), wood oil, sandalwood oil, resin, (rubber latex)
natural varnish, bark, lac, mahua or ippe (Bassia latifolia) flowers
and seeds, seed of Prosopis juliflora, kuth, and tembumi or tupra
(Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) B
grass and oil and myrabolarns (Terminalia Chebula, Terminalia
Belerica and (Phyllanthus Emblica, Ramapatre and Shigakai) and
(emphasis supplied)
_,
xxx xxx xxx
c
The expression 'sandalwood' is defined in section 2(18) which provision
was substituted by Act 1 of 1981 with effect from 3.2.1981. the provision
reads as follows:

"Sandalwood" means any portion of a sandal (santalumalbum) tree
and includes bark, leaves and roots thereof, whether containing D
heartwood or not and whether in the form of roots, billets, pieces
(sawn or otherwise), chips (whether coloured or not and whether
mixed with other ingredients or not), sawdust, spentwood, flakes or
pulp) (and sandalwood oil) but does not include sandalwood
manufactured in the form of sandi\lwood handicraft articles." E
(emphasis supplied)

In section 62 of the Act provision is made regarding seizure of property
liable to confiscation. The section reads as follows:

"62. Seizure of property liable to confiscation-:{!) When there is F
reason to believe that a forest offence has been committed in respect
of any forest produce, such produce, together with all tools, boats,
vehicles or (cattle or any other property used) in committing any such
offence, may be seized by any Forest Officer or Police Officer.

(2) Any Forest Officer or Police Officer may, if he has reason to G
believe that a vehicle has been or is being used for the transport of
forest produce in respect of which there is reason to believe a forest
offence has been or is being committed, require the driver or other
person in charge of such vehicle to stop the vehicle and cause it to.
remain stationary as long as may reasonably be necessary to examine H
166 SUPREME COURT REPORTS [2002) 3 S.C.R.

the contents in the vehicle and inspect all records relating to the
goods carried which are in the possession of such driver or other
person in charge of the vehicle.

(3) Every officer seizing any property under this section .shall, as
soon as may be, make a report of such seizure-
B
(a) where the offence on account of whicti the seizure has been
made is in respect of timber, ivory (Gulmavu (machilus
macrantha) bark, Dalchini bark, Halmaddi (exudation of
Ailanthus malabaricum), canes firewood or charcoal which
is the property of the State Government or in respect of
c sandalwood, to the concerned authorized Officer under
section 71-A; and

(b) in other cases, to the magistrate having jurisdiction to try
the offence on account of which the seizure has been made:

D Provided that when the 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 makes, as soon as may be,
a report of the circumstances to his official superior.

E (empliasis supplied)"

Section 65 of the Act makes provision regarding forfeiture of various
forest produce, tools etc. It states :

"65. Forest produce, tools, etc., when liable to foreiture-(1) It is
F provided in the section that all timber or forest produce which is not
the property of Government and in respect of which a forest offence
has been committed and all tools, boats, vehicles and cattle used in
committing any forest offence, shall, subject to Section 71-G, be
liable by order of the convicting Court to forfeiture to the State
Government.
G
(2) Such forfeiture may be in addition to any other punishment
prescribed for such offence.

In Section 66 of lite Act a provision is made regarding disposal, on 1o,.
conclusion of trial for forest offence, of produce in respect of which it was
H committed. Therein it is laid down that when the trial of any forest offence
STATEOFKARNATAKA v. K.A. KUNCHINDAMMED[D.P. MOHAPATRA,J.] 167

is concluded any forest produce in respect of which such offence has been A
committed shall, if it is the property of Government or has been forfeited, be
taken charge of by a Forest Officer, and, in any other case, may, subject to
Section 71 ·G, be disposed of in such manner as the Court may direct.

. In Section 70 wherein provision regarding vesting of forfeited property B
in State Government is made, it is laid down therein that when an order for
the forfeiture of any property has been passed under Section 65 or Section
_, 67, as the case may be, and the period specified by Section 69 for an appeal
from such order has elapsed, and no such appeal has been preferred, or when
on such an appeal being preferred, the Appellate Court confirmed such order
in respect of the whole or a portion of such property, such property or such C
. · portion thereof, as the case may be, shall vest in the State Government free
from all encumbrances.

Section 71 provides for saving of power to release property seized. The
section reads as follows.
D
"7 L Saving of power to release property seized-Nothing herein
.. before contained shall be deemed to prevent any officer empowered
in this behalf by the State of Government from directing at any time
the immediate release of any property seized under Section 62, which
is not the property of Government, and the withdrawal of ~y charge E
made in respect of such property."

Section 71 ·A which is important for the purpose of the case is quoted
in extenso:

"7l·A Confiscation by Forest Officers in certain cases - (I) F
Notwithstanding anything contained in the foregoing provisions of
this Chapter, or in any other law where a forest offence is believed
to have been committed in respect of timber, ivory, Gulmavu
(Machilus marantha) bark, Dalchini bark, Halmaddi (exudation of
Ailanthus malabaricum). canes} firewood and charcoal which is the
property of the State Government or in respect of sandalwood, the G
officer seizing the property under sub-section (I) of Section 62 shall,
without any unreasonable delay produce it, together with all tools,
ropes, chains, boats, vehicles and cattle used in committing such
offence, before an officer authorized by the State Government in this
behalf by Notification in the Official Gazette, not being below the H
168 SUPREME COURT REPORTS [2002] 3 S.C.R.

A rank of an Assistant Conservator of Forests (hereinafter referred to
as the authorized officer).

(2) Where an authorized officer seizes under sub-section (1) of Section
62 any timber, ivory, firewood [Gulmavu (machilus marantha) bark,
Dalchini bark, Halmaddi (exudation of Ailanthus Malabaricum), canes]
B bark, and charcoal which is the property of the State Government or
any sandalwood or where any such property is produced before an
authorized officer under sub-section (1) and he is satisfied that a
forest offence has been committed in respect of such property, such
authorized officer may, whether or not a prosecution is instituted/or
the commission of such forest offence, order confiscation of the
c property so seized together with all tools, ropes, chains, boats, vehicles
and ca(tle used in committing such offence.

(3) (a) Where the authorized officer, after passing an order of
confiscation under sub-section (2), is of the opinion that it is expedient
in the public interest so to do, he may, order the confiscated property
D or any part thereof to .be sold by public auction.

(b) Where any confiscated property is sold, as aforesaid, the proceeds
thereof, after deduction of the expenses of any such auction or other
incidental expenses relating thereto, shall where the order of
confiscation made under Section 71-A is set aside or annulled by an
E
order under Section 71-C or 71-D, be paid to the owner thereof or to
the person from whom it was seized, as may be specified in such
order.

(emphasis supplied)"
F Against the confiscation order passed under Section 71-A provision for
filing a revision before any Officer not below the rank of Conservator of
Forests specially empowered by the State Government in that behalf by
notification in the official Gazette has been made in Section 71-C of the Act.

G In Section 71-D provision has ben made for an appeal by any person
aggrieved by an otder passed under Section 7 I -A or 7 I -C of the Act, within
thirty days from the date of communication to him of such order.

In Sub-section (2) of Section 71-D it is laid down that an order of the
Sessions Judge under sub-section (I) shall be final and shall not be questioned
H in any Court of law.
STATE OF KARN AT AKA v. K.A KUNCHINDAMMED [D.P. MOHAPATRA, J.] J 69
~ ..,. In Section 71-E it is laid down that the Award of Confiscation under A
Section 71-A or 71-C or 71-D shall not prevent the infliction of any punishment
to which the person affected thereby is liable under this Act.

- In Section 71-F it is provided that when an order for confiscation of
any property has been passed under Section 71-A or Section 71-C or Section
71-D and such order has become final in respect of the whole or any portion B
of such property, such property or portion thereof, (or it has been sold under
sub-section (3) of Section 71-A, the sale proceeds thereof) as the case may

-· be, shall vest in the State Government free from all encumbrances.

Section 71-G in which provision is made regarding bar of jurisdiction
in certain cases is quoted below: c
. "11-G. Bar of jurisdiction in certain cases-Whenever any timber,
ivory, [Gulmavu (Machilus marantha) bark, Dalchini bark, Halmaddi
(exudation of Ailanthus malabaricum), canes] firewood or charcoal
belonging to the State Government or any sandalwood, together with
any tool, rope, chain, boat, vehicle or cattle used in committing any
D
offence is seized under sub-section (/) of Section 62, the authorized
... officer under Section 7 /-A or the officer specially empowered under
Section 7 J-C or the Sessions Judge hearing an appeal under Section
'
71-D shall have and, notwithstanding anything to the contrary
contained in this Act or in the Code of Criminal Procedure, 1973 E
(Central Act 2 of 1974) or in any other law for the time being in
force, 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. "

(emphasis supplied) F
From discussions in the order under challenge it appears that the High
Court in para 4 of the judgment has taken note of the definition of 'forest
produce' in section 2(7). in which the expressions 'sandalwood' and
sandalwood oil are separately mentioned in the inclusive definition. Taking
note of the provisions of section 62(3) clauses (a) and (b) the High Court G
observed that while clause (a) requires report to be made to the Authorised
Officer under Section 71-A in respect of seizure of timber, ivory, firewood
> or charcoal which is the property of the State Government or in respect of
sandal wood, in other cases, under clause (b), reporting is to be made to the

- jurisdictional Magistrate. The Court further observed that so far as confiscation H
170 SUPREME COURT REPORTS [2002) 3 S.C.R.

A proceeding is concerned, Section 71-A confines it to timber, ivory, firewood
or charcoal which is the property of the State Government or in respect of
sandal wood together with, inter a/ia, the vehicle in which the said property •
is being transported. Considering the provision in section 71-G the Court
found that in the said provision also timber, ivory, firewood or charcoal
belonging to the State Government or any sandal wood together with the
B vehicle being used for transportation, that the Jurisdiction is exclusively vested
in the Authorised Officer, and jurisdiction of other fora is barred. From these
provisions the Court held as follows:

"This being the position, it could be seen that, sandal wood oil as
c such does not come either under the category of 'timber, ivory,
firewood or charcoal, which is the property of the State Government,
or even under the category of 'sandalwood', for the reason that, as
already founding in Section 2(7) of the Act, in the inclusive defmition
of 'Forest Produce', sandal wood and sandalwood oil are separately
mentioned. Sandalwood oil, therefore, is not one of the items referred
D to under Clause (a) of Section 62(3) of the Act, the reporting of
which is required to be made to the Authorised Officer, nor is the
said property, together with the vehicle concerned, liable fol
confiscation under Section 71-A, nor the jurisdiction to deal with·the
return of the same, otherwise vested in the jurisdictional Magistrate
under provisions of the Criminal Procedure Code, barred by Section
E
71-G of the Act. In the circumstances, it is the jurisdictional Magistrate,
by virtue of the relevant provisions of the Criminal Procedure Code
read with clause, (b) of sub-section (3) of Section 62 of the Act, that
has jurisdiction to consider the request for custody of the. vehicle
allegedly used in transportation of sandal wood oil seized, whether
F interim or otherwise. The learned Magistrate and the learned Sessions
Judge erred in holding to the contrary."

From the order it is manifest that the High Court was persuaded to.take
the view that the power to order for interim custody of a vehicle seized which .
was found illegally transporting sandalwood, oil, is not vested in the Authorised
G Officer but in the Magistrate exercising jurisdiction in the area for the reason
that while the expression sandalwood is included in the provisions vested in
the exclusive jurisdiction of the Authorised Officer 'sandalwood oil' is not
mentioned therein. Since the two terms have been separately mentioned in
the inclusive definition of the term 'forest product' the Court drew the inference
H that the power for interim custody of the vehicle is to be exercised only by
STATE OF KARNATAKA v. KA KUNCHINDAMMED[D.P. MOHAPATRA,J.] 171

.... ' the Jurisdictional Magistrate and not the Authorised Officer. The High Court
·failed to take note of the definition of the expression 'sandalwood' in section
A
2(18) of the Act in which 'sandalwood oil' has been included within the tenn

-
'sandalwood'. It follows that wherever the tenn 'sandalwood' is used under
the Act it has to be understood in tenns of the definition in section 2(18). If
the provisions relating to power of confiscation in Sections 71-A, 71-C, 71-
D and bar of jurisdiction in Section 71-G are so read it is clear that 'sandalwood B
oil' is also included within the purview of the said secti~ns and the distinction
between the two tenns and their specific inclusion or exclusion in the statutory
_, provision does not exist. Perhaps the attentio!' of the High Court was not
drawn to the amended provisions of the Act.

The Karnataka Forest Act is a special statute enacted for the purpose
c
of preserving the forests and the forest produce in the State. The Scheme of
the Act, as expressed in the sections, is to vest power in the Authorised
Officers of the 'Forest Department for proper implementation/enforcement of
the statutory provisions and for enabling them to take effective steps for
. preserving the forest and forest produce. For this purpose certain powers D
including the power of seizure, confiscation and forfeitute of the forest produce
illegally removed from the forests have been vested exclusively in them. The
.. position is made clear by the non-obstante clause in the relevant provisions
giving overriding effect to the provisions in the Act over other statutes and
laws. The necessary corollary of such provisions is that in a case where the
E
Authorised Officer is empowered to confiscate the seized forest produce on
being satisfied that an offence under the Act has been committed thereof the
general power vested in the Magistrate for dealing with interim custody/
•
release of the seized materials under the Cr.P.C. has to give way. The
Magistrate while dealing with a case of any seizure of forest produce under
the Act should examine whether the power to confiscate the seized forest F
produce is vested in the Authorised Officer under the Act and if he finds that
such power is vested in the Authorised Officer then he has no power to pass
' an order dealing with interim custody/release of the seized material. This, in
our view, will help in proper implementation of provisions of the special Act
and will help in advancing. the purpose and object of the statute. If in such
cases power to grant interim custody/release of the seized forest produce is G
vested in the Magistrate then it will be defeating the very scheme of the Act.
Such a consequence is to be avoided.
)-
From the statutory provisions and the analysis made in the foregoing
paragraphs the position that emerges is that the learned Magistrate and the H
172 SUPREME COURT REPORTS · (2002) 3 S.C.R.

A learned Sessions Judge were right in holding that on facts and in the
circumstances of the case it is the Authorised Officer who is vested with the
' ....
power to pass order of interim custody of the vehicle and not the Magistrate.

B
The High Court was in error in taking a vj,ew to the contrary and in setting
aside the orders passed by the Magistrate and the Sessions Judge on that
basis. I
I
I

..
Viewed from another angle also the order passed by the High Court is
unsustainable. As stated earlier, the final order confiscating the seized
sandalwood oil together with the vehicle used for transporting it had been
passed on 31.l 0.2000 and the same was published in the official Gazette on
C 9.11.2000. The order being not challenged in any appeal or· any other
proceeding it attained finality. In such circumstances the question of the
Magistrate exercising power of interim custody of the vehicle did nqt arise ..
The order passed by the High Court is unsustainable on this count as well.

Accordingly, the appeal .js allowed. the order passed by the High
D Court on 7.12.2000 in Criminal petition No. 3670 of 2000 is set aside.

R.P. Appeal allowed.