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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: YEDLA PERRAYA

DATE OF JUDGMENT: 04/11/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1970 AIR  718            1969 SCR  (2) 623  1969 SCC  (1)  61

ACT: Andhra  Pradesh  Forest  Act  (A.P.  5  of  1882),  ss.   43 and47--Lorry  used in illicit transport of timber--Owner  of lorry ignorant of such user-Whether lorry could be  directed to  be  confiscated--Difference  in  powers  the  trial  and appellate courts.

HEADNOTE: The  respondent’s lorry was used by the driver of the  lorry and another, without the respondent’s knowledge, for illicit transport  of  forest timber worth more than  Rs.  50.   The driver  and  the other person were  convicted  for  offences under ss. 35 and 36 of the Andhra Pradesh Forest Act,  1882, and the magistrate directed confiscation of the lorry  under s. 43 of the Act as amended by Act 11 of 1963.  The Sessions Court set aside the order of confiscation in appeal and  the High Court confirmed the order of the Sessions Court. In appeal to this Court,     HELD: The Legislature originally conferred both upon the trial court and the appellate court a discretion  to pass an appropriate: order with regard to the disposal of a  vehicle used  in the commission of an offence under the Act.   After the  amendment of 1963, the Legislature made  it  obligatory upon the trial court to confiscate the vehicle used, but  no such restriction was placed upon the appellate court;  Under s.  47,  the  appellate court could  pass  orders  regarding disposal  of  property in the same manner ’as  an  appellate court  under s. 520 Criminal Procedure  Code,  corresponding to  s.  419 of the Code of 1872. Under s. 520 of  the  Code, power  is  conferred upon the appellate court  to  pass  any appropriate order, as may be just, regarding the disposal of property  used in the commission of any offence.  The  order of  the  Sessions Court in appeal in the  present  case  was essentially  a just order and was rightly confirmed  by  the High Court. [626 B--E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195  of

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1966.     Appeal  from the judgment and order dated  February  25, 1966 of the Andhra Pradesh High Court in Criminal  Revision, Case No. 382 of 1964. P. Ram Reddy and G.S. Rama Rao, for the appellant. A.V. Rangam, Miss Sen, A. Vedavalli and Subhashini, for  the respondent. The Judgment of the Court was delivered by     Shah,  J. Motor Lorry No. A.P.P. 4695 belonging  to  the respondent  Yedla  Perraya was seized by  the  Forest  Range Officer,  Gokavaram,  early  in  the  morning  of   December 25,1963, when it 624 was  being used without a license for carrying,eight  Yegisi logs on Rajahmundry-Gokavaram Road.  The driver of the motor lorry   and  another  person  were  tried  before  the   2nd Additional, 2nd Class Magistrate, Rajahmundry on a complaint ’by the  Forest  Range Officer for offences under ss. 35 and 36  of  the Andhra Pradesh Forest Act and the  rules  framed thereunder.    The  two  accused  admitted  that  they   had committed  the offence of illicit transportation of  timber, and  on  their  plea  of guilty  they  were  convicted.  The respondent  applied  to the Trial Magistrate  for  an  order releasing  the motor lorry on the plea that the  offence  of transportation of timber was committed without his knowledge and  that the value of the timber seized was not  more  than Rs.  50/-  at  the relevant time.   The  learned  Magistrate observed:                     "After careful perusal of the deposition               of R.W. 1, I find that there is nothing in  it               to indicate that the petitioner knowingly lent               his lorry for the illicit transport of  timber               on  the  night  of 24-12-63.   There  is  also               nothing  in the case records to show that  the               petitioner  allowed  the  lorry  to  illicitly               transport  the  timber on the above  date.   1               accordingly hold that the petitioner cannot be               said  to have knowingly allowed his  lorry  to               illicitly transport the timber." But the learned Magistrate was of the view that by s. 43  of the Andhra Pradesh Forest Act, where it was proved that  the value  of the timber transported exceeded Rs. 50/-,  he  was enjoined to direct confiscation of the vehicle in which  the forest  produce was being transported without a license.  In his  view the value of eight logs of timber seized from  the lorry was Rs. 311/- at the market rate in Rajahmundry.     In  appeal by the respondent to the Court of Session  at Rajahmundry the order of confiscation was set aside and  the High  Court  of Andhra Pradesh confirmed the  order  of  the Court  of Session. The State of Andhra Pradesh has  appealed to this Court with certificate. granted under Art. 134( 1  ) (c) of the Constitution.     The  Andhra Pradesh (Andhra Area) Forest Act 5  of  1882 provides by s. 41 that when there is reason to believe  that a  forest  offence  has been committed  in  respect  of  any timber  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  any Forest  officer or Police officer. Section 43 as amended  by Act 11 of 1963 provides:                      "Where  a  person is convicted  of  any               forest offence, the Court sentencing him shall               order ,confiscation. to the Government of, the               timber  or the’ forest produce in  respect  of               which  such ’offence was committed,  and  also

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             any                     625               tool,  boat, cattle and vehicle and any  other               article used in committing such offence:                      Provided that it shall be open to  such               Court  not to order confiscation of any  tool,               boat,  cattle,  vehicle or any  other  article               used in committing such offence when the value               of the timber or the forest produce in respect               of  which such offence was committed does  not               exceed fifty rupees." It may be observed that before the Forest Act was amended by Act  11  of 1963, the Magistrate was not obliged  to  direct confiscation  of the articles, vehicles, cattle,  tools   or boats used for committing a forest offence.     The  Trial  Magistrate was of the view  that  after  the amendment  of  the Forest Act by Act 11 of 1963  he  had  no option  and  he was bound on conviction of the  offender  in respect of  any forest offence to direct confiscation of the vehicle used in the commission of such offence.  Counsel for the  respondent contended that if the interpretation put  by the  Trial Magistrate upon s. 43 as amended is correct,  the enactment  imposes  an  unreasonable  restriction  upon  the fundamental  right’ of the owner of the vehicle declared  by Art.  19(1)(e) of the Constitution, and is on  that  account void.   Counsel  urged that a statute which imposes  upon  a person  who  has  himself  not  committed  any  offence   or infraction  of  the law liability to  forfeit  his  valuable property  must  be regarded as unreasonable.  It  was  urged that if a vehicle is stolen and then used for commission  of a  forest  offence,  or is borrowed by  some  person  for  a legitimate  purpose  and then used without  the  consent  or knowledge  of the owner for committing an offence under  the Forest Act, or where with a view to involve the owner of the vehicle   into   a  forest  offence,   forest   produce   is surreptitiously  introduced  into  the   vehicle,  and   the vehicle  is liable to be forfeited, the provision making  it obligatory  to  impose  the penalty  of  forfeiture  of  the vehicle   must  be  deemed  to  impose    an    unreasonable restriction  on the owner of the vehicle and is ultra  rites on  that  account.  It is not necessary for the  purpose  of this  case to express any opinion on that part of the  case. Assuming  that the statute which enjoins the  Magistrate  to confiscate the vehicle used in the commission of the  forest offence,  even  when  it is used without  the  knowledge  or consent  of the owner, is valid, in our judgment, s.  47  of the  Act enables the Court of Session and the High Court  to make an appropriate order with regard  to  the vehicle which is just.  That section provides:                     "Any person claiming to be interested in               property seized under section 41, may,  within               one  month from the date of any  order  passed               under section 43, 44 or               626               45,  present an appeal therefrom which may  be               disposed of in the manner provided by  section               419  Code  of Criminal Procedure." The reference to s. 419 is to the Code of Criminal Procedure of  1872  in force when the Andhra Pradesh Forest Act  5  of 1882  was enacted.  Section 419 of the Code of 1872  is  now substituted  by  s. 520 of the Code of  Criminal  Procedure, 1898, and by s. 520 power is conferred, inter alia, upon the court  of appeal to direct that any order passed  under  ss. 517,  518  or 519 by a Court subordinate thereto  be  stayed pending consideration by the Court of appeal, and that Court

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may  modify, alter or annul such order and make any  further order that may be just  Section 43   of  the Andhra  Pradesh Forest  Act does not restrict the power  of   the  appellate court  to  pass  any appropriate order  as  may    be   just regarding disposal of the property.  The Court of Session in the  present  case  has  on  the  finding  recorded  by  the Magistrate  and  confirmed by it passed an  order  which  is essentially a just order and that has been confirmed by  the High Court. The Legislature had originally conferred a  discretion  both upon  the  Magistrate  and  the  Court  of  Appeal  to  pass appropriate  order with regard to the disposal  of  property used  in the commission of the offence as may be just.   The Legislature  has thereafter amended s. 43 by Act 11 of  1963 and made it obligatory upon the Magistrate to confiscate the property  or  the  vehicle used in the  commission  of  Such offence.  No such restriction has, however, been placed upon the  power  of  the  appellate court  and  we  will  not  be justified,  having  regard to the clear  expression  of  the legislative  intent, that the power is to be limited in  the manner provided by s. 43.  There is no warrant for  implying that  the  power  conferred by s. 47 of  the  Act  upon  the appellate court is subject to some unexpressed limitation.     The  High Court was, therefore, right in  holding   that the motor lorry belonging to the respondent, on the  finding recorded by the Magistrate was not liable to be confiscated. The appeal therefore fails and is dismissed. V.P.S,                                     Appeal dismissed. 627