ORDER
R.K. Batta, J.
1. The case of the petitioner is that a pick-up belonging to the respondent was seized on 7-11-1997 by Range Forest Officer, Mobile Squad, Margao in connection with carrying sawn timber. This wood was being unloaded near the house of one P.N. D'Souza. When the Forest Officials approached near the said vehicle, the vehicle sped away along with part of sawn wood which had not been unloaded. The vehicle was seized and the wood was attached from the vehicle. Some part of the wood was also recovered from the house of the said P.N. D'Souza. The case of the respondent is that the said vehicle was wrongly detained by the Department and was not involved in any forest offence.
2. A show cause notice was issued by the Deputy Conservator of Forests as to why the vehicle in question should not be confiscated under section 61(A), Clause 2 of the Indian Forest Act, as amended by Goa Amendment. An application for release of the vehicle was filed before the Judicial Magistrate, First Class, Margao. By order dated 6-2-1998, the Magistrate came to prima facie conclusion that there is nothing on record to suggest that the material seized is not forest produce belonging to the Government and that no material has been placed to rebut the presumption under section 69 of the said Act. Accordingly, the Magistrate came to the conclusion that the Court had no jurisdiction to deal with the application for release of the vehicle. Thisorder of the Judicial Magistrate, F.C. was challenged before the learned Sessions Judge, Margao. The learned Sessions Judge, Margao by judgment dated 31-7-1998, reversed the findings of the Judicial Magistrate, First Class, Margao on the ground that the Judicial Magistrate, First Class had jurisdiction to hear and deal with the application in question. The State has come in revision against this order of the learned Sessions Judge, Margao.
3. A short point for consideration for the purpose of disposal of the revision in question is as to which authority has jurisdiction to deal with the application in question. Section 52(2) of the Indian Forest Act as amended by Goa Amendment Act, 1988 specifies the authorities to whom the seizure is to be reported, which reads as under :
'(2) Every Officer seizing any property under this section, shall place on such property or the receptacle of vehicle (if any) in which it is contained, a mark indicating that the same has been so seized and make a report of such seizure.
(a) where the offence on account of which seizure has been made, is in respect of timber, firewood, charcoal or any forest produce which is the properly of Government, to the concerned authorized officer under section 61-A; and
(b) in other cases to the Magistrate having jurisdiction to try the offenceon account of which the seizure has been made;
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 superior officer.'
The reference to sections in this Independent is to the Indian Forest Act, 1927 as amended by Goa Amendment Act, 1988. Section 53 provides for release of properties seized under section 52 and it lays down that any Forest Officer of a rank not inferior to that of a Ranger who, or whose subordinate has seized any tools, boats, carts, vehicle or cattle under section 52, may subject to provisions of section 61-G, release the same on the execution by the owner thereof of 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. Section 54 of the said Act provides that when a report is made to the Magistrate, he shall take such measures as may be necessary for arrest and trial of the offender and the disposal of the property according to law. Section 61 of the said Act empowers a Forest Officer to release any property seized under section 52, which is not the property of the Government. Sections 61-A to 61-G were brought into operation by Goa Amendment Act, 1988 with effect from 10-8-1989. These amended provisions provide for a detailed procedure in respect of confiscation of forest produce which is the property of the Government and has been seized under sub-section (1) of section 52 of the said Act. Section 6 l-A(1) provides that the Forest Officer seizing the produce, which is the property of the Government under sub-section (1) of section 52, shall produce the same along with all tools, ropes, chains, boats, vehicle, carts, etc., before the Officer authorised by the Government in this behalf. The authorised officer is empowered to order confiscation of such property under section 61-A(2). Section 61-B provides for issue of show cause notice before the order of confiscation under section 61-A. Section 61-C provides for a revision against the order of confiscation. There is an appeal provided under section 61-D against the orders passed under sections 41, 61-A or section 61-C before the Sessions Judge having jurisdiction. Any such orders passed by the Sessions Judge is final. Section 61-G bars the jurisdiction of any other officer, Court, tribunal or authority to make order with regard to the custody, possession, delivery or distribution of such property.
4. Notice under section 61-B has already been issued to the applicant (respondent herein) who has filed reply to the show cause and the said proceedings are pending. It is after filing of the reply to show cause that the respondent had moved Judicial Magistrate, First Class, Margao for release of the vehicle. No complaint in respect of the offences under the Forest Act has been filed so far.
5. Learned P.P. Shri Lawande has argued before me after placing reliance upon section 69 of the said Act that when in any proceedings taken under the said Act, or in consequence of anything done under the said Act, a question arises as to whether any forest produce is the property of the Government, such produce shall be presumed to be the property of the Government, until the contrary is proved. According to Shri Lawande, unless it is proved to the contrary, the facts and circumstances of the matter indicate that the forest produce in question which was being transported by the vehicle in question, is the property of the Government. He has placed before me the panchanama of attachment. He, therefore, contends that the Magistrate had rightly come to the conclusion that he had no jurisdiction to deal with the matter and that the learned Sessions Judge erred in reversing the said order of the Magistrate. In support of his submissions, he had placed reliance on a judgment of this Court in Uttam Prataprao Palav v. State of Maharashtra & others 1993 Bom Cri.Cas. 198, wherein it is held that looking to the provisions of section 53 and subsequent provisions of section 61-G it is apparent that the Magistrate who has no domain either over the property or the vehicle, could not have passed the order for release of the vehicle.
6. On the other hand, learned Advocate Shri Edgar Fernandes, on behalf of the respondent, has urged that the property in question is not the property of the Government, but it belongs to private party, namely P.N. D'Souza, who had purchased the same from saw mill. Relying upon sections 52(2)(b) and 54 of the said Act, it is urged that the authority empowered to pass the order in connection with the vehicle which has been seized is the Judicial Magistrate, First Class since the forest produce, in question, belongs to the private party. He has, however, admitted that before the J.M.F.C., no material had been placed by the respondent to show that the forest produce seized in question belongs to Shri P.N. D'Souza or that she had purchased the same from saw mill. He has, however, relied upon report of seizure dated 17-11-1997 of the R.F.O. vide which he had reported the seizure of the property in question. He pointed out in this report, that it is stated that the offence, in question, is committed in private property without transit pass transportation of forest produce punishable under section 66 of Preservation of Tree Act, 1986 and Goa, Daman and Diu Forest Rules, 1964. He also relied upon reply dated 16-1-1998 filed by the State to the application for release of the vehicle filed by the respondent, wherein it is stated that the vehicle is liable for confiscation as per section 55 of the Forest Act, 1927. He, therefore, submits that since the forest produce attached is from private property, not belonging to the Government, the provisions contained in section 61-A onwards would not be attracted in so far as the release of vehicle is concerned and that the learned Sessions Judge, in the circumstances, had rightly cometo the conclusion that the jurisdiction to deal with the application in question vests with the Magistrate.
7. The question to be determined, on the basis of the material available on record before the Magistrate, is whether the produce in question can be said to be prima facie the property of the Government. The panchanama dated 7-11-1997 states that the R.F.O. (Mobile Squad) noticed that the vehicle, in question, was unloading sawn timber, near the house of Shri P.N. D'Souza and on seeing the forest officials, the pick-up driver fled away with the vehicle along with unloaded timber which was still in the pick-up. This unloaded timber was thrown from pick-up on the road and the pick-up driver ran away, leaving pick-up on the road. This timber was seized by the R.F.O. (Mobile Squad) under a panchanama. The remaining timber was attached from the house of Mary D'Souza. I have already stated that admittedly by no material was placed by the respondent before the J.M.F.C. to suggest that the produce, in question, was from the private property and that the same did not belong to the Government. In the absence of such material, as well as the presumption under section 69 of the said Act coupled with the circumstances in which the forest produce in question was attached there is prima facie sufficient indication that the produce in question can be said to be prima facie of the property of the Government. Reliance was placed by learned Advocate for the respondent on the report of seizure dated 17-11-1997 by the R.F.O. (Mobile Squad) , to the J.M.F.C., Margao, as well as reply dated 16-1-98 of the R.F.O. to the application for release of the vehicle filed by the respondent. Though it is stated in the said report of seizure dated 17-11-97 by the R.F.O. (Mobile Squad) that the offence, in question, is committed in private property, yet the said report, by itself, cannot establish that the forest produce, was from private property. There is no doubt that in reply dated 16-1-98, it is stated that the vehicle is liable for confiscation as per section 55 of the Forest Act, 1927, but at the same time we have to bear in mind that in the previous paragraph of the said reply, it is clearly stated that the pick-up along with illegal material is seized under sections 52 and 69 of the Forest Act, 1927 and Rule 22 of the Goa, Daman & Diu Forest Rules, 1964. Therefore, inappropriate quotation of section 55 of the Forest Act, 1927 in the said application, does not help the respondent.
8. In view of the conclusion arrived at on the basis of the panchanama and in the absence of any material to rebut the presumption under section 69 of the said Act, it can, prima facie, be said at this stage that the produce in question can be said to be the produce from the property of the Government unless contrary is proved. The confiscation proceedings are pending before the Authorised Officer, who shall deal with the same and dispose of the same within a period of 2 months from today. The respondent may place all material in support of his case before the Authorised Officer in the said proceedings. The observations made in this order shall, not, in any manner, influence the Authorised Officer while dealing with and disposing of the show cause given to the respondent under section 61B as amended, of the Forest Act, 1927.
9. In view of the above, the revision is allowed. The order of the Sessions Judge, Margao is set aside and the order passed by the Judicial Magistrate, First Class, Margao is upheld.
10. Revision application allowed.