Poonam Srivastava, J.
1. Heard learned Counsel for the petitioner and learned A.G.A. for the State.
2. Facts of the case are that the petitioner claims himself to be an unemployed person. He purchased a vehicle Pickup 207 from Tata Motors Ltd. on 7.2.2006 after taking financial assistance from a finance company. Finance documents are annexed as Annexure-1 to the writ petition. The vehicle is registered in the name of the petitioner with the R.T.O. Gorakhpur, vide registration No. U.P. 53T 8233. The vehicle was insured with Oriental Insurance Company. Copy of the covering note is annexed as Annexure-2 to the writ petition. The vehicle was being driven by the driver with the load of wood, which was being transported from one place to another. The police of P.S. Khorabad, district Gorakhpur, lodged first information report as case crime No. 832 of 2006 under Sections 379 and 411, I.P.C. read with Section 26, Forest Act and 3/28, Transit Act, on 16.9.2006 relating to the truck load of timber that was being transported. The petitioner was taken into custody being the owner of the vehicle. Original registration paper, was however, taken away by the police at the time of arrest. An application for release of the vehicle was moved before the Chief Judicial Magistrate, on 9.10.2006. A report was called for and subsequently the application was rejected on 26.11.2006 for want of prosecution. No order was passed on merit. Therefore, another application was moved on 1.12.2006 with the prayer for release of the vehicle. The application was rejected by the Chief Judicial Magistrate, Gorakhpur, on the ground that the application is barred under Section 52D, Indian Forest Act, 1927 (hereinafter referred to as the Act). This order was challenged in revision. The revisional court dismissed the revision on 23.1.2007. Both the orders are impugned in the instant writ petition with the prayer for a direction to respondents to release the vehicle in favour of the petitioner subject to any condition as this Court may feel appropriate in the given circumstances.
3. Learned Counsel for the State has emphasized that Section 52D of the Act, imposes a complete bar. The courts below have rightly declined to interfere in the matter in view of the bar imposed by Section 52D of the Act. The petitioner could approach concerned authority for compounding the offence under Section 68 of the Act.
4. Learned Counsel for the petitioner has emphatically disputed the argument of the learned A.G.A. It is submitted that forest department has neither seized the vehicle nor prepared any recovery memo in respect of forest produce, on the contrary the police of P.S. Khorabad has registered a case under Sections 379 and 411, I.P.C. read with Section 26 of Forest Act. A criminal case is pending before the criminal court, therefore, bar contemplated under Section 52D of the Act will not come into play. Counsel for the petitioner has emphatically argued that the courts below have completely overlooked this aspect besides the petitioner is prepared to file an undertaking and sufficient security before the forest department.
5. After hearing counsels for the respective parties, it is clear that Chapter IX of the Act provides penalties and procedure of seizure and release of the goods. The forest officer or police officer is empowered to seize such goods, where there is reason to believe that forest offence has been committed In respect of forest produce. The seizure so permitted is in relation to tools, boats, vehicles, cattle, rope, chain and other articles. Section 52A of the Act deals with manner of seizure and also empowers the concerned officer for its confiscation but no order can be passed without notice in writing from whom the property is seized. Section 52A(5) imposes restriction that no order of confiscation of any tool, boat, vehicle, cattle, rope, chain or other article shall be made under Sub-section (4) if the person is able to prove satisfaction that the article so seized was without his knowledge or connivance or without the knowledge or connivance of his servant or agent as the case may be.
6. Section 52D is quoted below:
Bar of jurisdiction in certain cases.--Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, whenever any forest produce belonging to the State Government together with any tool, boat, vehicle, cattle, rope, chain or other article is seized under Sub-section (1) of Section 52, the authorised officer under Section 52A or the State Government under Section 52B shall have Jurisdiction, to the exclusion of every other officer, court, Tribunal or authority, to make orders with regard to the custody, possession, delivery, disposal or distribution of the property.
7. After going through provisions of the Act, it is correct that power or jurisdiction to release the seized goods is with the State Government or forest officer to the exclusion of every other authority or court. A responsibility is imposed on the concerned officer under Section 52A of the Act, that such seized articles under Section 52 shall without unreasonable delay be produced together with all the tools, boats, vehicles, cattle, ropes, chains and other articles before an officer not below rank of the District Forest Officer authorised by the State Government. The said officer shall make an order in writing in the given circumstances. In the instant case, seizure has been made under the Forest Act and the police has taken the timber in its custody on an assumption that it is a forest produce, which has been stolen by the accused.
8. After going through the impugned orders, it transpires that nothing has been said as to whether any confiscation proceeding is going on before the competent authority but the application has been rejected only on account of bar imposed by Section 52D of the Act. It is also pertinent to mention that Section 68 of the Act deals with power to compound the offence. A forest officer has Jurisdiction to compound the offence after accepting sum of money by way of compensation from the person suspected to have committed such an offence, which is equivalent to the value as estimated by such officer. On perusal of the two orders, it is not clear as to whether any proceedings for confiscation or compounding the offence has been initiated or any notice has been served initiating such proceedings by the forest department or not? In fact the courts below have refused to consider even the application on account of bar of Section 52D of the Act. It is not disputed that the vehicle is standing at the police station since 16.9.2006, i.e., approximately six months. It is also contended by the counsel for the petitioner that the vehicle was purchased after taking loan but due to its detention, the petitioner stopped payment of instalment to the finance company and the liability is increasing day by day. The Apex Court has expressed its considered view regarding release of seized articles in the case of Sunderbhai Ambalal Desai v. State of Gujarat : [2002]SUPP3SCR39 , that jurisdiction for release of the articles should be exercised expeditiously and judicially and the, court should consider that when the police officer or authorized person does not release the vehicle so seized within the reasonable time, appropriate steps should be taken to prevent further damage to the property subject to adequate security to the satisfaction of the court concerned. A Division Bench of this Court in the case of Jugal Kishore and Ors. v. State of U.P. and Anr. 1994 (XXII) ACJ 1030 : 1994 AWC 1758, was of the view that in the given case, power to release the vehicle in exercise of jurisdiction under Article 226 of the Constitution of India is not curtailed and it is always open to the owner of the vehicle to invoke jurisdiction under Article 226 of the Constitution of India.
9. No doubt, the Magistrate acquires jurisdiction only when a complaint is made before him and he takes cognizance, but, by no stretch of imagination, it is acceptable that the vehicle can be allowed to rot at the police station on account of inaction of the concerned authority. Objection raised by the learned A.G.A. regarding a complete bar as imposed by Section 52D of the Act is absolutely correct but it is nowhere brought to my notice that any objection by the forest department was raised to the effect that the vehicle was seized and brought before the concerned officer without unreasonable delay as required under Section 52A of the Act. It is evident that neither forest department initiated any confiscation proceedings nor criminal case is proceeding and the matter is stagnating without any progress. It is a case where forest officer has not proceeded for compounding the offence as provided under Section 68 of the Act. It is also not known as to whether any notice required under Section 52A (4) of the Act has been issued to the petitioner till date or not? This Court cannot overlook all these aspects. The petitioner has approached this Court having no other alternative.
10. In view of what has been submitted above, the impugned order dated 5.12.2006 passed by the Chief Judicial Magistrate, Gorakhpur and 23.1.2007 passed by the Sessions Judge, Gorakhpur are hereby quashed. The matter is remanded to the Magistrate to enquire within a period of two weeks from the concerned officer of the forest department regarding any proceedings or order under Section 52A of the Act. It is also directed that the Magistrate shall take steps to initiate criminal proceedings pursuant to the F.I.R. registered against the petitioner and other accused. The vehicle No. U.P. 53T 8233 shall be released in favour of the petitioner within a period of three weeks from the date a certified copy of this order is produced before him. It is made clear that the concerned authority/Magistrate shall accept appropriate security to his satisfaction and also an undertaking that the vehicle will not be transferred during pendency of the trial. The court is at liberty to prepare memo alongwith photograph of the vehicle for its use during the trial. Photograph alongwith its negative shall be kept on record and memo shall be signed by the concerned authority as well as Investigating Officer of the forest department. This exercise shall be completed within a period of three weeks and the concerned police station shall be directed to release the vehicle within a period of one week of passing of the said order.
11. With the aforesaid direction, the writ petition is finally disposed of.