Raghuvir, J.:— The Forest Range Officer, Hyderabad South on November 11, 1977 near Police Station, Hussaini Alam intercepted A.P.Y 5289 (the vehicle) and found the vehicle carrying 460 kgs, of sandalwood billets without the ‘authorised marks’ and ‘permit’ under the Andhra Pradesh Sandalwood and Red Sandalwood Transport Rules, 1969. The vehicle and the billets were seized under a panchanama. Md. Yousuf, who was at the wheel, was arrested. He is averred to have confessed the offence of having transported the billets from Shimoga of Karnataka State for delivery to Sri Md. Ibrahim of Chandulal Baradari. The Range Officer thereafter produced the forest produce and the vehicle before the Divisional Forest Officer. Hyderabad and lodged a report before the Second Metropolitan Magistrate, Hyderabad of the seizure of forest produce and the vehicle, the arrest of Md. Yousuf and his judicial custody for fifteen days was sought. A bailable warrant was prayed for the arrest of the absconding owner of the billets. Before the Magistrate Smt. Haji Begum claimed she is the owner and pending the trail sought delivery of the vehicle. Her request not opposed by the Assistant Public Prosecutor. The Court there upon ordered delivery of A.P.Y 5289 to the owner and imposed conditions (per order on November 19, 1977 in Crl. M.P No. 2166 of 1977) on Haji Begum to execute a bond for Rs. 10,000/- with a surety for likesum. The Registration certificate of the vehicle was ordered to be deposited in the Court. The vehicle was directed to be produced on every adjourned hearing of the enquiry and no transfer of the “chicle was to be made; color” and parts of the vehicle meanwhile were ordered not to be changed;
2. The order of the Second Metropolitan Magistrate was assailed in a petition (W.P No. 5540 of 1977) under Article 226 of the Constitution of India by the Forest Range Officer in this Court. Haji Begum was the first ??? and the Second Metropolitan Magistrate was impleaded as the second respondent in the writ petition. The ratio in the case of State of A.P v. P.K Mahammad (1) 1978 (1) A.P.L.J 391 was followed and on 23rd January, 1978, the writ petition was allowed. The Second Metropolitan Magistrate was declared to have no jurisdiction to direct the release of the lorry (the vehicle). The correctness of the view in the writ petition is assailed in appeal by the owner of the vehicle. The Andhra Pradesh Forest Act I of 1967 (the Act) was amended by Act XVII of 1976, with effect from December 17, 1976. The Forest Act thus amended contain provisions for arrest of male factors confiscation of forest produce and “tools” used in the offence to include vehicles. Special provisions are incorporated for trial of offenders before the criminal court and minimum punishment is prescribed under the Act and Rules. Section 44 by the amending Act was radically altered by the Act XVII of 1976. Section 45 was substituted. Section 50 was renumbered adding clause one to the section. Section 58-A inserted as not to have barred imposition of penalty under section 58 of the Act in addition to the confiscation of forest produce.
3. Sec. 63 of the Act recites a forest officer not below the rank of a forest guard can arrest a person, if the offender refused to give the name, residence or give false name, false residence or when the presence of the offender cannot be secured easily. The person arrested is required to be produced before the nearest Magistrate within twenty four hours for further orders of the Magistrate. A Forest Officer not below the rank of a Forest Range Officer can seize the forest produce together with “tools ropes, chains boats Vehicles and cattle” employed in commission of the offence. The Range Officer after the goods are seized has to put marks indicating the goods have been seized, and may keep them in his custody or with a forest guard or village headman till the offence is compounded or in his discretion release the seized articles on execution of a bond for production, “when so required by the Magistrate”, or “until” the orders of the court “for disposal of the order is received”. The goods otherwise are to be produced before the Assistant Conservation of Forests (authorised by the State Government by notification to deal with seized goods). The proviso in the second clause recites “the property”, seized if belongs to the Central or State Government it is sufficient if a report is made to the Divisional Forest Officer. The Authorised Officer on production of the goods after they are seized has to follow the procedure in clauses 2-A, 2-B, 2-C, 2-D and 2-E. The procedure contemplates notice to the person from whom the goods were seize representation within a responsible time from such a person be received. He is to be beard and if the “tools” employed were used without the knowledge or connivance of the owner is proved and the authorised officer is satisfied there follows no order of ??? otherwise the forest produce the ropes chains boat vehicle all the property may be ordered to be confiscated. A conservator of Forests (empowered by the State Government in this behalf) within thirty days of order of confiscation suo motu or on application may cause further enquiry heat the affected persons and ??? orders as he may deem fit. The orders of confiscation (be it authorised officer or the Conservator of Forests) are made subject to the orders of the District Court on appeal. The other procedure prescribed of the course to be adopted as set out in the same section is. The Bange Officer who is authorised and seize the tools without any under ??? delay other produce the property before the Authorised Officer or make “a report” of such seizure to the Magistrate. Clause (2) or Sec. 44 of the Act reads as under:
Every Officer seizing any property under this section shall place on such property or the ???, if any in which it is contained a mark indicating that the same has been so seized and shall ??? the offender agree in ??? forthwith to get the offence compounded without any unreasonable delay ??? produce the property seized before an Officer not below the rank of an Assistant Conservator of Forests authorised by the Government in this behalf by notification (thereinafter referred to as the Authorised Officer) or make a report of such seizure to the Magistrate
(emphasis supplied)
4. The above clause in unmistakable teems indicates the Range Officer of two options either to produce before the Authorised Officer the forest produce the tools or make a report of seizure to the nearest Magistrate. This option in our view is material. There is no obligation to make report to the Magistrate. The offence if it is not compounded the Forest Officer may have recourse to the procedure prescribed for the confiscation of the forest produce and the tools in which case the orders passed are subject to the order in appeal by the District Court the other option as the words either and or in the District Court the other option as the words either and or in the second clause of Sec. 44 of the Act indicate may make a report to the nearest Magistrate of the seizure and produce the arrested person within twenty four hours. On receipt of the report, Magistrate is seized of the case and is empowered to take such measures as may be necessary for the trial of the accused and the disposal of the property according to law. (Section 44(4). The goods released by the Range Officer are stated subject to orders of disposal under clause five of the Section. The powers thus enumerated are de hors of the powers of the Magistrate under section 45 of the Act for custody, disposal pending trial and order for disposal of property at conclusion of trial under section 452 in Chapter thirty four of the Code of Criminal Procedure (Act 11 of 1973).
5. The elaborate provisions incorporated in section 44 to sum up speak of the two courses. The forest officer who seized the forest producers has place the forest produce and tools before the Authorised Officer for orders of confiscation under clauses 2-A to 2-E and the order passed thereon by the authorised officer and the orders if any of the Conservator of Forests are made subject to the orders of the District Court on appeal. The other course which it is necessary to emphasise is optional for the forest officer to report the matter to the nearest Magistrate. The two contingencies alternatively arise if the offence is not compounded.
6. The learned counsel for the State Government argued: For the forest department it is open to have recourse to proceedings before the authorised officer for confiscation and for that purpose has to produce the forest produce the tools before that authority and for the punishment of the offender the department may have recourse to prosecution before the Magistrate. To justify such an action the substituted section 45 is relied on. The section recites only in the event of no order having been passed for confiscation under section 44 of the Act of the forest produce or the tools, the Magnate shall have the power besides sentencing the offender to order confiscation in this regard sub-section (1) of section 50 and Section 58 of the Act were read to support the argument. In our view such a dichotomy is not permissible having regard to the clear words used by the Legislature indicating the option. The adoption of dual proceedings simultaneously makes the provision unworkable.
7. The authorised Officer it is argued, is powered to deal with the forest produce and may confiscate the forest produce and the tool. The Magistrate does not, it is elaborated have the power to deal with the tool and the forest produce when goods are not placed for disposal in the report submitted by the forest officer. Such a course is permissible, it is argued, ??? unavoidable under the scheme of the Act in Sections 44 and 45 of the Act Such a dubiety of proceedings results in incongruities is not denied. In the event of acquittal in prosecution before the Magistrate and confiscation by the authorised officer the counsel for the State Government was asked how the two provisions are reconciled. Such disharmony is avoided in the scheme of powers with respect to authorities by the Legislature itself in the Act by “either” opting for the proceeding for confiscation “or” on “report” to the Magistrate for the trial of the offender and disposal of the property “in accordance with law.”
8. In our view sub-sections 4 and 5 in terms are not capable of any ambiguity for the Magistrates have power to dispose of the forest produce and the “tools” once a report is received by them. Sub-section 5 speaks of interim arrangements. The custody of the goods is either with the forest officer or delivered to person mentioned under clause 3. Such delivery is subject to the orders of the Magistrate is made clear in that sub-section. We have thus experienced no difficulty in the construction or in reconciliation of two sections 44 and 45 of the Act. In that view the order of the Second Metropolitan Magistrate in Crl. M.P No. 2166 of 1977 on November 19, 1977 cannot be held to have been passed without jurisdiction or power. The writ appeal, therefore, is allowed but in the circumstances of the case no costs.
9. W.A.M.P No. 201 of 1978: In the writ appeal judgment we have considered all the circumstances which arose in the matter. Therefore no specific order need be made on this petition. The petition therefore is dismissed.