1. This petition filed under S. 482 Crl. PC, is directed against the order d/15-10-77 passed by the Judicial Magistrate FC, III Court, Mangalore, in FIR. No. 164 of 1977.
2. The said order has been passed by the learned Magistrate on an, application filed by the petitioner under Secs. 451 and 457 of the Crl. PC in regard to handing over possession of tourist motor-car bearing registration No. KLC. 7420. The necessary facts are: that the Ullal police had seized the car for alleged offences under Secs. 62, 86 and 87 of the Karnataka Forest Act, 1963 (to be hereinafter referred to as the Act), read with Secs. 379 & 411, IPC. The car was covered by an inter-State permit to carry passengers as a tourist taxi from Kasargod, to Mangalore. Ullal police reported the Seizure to the Magistrate. On coming to know of that, the petitioner filed the application. But in the meanwhile, on receipt of the report of seizure and on the request made by the police for permission to produce the car and the properties before the authority empowered under Sec. 71A of the Act the Magistrate had granted permission.
3. On considering the application filed by the petitioner, the Magistrate ruled that the power in regard to disposal of property wag with the authorities prescribed under Secs. 71A and 71B onwards of the Act and as such the application of the petitioner was not maintainable before him.
4. Sri A. Ananda Shetty, learned Advocate appearing on behalf of the petitioner, prayed that he may be permitted to argue this petition as a criminal revision petition and imitated, that the petition had been, filed, under Sec. 482 of the Crl. PC in November 1977 when the law whether a revision petition, would be competent, or not as against such orders, was not settled, and the same has been recently settled by the Supreme Court to the effect that a revision petition is competent and the bar contemplated by Sec. 397(2) of the Crl. PC would not be applicable. Permission is granted.
5. Though the petitioner had filed the application under Secs. 451 & 457 of the Crl. PC, it is to my mind plain that Sec. 451 would not be applicable to the facts of the case because only the report of seizure of the car and the forest produce had been sent to the Magistrate, and no enquiry or trial in regard to these offences, was pending before the Magistrate. Moreover, the property concerned was not produced before the Magistrate.
6. Sec. 457(1) of the Cr. P.C, is necessary to be looked into. It reads as follows.
“457. Procedure by Police upon Seizure of property.—(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he think fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.”
7. A plain reading of the Section shows that the power under Sec. 457 of the Cr. P.C can be exercised, by a Magistrate whenever seizure of property is made under the provisions of the Cr. P.C by any police officer and the report is made under the provisions of the Cr. P.C In the case on, hand, it is apparent that the report of seizure has been made, to the Magistrate by virtue of Sec. 62(3) of the Act, which reads as follows.
“Every officer seizing any property under this Section shall place on such property or the receptacle or vehicle (if any) in which it is contained, a mark indicating that the same has been so seized, and shall, as soon as may be make a report of such seizure to the Magistrate having jurisdiction to try the offence on 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 Govt., and the offender is unknown, it shall be sufficient if the officer makes as goon as may be a report of the circumstances to his official Superior.”
8. Therefore, Sec. 457 of the Crl. PC, would not have any application. On receipt of such reports, the courses open to the Magistrate are envisaged by Sec. 64 onwards of the Act. The Magistrate has, when the police on reporting seizure to him requested that they may be permitted to produce) the properties including the car before the authority prescribed under Sec. 71-A of the Act, granted the permission. Sec. 71-A of the Act mandatorily provides that whenever seizure is made under the provisions of the Act, the properties including the vehicles etc., should be produced, by the officer seizing, before the authority prescribed under Sec. 71-A of the Act. The officer seizing has no option but to produce the property seized before such authority, while under Sec. 457 of the Cr. P.C, it is not incumbent on the police to produce the property before the Magistrate. Therefore, the permission prayed for by the police to the effect that the Magistrate may permit them to produce the properties before the authority prescribed under Sec. 71-A of the Act, was redundant and as such the order passed by the Magistrate permitting them to produce the same before the authority prescribed under Sec. 71-A of the Act was also redundant. Sri Ananda Shetty attempted to place reliance on the decision of this Court in State of Karnataka v. B.G Shwananda(1). In the said decision, the provisions of Sec. 71-A, 62 to 65 and 66 of the Act and Sec. 451 of the Cr. P.C, are dealt with. It has been held that Sec. 71-A of the Act does not over-ride the general provisions contained in Sec. 451 of the Crl. PC. The stage envisaged by Sec. 451 of the Cr. P.C is reached when the properties seized are produced before the Magistrate, and the Magistrate is seized with the enquiry or trial of the case, and that provision deals with what would be the proper custody of the property for the purposes of the enquiry or trial and not with the question as to who is entitled to possession of the property. I fail to see how this decision can have any application to the facts concerned in this case.
9. In view of the foregoing, I see no substance in this petition and dismiss it.