Princl.Chief Conservator of Forest Vs J.K.Johnson .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2534 OF 2011

Princl. Chief Conservator of Forest & Anr. …. Appellants

Versus

J.K. Johnson & Ors. ….Respondents

JUDGMENT

R.M. Lodha, J.

The significant and important question raised in this

appeal, by special leave, is : whether a specified officer empowered

under Section 54(1) of the Wild Life (Protection) Act, 1972 as

amended by the Wild Life (Protection) Amendment Act, 2002 (Act

16 of 2003) to compound offences has power, competence and

authority, on payment of a sum of money by way of composition of

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the offence by a person who is suspected to have committed offence

against the Act, to order forfeiture of the seized items?

2. The above question arises in this way. In the intervening

night of July 24/25, 2004, at the Pothamsettipalli, Cross Roads, the

vehicles were being checked by the Sub-Inspector of Police,

Kulcharam Police Station, District Medak. In the course of the

checking, at 2.45 a.m. a jeep bearing Registration No. AP – 12 – D

703 was also stopped and checked. The said jeep was occupied by

the present respondent nos. 1, 2 and 3 and two other persons. On

checking, the Sub-Inspector of Police found one gunny bag tied to

the front side of the bumper of the jeep. The gunny bag had two

bags inside; one bag contained a hunted wild boar and the other

had three rabbits. The seizure panchnama was prepared

immediately at 3.30 a.m. The jeep, a battery, a torchlight, dead

animals and two rifles of foreign make fitted with telescope were

seized. The persons (including respondent nos. 1 to 3 who were

occupying the jeep) were taken into custody and a case (Crime No.

43 of 2004) was registered against them under Section 9 of the Wild

Life (Protection) Act, 1972 (for short, ‘the 1972 Act’). The Division

Forest Officer, Medak was also immediately informed.

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3. On July 25, 2004 itself, the Divisional Forest Officer,

Medak recorded the statement of respondent nos. 1 to 3 and two

other persons. They gave some explanation with regard to the

gunny bag containing wild pig and three rabbits and the rifles in their

possession but stated that the offence was done by them in

ignorance and they were willing to pay money by way of composition

of the offence.

4. On August 10, 2004, the Conservator of Forests,

Nizamabad Circle, Nizamabad on the report submitted by the

Divisional Forest Officer, Medak that the accused persons

(Respondent Nos. 1 to 3) had offered for compounding the offence

and they were willing to pay the money by way of composition of the

offence, ordered that the offence be compounded for Rs. 30,000/-

under Section 54 of the 1972 Act and the vehicle and the weapons

used in committing the offence be forfeited.

5. The respondent no. 1 challenged the above order in

appeal before the Principal Chief Conservator of Forests, Andhra

Pradesh. The Principal Chief Conservator of Forests although by

his order dated October 9, 2004 held that appeal was not

maintainable but asked the Conservator of Forests, Nizamabad to

reduce the composition fee from Rs. 30,000/- to Rs. 25,000/- . The

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respondent no. 1 was asked by the Principal Chief Conservator of

Forests to approach the Conservator of Forests, Nizamabad for

further action.

6. The Conservator of Forests, Nizamabad then passed a

fresh order on November 4, 2004 permitting the respondent nos. 1

to 3 to compound the offence for Rs. 25,000/-. The seized items

viz; vehicle No. AP – 12 – D 703 and two rifles were ordered to be

forfeited to the state government. It was also ordered that if the

offenders fail to pay compounding fee within seven days, necessary

action against them for their prosecution under Section 51 of the

1972 Act may be taken.

7. The respondent nos. 1, 2 and 3 challenged the above

three orders insofar as forfeiture of the vehicle and two rifles to the

state government was concerned in a writ petition filed under Article

226 of the Constitution of India before the Andhra Pradesh High

Court.

8. The Single Judge of the High Court, on hearing the

parties, by his judgment dated March 29, 2005 set aside the order

of forfeiture of the vehicle and the two rifles.

9. The present appellants—the Principal Chief Conservator

of Forests, Hyderabad and the Conservator of Forests, Nizamabad –

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preferred intra-court appeal against the order of the Single Judge.

The Division Bench of the High Court dismissed the intra-court

appeal and maintained the order of the Single Judge. This is how

the present appeal has reached this Court.

10. We heard Mr. R. Sundervardhan, learned senior counsel

for the appellants and Mr. Jayant Kumar Mehta, learned counsel for

the contesting respondent nos. 1 to 3.

11. Mr. R. Sundervardhan, learned senior counsel for the

appellants invited our attention to Section 54 of the 1972 Act,

particularly sub-section (2) thereof prior to its amendment by Act 16

of 2003 and the amended Section 54 (2) whereby the portion, “the

property other than Government property, if any, seized, shall be

released” has been omitted and submitted that the legislative

intent was clear that release of seized items was not permissible and

it was competent for the specified officer empowered to compound

offences to order forfeiture of the seized items to the state

government. In this regard, learned senior counsel also referred to

Section 39 (1)(d) of the 1972 Act and submitted that the property

seized from a person accused of commission of an offence against

the 1972 Act, irrespective of the fact that offence has been

compounded, stands forfeited and the property becomes the

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property of the state government or central government, as the case

may be.

12. Mr. R. Sundervardhan, learned senior counsel would

submit that the Statement of Objects and Reasons of Act 16 of 2003

leaves no manner of doubt that one of the objects sought to be

achieved by the amendment was to provide that the vehicles,

vessel, weapons, tools etc. used in committing compoundable

offences are not returned to the offenders. He argued that

legislative intent and policy must be given due regard.

13. Learned senior counsel for the appellants would also

contend that compounding of the offences under Section 54 is not

during the course of a trial or in the trial of a compoundable offence

and, therefore, an order of empowered officer in compounding the

offence is not an order of acquittal; it is plain and simple

departmental compounding. He urged that the effect of the

compounding offences, as provided in Section 320(8) of the Code

of Criminal Procedure, 1973, (for short, ‘the Code’) is not applicable

to the compounding of offences under Section 54 of the 1972 Act as

amended by Act 16 of 2003. He also referred to two decisions of

this Court (i) Sewpujanrai Indrasanrai Ltd. v. Collector of Customs

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and Ors.1 to draw distinction between the expressions, “offender”,

“offence” and “confiscation” and (ii) Biswabahan Das v. Gopen

Chandra Hazarika and Ors.2, particularly, paragraphs 8, 9 and 13

thereof. Learned senior counsel, thus, submitted that the view of the

High Court in quashing the order of forfeiture of the seized items is

contrary to the statutory provisions in the 1972 Act as amended by

Act 16 of 2003.

14. On the other hand, Mr. Jayant Kumar Mehta, learned

counsel for respondent nos. 1 to 3 stoutly supported the view of the

High Court. He submitted that Section 54 did not expressly

empower the specified officer to order forfeiture of property in the

event of composition of the offence. He submitted that the

Statement of Objects and Reasons of Act 16 of 2003 cannot be

acted upon in the absence of clear and explicit provision for

forfeiture of property in Section 54 of the 1972 Act. Learned counsel

submitted that the submission of the learned senior counsel for the

appellants that regardless of composition of offence, the property

seized from a person accused of commission of an offence against

the 1972 Act stands forfeited under Section 39, if accepted, would

not only result in anomaly but also lead to vesting of unguided,

1 AIR 1958 SC 845 2 (1967) 1 SCR 447

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arbitrary or unconstitutional power in the hands of the empowered

officer.

15. Mr. Jayant Kumar Mehta, learned counsel for

respondent nos. 1 to 3 argued that the plain language of Section 39

(1)(d) does not give sanction to an officer empowered under Section

54 of the 1972 Act to forfeit seized items under the provisions of

the Act on composition of offence. He submitted that the expression

used in Section 39 (1)(d) is, “……… that has been used for

committing an offence …………. “ and not, “ ……… is suspected to

have been used for committing an offence……….”.

16. Learned counsel for respondent nos. 1 to 3 also referred

to Section 50, Section 51(2) and Section 53 of the 1972 Act and

submitted that if the interpretation canvassed by the learned senior

counsel for the appellants is accepted, that would render Section

50(4), Section 51(2) and Section 53 superfluous. He argued that

even in cases of casus omissus, the court should not supply any

words which are found to be missing in the enactment. The

Statement of Objects and Reasons cannot be read to supplement or

supplant a statutory provision much less a source of power and in

any event, the penal provisions in the 1972 Act are required to be

construed strictly. He relied upon the Full Bench decision of the

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Madhya Pradesh High Court in the case of Madhukar Rao S/o Malik

Rao v. State of M.P. and others3 and the judgment of this Court in

State of Madhya Pradesh and Others v. Madhukar Rao4 affirming

the Full Bench decision of Madhya Pradesh High Court. He also

relied upon decisions of this Court in A.C. Sharma v. Delhi

Administration5; State of Maharashtra v. Marwanjee F. Desai and

Others6; Prakash Kumar alias Prakash Bhutto v. State of Gujarat7;

Mohd. Shahabuddin v. State of Bihar and others8 and Mandvi

Cooperative Bank Limited v. Nimesh B. Thakore9.

17. Mr. R. Sundervardhan, learned senior counsel, in

rejoinder, distinguished the decision of this Court in the case of

Madhukar Rao4. He submitted that the issue in Madhukar Rao4 and

the issue raised in the present appeal are distinct and even on facts

the case of Madhukar Rao4 is distinguishable. He submitted that

Section 54 of the 1972 Act as amended by Act 16 of 2003 was not

under consideration in Madhukar Rao4.

18. For a proper consideration of the question raised before

us as noted above, it is necessary to read few relevant sections of

3 2000 (1) MPLJ 289 4 (2008) 14 SCC 624 5 (1973) 1 SCC 726 6 (2002) 2 SCC 318 7 (2005) 2 SCC 409 8 (2010) 4 SCC 653 9 (2010) 3 SCC 83

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the 1972 Act prior to amendment by Act 16 of 2003 and Section 54

after amendment with effect from April 1, 2003.

19. The 1972 Act was enacted by the Parliament to provide

for the protection of wild animals and birds and for matters

connected therewith or ancillary or incidental thereto. The Act, inter

alia, seeks to regulate hunting of wild animals and birds; regulate

possession, acquisition or transfer of, or trade in, wild animals,

animal articles and trophies and taxidermy thereof and provide

penalties for contravention of the Act. Pertinently, the 1972 Act has

been subjected to extensive amendments from time to time. It has

been amended by Act 23 of 1982, Act 28 of 1986, Act 44 of 1991,

Act 26 of 1993 and Act 16 of 2003.

20. The relevant portion of Section 39 in Chapter V, ‘Trade

or Commerce in Wild animals, Animal articles and Trophies’ is as

follows :

“S. 39. Wild animals, etc., to be Government property.—(1) Every—

(a), (b), (c) x x x x x x

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act,

shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park

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declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.

(2), (3) (a), (b), (c) x x x x x x”

21. Chapter VI deals with the prevention and detection of

offences. Section 50 after its amendment by Act 44 of 1991 and Act 16 of

2003 to the extent it is relevant, reads as follows :

“S.50. Power of entry, search, arrest and detention.— (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any Forest Officer or any Police Officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,—

(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy, uncured trophy, specified plant or part or derivative thereof in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;

(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;

(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap,

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tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:

(2) …………………………………………………………….

(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and

if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.

(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or an Assistant Conservator of Forests, who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorized by him in this regard.

(5) to (9) x x x x x x.

22. The penalties are provided in Section 51 of the 1972

Act. This Section too has undergone changes in 1986, 1991 and

2003. Section 51 has also been amended subsequently by Act 39 of 12

2006 but that is not relevant for our purpose. Sub-section (2) of

Section 51 reads as under:

“S. 51. Penalties.—

(1), (1A), (1B) x x x x x x

(2) When any person is convicted of an offence against this Act, the court trying the offence may order that any captive animal, wild animal, animal article, trophy, uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.

(3), (4), (5) x x x x x x

23. Section 54, prior to amendment by Act 16 of 2003, read

as under :

“S. 54. Power to compound offences.—(1) The Central Government may, by notification, empower the Director of Wild Life Preservation or any other officer and the State Government may, by notification, empower the Chief Wild Life Warden or any officer of a rank not inferior to that of a Deputy Conservator of Forests,—

(a) to accept, from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed; and

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(b) when any property has been seized as liable to be forfeited, to release the same on payment of the value thereof as estimated by such officer.

(2) On payment of such sum of money or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, and the property, other than Government property, if any, seized, shall be released and no further proceedings in respect of the offence shall be taken against such person.

(3) The officer compounding any offence may order the cancellation of any licence or permit granted under this Act to the offender, or if not empowered to do so, may approach an officer so empowered, for the cancellation of such licence or permit.

(4) The sum of money accepted or agreed to be accepted as composition under clause (b) of sub-section (1) shall in no case, exceed the sum of two thousand rupees:

Provided that no offence, for which a minimum period of imprisonment has been prescribed in sub-section (1) of section 51, shall be compounded.”

24. After amendment by Act 16 of 2003, Section 54 reads as

follows :

“S. 54. Power to compound offences.—(1) The Central Government may, by notification, empower the Director of Wild Life Preservation or any other officer not below the rank of Assistant Director of Wild Life Preservation and in the case of a State Government in the similar manner, empower the Chief Wild Life Warden or any officer of a rank not below the rank of a Deputy Conservator of Forests, to accept from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed.

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(2) On payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged, and no further proceedings in respect of the offence shall be taken against such person.

(3) The officer compounding any offence may order the cancellation of any licence or permit granted under this Act to the offender, or if not empowered to do so, may approach an officer so empowered, for the cancellation of such licence or permit.

(4) The sum of money accepted or agreed to be accepted as composition under sub-section (1) shall, in no case, exceed the sum of twenty-five thousand rupees:

Provided that no offence, for which a minimum period of imprisonment has been prescribed in section 51, shall be compounded.”

25. Chapter VI-A has been inserted in the 1972 Act by Act 16

of 2003. This chapter makes provision for forfeiture of property

derived from illegal hunting and trade. The applicability of Chapter

VI-A is provided in Section 58 A. This Chapter is, accordingly,

applicable to (a) every person who has been convicted of an offence

punishable under the Act with imprisonment for a term of three years

or more; (b) every associate of a person referred to in clause (a) and

(c) any holder of any property which was at any time held by a person

referred to in clause (a) or clause (b) unless the present holder or, as

the case may be, anyone who held such property after such person

and before the present holder, is or was transferee in good faith for

adequate consideration. 15

26. The Statement of Objects and Reasons (Act 16 of 2003)

annexed with Wild Life (Protection) Amendment Bill, 2002, in clause

(xvi), proposed, “to provide that the vehicles, weapons and tools, etc.

used in committing compoundable offences are not to be returned to

the offenders”.

27. In the backdrop of the above scheme of law, we have to

consider the correctness of the view of the High Court and the

question of law raised in the appeal.

28. One thing is clear that the statutory provisions noticed

above do not in explicit terms provide for the forfeiture of the seized

items by the departmental authorities from a person who is suspected

to have committed offence/s against the 1972 Act. Chapter VI-A

which has been inserted in the 1972 Act by Act 16 of 2003 that

provides for forfeiture of property derived from illegal hunting and

trade is entirely different provision and has nothing to do with

forfeiture of the property seized from a person accused of

commission of offence against the 1972 Act. Insofar as Section 39(1)

(d) of the 1972 Act is concerned, it provides that every vehicle,

vessel, weapon, trap or tool that has been used for committing an

offence and has been seized under the provisions of the Act shall be

the property of the state government and in a certain situation, the

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property of the central government. The key words in Clause (d) of

Section 39(1) are, “..... has been used for committing an offence . .. .”.

What is the meaning of these words? The kind of absolute vesting of

the seized property in the state government, on mere suspicion of an

offence committed against the 1972 Act, could not have been

intended by the Parliament. It is not even scarcely disputed that

every enactment in the country must be in conformity with our

Constitution. In this view, it is not sufficient – nor the law-makers

intended to make it – to deprive a person of the property seized

under the 1972 Act on accusation that such property has been used

for committing an offence against the Act. Section 39(1)(d) does not

get attracted where the items, suspected to have been used for

committing an offence, are seized under the provisions of the Act. It

seems to us that it is implicit in Section 39(1)(d) that for this provision

to come into play there has to be a categorical finding by the

competent court of law about the use of seized items such as

vehicle, weapon, etc. for commission of the offence. There is merit

in the submission of the learned counsel for the respondent nos. 1 to

3 that if the construction put upon Section 39(1)(d) by Mr. R.

Sundervardhan is accepted, the expression ‘has been used for

committing an offence’ occurring therein has to be read as, ‘is

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suspected to have been used for committing an offence’. In our view,

this cannot be done.

29. Section 51(2) of the 1972 Act provides for forfeiture of

the property on conviction; it says, inter-alia, that when any person

is convicted of an offence against the Act, the court trying the offence

may order that any captive animal, wild animal, etc. in respect of

which the offence has been committed and any vehicle, vessel or

weapon etc. used in the commission of the said offence be forfeited

to the state government.

30. ‘Forfeiture’ and ‘seizure’ have different meaning and

connotation in law. In ‘The Law Lexicon’ by P. Ramanatha Aiyer

[2nd edition (Reprint 2000)], ‘forfeiture’ is defined as the divestiture of

specific property without compensation in consequence of some

default or act forbidden by law. The word ‘forfeit’ is defined in

Concise Oxford English Dictionary (Tenth Edition): ‘lose or be

deprived of (property or a right or privilege) as a penalty for

wrongdoing’. In R.S. Joshi etc. v. Ajit Mills Ltd & Anr.10., this Court

speaking through Krishna Iyer, J., with reference to expression

‘forfeiture’ occurring in Section 37 (1) of the Bombay Sales Tax Act,

said, “this word 'forfeiture’ must bears the same meaning of a penalty

10 AIR 1977 SC 2279 18

for breach of a prohibitory direction”. While construing the word

‘forfeiture’ with reference to Sections 431 and 432 of the Bengal

Municipal Act (15 of 1932), this Court stated in the case of The

Chairman of the Bankura Municipality v. Lalji Raja & sons11 that

unless the loss or deprivation of the goods is by way of a penalty or

punishment for a crime, offence or breach of engagement, it would

not come within the definition of forfeiture. However, in light of the

provisions under consideration, the Court held that forfeiture of

property was not one of the penalties or punishments for any of the

offences under that Act. ‘Seizure’ on the other hand is generally

understood to mean a forcible taking possession. In law, seizure is

the taking possession of property by an officer under legal process.

Seizure of property under legal process is a temporary measure. It

is temporary interference with the right to hold the property. Seizure

under legal process is usually followed by confiscation or forfeiture or

disposal in accordance with the provisions under which seizure has

been made or the property is returned to the person from whom it has

been seized or to the lawful claimant to such property. While

Section 39(1)(d) provides that seized property under the 1972 Act

used for commission of the offence/s against the Act shall be the

11 AIR 1953 SC 248 19

property of the state government or the central government as the

case may be, the other provisions like Section 51(2) and Chapter VI-

A provide for forfeiture of the property in certain situations. However,

for the seized property used for commission of offence to be the

property of the state government or the central government under

Section 39(1)(d), in our view, offence against the Act has to be legally

ascertained and adjudicated by a competent court of jurisdiction.

31. In Madhukar Rao4, albeit, the question was little different

but this Court considered the ambit and scope of Section 39(1)(d).

That matter reached this Court from a Full Bench decision of the

Madhya Pradesh High Court. The question before the Full Bench was

whether as a result of deletion of sub-section (2) of Section 50

withdrawing power of interim release, there existed any power with

the authorities under the 1972 Act or the Code to release the vehicle

used in the course of alleged commission of offence under the Act.

The Full Bench of the High Court held that any property including

vehicle seized on accusation or suspicion of commission of offence

under the 1972 Act can be released by the Magistrate pending trial in

accordance with Section 50(4) read with Section 451 of the Code.

The Full Bench also held that mere seizure of any property including

vehicle on the charge of commission of offence would not make the

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property to be of the State Government under Section 39(1)(d) of the

1972 Act. Against the decision of the Full Bench, the State of Madhya

Pradesh preferred special leave petition in which leave was granted.

This Court extensively considered the statutory provisions and

approved the view of the Full Bench of the High Court that deletion of

sub-section (2) and its replacment by sub-section (3)(A) in Section 50

of the 1972 Act had no effect on the powers of the Court to release

the seized vehicle during the pendency of trial under the provisions of

the Code. While dealing with Section 39(1)(d), this Court also

approved the view of the Full Bench of the High Court that Section

39(1)(d) would come into play only after a court of competent

jurisdiction found that accusation and allegations made against the

accused were true and recorded the finding that the seized article

was, as a matter of fact, used in the commission of offence. This

Court said :

“ ……… . Any attempt to operationalise Section 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid……….”

32. We are in complete agreement with the view of this Court

in Madhukar Rao4 that on the basis of seizure and mere

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accusations/allegations, Section 39(1)(d) of the 1972 Act cannot be

allowed to operate and if it is so done, it would be hit by the

constitutional provisions.

33. Now, we have to see whether Section 54(2) of the 1972

Act, after its amendment by Act 16 of 2003, empowers the specified

officer to order forfeiture of the property, in respect of the offences

against the Act suspected to have been committed by such person,

on composition of such offence. In other words, whether in the

absence of any specific provision in Section 54(2) that the property

seized shall be released, the specified officer empowered to

compound offences is authorized to order forfeiture of the seized

property and not return the property to the person from whom it has

been seized.

34. Mr. R. Sundervardhan, learned senior counsel for the

appellants was right in contending that the composition of the offence

under Section 54 of the 1972 Act is not during the course of trial or in

the trial of a compoundable offence. He is also right in his submission

that compounding under Section 54 is a departmental compounding

and does not amount to an acquittal. But then, what is the sequitar?

What is the effect of such departmental composition of offence under

Section 54(1) of the 1972 Act?

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35. The observations made by this Court in Biswabahan Das2

may be useful in order to understand the effect of compounding

offence/s. That was a case in which this Court was concerned with

the provision for composition of forest offence under Assam Forest

Regulation, 1891 – a provision quite similar to Section 54 of the

1972 Act prior to amendment by Act 16 of 2003. This Court said:

“………It must be borne in mind that although the marginal note to s. 62 of the Assam Regulation is “power to compound offences” the word “compounding” is not used in sub-s. (1) clause (a) of that section. That provision only empowers a forest officer to accept compensation for a forest offence from a person suspected of having committed it. The person so suspected can avoid being proceeded with for the offence by rendering compensation. He may think that he was being unjustly suspected of an offence and he ought to defend himself or he may consider it prudent on his part to pay such compensation in order to avoid the harassment of a prosecution even when he is of the view that he had not committed the offence. By adopting the latter course he does not remove the suspicion of having committed the offence unless he is to have such benefit conferred on him by some provision of law. In effect the payment of compensation amounts to his acceptance of the truth of the charge against him. Sub-s. (2) of s. 62 only protects him with regard to further proceedings, but has not the effect of clearing his character or vindicating his conduct.”

36. There may be myriad reasons, for a person, suspected of

commission of offence, to apply for composition of the offence. What

is important is not the reason for composition of offence but the

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effect of composition. The effect of composition of offence has to be

found in the statute itself. Section 54(2) provides that on payment of

money to the empowered officer, the suspected person, if in custody,

shall be discharged and no further proceedings in respect of the

offence shall be taken against such person. In terms of sub-section

(2) of Section 54, therefore, on composition of the offence, the

suspected person is saved from criminal prosecution, and from being

subjected to further proceedings in respect of the offence.

37. Section 54(2) of the 1972 Act, prior to the amendment by

Act 16 of 2003, authorized the empowered officer, on payment of

value of the property liable to be forfeited, to release the seized

property, other than the government property. The provision

underwent changes w.e.f. April 1, 2003 and the provision for release

of the seized property has been deleted. Does the provision in new

Section 54(2) authorize the empowered officer to order forfeiture of

the seized property to the state government? We think not. In the

first place, by deletion of such expression, it cannot be said that the

Parliament intended to confer power on the specified officer to order

forfeiture of the seized property which is nothing but one form of

penalty in the context of the 1972 Act. Had the Parliament intended

to do so, it would have made an express provision in that regard.

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Such conferment of power of penalty upon the specified officer

cannot be read by implication in Section 54(2). Secondly, any power

of forfeiture conferred upon Executive authority merely on suspicion

or accusation may amount to depriving a person of his property

without authority of law. Such power cannot be readily read by

relying on the Statement of Objects and Reasons (Act 16 of 2003)

without any express provision in the statute.

38. Way back in 1960, this Court in The Central Bank of India

& Ors. v. Their Workmen, etc.12 said that the Statement of Objects

and Reasons is not admissible for construing the section, far less

can it control the actual words used. It has been reiterated by this

Court time and again that the reference to the Statement of Objects

and Reasons is for understanding the enactment and the purpose is

to ascertain the conditions prevailing at the time the Bill was

introduced and the objects sought to be achieved by the proposed

amendment; the Statement of Objects and Reasons is not ordinarily

used to determine the true meaning of the substantive provisions of

the statute. As an aid to the construction of a statute, the Statement

of Objects and Reasons appended to the Bill, ordinarily must be

avoided.

12 AIR 1960 SC 12 25

39. It is true that by Act 16 of 2003, the Parliament has

consciously deleted from Section 54 the provision concerning

release of seized property liable to be forfeited on payment of value

of such property but the plain language that is retained in Section 54

(2) after amendment which reads, ‘on payment of such sum of money

to such officer, the suspected person, if in custody, shall be

discharged and no further proceedings in respect of the offence shall

be taken against such person’ does not show that the Legislature

intended to empower the specified officer under Section 54 to forfeit

the seized property used by the suspected person in commission of

offence against the Act. There is no replacement of the deleted

words by any express provision. Section 54 substituted by Act 16

of 2003 does not speak of seized property at all – neither its return

nor its forfeiture – while providing for composition of offence. The

property seized under Section 50(1)(c ) and Section 50(3A) has to

be dealt with by the Magistrate according to law. This is made clear

by Section 50(4) which provides that things seized shall be taken

before a Magistrate to be dealt with according to law. Section 54

substituted by Act 16 of 2003 does not empower the specified officer

to deal with the seized property. In this view of the matter, we are

unable to accept the submission of the learned senior counsel for the

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appellants that a comparative reading of pre-amended Section 54(2)

and Section 54 (2) as substituted by Act 16 of 2003 makes the

legislative intent clear that seized articles shall be forfeited on

composition of the offence under the 1972 Act. When the language

of the statutory provision is plain and clear no external aid is required

and the legislative intention has to be gathered from the language

employed. In our view, neither Section 54(2) of the 1972 Act by itself

nor Section 54(2) read with Section 39(1)(d) or any other provision of

the 1972 Act empowers and authorizes the specified officer under

Section 54, on composition of the offence, to deal with the seized

property much less order forfeiture of the seized property used by the

person suspected of commission of offence against the Act.

40. In view of the above, the order passed by the Conservator

of Forests, Nizamabad for forfeiture of the vehicle and two rifles to the

state government is de hors the provisions of the 1972 Act and

unsustainable. The High Court has rightly set aside such illegal

order. However, the Single Judge was not right in his order dated

March 29, 2005 in directing the respondents therein (present

appellants) to release the vehicle and rifles. The Division Bench also

erred in maintaining the above direction. Since the items were seized

in exercise of the power under Section 50(1)( c), the seized property

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has to be dealt with by the Magistrate under Section 50(4) of the

1972 Act. The respondent nos. 1 to 3 must accordingly apply to the

concerned Magistrate for the return of seized items who obviously will

consider such application according to law.

41. We hold, as we must, that a specified officer empowered

under Section 54(1) of the 1972 Act as substituted by Act 16 of 2003

to compound offences, has no power, competence or authority to

order forfeiture of the seized items on composition of the offence by

a person who is suspected to have committed offence against the

Act. Our answer to the question framed at the outset is in the

negative.

42. The appeal is disposed of as indicated above with no

order as to costs.

………………………J (R.M. LODHA)

….…………………………….J. (JAGDISH SINGH KHEHAR )

NEW DELHI OCTOBER 17, 2011.

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PRINCL.CHIEF CONSERVATOR OF FOREST Vs J.K.JOHNSON .

PRINCL.CHIEF CONSERVATOR OF FOREST Vs J.K.JOHNSON .