Irfan {At : 02:00 P.M.} vs State Of U.P. Thru Prin. Secy. ...
2013 Latest Caselaw 91 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	
 
										AFR
 
									Reserved
 

 
                   High Court of judicature at Allahabad,
 
                          Lucknow Bench, Lucknow
 
				  District- Lucknow
 

 
                        Writ Petition No. - 5777 (M/S) of 2012
 

 
Irfan, son of  Islam, Resident of Village Motipur,
 
Police Station -Motipur, District - Bahraich.
 
                                      			  ..................... Petitioner
 
                                          Vs.
 
1. 	State of U.P. through Principal Secretary Forest, Civil Secretariat,
 
     	U.P. Lucknow,
 
2. 	Joint Secretary Forest, Civil Secretariat, U.P.. Lucknow, 
 
3. 	Divisional Forest Officer, Van Prabhag, Bahraich,
 
4. 	Range Forest Officer, Bahraich,
 
                                   		   ..................... Opposite Parties
 

 
Petitioner/Revisionist Counsel :- Vinod Kumar Singh, Advocate
 
Respondent /Opposite party Counsel :- Govt. Advocate, 						  
 
Hon'ble Vishnu Chandra Gupta,J.

Judgment

1. This writ petition under Article 226 of the Constitution of Indian has been filed by the petitioner claiming the reliefs to issue a writ order or direction in the nature of CERTIORARI to quash the impugned orders dated 20.07.2012 passed by the opposite party no. 2 and impugned confiscation order dated 11.07.2011 passed by the opposite party no.3. And further to issue, a writ order or direction in the nature of mandamus commanding the opposite party no. 3 to release the vehicle in question.

2. The brief facts for deciding this writ petition are that a vehicle Mahendra Pickup having registration no. UP 40-C 8561 was seized by the Forest Officials on 18.3.2011 . This vehicle was loaded with cut wood of 'Sagoon' and 'Sakhu'. The Forester of Bahraich range at 6.30 AM intercepted this vehicle when it was coming from Nanpara side. When documents of wood were asked from the driver of the vehicle, he could not able to show any papers or authority to transport the wood. The Forest Officials took the vehicle along with the driver to Range Office, Bahraich and given in the custody of staff of the range after preparing a receipt. The information of this seizure was given to Divisional Forest Officer , Bahrich Range and Chief Judicial Magistrate , Bahraich. The wood loaded on the aforesaid vehicle was suspected to be of reserve forest. Thereafter, proceedings for its confiscation along with confiscation of the vehicle were sought to be initiated by Divisional Forest Officer, Bahraich vide its letter dated 18.3.2011 and requested to the Authorised Officer/Prescribed Authority for confiscation of wood and vehicle. Consequently the confiscation proceedings were started.

3. After making inquiries about the owner of the vehicle notices were issued to file the objections till 6.4.2011. The owner of the vehicle filed his objection on 28.3.2011. The owner of the vehicle is the present petitioner. After hearing both the sides, Prescribed Authority found that the truck was involved in transporting illegally the forest produced, the wood of Sakhu and Sagwan. The defence taken by owner of vehicle that wood belongs to saw mill of Nizamudin, the Proprietor of Nizamudin Timber Merchant, Gujrahana, Motipur, Bahraich and owned by several persons named by him was found false. The alleged transport permit produced by the owner of vehicle was not found to be in respect of wood which was seized by the Forest Officials. The description of wood mentioned in the transport permit produced by the owner of vehicle was not tallying with the wood seized. The forest officials further found that fake documents were prepared in the form of invoice and reasons for that has also been assigned in the order of confiscation. It was also found that the owner and driver of the vehicle was one and the same person, who could not produce any document at the time of seizure and in the aforesaid circumstances it cannot be said that he was not aware with the illegal transportation of wood,which certainly comes within the definition of forest produced and the same was seized within the forest area. In view of Section 52(A) of Indian Forest Act, 1927, confiscation order dated 11.07.2011 was passed of truck and wood. Owner of the vehicle preferred an appeal before the State Government. The appeal was also dismissed by order dated 20.07.2012. Aggrieved by the aforesaid orders, this writ petition has been preferred.

4. It has been contended by the learned counsel for the petitioner that order of confiscation could not be passed unless it is shown that the vehicle was being used for illegal transportation or for other illegal purpose or for any contravention of provision of Indian Forest Act or Rules or Regulation made thereunder. It was also contended that recovery memo was prepared on 21.3.2011 but the property was seized on 18.3.2011. This by itself is sufficient to be quash the proceeding of confiscation. The learned counsel for the petitioner also relied upon a judgment passed by this court in Criminal Revision No. 279 of 1994 (Abdul Humid Vs. State of U.P.) decided on 8.12.1994. In this judgment this court after relying upon the judgment in State of U.P. And others Vs. Sri Ram Babu 1990 Crl L J, page 87 has held that it is open to the Magistrate to pass order under section 457 Cr.P.C. for disposal of property even if the property was seized by the Forest Officials.

5. The counter affidavit has been filed on behalf of opposite parties denying the allegation made in the petition and supported the orders impugned. Rejoinder affidavit has also been filed denying the allegation in the counter affidavit and the allegation made in the petition were reiterated.

6. The learned A.G.A. Supported the order passed by the authorities for confiscating the vehicle.

7. Chapter IX of Indian Forest Act deals with penalties and procedure. Section 52 (A) relates to procedure on Seizure. Section 52(D) bar the jurisdiction to be exercised by other authorities in case of seizure of property under section 52 of the Act. Section 53 deals with the release of the property seized under section 52. The provisions of Chapter IX were substantially amended w.e.f. 16.4.2001 by U.P. Act No. 1 of 2001.

8. Section 52(A), 52(B), 52(C), 52(D), 53, 54, 55 and 56 are relevant for deciding this petition. Therefore, they are being reproduced herein below:

"52-A. Procedure on seizure.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force where a forest office is believed to have been committed in respect of any forest produce, which is the property of the State Government. The Officer seizing the property under sub-section (1) of Section 52 shall, without unreasonable delay, produce it together with all the tools, boats vehicles, cattle, ropes, chains and other articles used in committing the offence, before an officer, not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them.

(2) The authorised officer shall, without any undue delay, forward a copy of the order made under sub-section (1)to his official superior.

(3) Where the authorised officer passing an order under sub- section (1) if of the opinion that the property is subject to speedy and natural decay he may order the property or any part thereof to be sold by public auction and may deal with the proceeds as he would have dealt with such property if it had not been sold and shall report about every such sale to his official superior.

(4) No order under sub-section (1) shall be made without giving notice, in writing, to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property:

Provided that in an order confiscation a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objections if any will suffice.

(5) No order of confiscation of any tool, boat, vehicle, cattle rope, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, cattle rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence.

52-B. Appeal.-Any person aggrieved by an order of confiscation may, within thirty days of the date of communication to him of such order, prefer an appeal to the State Government and the State Government shall, after giving an opportunity of being heard to the appellant and the authorised officer pass such order as it may, think fit confirming, modifying or annulling the order appealed against and the order of the State Government shall be final.

52-C. Order of confiscation not to prevent any other punishment.- No order of confiscation under Section 52-A or 52.B shall prevent the indication of any punishment to which the person affected thereby may be liable under this Act.

52-D. 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 52-A or the State Government under Section52-B 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.

53. Power to release property seized under section 52.- Any Forest Officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, (vehicles, cattle ropes, chains or other articles) (under section 52, may subject to 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 (except in respect of cases falling under section 52-A for which the procedure laid down in the section shall be followed).

54. Procedure thereupon.-Upon the receipt of any such report, the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.

55. Forest-produce, tools, etc., when liable to confiscation.-(1) All timber or forest-produce which is not the property of Government and in respect of which a forest-offence has been committed, and all tools, boats, (vehicles, cattle, ropes, chains and other articles used in committing such forest-offence), (shall subject to section 61-G, be liable) to confiscation.

(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

56. Disposal on conclusion of trial for forest- offence, of produce in respect of which it was committed.-When the trial of any forest- offence is concluded, any forest-produce in respect of which such offence has been committed shall, if it is the property of Government or has been confiscated, be taken charge of by a Forest Officer, and, in any other case, may be disposed of in such manner as the court may direct."

9. Section 52A provides the procedure on seizure. The property seized under section 52 would be subject to confiscation. Section 55 deals with those forest produce which is not the property of the government and in respect of forest offence, which has been committed and all tools, boats, vehicles, cattle, ropes, chains and other articles used in committing the forest offence shall subject to section 61G be liable to be confiscated. The properties confiscated shall become the property of the government under section 55. The ownership of that would be vested in the government free from all encumbrances subject to result of an appeal preferred under section 52(B) or in case no appeal, after expiry of the period of appeal or revision. In case proceedings under section 52(A) once started, the power to release the property seized will not be governed by section 53 and 61 of the Act. The Forest Officer, as mentioned in section 53 or officer empowered by State Government under section 61 have a right to release the property seized subject to such condition and on executing the bond by the owner thereof for the production of the property so released before the Magistrate having jurisdiction to try the offence. But it clearly provides that this power of release not to be exercised in case proceedings under section 52A for confiscation has been started. The scheme provided under Chapter IX of the Indian Forest Act prohibits the exercise of jurisdiction by regular criminal courts in the matter of release of the property seized. In view of the aforesaid provisions of law this petition has to be disposed of.

10. In this case the order of confiscation made by the forest authorities was confirmed in appeal. The wood which was seized by the Forest Officer was kept in a vehicle which was being driven by its owner. Admittedly the wood transported by the truck did not claimed to be his own by the owner of the truck. He was not having any papers authorising him to transport the wood when the seizure was made. However, during the course of hearing under section 52A he pleaded some papers to show that the wood transported by him belongs to sawmill of Nizamudin, but the papers produced by Nizamudin were not found to be connected with the wood seized by the Forest Officer, because the same was not tallying with measurement given in the transit permit produced by the petitioner during the course of hearing of the confiscation proceedings. It was also found that the wood recovered was not separated in pieces by use of mechine but it was hand made separated wood. That too was sufficient to establish that it was not separated wood by use of sawmill of Nizamudin. It was also found by the authorities that the documents produced before them have contained the signature of Nizamuddin in Hindi but when Nizamuddin was examined before him he signed in Urdu. It is also important to notice that the vouchers which have been produced by the petitioner during proceedings 52-A relate to Ram Karan ,Babu and Farid Ali, who were said to be the purchaser of the wood seized, but they have not been examined. The other person Kishan Kumar, who is shown to be the owner of the part of the wood was also not examined. The receipt in favour of Kishan Kumar showing purchase of wood by him from Muna Lal Yadav , but he was also not examined.

11. The findings of fact recorded by Prescribed Authority were confirmed in appeal. In these circumstance it is established beyond doubt that vehicle in question was being used for illegally transporting the aforesaid wood, which admittedly, was not belonging to the petitioner or any person as stated by the petitioner and as such the truck was rightly confiscated.

12. The arguments raised from the side of the petitioner that recovery memo was prepared on 21.3.2011, but the property was seized on 18.3.2011 has no legs to stand, because the recovery memo was prepared on the basis of receipt no. 060107 dated 18.3.2011 which was prepared at the time of receipt of seized goods by staff at Range office and recovery memo was virtually a formal document evidencing the recovery.

13. At last, the counsel for the petitioner requested for conditional release of truck. The benefit of word 'without knowledge' could not be extended to the present petitioner because he is not only driver of the vehicle but also the owner of vehicle. The judgment relied upon by the learned counsel for the petitioner in Criminal Revision No. 279 of 1994 (Abdul Humid Vs. State of U.P.), is not of any help because this deals with the release of vehicle which was seized under section 52 of the Forest Act and by that time proceeding of confiscation was not there. The Magistrate released the vehicle in view of Section 457 of Criminal Procedure Code as the seizure was also reported to the Magistrate. However the law relied upon by the learned Counsel for the petitioner was prior to amendment by U.P.Act No.1 of 2001, which came into effect with 16.4.2001. Hence the law cited by the learned Counsel for the petitioner does not extend any help to the petitioner.

14. In the case in hand the proceeding of confiscation has been initiated forthwith and concluded so the Magistrate or any other authority was not having any power to release the vehicle. I fortified my view with the judgments of Apex Court reported in State of West Bengal and Ors. Vs. Sujit Kumar Rana 2004 (4) SCC page 129 and Mohd. Ashique Vs. State of Maharastra, 2009 page 368.

15. Considering all these facts, it was rightly concluded by the Prescribed Authoritiy and by Appellate Authority that the defence taken by the petitioner was not sustainable and was also rightly found to be involved in illegally transporting the wood and accordingly the same being a forest produce belonging to the government along with vehicle by which it was being transported as contained in section 69, which reads as under :

"69. Presumption that forest-produce belongs to Government.- When in any proceedings taken under this Act, or in consequence of anything done under this 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 untill the contrary is proved."

16. The above facts leave no room to doubt that petitioner was indulged in transporting the forest produce illegally by means of a Mahendra Pickup vehicle having registration no. UP 40 C 8561 which he at the time of seizure was driving and is also the owner of the same. Thus the same rightly confiscated. The petition has no merit and deserves to be dismissed.

17. No other point was pressed or argued by the counsel for the parties

18. The petition lacks merit and is accordingly dismissed.

Dated : 2nd April, 2013

S. Kumar

(Justice Vishnu Chandra Gupta )