Calcutta High Court (Appellete Side)
Sri Satyendra Singh vs The State Of West Bengal And Others on 28 January, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPA No. 8852 of 2020
Sri Satyendra Singh
Vs.
The State of West Bengal and others
With
WPA No. 8856 of 2020
Premananda Saha
Vs.
The State of West Bengal and others
For the petitioner
in both the cases : Mr. Chinmoy Pal,
Mr. Kamal Krishna Guha
For the respondent-authorities : Mr. Subir Kumar Saha,
Mr. Bikramaditya Ghosh
Hearing concluded on : 12.01.2021
Judgment on : 28.01.2021
Sabyasachi Bhattacharyya, J:-
1. The two writ petitions are taken up together for hearing, since both arise
from the same cause of action. Premananda Saha, the petitioner in WPA
No. 8856 of 2020, runs a timber business and was transporting his
products on a vehicle owned by Satyendra Singh, the petitioner in WPA
No. 8852 of 2020. The authorities seized the products, along with the
vehicle, on the allegation that the vehicle was carrying forest products
(logs) without appropriate permit. Notice was issued to the petitioners
and, upon hearing them, the Authorized Officer, Darjeeling District and
Divisional Forest Officer (respondent no.3) passed an order on March 2,
2020 for confiscation of the vehicle along with the timber. Upon an
appeal being preferred before the appellate authority (respondent no.2),
the said authority, vide Order dated August 12, 2020 affirmed the order
of respondent no.3. Challenging the said orders, the present writ
petitions have been preferred by the owners of the vehicle and the timber
respectively.
2. Learned counsel for the petitioners argues that the products, along with
the vehicle, were seized in contravention of Rule 8 of the West Bengal
Forest-Produce Transit Rules, 1959 (hereinafter referred to as "the 1959
Rules") and Section 100 of the Code of Criminal Procedure, 1973. No
copy of the seizure list was handed over to the owner or driver in
accordance with law, it is alleged. Moreover, signatures of independent
witnesses were not taken at the time of seizure. Only the driver's
signature was taken.
3. Placing reliance on 2005 (4) CHN 565 [Minati Paul vs. State of West
Bengal], learned counsel submits that the court has power to release the
offending vehicle by imposition of fine in lieu of confiscation of the
vehicle. The expression "may" occurring under Section 59D(2) of the
Indian Forest Act, 1927 (hereinafter referred to as "the 1927 Act"), it was
held in the report, is to be interpreted as discretionary and not
mandatory and for the purpose of securing justice, the vehicle may be
released by imposition of fine in lieu of confiscation thereof in suitable
cases.
4. Learned counsel next places reliance on State and others vs. Santosh
Saha, reported at AIR 2000 Cal 104, wherein a Division Bench of this
court held, inter alia that, as laid down in Wazir Chand vs. State of
Himachal Pradesh [AIR 1954 SC 415], illegal seizure of goods would
amount to infringement of fundamental rights and the High Court under
Article 226 of the Constitution of India would be entitled to direct return
of such goods.
5. Learned counsel next refers to Section 16 of the West Bengal Trees
(Protection and Conservation in Non-Forest Areas) Act, 2006 (hereinafter
referred to as "the 2006 Act"), for the proposition that an offence,
committed and punishable under the said Act, may be compounded by
the concerned Officer.
6. The petitioners further submit that, in the present case, non-forest teak
produce was seized. As such, it is argued that the 2006 Act, and not the
1927 Act, is applicable.
7. It is contended on behalf of the petitioners that the seizure took place on
May 1, 2019. As such, the West Bengal Forest-Produce Transit Rules,
2019, published vide Notification No. 875/FR/O/FP/6M-11/2014 dated
May 31, 2019, is not applicable to the instant case.
8. It is argued that the impugned appellate order records that transit pass
was issued in respect of non-forest teak produce to the petitioners, thus,
rendering the seizure illegal.
9. Learned counsel appearing for the respondent-authorities in both the
matters argues that a notice was duly given to the owner, as
contemplated under Section 59B of the 1927 Act (as amended in West
Bengal) before confiscation. Such notice contained the requisite
particulars. Moreover, the seizure list was sent to the appropriate
authority thereafter in compliance with law. As such, Section 52 of the
1927 Act was also followed.
10. Learned counsel contends that, out of the total logs being carried on the
vehicle, 144 teak logs were without any hammer impression. As such,
under Section 69 of the 1927 Act, the produce was rightly presumed to
be the property of the Government until the contrary was proved.
11. The seizure of the vehicle, it is argued, was in compliance with Rules 7(3)
and 8(1)(b) of the 1959 Rules. The seizure list was drawn up and
forwarded to the concerned Judicial Magistrate vide POR No. 8/BD of
19/20 dated May 1, 2019 in terms of Section 52 of the 1927 Act.
12. The seizure list, in compliance with Rule (1)(b) of the 1959 Rules, was
drawn up in presence of witnesses and the person in charge of the goods,
that is, the driver, signed the same. Details and particulars of all 144
teak logs were annexed with the seizure list.
13. The owners of the vehicle and seized products appeared before the
Authorized Officer and submitted written submissions. Thereafter, they
were given adequate opportunity to represent themselves and to present
their case in a personal hearing. Upon consideration of such
submissions, the Authorized Officer passed a reasoned order prior to
confiscation. The appellate authority confirmed such order with elaborate
reasons as well. As such, it is argued that minor technical issues raised
by the petitioners, without demonstrating any prejudice being caused to
them, ought not to be taken note of.
14. In the present case, admittedly, notice was issued to the owners under
Section 59B of the 1927 Act. They were heard and, only thereafter, the
order of confiscation was passed. The orders passed by the Authorized
Officer and appellate authority are both reasoned.
15. The specific allegation against the petitioners is that forest-produce was
being carried in the offending vehicle without a valid permit. Therefore,
the seizure was in terms of the 1927 Act. Sufficient materials have been
furnished by the respondents to show that a seizure list was duly drawn
up and forwarded to the Magistrate, as contemplated under Section 52 of
the said Act.
16. Section 100 of the Code of Criminal Procedure has no application in the
present case. The instant seizure was made under the provisions of the
1927 Act, read with the 1959 Rules. Section 100 of the Code provides for
search or inspection under the relevant chapter, that is, Chapter-VII of
the Code, and pertains to closed places. Not only was the present seizure
made in an open area, the same was conducted under a special statute,
being the 1927 Act, and not Chapter-VII of the Code, which relates to
general procedure of production and search in respect of persons to
whom summons or an order under Section 91 or a requisition under
Section 92(1) of the Code was addressed.
17. It is evident from the seizure list that the same carries the signature of
the driver and contains detailed particulars of the seized products. Rule
7(3) of the 1959 Rules provides that any timber or other forest-produce
not covered by a transit pass referred to in Rule 4(2) and (3), together
with vehicles suspected to be carrying the same, shall be liable to
seizure.
18. Rule 8(1) of the 1959 Rules provides that a Forest Officer who has seized
any forest-produce under Rule 7 shall immediately issue a written notice
to the owner of the forest-produce, or if the owner is unknown, to the
person in charge or possession of such forest-produce at the time of
seizure, calling upon him to produce proof of the origin of the forest-
produce and his title thereto within 30 days from the date of issue of
such written notice and submit a seizure report in the prescribed form
without delay to the Magistrate having jurisdiction to try the offence on
account of which the seizure was made.
19. The seized forest-produce shall then be released or confiscated under the
provisions contained in Chapter-IX of the 1927 Act. In the present case,
such notice was admittedly given to the owner. No fault on the part of the
authorities can be found on such score.
20. Section 59B of the 1927 Act also contemplates notice before confiscation,
which was complied with as well in the present case, as evident from the
notice annexed to the writ petitions.
21. Section 16 of the 2006 Act has no direct application in the present case,
since the alleged offence did not pertain to any offence committed or
punishable under the said Act. In any event, compounding an offence is
at the discretion of the concerned Officer and does not vitiate the action
of the Officer for non-exercise of such discretion.
22. As far as Minati Paul (supra) is concerned, a co-ordinate Bench of this
court held that the court has power to release the offending vehicle by
imposition of fine "in suitable cases". In the said case, certain
distinguishing features were recorded, including the value of the seized
products and the fact that the offence was committed by the petitioner
therein for the first time. As such, no general proposition was laid down
that the discretion has to be exercised in a blanket fashion in each and
every case. In the present instance, no such distinguishing feature has
been pleaded or proved. Moreover, the exercise of discretion by the
authorities was justified in law and, as such, does not deserve
intervention by the court.
23. The Division Bench judgment of State vs. Santosh Saha (supra) merely
laid down that illegal seizure of goods would amount to infringement of
fundamental rights and the High Court would be entitled to direct return
of such goods under Article 226 of the Constitution. No illegality in
seizure, however, has been made out in the present case. Thus, there
cannot arise any occasion to direct return of the confiscated goods.
24. In the circumstances discussed above, there is no scope of interference
with the impugned orders.
25. Accordingly, WPA No. 8852 of 2020 and WPA No. 8856 of 2020 are
dismissed on contest, without any order as to costs.
26. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. )
