Nilratan Panda & Anr vs The State Of West Bengal & Anr
2022 Latest Caselaw 8292 Cal

14.12.2022 S/L No.25 KS

C.R.R. 2725 of 2021 With IA No. CRAN 1 of 2022 + CRAN 2 of 2022 Nilratan Panda & Anr.

-Vs.-

The State of West Bengal & Anr.

Mr. Himanshu De Mr. Navanil De Mr. Rajeshwar Chakraborty Mr. Srinjan Ghosh Mr. Subhrajit Dey ..... For the Petitioners Mr. Saswata Gopal Mukherjee, Ld. P.P.

Mr. Sabir Ahmed Mrs. Debjani Sahoo .....For the State Mr. J. Ganguly Mr. D. Ganguly Mr. S. Dutta .....For the O.P. No.2

Mr. De, learned senior advocate appearing for the petitioners

being the Divisional Forest Officer, Durgapur Division and the Forest

Range Officer, Ukhra Range, Durgapur Division challenges the order

dated December 24, 2021 passed by the Learned A.C.J.M., Durgapur in

connection with P.O.R. No.5/UK of 2021-2022. Mr. De, learned senior

advocate submits that in spite of the confiscation proceeding being

initiated by the authorized officer under the Forest Act, the Learned

A.C.J.M., Durgapur granted interim custody of the vehicle being, WB

37B 5137 to the registered owner, Dharmendra Gupta by way of

furnishing a bond of Rs.15 lakhs. Learned Senior advocate challenges

the observation and the finding of the Learned A.C.J.M., Durgapur and

submits that it is established principle of law that once the authorized

officer has initiated confiscation proceeding, the Learned A.C.J.M. loses

its jurisdiction as is incorporated in Section 59G of the Forest Act, 1927.

Learned advocate relying upon the judgment of the Hon'ble Supreme

Court in State of Madhya Pradesh Vs. Uday Singh reported in (2020) 12

SCC 733 submits that the Learned A.C.J.M., Durgapur exceeded his

authority in passing the impugned order dated December 24, 2021 while

granting interim custody to the registered owner. In course of hearing,

learned advocate also pointed out that the authorized officer has already

concluded the confiscation proceeding and has already passed

confiscation order in respect of the vehicle being, WB 37B 5137.

Mr. Ganguly, learned advocate appearing for the private

opposite party no.2 submits that seizure was effected under the

provisions of the Wildlife Protection Act, 1972 and the Forest authorities

while submitting their complaint incorporated the provisions of the

interpretation clause of the Forest Act, 1927 and thereby exercised their

powers for confiscation under the said Act. Learned advocate further

submits that the opposite party is not an accused in the case and he has

been forced to undergo pecuniary loss because of the act of the

employees. Additionally, it has been submitted that the Learned

Magistrate had the authority under Section 50(4) of the Wildlife

Protection Act, 1972.

I have considered the submission advanced by both the parties,

prima facie, it appears from the records that the authorized officer

initiated the confiscation proceeding earlier to that of the Learned

Magistrate who on receipt of the application by the opposite party no.2

started his proceeding regarding deciding the interim custody of the

vehicle.

I have also considered the relevant provisions of law under

Section 59G of the Forest Act incorporated by way of an amendment by

the State of West Bengal which provides for appeal from orders under

Sections, 55, 56 and 57. Section 59G of the West Bengal Amendment Act

incorporated vide W. B. Act 22 of 1988 is set out as follows:-

"59-G. Bar of Jurisdiction in certain cases.- Notwithstanding

anything to the contrary contained in this Act or in the Code of Criminal

Procedure, 1973 (2 of 1974) or in any other law for the time being in

force, the officer authorised under Section 59-A or the Forest - officer

specially empowered under Section 59-C or the District Judge to whom

an appeal may be preferred under Section 59-D shall have and any other

officer or Forest - officer or Court, tribunal or authority shall not have

jurisdiction to make orders with regard to the custody, possession,

delivery, disposal or distribution of any property or tools, ropes, chains,

boats, vehicles or cattle seized under Section 52." [Vide W.B. Act 22 of

1988, S. 17].

In the instant case, the complaint was filed under the provisions

of the Wildlife Protection Act, 1972, Section 7 of the Biological Diversity

Act, 2002 and Section 52 read with Sections 53 / 59A of the Indian Forest

Act, 1927. The authorized officer, as such, had the jurisdiction to

exercise his powers under the Act dealing with the property which has

been seized in course of investigation. Records reflect that the opposite

party no.2 did not participate in the proceedings before the authorized

officer. Without going into the details, I direct that the order passed by

the Learned A.C.J.M., Durgapur relating to interim custody of the

vehicle be set aside so far as the return of the vehicle is concerned.

Without entering into the merits of the case and only on the issue that

the opposite party no.2 is required to be heard out, prior to a final order

being passed, I direct the authorized officer to re-hear the subject-matter

relating to confiscation/return of the said vehicle.

Accordingly, the confiscation order so passed is hereby set aside.

The opposite party no.2 either personally or through his

representative/lawyer would appear before the authorized officer on 9 th

January, 2023. The authorized officer would grant opportunity to the

opposite party no.2 or his representative and, thereafter, within a period

of four weeks from the said date decide the issue regarding the fate of

the vehicle which has been seized in connection with the P.O.R.

No.5/UK of 2021-2022 dated August 26, 2021.

The order dated 27th December, 2021 and order dated 28th

December, 2021 wherein observations have been made by the Learned

A.C.J.M., Durgapur in respect of the Forest officials for not participating

in the proceedings are restricted only for the purposes of this case for

compelling the officer to appear before the Learned Magistrate for

progress of the case. The same may not be used to the detriment of the

officers so far as their service career/record is concerned.

With the aforesaid observations, C.R.R. 2725 of 2021 is disposed

of.

Pending applications, if any, are consequently disposed of.

All parties are directed to act on the server copy of this order

downloaded from the official website of this Hon'ble Court.

(Tirthankar Ghosh, J.)