Basant Tiwary @ Basant Kumar ... vs The State Of Jharkhand & Others
2021 Latest Caselaw 4602 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             [Civil Writ Jurisdiction]
                             W.P.(C) No. 6547 of 2011
       Basant Tiwary @ Basant Kumar Tiwary                       .... .. ... Petitioner
                                     Versus
       The State of Jharkhand & Others                           .. ... ... Respondents
                                      ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........

       For the Petitioner                     : Mr. Ashok Kumar Pandey, Advocate
                                                Mr. Robin Kumar, Advocate
       For the Respondent- State              : Mr. Jagdeesh, A.C. to S.C.-I
                                      ......
17/ 06.12.2021.
                Heard, learned counsel for the parties.

The petitioner- Basant Tiwary @ Basant Kumar Tiwary has preferred the writ petition for quashing the impugned order dated 16.04.2004, passed by Commissioner- cum-Revisional Authority, Department of Forest and Environment, Government of Jharkhand in Confiscation Revision Case No.18 of 2003 allowing the Revision Application by setting aside order dated 24.03.2003, passed by the Deputy Commissioner, Palamau in Confiscation Appeal No.XV/57/2001-2002 on the ground that though petitioner has purchased sagwan wood from M/s Dayal Timber Works, Upper Bazar, Ranchi vide Bill No.133 of 1999-2000 on 22.08.1999 as well as Bill No.134 of 1999-2000 dated 22.08.1999, size 7x7x6 = 1 pc. i.e. 2.04 cubic feet and 7x9x6= 3 pc. i.e. 7.875 cubic feet, but seized sagwan woods which are 17 in numbers are different from those purchased from M/s Dayal Timber Works, Upper Bazar, Ranchi.

Learned counsel for the petitioner has submitted that document showing purchase of wood has been examined by the Forest Range Officer in compliance of Letter No.747 dated 13.03.2000, issued by the Divisional Forest Officer, Daltonganj and has categorically stated that the receipt showing Bill No.133/1999-2000 and 134/1999-2000 tallies with page no.69 of register maintained by M/s Dayal Timber Works, Upper Bazar, Ranchi. He has further submitted that no transit bill was issued along with this bill as purchaser Basant Tiwary @ Basant Kumar Tiwary has not demanded the same. Further M/s Dayal Timber Works, Upper Bazar, Ranchi has said that they are only selling the woods on local basis vide bill.

Learned counsel for the petitioner has placed reliance upon the order passed by the Chief Judicial Magistrate, Palamau in P.S. Case No.287 of 1999 which has been brought on record as Annexure-7, whereby prayer for release of vehicle and wood made before the Chief Judicial Magistrate, Palamau has been allowed in the light of order of the Deputy Commissioner, Palamau under Section 52(A) of Indian Forest Act as the order of the Divisional Forest Officer in confiscation

proceeding by has been set aside by the learned Deputy Commissioner in Confiscation Appeal.

Learned counsel for the petitioner has further submitted that Revisional Authority has completely ignored the judicial order passed by the Chief Judicial Magistrate and passed the order of confiscating the article and placed reliance upon pages 2, 3 and 4 (para 3 onwards) of the order passed by the Revisional Authority- cum-Commissioner and the Secretary, Forest and Environment, Government of Jharkhand.

Learned counsel for the petitioner has further submitted that he has valid document with regard to four pieces of sagwan wood, which has been endorsed by the Range Officer and out of these four pieces, the seized 17 pieces of the teak wood have been carved out, which has wrongly been seized by the police department from a truck bearing registration No.BRC-7521, as such, confiscation order passed by Commissioner may be set aside as the Deputy Commissioner has rightly passed the order in favour of the petitioner.

Learned counsel for the petitioner has placed reliance upon the judgment passed by co-ordinate Bench of this Court in the case of Amit Kumar vs. State of Jharkhand & Ors., reported in (2019) 2 JBCJ 591, paras 10 & 11 of which may profitably be quoted hereunder:-

10. The relevant consideration for looking to the legality and proprietory or the order would be for adjudicating the ingredient of Section 30, 41 and 42 of the Indian Forest Act would be that if the seized truck was found to be involved in the forest offence which can only be ascertained from the documents/challans pertaining to the coal loaded over the truck in question. If the document will be found to be not genuine so far as it pertains to the loaded coal over the truck in question, the ingredient of offence under Section 30, 41 and 42 will be attracted and the situation would be vice-versa and therefore, this Court has examined this issue on the basis of the finding recorded by the Forest Officer wherefrom it is evident that the petitioner has produced the original document issued by the CCL Piperwar in support of the genuineness of the coal loaded over the truck in question and when produced, the same has been directed to be verified from the issuing authority of the CCL Piperwar in order to assess the genuineness of the said document and it is evident from the finding recorded by the Authorized Officer that it has specifically been recorded, the same is being referred hereunderas for ready reference and from its perusal it is evident that the paper related with the seized coal, submitted by the owner of the vehicle along with show cause was issued from CCL Piperwar, the inquiry done Range Officer of Forest regarding the said 12 paper has also indicated that it is a genuine paper.

"........During inquiry, the B.O. Badkagaon also found the presence of two illegal pits in plot no.1 of Jordag forest. The photographs attached with the prosecution report also shows the presence of illegal pits, presence of debris of coal near the said pits, faint sign of vehicle tyres near the pits. All the PR (WS) supported the prosecution report in which it is clearly mentioned that the seized coal was taken out illegally from Jordag forest area and loaded over the seized truck. At the time of seizure the non-production of any paper related with the coal, also proves, that the seized coal was taken illegally from Jordag forest area. The papers related with seized coal (Submitted by the owner of the vehicle along with the showcause) was issued from CCL Piperwar. There is no doubt the inquiry done by R.O.F. regarding the said paper

indicate that it is genuine paper."

Thus, it is evident that the document pertaining to the loaded coal over the truck in question has been found to be genuine on its verification from the issuing authority and as such so far as the ingredient of Section 30 or 41 or 42 is not attracted if the coal loaded over the truck in question is genuine, the changing of the route will amount to attracting the ingredient subject to the condition that if the vehicle is carrying out the coal or the other restricted item as stipulated either under Section 30 or 32 of the Indian Forest Act then the route can be taken into consideration by the Forest Officer, otherwise, if there is any violation of the route and if it is found that any vehicle is transporting the vehicle contrary to the transport permit it is the such subject to be looked into by the transport authority for alleged violation of the provision of Motor Vehicle Act, 1988 or Central Motor Vehicle Rules, 1989 but certainly it will not come under the domain of the forest officials in exercise of power conferred under the provision of Indian Forest Act.

11. The Forest Officer, even though, being satisfied with the genuineness of the document travelled beyond his jurisdiction by assuming the power of the transport authority and merely on presumption that why the document has not been presented on the date of interception of the driver or why the longest route has been taken by the said driver but even accepting this fact to be true the same was not to be looked by the forest officer if the coal having been found to be genuinely purchased from the CCL Piperwar, therefore, the finding recorded by the Forest Officer can be said to be based upon perversity and exceeding his jurisdiction by assuming the power of transport authority even though the coal loaded over the truck in question has been found to be genuinely purchased from the CCL Piperwar, he by travelling beyond it has passed the order of confiscation merely on the ground that the vehicle has taken the long route and document has not been produced by the driver, in view thereof, the order passed by the Authorized Officer-cum-Divisional Forest Officer is not standing on its leg on the legal ground as per the reason narrated hereinabove.

Learned counsel for the petitioner has thus submitted that impugned order passed by the Revisional Authority may be set aside.

Learned counsel for the respondent-State, Mr. Jagdeesh, A.C. to S.C.-I has vehemently opposed the prayer and submitted that the Deputy Commissioner, Palamau has set aside the order on 24.03.2003, in Forest Acquisition Appeal Case No.XV/57/2001-2002 against which the department of forest has preferred Revision Application before the Revisional Authority in the year, 2003 vide Revision Case No. (C)-18/2003. He has further submitted that the Chief Judicial Magistrate, Palamau has not called a report from the State, whether the order of the Deputy Commissioner has been assailed before the Commissioner or not, as such, the order has been passed by the CJM, Palamau, which can not create a right in favour of the writ petitioner, as order of appellate authority has been set aside by Revisional Authority in accordance with law.

So far the genuineness of the wood is concerned, admittedly wood was carried out by the petitioner in truck bearing registration No.BRC-7521 without transit permit.

Learned counsel for the State has submitted that as per the case of the petitioner, he has purchased four pieces of teak wood, but the Forest Department has seized 17 pieces of teak wood that too human cut wood from the aforesaid

truck, as such, seized materials cannot be the same materials which has been purchased from M/s Dayal Timber Works, Upper Bazar, Ranchi by petitioner- Basant Tiwary @ Basant Kumar Tiwary as claimed by writ petitioner, which are machine cut.

To buttress his argument, learned counsel for the State has further submitted that from perusal of the impugned order, it is apparent that at the time of seizure, only driver was apprehended and two persons, namely, Basant Tiwary @ Basant Kumar Tiwary and Raju @ Mazhar Rabbani fled away as disclosed by the driver. The driver has not stated before the police officer, that these materials are being carried out from M/s Dayal Timber Works, Upper Bazar, Ranchi and the Revisional Authority has rightly taken note of it in its order, that there is vast discrepancies in the statement of the driver, who was apprehended at the spot and claim made by the petitioner.

Learned counsel for the State has further submitted that petitioner has failed to establish that the seized materials are purchased material of the petitioner from M/s Dayal Timber Works, Upper Bazar, Ranchi rather petitioner could only establish before the Range Officer that he has also purchased four pieces of sagwan wood of different dimension, which are not the seized property, as such, this Court cannot rely upon such document to consider that the seized property is the purchased property of the petitioner from M/s Dayal Timber Works, Upper Bazar, Ranchi.

Learned counsel for the State has placed reliance upon the judgment passed by co-ordinate Bench of this Court in the case of Muniya Devi & Ors. vs. The State of Jharkhand & Ors. in W.P.(C) No.1835 of 2002 and submitted that co-ordinate Bench of this Court has held that because of acquittal in criminal case, the petitioner is not discharged from onus as conferred under Section 52(5) of the Indian Forest Act, 1927 read with Bihar Amendment.

Learned counsel for the State has thus submitted that confiscation proceeding passed by the Revisional Authority is elaborate and has discussed each and every aspect of the matter. Since seized materials is not tallying with the purchased materials of the petitioner and apart from that purchase was made at Ranchi and the materials was seized at Palamau, as such, the judgment which has been passed by co-ordinate Bench of this Court in the case of Amit Kumar (supra) is also not helpful for the petitioner, as the entire facts of the present case is different from the case of Amit Kumar (Supra), which has been discussed 10 and 11 of the said order, as in that case there is violation of route and there is no case that alleged material was a forest material rather admittedly there was permit but the vehicle was found on different route, as such, the case of Amit Kumar (Supra) is a different case on

facts.

Learned counsel for the State has thus submitted that this Court under Article 226 of the Constitution of India may not interfere with such finding recorded by the Revisional Authority.

After hearing, learned counsel for the parties and on the basis of materials available on record, it appears that truck bearing registration No.BRC-7524 was seized with 17 pieces of teak wood for which, the confiscation proceeding bearing confiscation Case No.09/1999 has been initiated apart from the FIR, which was registered as Sadar (Town) P.S. Case No.287 of 1999, under Sections 413 and 414 IPC and Section 33 of the Indian Forest Act.

As per the case of the State, vehicle was seized along with the 17 pieces of teak wood and driver, Santosh Prajapati was apprehended at the spot while two persons fled away, whose name has been disclosed by the driver as Basant Tiway @ Basant Kumar Tiwary and Raju @ Mazhar Rabbani.

From perusal of the record, it appears that the material which has been seized is 17 pieces of teak wood. The submission which has been made by learned counsel for the petitioner that it was hand made and converted into 17 pieces from four pieces, are not acceptable to this Court as no material has been brought on record by the petitioner to substantiate that those 4 pieces have been converted into 17 pieces, as such, under Article 226 of the Constitution of India, this Court cannot go into the fact findings as the petitioner has miserably failed to establish that seized materials were transported with any transit permit and not only that petitioner could not establish also that teak wood were properly purchased from any authorized vendor. Annexures- 1 and 2 brought on record by the writ petitioner, which is seat anchor of the petitioner being report of the Range Officer cannot be accepted by this Court, in view of the fact that these two documents only shows about 4 pieces of teak wood, whereas seized material is 17 pieces. It was the duty of petitioner to establish that those 17 pieces have been made out from these 4 pieces, as such, this Court cannot look into such matters.

Accordingly, this Court is not inclined to interfere with the prayer made in the Writ Petition under Article 226 of the Constitution of India.

Accordingly, the instant Writ Petition is hereby dismissed.

(Kailash Prasad Deo, J.) R.S.