Sanjay Kumar Saw @ Sanjay Kumar Sao vs The State Of Jharkhand
2021 Latest Caselaw 4758 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                W.P.(C) No. 1661 of 2020

Sanjay Kumar Saw @ Sanjay Kumar Sao         ...      ...     Petitioner
                             Versus
1. The State of Jharkhand
2. The Divisional Forest Officer-cum-Authorized Officer, West Forest
   Division, Giridih
3. The Deputy Commissioner, Giridih
4. The Revisional Authority-cum-Additional Chief Secretary, Department
   of Forest, Environment and Climate Change, Government of
   Jhakrhand, Ranchi                       ...     ...     Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rajesh Lala, Advocate Mr. Rakesh Kumar Gupta, Advocate For the Respondent-State : Mr. Naresh Prasad Thakur, AC to GP-IV

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Order No. 10 Dated: 13.12.2021

The present writ petition has been filed for quashing order dated 17.02.2020 passed by the respondent no. 4 - the Revisional Authority-cum-Additional Chief Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi in Confiscation Revision No. 02/2019, whereby the said revisional authority has dismissed the revision application filed by the petitioner confirming the order dated 20.08.2018 passed by the respondent no. 3 - the Deputy Commissioner, Giridih in Confiscation Appeal No. 08/2017, who had upheld the order dated 28.05.2015 passed by the respondent no. 2

- the Divisional Forest Officer-cum-Authorized Officer, West Forest Division, Giridih in Confiscation Case No. 03/2014 arising out of Forest Case No. 126 of 2014 by which Tata Hywa vehicle of the petitioner bearing registration no. JH 12E 1513 along with 600 cft. stone chips loaded on it was confiscated.

2. The factual background of the case as stated in the writ petition is that on 10.06.2014, one Sheo Shankar Singh, a Forest Guard, submitted his report before the Forest Beat Officer, Balhara Beat, District-Giridih alleging that at about 2 pm, he along with other forest guards were on patrolling duty. In the meanwhile, he saw that 600 cft. illegally mined black stones were loaded over a Hywa having registration no. JH 12E 1513. After seeing the forest officials, the accused persons

started fleeing away along with the said Hywa, however the same was ultimately stopped and seized at Jamua Pethandi Road. The matter was brought to the notice of the Range Officer, Doranda Afforestation Range, Giridih, who after perusal of the offence report, seizure list and the confessional statement of the accused persons, forwarded the same to the court of CJM, Giridih along with the arrested accused persons and thereafter Forest Case No. 126 of 2014 was registered. Moreover, Confiscation Case No. 03 of 2014 was initiated by the respondent no. 2 and show cause notice was issued to the petitioner which was replied by him contending that his vehicle was falsely dragged in the criminal case as well as in the said confiscation case after creating false and concocted story. The claim of the petitioner is that the said vehicle was loaded with only 500 cft. stone chips from M/s Santhal Stone Chips, which was wrongly recorded as stone boulders and was being transported to consignee Maa Gauri Stone Chips, Purnadih, Domchanch with valid Transport Challan No. A1 5990288 issued for dispatch of the said material on 10.06.2014 at 10.15 am. Further claim of the petitioner is that in spite of the production of Challan, the forest officials seized 500 cft. stone chips along with the said Hywa vehicle. The respondent no. 2 finally passed order on 28.05.2015 of confiscation of the said Hywa with alleged 600 cft. stone boulders loaded on it. The petitioner preferred an appeal being Confiscation Appeal No. 8/2017 before the respondent no. 3, however, the same was dismissed on 20.08.2018. The petitioner also preferred revision application being Revision Case No. 02/2019 before the respondent no. 4, which was also dismissed vide impugned order dated 17.02.2020. Hence, the present writ petition.

3. The learned counsel for the petitioner submits that the respondent no. 2 passed the order of confiscation of the said Hywa without considering the relevant material facts and circumstances of the case. It is further submitted that under RTI, the Assistant Mining Officer, Giridih furnished an attested copy of Form D Transport Challan (Transporter's Copy) having Serial No. A1 5990288 dated 10.06.2014 with the Form H dated 15.07.2014 i.e., the form of Monthly Return for minerals for the month of June 2014 mentioning the name of lessee/permit holder as M/s Santhal Stone Chips, which dispatched 1500 cft. stone chips through various challans in which the number of

Transport challan of the seized stone chips of the petitioner was also mentioned. It is further submitted that stone chips were transported legally and the same were not forest produce. The seizure list dated 10.06.2014 did not mention the seizure of black stone, it rather mentioned the seizure of said Hywa only. No notification was brought on record to suggest that the place of seizure was a notified forest area. The petitioner is the owner of the said Hywa and he has not been made accused in the connected criminal case. The respondent no. 2 called for a report from the Range Officer, Doranda Afforestation Range, Giridih regarding genuineness of the documents produced by the petitioner including Mining Transport Challan issued by M/s Santhal Stone Chips with regard to 500 cft. stone chips and thereafter the said officer submitted his report stating that all the original documents of seized Hywa were inspected with the help of Forest Beat Officer, Balhara Beat, District-Giridih and were found genuine, however, all these documents were not produced by the driver of said Hywa at the time of seizure of the vehicle. The respondent no. 2 on receipt of the said report, however, finding the same contradictory and not clear, asked him vide memo no. 1005 dated 08.10.2014 to make spot enquiry to verify as to whether the seized stones were mined from any quarry or from notified forest area. Thereafter, no such enquiry was made by the Range Officer, Doranda Afforestation Range, Giridih and thus it cannot be said that the respondent no. 2 had sufficient material before him for passing the impugned order of confiscation.

4. Per contra, the learned counsel appearing on behalf of the respondents submits that no challan was produced by the driver of the vehicle at the time of seizure and as such, the courts below rightly did not accept the said challan which was produced after about two months of the alleged offence. It is further submitted that though 600 cft. black stones were seized, however, the challan was produced by the petitioner only for 500 cft. of stone chips. It is also submitted that the factual finding arrived at by the courts below may not be interfered by this Court in exercise of power under Article 226 of the Constitution of India.

5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the order of confiscation of the concerned vehicle which was confirmed by the

appellate as well as the revisional authority.

6. The thrust of the argument of learned counsel for the petitioner is that black stone chips loaded on the said Hywa was mined from the quarry of M/s Santhal Stone Chips and was being transported to the consignee namely, Maa Gauri Stone Chips, Purnadih, Domchanch with a valid challan. In support of the said contention, the petitioner produced Challan No. A1 5990288 dated 10.06.2014, however, the courts below did not accept the said challan doubting the genuineness of the same as the same was produced belatedly on 02.08.2014, whereas the seizure was made on 10.06.2014. The contention of the petitioner is that on the direction of the respondent no. 2, the Range Officer, Doranda Afforestation Range, Giridih had made the enquiry and had found the challan as correct/genuine has not been disputed by the respondents. It has also not been disputed that in spite of the direction of the respondent no. 2, the said officer had not made any spot enquiry to verify the place from where the stone was allegedly mined.

7. It thus appears that the courts below have failed to appreciate the aforesaid facts and disbelieved the challan merely on the ground that the same was produced after some delay. Though the respondent no. 2 had directed the Range Officer, Doranda Afforestation Range, Giridih to make a spot enquiry/verification about the place of alleged mining, however, he had not made any such spot verification, in absence of which it cannot be said that the respondent no. 2 had sufficient reason to conclude that the vehicle in question was involved in commission of forest offence.

8. Learned counsel for the petitioner has put reliance on the judgment rendered by this Court in the case of "Ashok Kumar Gupta Vs. the State of Jharkhand & Ors." [W.P.(C) No. 2725 of 2001]. It was held in the said case that the confiscating authority had committed error in not determining the vital issue as to whether the stone chips was being removed from the raiyati land or from the forest land. The prosecution report prepared by the Forester could not have been treated as sacrosanct so as not to make any enquiry from his level with regard to the place of mining.

9. The learned counsel for the petitioner has further drawn attention of this Court to rule 10.16 of the Bihar Forest Manual which

provides the procedure for enquiry of forest offence cases. Clause (iii) of the said rule stipulates that in all cases of seizure of forest produce, a certificate regarding truthfulness of the case should be obtained from the Mukhiya where the Gram Panchayat exists and where there is no Gram Panchayat, the signature of at least two independent witnesses should be taken on the seizure list. In order to stop institution of frivolous cases, it is absolutely necessary to either have the signatures of independent witnesses of the occurrence on the report or to be authenticated by the Mukhiya of the Gram Panchayat testifying the correctness of the charge. Learned counsel for the petitioner has further highlighted Clause (iv) of Rule 10.16 of the Bihar Forest Manual which provides that local Government Pleader or Assistant Public Prosecutor of each sub-division, as the case may be, should be supplied with the copies of notifications declaring the forest as protected forest who shall keep the same in a guard file and furnish the certified copy thereof on requisition by the court.

10. Learned counsel for the petitioner has thus contended that the prosecution has failed to follow the procedure laid down in Rule 10.16 of the Bihar Forest Manual while preparing the seizure list and as such there is serious procedural irregularity in initiation of confiscation proceeding much less the prosecution for the alleged occurrence which vitiates the entire proceeding.

11. It appears that the revisional court found the said infirmity to be a mere technical lapse and dismissed the revision on the ground that no valid transport permit was produced by the driver or the khalasi of the vehicle at the time of seizure.

12. I am of the view that the procedure as prescribed under Rule 10.16 of the Bihar Forest Manual was framed to have a check on lodging frivolous cases as well as to reflect impartiality of the forest officials while detecting forest offences and if the said procedure is deviated, the benefit of the same must go in favour of the aggrieved person.

13. The learned counsel for the respondents has put reliance on a judgment of the Hon'ble Supreme Court, wherein the scope of the writ court in such matters has been explained.

14. I have perused the constitutional Bench judgment of the

Hon'ble Supreme Court rendered in the case of "Syed Yakoob Vs. K.S Radhakrishnan & Ors." reported in (1964) 5 SCR 64:AIR 1964 SC 477, the relevant part of which reads as under:

7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque [(1955) 1 SCR 1104] NagandraNath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]

15. In the aforesaid case, Their Lordships have held that an

error of law apparent on the face of the record can be corrected by a writ court. It has further been held that if a finding of fact is based on no evidence, the same would be regarded as an error of law which can be corrected by a writ of certiorari.

16. In the present case also, on the basis of aforesaid discussion, it can be observed that the findings of the courts below are also based on no evidence, rather on assumption that since the challan was not produced earlier there was a possibility that the same was procured after the occurrence just to escape from the criminal/confiscation proceeding. The courts below totally ignored the fact that the forest officials failed to collect sufficient evidence so as to suggest that the stones were mined from any protected forest area. The seizure of the stone and the vehicle was also not in accordance with law. Moreover, during the first enquiry made by the Range Officer on the direction of the respondent no. 2, the challan was found genuine as would be evident from the letter of the respondent no. 2 issued vide memo no. 1005 dated 08.10.2014. The said Range Officer, on further direction of the respondent no. 2, did not make any enquiry regarding alleged mining of the stones from forest area.

17. Under the aforesaid facts and circumstances, the impugned order dated 17.02.2020 passed by the respondent no. 4 - the Revisional Authority-cum-Additional Chief Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi in Confiscation Revision No. 02/2019, the order dated 20.08.2018 passed by the respondent no. 3 - the Deputy Commissioner, Giridih in Confiscation Appeal No. 08/2017 and the order dated 28.05.2015 passed by the respondent no. 2 - the Divisional Forest Officer-cum- Authorized Officer, West Forest Division, Giridih in Confiscation Case No. 03/2014 are quashed and set aside. The respondents are directed to forthwith release the petitioner's Hywa vehicle having registration no. JH 12E 1513.

18. The writ petition is accordingly allowed.

(Rajesh Shankar, J.) Manish/AFR