Bidya Bhushan Sinha vs The State Of Jharkhand
2021 Latest Caselaw 3685 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         [Civil Writ Jurisdiction]
                          W.P.(C) No. 1145 of 2005
       Bidya Bhushan Sinha                                       .... ..... Petitioner
                                  Versus
       1.The State of Jharkhand
       2.Commissioner-cum-Secretary, Forest & Environment Department, Jharkhand,
       Ranchi
       3.Deputy Commissioner, Bokaro
       4.Divisional Forest Officer, Bokaro Forest Division, Bokaro.. ... ... Respondents
                                    ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

       For the Petitioner         : Mr. A.K. Sahani, Advocate
       For the Resp.-State        : Md. Shadab Bin Haque, A.C. to Sr. S.C.-I
                                    ......
09/ 29.09.2021.
             Heard, learned counsel for the petitioner.

The writ petition has been preferred by one Bidya Bhushan Sinha, S/o Shri Basudeo Prasad Mahto, R/o Bradih, P.O. & P.S.- Nawadih, District- Bokaro being the owner of truck bearing registration no. JH-11A-2266 for quashing the order dated 29.01.2004 passed by respondent no.2 (Commissioner-cum-Secretary, Forest & Environment Department, Jharkhand, Ranchi) in Revision Case No. C-28/2003, affirming the order dated 26.11.2002 passed by the respondent no.3 (Deputy Commissioner, Bokaro) in Confiscation Appeal No.76 of 2002 and order dated 17.06.2002 passed by respondent no.4 (Divisional Forest Officer, Bokaro Forest Division, Bokaro) in Confiscation Case No.2 of 2002, whereby and whereunder the truck bearing registration No.JH11A-2266 has been confiscated.

Learned counsel for the petitioner, Mr. A.K. Sahani has submitted that it is strange that FIR has been lodged as Nimiaghat P.S. Case No.23 of 2002 dated 09.03.2002, under Sections 413/414/468/467/471/120B IPC and Section 33 of the Forest Act with an allegation that police got confidential information that some forged papers are being prepared for carrying illegal coal over the truck and thereafter police went near Khakikala Line Hotel and found some persons, who started fleeing away shouting that police came. Few persons have been apprehended and one of the apprehended person, Gobardhan Mahto being driver of one of the truck bearing registration No.PB-10/9507 disclosed that his truck and other truck bearing registration No.BHM/5321 and JH-11A/2266 (truck of the petitioner) and HP-20/1281 were carrying illegal coal from Makoli Forest Area plot no.1 and forged papers were prepared by one Manoj Kumar. The police thus lodged FIR.

After investigation, police submitted charge-sheet and the confiscation proceeding was initiated separately.

In the confiscation proceeding, the order of the authority has been passed on 17.06.2002 considering that these trucks were found with illegal coal excavated coal from Makoli Forest Area plot no.1 and thus they have committed, offence under Section 33 of the Forest Act. It has been stated in the order, that Kalyani Colliery has issued certificate and challan to truck bearing registration No.BR13A-8109, JH-11A/5859 and BR2H-9609 for transportation and sale of the coal. It has further been stated that because one of the truck went out of order, the coal was transferred in HP-20/1281 and the same, has been endorsed by Police Inspector, Bermo on the perusal of the permit of truck. On the basis of that learned Divisional Forest Officer-cum-competent authority has dropped the proceeding against one of the truck, which was seized on the same charge along with truck of the petitioner. However, no document has been produced on record, but the confiscation officer has considered the report of the Police Inspector, Bermo and dropped the proceeding against the truck No.HP-20/1281 in the confiscation proceeding.

Learned counsel for the petitioner has further submitted that law of parity has not been considered while giving benefit of doubt in favour of the truck bearing registration No.HP-20/1281 by the Confiscation Officer as in the FIR the allegation is same against all the trucks as that it is alleged that all these trucks were carrying illegal coal from Makoli Forest Area Plot No.1, as such, the order passed in the confiscation case, affirmed in appeal and revision are fit to be set aside.

Learned counsel for the petitioner has further submitted that all three authorities i.e. Divisional Forest Officer, Bokaro, the Deputy Commissioner, Bokaro and the Commissioner-cum-Secretary, Forest & Environment Department, Jharkhand, Ranchi have not considered the spirit of Section 68 of the Indian Forest Act and the judgment passed by the Apex Court in the case of State of Jharkhand & Anr. vs. Govind Singh, reported in 2005 (10) SCC 437 : 2005 (1) JCR (SC)1 whereby the Apex Court has taken note of Section 68 of the Act, i.e. power to compound offences and allowed the appeal by setting aside the order passed by the High Court.

Learned counsel for the respondent-State, Md. Shadab Bin Haque has opposed the prayer and submitted that counter-affidavit has been filed in this matter and from perusal of the confiscation order passed by Confiscation Officer-

cum-Divisional Forest Officer, Bokaro, it appears that for dropping the proceeding against the Truck No.HP-20-1281, at least a document was there with respect to transfer of coal validly on Truck No. HP-20/1281 as the same has been endorsed in the permit of the Truck No. No. BR-2H/9609, as such, the order passed by the officers is on the basis of application of judicial mind and appreciation of facts, but in the present case where confiscation order has been passed against the Truck No.PB-10-9507, whose driver is Gobardhan Mahato and Truck bearing registration No.JH-11A/2266, which belongs to the petitioner, no plausible reason has been placed by the petitioner before the confiscating authority or before the Divisional Forest Officer, Bokaro with regard to coal loaded on the truck and no documents have also been brought on record, as such, after investigation of Nimiaghat P.S. Case No.23 of 2002 dated 09.03.2002, the chargesheet has rightly been submitted and confiscation proceeding has been initiated.

Learned counsel for the respondent-State, Md. Shadeb Bin Haque has further submitted that the Hon'ble Apex Court in the case of State of Madhya Pradesh & Others Vs. Kalo Bai, reported in (2017) 14 SCC 502 has held that criminal prosecution is distinct from confiscation proceedings. Paras-23 and 24 of the aforesaid judgment may profitably be quoted hereunder:-

"23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle.

24. At the cost of repetition we clarify that confiscatory proceedings are independent of the main criminal proceedings. In view of our detailed discussion in the preceding paragraph we are of opinion that High Court as well as revisional court erred in coming to a conclusion that the confiscation under the law was not permissible unless the guilt of the accused is completely established."

Learned counsel for the State has thus submitted that so far the judgment relied by learned counsel for the petitioner with regard to compounding of the offence under Section 68 of the Indian Forest Act is concerned, the same is available to him, but petitioner should have prayed before the confiscating authority under Section 68 of the Indian Forest Act for compounding the offence. This Court while considering the judgment passed by the Confiscating Authority, affirmed by the Appellate Court and the Revisional Court may not interfere in the merit of the case. So far compounding of the offence is concerned, this Court may

direct for the same in accordance with law.

Considering the rival submissions of the parties, looking into the facts and circumstances of the case, this Court has perused the impugned order as well as the materials brought on record. Trucks were found with illegal coal. One of the Truck, which was HP-20/1281 in which coal was found, it was duly explained before the Confiscating Authority that coal from Truck No.BR-2H/9609 was transferred upon the Truck bearing registration No.HP-20/1281, after becoming out of order and to that effect, endorsement was found on the permit, but so far the Truck bearing registration Nos.PB-10/9507 and JH11A/2266, which belongs to the petitioner, is concerned, no plausible explanation has been given by the petitioner explaining the source of coal.

Under the aforesaid circumstances, this Court is not inclined to interfere with the findings recorded by the Confiscating Authority, affirmed by the Appellate Authority and the Revisional Authority, as such, the instant writ petition is dismissed having no merit.

So far the judgment relied by the learned counsel for the petitioner in the case of State of Jharkhand & Anr. vs. Govind Singh, reported in 2005 (10) SCC 437 : 2005 (1) JCR (SC)1, is concerned, the petitioner is at liberty to raise this issue for compounding the offence under Section 68 of the Indian Forest Act before the Confiscating Authority and the Confiscating Authority without being prejudiced by this order, may pass order for compounding the offence in accordance with law, but within a period of three months from the date of filing of such application by the petitioner in the light of above judgment.

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