Om Prakash Yadav vs The State Of Jharkhand
2023 Latest Caselaw 1328 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P.(C) No. 552 of 2021
                                      With
                            W.P.(C) No. 553 of 2021
                                      With
                            W.P.(C) No. 572 of 2021
                                      With
                            W.P.(C) No. 578 of 2021
                                      With
                            W.P.(C) No. 726 of 2021

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Om Prakash Yadav ... ... Petitioner in W.P.(C) No. 552/2021 Irshad Ansari ... ... Petitioner in W.P.(C) No. 553/2021 Subhash Kumar ... ... Petitioner in W.P.(C) No. 572/2021 Md. Sahnawaj Ahmed ... ... Petitioner in W.P.(C) No. 578/2021 Amit Kumar ... ... Petitioner in W.P.(C) No. 726/2021 Versus

1. The State of Jharkhand

2. The Divisional Forest Officer-cum-Authorized Officer, Ramgarh Forest Division, Ramgarh .... ... Respondents (in all cases) CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners : Mr. Nilesh Kumar, Advocate For the Respondents : Mr. Mithilesh Singh, G.A.-IV Mr P.C. Sinha, A.C. to G.A.-III Mr. Anish Kumar Mishra, A.C. to Sr.S.C.-I Mr. Uttam Kumar Das, A.C. to G.P.-VI Ms. Varsha Ramsisaria, A.C. to G.P.-V

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Order No. 11 Dated: 27.03.2023

W.P.C No. 552 of 2021 has been filed for quashing/setting aside the proceeding of Confiscation Case No.146 of 2020 initiated against the petitioner's vehicle bearing registration No. JH-02AX-7856 (Haiwa). Further prayer has been made for issuance of direction upon the concerned respondent to forthwith release the said vehicle in favour of the petitioner.

2. W.P.C No. 553 of 2021 has been filed for quashing/setting aside the proceeding of Confiscation Case No. 145 of 2020 initiated against the petitioner's vehicle bearing registration No. JH-02L-8173 (Dumper). Further prayer has been made for issuance of direction upon the concerned respondent to forthwith release the said vehicle in favour of the petitioner.

3. W.P.C No. 572 of 2021 has been filed for quashing/ setting aside the

proceeding of Confiscation Case No.144 of 2020 initiated against the petitioner's vehicle bearing registration No. JH-01AB- 6746 (Dumper). Further prayer has been made for issuance of direction upon the concerned respondent to forthwith release the said vehicle in favour of the petitioner.

4. W.P.C No. 578 of 2021 has been filed for quashing/setting aside the proceeding of Confiscation Case No. 139 of 2020 initiated against the petitioner's vehicle bearing registration No. OD-23C- 5599 (Haiwa). Further prayer has been made for issuance of direction upon the concerned respondent to forthwith release the said vehicle in favour of the petitioner.

5. W.P.C No. 726 of 2021 has been filed for quashing/setting aside the proceeding of Confiscation Case No.143 of 2020 initiated against the petitioner's vehicle bearing registration No. UP-32FN- 5524 (Haiwa). Further prayer has been made for issuance of direction upon the concerned respondent to forthwith release the said vehicle in favour of the petitioner.

6. Learned counsel for the petitioners submits that on 26.5.2020, the respective vehicles of the petitioners were parked near road that too not within forest area, which were seized by the police. It is further submitted that the petitioners' vehicles are commercial in nature and they along with their family members are fully dependent on the income by plying the said vehicles. An FIR was lodged being Patratu P.S. Case No. 104 of 2020 against the owners and drivers of the vehicles in question, on perusal of which, it would be evident that respective vehicles of the petitioners were found empty. The petitioners except the petitioner of W.P.(C) No. 578 of 2021 have already been granted anticipatory bail by a Bench of this Court whereas the petitioner of W.P.(C) No. 578 of 2021 has been released on bail by the court below itself.

7. It is further submitted that confiscation proceedings for the vehicles in question have also been initiated and the petitioners have been issued notices in the said cases from which it will transpire that the confiscating authority has neither applied his mind nor has bothered to go through the documents and has initiated the confiscation proceedings against the petitioners' vehicles in a very casual manner. On perusal of the FIR itself, it

will appear that sand was not recovered from the vehicles. Moreover, no offence relating to the Indian Forest Act, 1927 (in short, "the Act, 1927") has been alleged against the petitioners in the FIR. The vehicles were seized in the month of May, 2020 and since then those have been lying idle. It is thus submitted that in absence of recovery of any forest produce from the vehicles in question, confiscation proceedings cannot be initiated against them.

8. On the contrary, learned counsel for the respondents submits that the present writ petitions are not maintainable at this stage since the petitioners have not exhausted the alternative remedy available to them under the provisions of the Act, 1927. Section 52 (1) of the Act, 1927 provides that when there is reason to believe that a forest offence has been committed in respect of any forest-produce, such produce, together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing any such offence, may be seized by any forest officer or police officer. As per Section 52-A of the of the said Act, there is provision of filing appeal before the concerned Deputy Commissioner-cum-Appellate Authority against the order of confiscation passed by the Authorized Officer-cum-Divisional Forest Officer i.e., the respondent no. 2 herein.

9. It is further submitted that sand is a forest produce as defined in Section 2(4)(b) of the Indian Forest Act (Bihar Amendment) 1927 and therefore illegal mining and transportation of sand comes under forest offence. The allegation levelled against the petitioners will be tested in the trial and at this stage it is totally incorrect to say that the same is false and frivolous. The concerned vehicles of the petitioners were seized along with other vehicles and some of those were loaded with sand. It has been mentioned in letter no. 424 dated 27.05.2020 issued by the District Mining Officer, Ramgarh to the Officer-in-charge, Patratu P.S. that the drivers of the said vehicles fled away from the site leaving their respective vehicles after unloading sand here and there. It is clearly mentioned in the supervision report of the SDPO, Patratu that an offence has been committed under Section 33/42 of the Act, 1927 including the offences committed under other Acts and thus onus lies upon the petitioners to prove that sand was legally and lawfully obtained by them and their vehicles were not engaged in committing theft of forest produce.

10. Learned counsel for the respondents puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of State of Karnataka Vs. K. Krishna reported in (2000) 7 SCC 80 wherein it has been held that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till culmination of all the proceedings in respect of such offence including confiscation proceeding if any. If a court, for any exceptional reason, is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party should be under impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences.

11. Heard learned counsel for the parties and perused the materials available on record. The petitioners of respective writ petitions have prayed for quashing the confiscation proceedings with respect to their respective vehicles. They have also prayed for release of the said vehicles in their favour.

12. The main submission of the learned counsel for the petitioners is that admittedly, no forest produce was seized from respective vehicles of the petitioners and as such the confiscation proceedings initiated for confiscation of their vehicles are not in accordance with law.

13. On the other hand, the claim of the respondents is that the vehicles of the petitioners were involved in illegal mining and transportation of sand (forest produce) and when the petitioners' vehicles were intercepted, the drivers of the said vehicles unloaded the sand and fled away by leaving the vehicles.

14. It appears from the impugned notices issued to the petitioners that the confiscation proceedings have been initiated for confiscation of their respective vehicles alleging violation of provisions of Section 33 of the Act, 1927 (Bihar Amendment) which inter alia provides punishment for removal of any forest produce. Further, Section 52 of the Act, 1927 (Bihar Amendment) provides that where there is reason to believe that a forest offence has been committed in respect of any forest produce, such

produce, together with all tools, arms, boats, vehicles, chains or any other articles used in committing any such offence, may be seized by any forest officer or police officer.

15. Thus, any property is liable to be seized and confiscated under Section 52 of the Act, 1927 (Bihar Amendment) only when there is a 'reason to believe' that the forest offence has been committed with respect to any forest produce. Prima facie satisfaction of the authority is necessary for initiation of confiscation proceeding.

16. In the case in hand, the allegation against the petitioners is that their vehicles have been used for transportation of sand mined from "Deogarh Ghat" of Damodar river. The vehicles of the petitioners have also not been seized from the forest land. It is not the claim of the respondents that the sand was mined from the forest area. Moreover, nothing has been recovered from the vehicles of the petitioners. Even if the claim of the respondents to the extent that the petitioners' vehicles were being used for illegal transportation of sand, is accepted then also, the same does not constitute forest offence as the respondents have failed to prove that the sand was mined and removed from the forest land. In the supervision report, as has been annexed in the supplementary counter affidavit filed by the respondent no. 2, three places of occurrence have been described and none of those is forest area. Therefore, it cannot be said that the respondent no. 2 had any reason to believe that forest offence was committed by the respective vehicles of the petitioners so as to initiate proceedings for confiscation of the same.

17. That apart, it is evident that the F.I.R. being Patratu P.S Case No. 104 of 2020 was lodged under rule 54 of the Jharkhand Minor Mineral Concession Rules, 2004, rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2017 and Sections 4/21 of the Mines and Minerals (Development & Regulation) Act, 1957 alleging illegal transportation of sand by the vehicles in question, however no forest offence was alleged to have been committed by the petitioners in the said F.I.R.

18. Under the facts and circumstance, I am of the view that confiscation proceedings initiated against the petitioners under Section 52 of the

Act, 1927 (Bihar Amendment) are not maintainable and are liable to be set aside.

19. The writ petitions are accordingly allowed. The confiscation proceedings initiated for confiscation of the respective vehicles of the petitioners are set aside. The respondent no. 2 is directed to release the respective vehicles of the petitioners forthwith.

(Rajesh Shankar, J.) Ritesh/AFR