Madhya Pradesh High Court
Madho Singh vs The State Of Madhya Pradesh on 20 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
(1) W.A. No. 2074/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 20th OF MAY, 2024
WRIT APPEAL No.2074 OF 2023
BETWEEN :-
MADHO SINGH S/O SHRI HARGOVIND
SINGH, AGE ABOUT 48 YEARS,
OCCUPATION -AGRICULTURIST, R/O
VILLAGE - BIJOLI, TEHSIL & DISTRICT
AGRA (U.P.)
.....APPELLANT
(BY SHRI H.K.SHUKLA & SHRI RAJEEV SHRIVASTAVA -
ADVOCATES )
AND
1. STATE OF MADHYA PRADESH
THROUGH GAME RANGE OFFICER,
GAME RANGE AMBAH (NATIONAL
CHAMBAL SANCTURY BHIND)
FOREST CIRCLE, MORENA,
DISTRICT MORENA (MADHYA
PRADESH)
2. THE AUTHORIZED OFFICER AND
SUPERINTENDENT NATIONAL
CHAMBAL SANCTURY DEVI,
DISTRICT MORENA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR - ADDITIONAL ADVOCATE GENERAL )
(2) W.A. No. 2074/2023
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This appeal coming on for admission this day, Justice
Vivek Rusia passed the following:
ORDER
1. The appellant has filed this writ appeal challenging the
order dated 21/09/2022 passed in W.P. No.4460/2014 (State of
M.P. and another Vs. Madho Singh), whereby the writ Court
has set aside the order dated 14/7/2014 passed by X th Additional
Session Judge, Gwalior in Criminal Revision No. 441/2013.
2. Facts of the case in short are as under:-
(i) The appellant is the owner of a Tractor bearing
registration no. UP-80-BW-7386, which was found involved in
the excavation of sand illegally on 13/1/2012 at 7.30 AM near
the bank of Chambal River. On 13/1/2012, the patrolling party
of the Forest Department found one Tractor - Mahindra 475 DI
red colour with blue colour trolley near Ater Ghat of Chambal
River in which a few persons were loading sand in it. After
seeing the patrolling party, the driver of the tractor ran away
along with the tractor and trolley. For want of a vehicle, the
members of the patrolling party could not stop the tractor-
trolley. However, a panchnama was prepared, on the basis of
which POR No. 9815/2002 was registered against unknown
persons for the offences punishable under sections 27, 29, 39,
50, 51 and 1D of the Wildlife Protection Act, 1972 (for short
"the Wildlife Act") and Ss. 41 and 52 of the Indian Forest Act,
1927 (for brevity "the Forest Act"). On 14/1/2012, information
was received from Police Station Ater that one Tractor-trolley
had been found with sand without a permit. In-charge officer
Kadam Singh went to the Police Station and found the Tractor
Trolley parked on the premises of the Police Station. The
Tractor was seized by the Forest Authorities and information
was sent to JMFC, Bhind. Proceedings were initiated by the
Prescribed Authority for confiscation of the Tractor by issuing a
notice to the present appellant. The appellant appeared and
denied the involvement of his Tractor in the illegal mining. He
produced TP No.31, Passbook No. 10242 dated 12/1/2012 that
the Tractor was transporting sand with due permission.
However, the aforesaid defence was disbelieved and vide order
dated 13/1/2012, the Prescribed Authority i.e. Superintendent,
National Chambal Sanctuary, Devri, Morena, in exercise of
power under section 41 of the Forest Act passed an order of
confiscation of Tractor UP-80-BW-7386 and forest produce i.e.
1 Cu. M. sand under section 52(3) of the Forest Act.
(ii) Being aggrieved by the aforesaid order, the appellant
preferred an appeal before the appellate Authority which came
to be dismissed vide order dated 14/2/2013. Thereafter, the
petitioner preferred a criminal revision before Additional
Sessions Judge, Gwalior which was registered as Cr.R. No.
113/2013 and vide order dated 5/6/2013, the criminal revision
was allowed and the matter was remitted back to the prescribed
Authority for passing a fresh order after giving opportunity to
the appellant to produce the document and evidence.
(iii) After remand, the prescribed Authority again passed an
order of confiscation of the above tractor-trolly on 12/8/2013.
The petitioner preferred an appeal which came to be dismissed
by the appellate Authority vide order dated 18/11/2013. Again,
the appellant preferred a criminal revision no. 441/2013 before
the Xth Additional Sessions Judge, Gwalior. Vide order
14/7/2014, the learned Additional Sessions Judge allowed the
revision and quashed the order of prescribed Authority, as well
as, appellate Authority and directed to release the Tractor &
Trolley.
(iv) Being aggrieved by the aforesaid order, the State of
Madhya Pradesh and authorized Officer i.e. Superintendent,
National Chambal Sanctuary, Devri filed Writ Petition No.
4460/2014. The writ petition was opposed by the appellant.
(v) Meanwhile, a criminal case was also registered against
the driver as well as the appellant for the offences punishable
under sections 27, 29 and 51 of the Wildlife Protection Act,
1972 as Case No.1363/2014 before the JMFC. Vide judgment
dated 17/12/2021, the appellant has been acquitted of all the
charges as the prosecution has failed to prove the case.
(vi) Another criminal case no. 208/12 was registered against
driver Ramshankar by the Police Station, Ater under section
4/21 of the Mines and Mineral (Development and Regulation)
Act, 1957 (for short "the MMDR Act"). However, vide
judgment dated 12/2/2013, by relying on TP No. 31 (Ex.D/1),
the driver has been acquitted from the charges.
3. The writ petition remained pending for eight years and
vide order dated 21/9/2020 came to be allowed in favour of the
State Government. The writ Court has held that the TP No.31
produced by the appellant is a forged document and the Tractor
and Trolley No.475 DI Mahindra Red Color, was involved in
the illegal excavation of sand from the National Chambal
Sanctuary area and set aside the order passed by the Xth
Additional Sessions Judge dated 14/7/2014. Hence, this appeal
before this Court.
4. Vide order dated 6/5/2024, this Court directed the
Government to produce the latest photograph of the Tractor in
order to examine its condition and obtain information on
whether the order of acquittal dated 17/12/2021 has been
challenged by the State before the High Court.
5. Learned counsel for the appellant submits that still, the
appellant is still ready to take the Tractor-trolley, which was
wrongly confiscated by the forest Authorities. The revisional
Court learned ASJ, while deciding the revision, has duly
considered the evidence and material available on record and
found that there is no evidence to establish that the sand lying
in the Tractor was extracted from the bank of Chambal River.
The appellant rightly produced the TP for the transportation of
sand. The tractor-trolley was not seized on the spot and the
driver was not arrested by the Forest Authorities. Therefore, the
confiscation under the Wild Life and the Forest Act is illegal.
6. Shri Vivek Khedkar, learned Additional Advocate
General submits that the writ Court has rightly examined the
authenticity of the TP produced by the appellant, therefore, the
criminal case was rightly registered by the Police under the
MMDR Act. Since the sand being a mineral is also a forest
produce, therefore, the vehicle has rightly been seized under the
provisions of the Forest Act and Wild Life Act. No interference
is called for and the writ petition is liable to be dismissed.
7. We have perused the entire facts and grounds stated in the
memo of the writ petition to challenge the order dated
14/7/2014. The respondent/State has not challenged the order of
the learned ASJ on the ground that the TP is forged. Even in
both criminal cases, no finding has been recorded by the
competent Criminal Court about the TP being forged.
Therefore, the writ Court has wrongly considered the issue of
the validity of TP in its order dated 21/9/2022 for setting aside
the order of confiscation dated 14/7/2014.
8. The TP was produced before the JMFC in Criminal Case
NO.1363/2014 and it was marked as Ex.D/1 and it was not the
case of the prosecution that the driver produced a forged TP in
respect of the sand on the Tractor. The JMFC, after appreciating
the evidence found that the forest case was registered against
unknown persons and no number of tractors and Trolley was
recorded. The Tractor-trolley was seized in the case in hand on
the next day when it was found parked in the Police Station in
some other case. Therefore, the prosecution has failed to prove
that the sand was illegally extracted from the National Chambal
Sanctuary area and loaded in this tractor-trolley by the driver .
No sampling was taken and the matter was not informed to the
Mining Department to verify whether the sand found in the
Tractor-trolley was extracted from the National Chambal
Sanctuary area. The findings recorded by the JMFC in the
criminal case in paras 10, 11 are reproduced below:-
10- izdj.k esa izLrqr ih 4 dh ih-vks-vkj fjiksVZ ds
voyksdu ls nf'kZr gS fd mDr fjiksVZ esa ?kVuk esa lfEeyr
okgu ds laca/k esa dksbZ mYys[k ugha fd;k x;k gSA tIrhukek
izn'kZ ih 3 ds voyksdu ls nf'kZr gS fd tIr'kqnk jsr fdl
O;fDr ls tIr gqbZ gS] mlds LFkku ij vKkr fy[kk gS A
izdj.k esa layXu izn'kZ ih 1 ds voyksdu ls nf'kZr gS fd
mDr iapukek esa ;g mYys[k fd;k x;k gS fd LVkQ dks
ns[kdj jsr Hkjus okys yksx viuk lkeku ysdj Hkkx x;s vkSj
okgu pkyd VzsDVj dks Hkxkdj ys x;k A ,sls esa ;g rF;
lansgizn gks tkrk gS fd lk{khx.k }kjk ekSds ij vfHk;qDrx.k
dks jsr [kuu djrs gq, ns[kk x;k ;k ugha A tcfd izn'kZ ih
4 vKkr vkjksfi;ksa ds fo:) ys[k fd;k tkuk crk;k x;k gSA
;gka ;g Hkh mYys[kuh; gS fd iapukek izn'kZ ih 2 tks fd
iqfyl Fkkuk vVsj esa cuk;k x;k gS] esa ;g mYys[k gS fd tks
vkj{kh vVsj esa VzsDVj Vzkyh j[kh x;h Fkh mlesa vVsj ?kkV dk
pacy unh dk jsr Fkk] ysfdu mDr laca/k esa dksbZ tkap tks
mDr VzsDVj Vzkyh tks Fkkus ij j[kh Fkh] esa pacy unh dk jsr
Fkk A bl laca/k esa dksbZ rF; vfHkys[k ij ugha gS A lk{kh
jfoUnz dqekj ?kkdM ¼v-lk1½ us izrhijh{k.k esa bl laca/k esa
crk;k gS fd mls tkudkjh ugha gS fd jsr dh lsifyax djk;h
x;h Fkh vFkok ugha A lk{kh fot; rksej ¼v-lk 3½ }kjk mlds
le{k dksbZ Hkh lsaifyax djk;s tkus ds rF; ls badkj fd;k
gSA
11- ;gka ;g Hkh mYys[kuh; gS fd lk{khx.k fnukad 13-01-
12 dks pacy unh vVsj ?kkV {ksrz eas lkewfgd xLrh djuk
crkrs gSa rFkk ?kVukLFky vVsj ?kkV ,oa vkj{kh dsanz
vVsj esa izn'kZ ih-1 yxk;r 5 dh dk;Zokgh djuk crkrs gSa]
ysfdu mDr laca/k esa dk;Zokgh r[rk dks izdj.k esa is'k dj
izekf.kr ugha djk;k gS A izdj.k easa vfHkys[k ij vk;s fdlh
Hkh lk{kh }kjk ;g Li"V :i ls izdV ugha fd;k x;k gS fd
vfHk;qDrx.k }kjk gh vVsj ?kkV ls jsr dk voS?k mR[kuu
fd;k x;k vkSj u gh bl ckor~ dksbZ lk{; vfHkys[k ij gS fd
mR[kuu ls tyh; thoksa ds vkokl o v.Ms u"V gq, A
vfHkys[k ij ,slh Hkh dksbZ lk{; ugha gS] ftlls ;s ifjfyf{kr
gks fd vfHk;qDrx.k ds vkf/kiR; ls mDr jsr tIr dh x;h gSA
,sls esa vfHk;kstu dgkuh iw.kZr% lansgkLin gks tkrh gS A
The aforesaid judgment has attained finality. The
appellant, as well as the driver, both have been acquitted of the
charges under sections 27, 29 and 51 of the Wild Life Act.
Therefore, the seizure in the aforesaid case is also illegal and
liable to be set aside.
9. So far as another criminal case registered against the
Driver i.e. Criminal Case No. 208/2012 in respect of violation
of Ss.4/21 of the MMDR Act is concerned, the JMFC vide
judgment dated 12/2/2013 has acquitted him as the prosecution
had failed to prove the illegal extraction and transportation of
sand. The TP dated 12/1/2012, as well as, the royalty receipt,
both have been found proven. The sand was found extracted
from Bharoli mines. Even the said order was not challenged by
way of appeal or revision before the higher Court. In both the
criminal cases registered under the Mines Act, as well as, the
Wildlife Act, neither appellant nor his driver has been
convicted. Therefore, the confiscation of the vehicle is not
justified. The Additional Sessions Judge has rightly passed the
order dated 14/7/2014. The State Government has not
challenged the order dated 14/7/2014 on the ground that the TP
No.31 is a forged document. The writ Court has wrongly set
aside the order on the ground which was not raised in the writ
petition. The State Government has failed to prove that the sand
which was confiscated along with the Tractor and Trolley is
extracted from the bank of Chambal River within the Chambal
sanctuary and it was the same Tractor which was seen on the
spot by the Forest patrolling party. The Tractor-Trolley have
been unnecessarily lying since last more than 10 years in the
Police Station without any protection. The appellant has already
suffered a huge loss due to the illegal seizure by the Forest
Authorities. Hence, the order of the writ Court is set aside.
Writ appeal is allowed.
The appellant shall be at liberty to claim damages from
the Forest Authorities.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(and)
