Subadeen Son Of Azim vs State Of Rajasthan
2022 Latest Caselaw 5328 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 845/2022

Subadeen Son Of Azim, R/o 267, Samast Gram Godhan, Tehsil
Tijara, District Alwar. ( Regd. Owner Of Vehicle Tractor Farm
Track Regd. No. Rj-40-Ra-1264 )
                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through P.p.
                                                                ----Respondent

For Petitioner(s) : Ms. Sunita Vashishtha, Adv. For Respondent(s) : Mr. Prashant Sharma, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR Order

01/08/2022

1. In this petition under Section 482 Cr.P.C., the petitioner has

challenged the order dated 30.10.2021 whereby the learned

Additional Chief Judicial Magistrate, Bhiwadi District Alwar refused

the prayer of the petitioner for interim custody of the seized

vehicle under the provisions of Section 457 Cr.P.C.

2. The vehicle of the petitioner was seized in connection with

FIR No. 104/2019 registered with Police Station Bhiwadi Phase-3

District Alwar for offences under Section 143, 353, 336, 379 as

well as for offence under Section 33, 41 and 42 of the Rajasthan

Forest Act. According to the FIR dated 10.05.2019, while the

forest officer was on patrolling near Kaharani he saw that some

tractors, JCB & dumper loaded with forest product was coming and

when he checked the tractor trolly bearing registration No. RJ-40-

RA-1264 and found the driver carrying minerals in the tractor

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trolly without payment of royalty, transit pass etc. The vehicle ran

away from the spot.

3. Learned counsel for the petitioner has relied on the judgment

of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai Vs.

State of Gujarat, (2002) 10 SCC 283 and other judgments of

this Court for his submission that continued detention of the

vehicle would not serve any purpose as the respondent has not

brought anything on the record that any confiscation proceedings

is going on in respect of the seized vehicle.

4. Learned Public Prosecutor opposed the prayer on the ground

that illegal mining and removal of forest products is not only loss

to an individual but to the society at large, ecological imbalance

caused by such destruction is national concern and in several

judgments, the States have been directed to ensure restoration of

ecological imbalance and to stop damage being caused to the

nature.

5. The State respondents have neither brought before this

Court nor produced any material before the court below, which

would be evident from the impugned order, that a proceeding for

confiscation is already going on before the Competent Authority or

has been completed as required under the law.

6. In State of Karnataka Vs. K. Krishnan reported in AIR

2000 SC 2729, the Honble Supreme Court was considering the

identical issue and observed in para 7 of the judgment as follows:

"Learned counsel appearing for the appellant- State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to

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confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattles, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother- earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view 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 the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the 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. Its casualty will be the forests as the same cannot be replenished for years to come."

7. In State of Madhya Pradesh Vs. Uday Singh & other

connected matters reported in (2020) 12 SCC 733, the

Hon'ble Supreme Court was considering the identical provisions in

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Madhya Pradesh Forest Act, 1927 and held that the jurisdiction of

the Court to release such property under Section 451 Cr.P.C. as

per the ordinary procedure is barred by operation of Section 52-

C(1) of the Forest Act, 1927, therefore, the High Court could not

have directed release of such property in exercise of powers under

Section 482 Cr.P.C.

8. Section 52C of the Rajasthan Forest Act, 1953 reads as

follows:

52C. Bar to jurisdiction of Court, etc. under certain circumstances. -(1) On receipt of intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property, which is subject matter of confiscation, has been made, no court, tribunal or authority (other than the authorised officer, the Appellate Authority and the Court of Sessions referred to in Secs. 52, 52-A and 52- B), shall have jurisdiction to make orders with regard to possession, delivery, disposal, or distribution of the property in regard to which proceedings for confiscation are initiated under Section 52, notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force.

Explanation. - Where under any law for the time being in force, two or more Courts have jurisdiction to try forest offence, then receipt of intimation under sub-section (4) of Section 52 by one of the Courts of Magistrates having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.

(2) Nothing in sub-Section (1) shall affect the power saved under Section 61.]

9. Neither the impugned order reveals that the learned

Magistrate was informed about initiation of the confiscation

proceedings nor anything has been brought to the notice of this

Court that confiscation proceedings has already started. In the

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situation, no fruitful purpose would be served by continued

detention of the seized tractor and trolley, therefore, it is directed

as under:

(i) that the petitioner shall deposit Bank Guarantee of Rs. 3 lacs with two sureties of like amount for tractor and trolly separately to ensure compliance of the order of the competent court.

(ii) The petitioner shall file an undertaking on oath that in future he would not indulge in any such illegal activity or damage or removal of forest products nor the released vehicle would be used for the purpose.

10. It is made clear that in case confiscation proceedings in

respect of the said vehicle has already started or the vehicle has

been already confiscated, then the said vehicle shall not be

released in pursuance of this order as held in the case of State of

Madhya Pradesh Vs. Uday Singh (supra).

11. To the aforesaid extent, this petition stands allowed.

(BIRENDRA KUMAR),J

ANIL SHARMA /55

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