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1995 DIGILAW 506 (PAT)

Mumtaz Ahmad v. State Of Bihar

1995-09-08

GURUSHARAN SHARMA, S.K.HOMCHAUDHURI

body1995
Judgment 1. Because of the divergence of views expressed by two Honble Judges in two different judgments on the question as to whether after amandment of Section 52 of the Indian Forest Act (hereinafter referred to as the Act) by the Bihar Act 9 of 1990, the authorised officer or the original authority of confiscation proceeding as per provision of Section 52 of the Act, as amended, has jurisdiction to release the seized property, in respect of which confiscation proceeding is initiated, during the pendency of the confiscation proceeding, or not. 2. In the case of Anatnul Haque V/s. State of Bihar, reported in 1995(2) PLJR 153, Honble Nagendra Rai, J., after considering the effect of Bihar Act 9 of 1990, has held in paragraph 23 of the judgment as follows: "The provisions of Section 52 clearly shows that the Legislature never intended that the forest produce and the articles used in commission of the offence should be released in course of confiscation proceeding." In paragraph 25 of his judgment, Honble Nagendra Rai, J. has further held as follows : "..........suficient number of forest officers are required to be authorised under Section 52 of the said Act to deal with the confiscation proceeding especially when there is no provision for the release of the properties during the pendency of the confiscation proceeding." 3. But in a judgment dated 27-4-1995 in the case of Maqbool Ansari V/s. The State of Bihar and another, Cr WJC No. 42/95 (R), since reported in 1995 (2) East Cr. C. 447), Honble S. K. Chattopadhyaya, J., on the other hand, has held that under various provisions of the Bihar Act 9 of 1990, read with Section 61 of the Central Act, the authorised officer dealing with the confiscation proceeding of vehicle, involved in offence under the Forest Act can release the vehicle during the pendancy of the confiscation proceeding before him. 4. Chapter IX of the Act provides for imposition of penalties and procedures thereof. With a view to preventing the growing menace of deforestation and wanton exploitation of Government reserved forest by illicit felling of valuable trees and forest produce, Section-52 of the Act was amended by Bihar Act 9 of 1990. By the amendment, not only the original provision of Section 52 of the Act was amended, but new sections, namely, Sections 52-A, 52-B, 52-C and 52-D are inserted. By the amendment, not only the original provision of Section 52 of the Act was amended, but new sections, namely, Sections 52-A, 52-B, 52-C and 52-D are inserted. To decide the question involved, it is appropriate to have a look into the provisions of Section 52 of the Act before and after amendment by Bihar Act 9 of 1990, Sections 52-A, 52-B, 52-C and 52-D and Sections 53 and 61 of the Act: Section 52 of the Act before amendment 52 (1) 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 boats, carts or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer. (2) Every officer seizing any property under this section shall place on such property a mark: indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Section 52 of the Act after amendment by Bihar Act 9 of 1990 52 (1) When there is reasoa to belived 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 (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall as soon as may be, either produce the property seized before an officer not below the rank of Divisional Forest Officer authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or where it is having regard to quantity of bulk Or other genuine difficulty not practicable to produce to property seized before the authorised officer, or where it is intended to launch criminal proceedings against the offender, immediately, make a report of 8uch seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made : ProvisoSame. (3) Subject to sub-section (5) where the authorised officer upon production before him of property seized or upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and reason to be recorded, confiscate forest, produce so seized together with all tools, arms boats, vehicles ropes, chains or any other article used in committing such offence. The Magistrate having jurisdiction to try the offence concerned may, on the basis of the report of the authorised confiscating officer, cancel the registration of a vehicle used in committing the offence, the licence of the vehicle-driver and the licence of the arms. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of Forests of the Forest Circle in which the forest produce, as the case may be, has been seized. (4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer (a) sends an intimation about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made ; (b) issues a notice in writing to the person from whom the property is seized and to other person who may appear to the authorised officer to have some interest in such property; (c) affords an opportunity to the person referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation ; and (d) gives to the officer effecting the seizure and the persons or person to whom notice has been issued under clause (b), a hearing on date to be fixed for such purposes. (5) No order of confiscation under sub-section (3) of any tools, arms boats vehicles, ropes, chains or any other article (other than the forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such tools, arms, boats vehicles, ropes, chains or other articles were used without his knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission of forest offence. "52-A. Appeal against the order of confiscation.Any person aggrieved by an order of confiscation may, within thirty days of the order or if the fact of such order has not been communicated to him within thirty days of date of knowledge of such order, prefer an appeal in writing, accompanied by such fee payable in such form as may be prescribed, along with the certified copy of order of confiscation to the District Magistrate (hereinafter referred to as Appellate Authority) of the District in which the forest produce has been seized. Explanation.(1) The time required for obtaining certified copy of order of confiscation shall be excluded while computing period of thirty days referred to in this sub-section. (2) The Appellate Authority referred to in Section 52-A, may, where no appeal has been preferred before him, suo motu within thirty days of date of receipt of copy of order of confiscation by him, and shall on presentation of memorandum of appeal issue a notice for hearing of appeal or, as the case may be, of suo motu action to the officer effecting seizure and to any other person (including appellant, if any) who in the opinion of the Appellate Authority, is likely to be adversely affected by the order of confiscation, and may send for the record of the case : Provided that no formal notice of appeal need be issued to such amongst the appellant, officer effecting seizure and any other person likely to be adversely affected as aforesaid as may waive the notice or as may be informed in any other manner of date of hearing of appeal by the Appellate Authority. (3) The Appellate Authority shall send intimation in writing of lodging of appeal or about suo motu action, to the authorised officer. (4) The Appellate Authority may pass such order of interim nature for custody, preservation or disposal (if necessary) of the subject matter of confiscation, as may appear to be just or proper in the circumstances of the case. (5) The Appellate Authority, having regard to the nature of the case or the complexities involved, may permit parties to the appeal to be represented by their respective legal practitioners. (5) The Appellate Authority, having regard to the nature of the case or the complexities involved, may permit parties to the appeal to be represented by their respective legal practitioners. (6) On the date fixed for hearing of the appeal or suo motu action, or on such date to which the hearing may be adjourned the Appellate Authority shall peruse the record and hear the parties to the appeal if present in person or through any agent duly authorised in writing or through a legal practitioner and shall, thereafter, proceed to pass an order of confiscation, reversal or modification of order of confiscation : Provided that before passing any final order the Appellate Authority may, if it is considered necessary for proper decision of appeal or for proper disposal of suo motu action make further inquiry itself or cause it to be made by the authorised officer and may also allow the parties to file affidavits for asserting or refuting any fact that may arise for consideration and may allow proof of facts by affidavits. (7) The Appellate Authority may also pass such orders of consequential nature, as it may deem necessary. (8) Copy of final order or an order of consequential nature shall be sent to the authorised officer for compliance or for passing any order appropriate in conformity with the order of Appellate Authority. 52-5. Petition for revision before Secretary, Forest and Environment Department, Government of Bihar, against the order of the Appellate Authority. (1) Any party to the appeal, aggrieved by final order or by order consequential nature passed by the Appellate Authority, may within thirty days of the order sought to be impugned, submit a petition for revision to the Secretary, Forest and Environment Department, Government of Bihar. Explanation.In computing the period of thirty days under this sub-section, the time requisite for obtaining certified copy of order of Appellate Authority shall be excluded. (2) The Secretary, Forest and Environment Department, Government of Bihar may confirm, reverse or modify any final order of consequential nature passed by the Appellate Authority. (3) Copies of the order passed in revision shall be sent to the Appellate Authority and to the authorised officer for compliance or for passing such further order or for taking such further action as may be directed by such court. (3) Copies of the order passed in revision shall be sent to the Appellate Authority and to the authorised officer for compliance or for passing such further order or for taking such further action as may be directed by such court. (4) For entertaining heating and deciding a revision under this section, the Secretary, Forest and Environment Department. Government of Bihar shall, as far may be, exercise the same powers and follow the same procedure as exercised and followed while entertaining, hearing and deciding a revision under ths Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (5) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974), the order passed under this section shall be final and shall not be called in question before the court. 52-C. Bar of jurisdiction of courts etc. in certain circumstances. (1)On receipt of intimation under sub-section (4) of Section 52 about initiation of proceeding 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, or Tribunal (other than the authorised officer, appellate authority and revisional authority referred to in Section 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 or 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 on receipt of intimation under sub-section (1) 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. (2) Nothing in sub-section (1) shall affect the power saved under Section 61. 52-D. Power of entry, inspection, search and seizure.Notwithstanding anything contained in any other law for the time being in force any Forest Officer not below the rank of Range Officer of Forest or any police officer not below the rank of Sub-Inspector may, if he has reasonable ground to believe that any forest offence has been committed in contravention of this Act, enter upon, inspect and search any place, premises, appurtenances thereto, land, vehicles or boat and seize any illegal forest produce and all tools, arms, boats, vehicles, ropes, chains or any other article used in committing such offence. 53. Power to release property seized under Section 52.Any Forest Officer of rank not inferior to that of a Ranger who, or whose subordinate has seized any tools, boat, carts or cattle under Section 52, may release the same on the execution by the owner thereof a bond for the production of the property so released, if if any when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. 61. Saving of power to release property seized.Nothing hereinbefore contained shall be deemed to prevent any officer empowered in this behalf by the State Government from directing at any time the immediate release of any property seized under Sec. 52." 5. Under sub-section (1) of Section 52 of the Act before amendment by Bihar Act 9 of 1990, when forest offence was believed to have been committed in respect of any forest produce, such produce together with all tools, boats, carts or cattle etc. used in committing the offence might be seized by any Forest Officer or Police Officer. Under Section 53 of the Act, any officer not below the rank of any Ranger is empowered to release any tools, boat, carts or cattle, seized under Section 52 of the Act on execution of bond by owner thereof. Section 53 of the Act has not been amended by Bihar Act 9 of 1990. As such, power to release ssized articles, including carriers, which were used for committing forest offence, still continues. Section 53 of the Act has not been amended by Bihar Act 9 of 1990. As such, power to release ssized articles, including carriers, which were used for committing forest offence, still continues. Under Section 52-C of the Act, inserted by Bihar Act 9 of 1990, no court or Tribunal other than Forest Officer or appellate authority or revisional authority referred to in Sections 52, 52-A and 52-B shall have jurisdiction to make orders in regard to possession, delivery, disposal or distribution of property in regard to which proceedings for confiscation or any other law for the time being in force. After amendment thereof by Bihar Act 9 of 1990, when a forest offence is committed in respect of any forest produce, a Forest Officer or Police Officer has been empowered to seize the said forest produce together with all tools, arms, boats, vehicles, ropes chains or any other articles used in committing the forest offence. 6. Now, question arises whether the arms, vehicles, ropes, chains or any other articles not having been mentioned in Section 53 of the Act, whether those articles, seized in connection with commission of forest offence be released in exercise of the power under Section 53 of the Act ? On reading of sub-section (1) of Section 52 of the Act as it was applicable in the State of Bihar prior to amendment thereof Bihar Act 9 of 1990, it is apparent that the legislative intendment was that when a forest offence is committed in respect of any forest produce, said forest produce, along with all articles, namely, all kinds of tools as well as means of transportationlused to commit the offence, could be seized by the Forest Officer or Police Officer. The tools, carts, boat and cattle as mentioned in the said section, are illustrative but not exhaustive. A judicial notice may be taken to the fact that at the material time of enactment of the Act in the year 1927, the means of transportation used in committing forest offence in respect of any forest produce, were carte, boats and cattle. At that time, hardly any vehicle was used in committing forest offence because of the fact that forest produce was abundantly and cheaply available and there were a few motorable roads connecting reserved forests to facilitate clandestine transportation of the forest produce by vehicle. At that time, hardly any vehicle was used in committing forest offence because of the fact that forest produce was abundantly and cheaply available and there were a few motorable roads connecting reserved forests to facilitate clandestine transportation of the forest produce by vehicle. As such, the power conferred on the officer, not below the rank of a Ranger under Section 53 of the Act to release the tools, boats, carts, cattle etc. seized under Section 52 of the Act can reasonably be read to include all means of transportation and tools used in commission of the forest offence. The means of transportation mentioned therein are merely illustrative but not exhaustive. Had there been no amendment of Section 52 of the Act by Bihar Act 9 of 1990 could it be said that vehicles, arms or rope or chains used in committing forest offence in respect of forest produce could not be seized by the Police Officer or the forest officer because of non-mention thereof in Section 52 of the Act ? Such proposition would be unreasonable one absurd. As such, we are of the view that under Section 53 of the Act, power to release the means of transportation and tools which are seized in connection with commission of the forest offence in respect of forest produce, extends to release all kinds of tools and all means of transportation including, vehicles, ropes, chains, cattle etc. used in commission of forest offence by the officer empowered by the said section. The Divisional Forest Officer, the authorised officer to initiate proceeding for confiscation of the seized tools and all means of transportation used in commission of forest offence, being much superior in the rank to that of the Ranger is also competent to release such tools and means of transportation in exercise of power under Section 53 of the Act. Section 61 empowers any officer, empowered in that behalf of the State Government, to direct at any time immediate release of the property seized under Section 52 of the Act, notwithstanding foregoing provisions of the Act. 7. Section 61 empowers any officer, empowered in that behalf of the State Government, to direct at any time immediate release of the property seized under Section 52 of the Act, notwithstanding foregoing provisions of the Act. 7. For the reasons stated above, in respectful agreement with the view expressed by Honble S.K. Chatopadhyaya, J., in the judgment and order passed in Maqbool Ansari V/s. The State of Bihar and another (supra), we hold that the authorised officer is competent to release articles seized under Section 52 of the Act, which are subject-matter of confiscation proceeding, at any time during the pendency of the confiscation proceeding before him. 8. This petition is, therefore, dismissed with the observation that the petitioner may approach the authorised officer, or appellate authority, as the case may he for release of the vehicle.