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1997 DIGILAW 717 (PAT)

Ayub Zaidi v. State Of Bihar

1997-09-29

M.Y.EQBAL, S.K.CHATTOPADHYAYA

body1997
Judgment S.K.CHATTOPADHYAYA, J. 1. This appeal is directed against the order dated 6.3.1997 passed by a learned Single Judge in Cr.WJC No. 2/97(R) by reason of which the prayer of the appellant for release of the vehicle has been rejected on the ground that confiscation case is pending. 2. The stamp reported has raised an objection regarding maintainability of this appeal inasmuch as an order passed by the High Court under Article 226 of the Constitution in a Criminal case is not appellable under Clause 10 of the Letters Patent. 3. Before adverting to the question of maintainability some facts are necessary to be stated: The aforesaid Criminal Writ 2/97(R) was filed for quashing the seizure of Mini Bus which was seized on 14.9.1996 and to direct the respondents to release the same immediately. It appears that earlier also the appellant moved this Court in Cr. WJC No. 192/96(R) and after some arguments when the counsel for the writ petitioner prayed for withdrawal of the case, that liberty was given to the petitioner to prefer an appeal before approriate authority by the order dated 21.11.1996 and the writ application was dismissed as withdrawn. It was further directed that the appropriate authority will consider the case of the petitioner regarding release of the vehicle on merit without being prejudiced by the said order of withdrawal. Thereafter, the Deputy Commissioner, Ranchi heard the appeal filed by the appellant and by order dated 18.12.1996 refused the praver of the appellant for release of the said Mini Bus. It is not in dispute that the said Mini Bus was carrying forest produce without any valid permit and, as such the said Mini Bus was seized. Before the Deputy Commissioner the appellant made an argument regarding legality or otherwise of the seizure and the involvement of the vehicle in the commission of the crime. The appellate authority opined that as because the matter was subjudice before the Divisional Forest Officer,. Ranchi East Division-cum-Forest Officer under the Forest Act, that was not the proper stage for the appellant to raise all such points before the said Officer. Against that order dated 18.12.1996 when the appellant again moved this Court in Cr. The appellate authority opined that as because the matter was subjudice before the Divisional Forest Officer,. Ranchi East Division-cum-Forest Officer under the Forest Act, that was not the proper stage for the appellant to raise all such points before the said Officer. Against that order dated 18.12.1996 when the appellant again moved this Court in Cr. WJC No. 2/97(R) raising similar points of illegality in seizure and jurisdiction of the authority to seize the same, the learned Single Judge by the order dated 6.3.1997, disposed of the same on the ground that confiscation matter was still pending before the Divisional Forest Officer (East) Division, Ranchi. The writ petitioner was directed to co-operate with the confiscation proceeding and the authority was directed to try to conclude the confiscation matter within two months from the date of receipt/production of a copy of that order. 4. Mr. Anil Kumar Sinha, learned Sr. counsel appearing on behalf of the appellant, has submitted that if the High Court exercises its power under Article 226 of the Constitution irrespective of the fact whether it is levelled as Civil Writ or Criminal Writ, Letters Patent Appeal is maintainable against the said order. 5. Mr. Sinha, arguing or merits of the case, with reference to a decision reported in 1993 BBCJ, 538 submitted that the Forester was not authorised to seize the vehicle. With reference to an order dated 10.3.1997 passed by a Division Bench in LPA No. 134/97R Asif Ali V/s. State of Bihar, lastly he contended that even assuming for the take of argument but not conceding, that LPA is not maintainable against an order passed bv the iearned Single Judge in a Criminal Writ petition, the High Court, in the interest of justice can also direct for the release of the vehicle at LPA stage itself. 6. It is true that in the case of Asif Ali (supra; the Division Bench, considering the fact that the petitioner was not interested in the release of timber but was interested in the release of the vehicle in question itself, was of the view that the confiscation proceeding should be disposed of in the manner directed by the learned Single Judge but having regard to the fact that the value of the vehicle in question might be reduced during that period, directed to release the said vehicle of furnishing adequate security. However, in my view, if the LPA itself is not maintainable against an order passed by a learned Single Judge in a Criminal Writ petition, the LPA Court cannot pass an order which will frustrate the intention of the Legislature. 7. The question of maintainability of LPA in such circumstance, was raised before another Division Bench in LPA No. 63/95(R) Harun Toppo V/s. Union of India and others, reported in 1998(1) East CrC 661, and by order dated 13.4.1995, considering the clause 10 of the Letters Patent, the Division Bench held that the LPA against an order of the learned Single Judge exercising writ jurisdiction in a criminal writ application, is misconceived and the same was dismissed as not maintainable. Mr. Sinha has not been able to point out any decision of the Court which has taken a contrary view. 8. Having considered the pros "and cons of the entire matter I am of the view that the present LPA is not maintainable and I find no reason to disagree with the decision rendered by the Division Bench in the case of Harun Toppo (supra). 9. In the result, I find no merit in the appeal which is dismissed as not maintainable.