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2000 DIGILAW 206 (CAL)

Gopal Sarkar v. State of West Bengal

2000-04-24

Amit Talukdar

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Judgment Amit Talukdar, J. The petitioner has moved this application under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure for quashing of the proceeding and the order dated 11.2.2000 passed by the Authorised Officer, Jalpaiguri District and Divisional Forest Officer, Jalpaiguri Division vide Memo No. 657/15-153 dated 11.2.2000. The Memo issued by the Authorised Officer which is being impugned in this application directed confiscation of seized timber along with cutting tools (implements) to the State of West Bengal under section 59A(3) of the Indian Forest Act, 1927, (West Bengal Amendment) 1988. 2. Shri Himangshu Kumar De duly assisted by Shri Tapan Dutta Gupta, Shri A. Jana, Shri S. Banerjee and Shri S. Kundu appearing on behalf of the petitioner submitted that the Memo issued by the Authorised Officer is liable to be set aside by this Court on the premises that since the subject matter of confiscation for which the petitioner has moved this Court, is not a forest produce and not the property of the State Government. As such, the same cannot be confiscated. The farm of the petitioner has been running its business having valid lisence. Shri De relied on a Bench Decision of this Court as reported in 1997(1) CHN 415 (Subash Roy vs. State of W.E.) where the Hon'ble Mr. Justice Satyabrata Sinha held confiscation proceeding as regards the machineries and/or saw mill cannot be held to be valid in terms of section 59A(3) of the Forest Act as amended by the State of West Bengal. 3. The learned Additional Public Prosecutor appearing with Shri Swapan Mallick took the preliminary objection as to the maintainability of this application' since the grievance ventilated by the petitioners was subject to appeal. He has relied on a decision of the Apex Court in the case of Divisional Forest Officer and Anr. vs. G.V. Sudhakar Rao as reported in AIR 1986 SC 328 and has further submitted that the Appeal will lie before the learned District Judge. The learned Additional Public Prosecutor also submitted that the petitioner is not the sole owner. The learned Additional Public Prosecutor relied on clause (17) of section 3 of the General Clauses Act, 1897 and stated that the District Judge shall mean the Judge of it principal Civil Court of original jurisdiction. As such an Appeal should have been filed before the learned District Judge. The learned Additional Public Prosecutor relied on clause (17) of section 3 of the General Clauses Act, 1897 and stated that the District Judge shall mean the Judge of it principal Civil Court of original jurisdiction. As such an Appeal should have been filed before the learned District Judge. 4. It appears that a raid was conducted in the farm of the petitioner on 29.7.98 and seizure was made in respect of 11 pieces of Gammer, Toon, Sisso logs measuring 1.054 meters as they were without the Government Hammer marks and valid Transit Pass. Cutting implements and a part of band saw was also seized from him. The petitioner filed a writ before this Court and a learned Single Judge of this Court on 22.2.98 gave liberty to the petitioner to take appropriate steps before the Divisional Forest Officer for release of the seized goods and pursuant to the said direction passed by the learned Single Judge in W.P. No. 20240 (W) of 1998 by the impugned Memo in question the Authorised Officer has directed confiscation of the seized timber along with cutting tools (implements) etc. 5. At the very first instance Shri De in his usual fairness had abandoned any prayer with respect of return of the timber but concentrated on the release of the cutting equipments which do not form the subject matter of a forest produce. 6. After a careful consideration of the entire facts and circumstances of the instant case and keeping in mind the rival contentions of Shri De and that of the learned Additional Public Prosecutor, I find that there is much substance in the submission of Shri De. Since the "cutting tools (implements) or band saw" are neither forest produce nor the property of the State Government the same cannot be confiscated under sub-clause (3) of section 59A of the Indian Forest Act, 1927. I very respectfully agree with the decision of His Lordship, Satyabrata Sinha, J. as propounded in the case of Subash Roy vs. State of West Bengal (supra) and am of the view that the order passed by the Authorised Officer, Jalpaiguri District and Divisional Forest Officer, Jalpaiguri Division so far as it relates to confiscation with the cutting tools is bad in law and should be set aside. 7. 7. Now with regard to the hurdle pointed out by the learned Additional Public Prosecutor that the order being an appealable order this court has no jurisdiction to entertain an application against an order of confiscation. It is true that the impugned order of confiscation passed under section 59A(3) of the Indian Forest Act is appealable under section 59D of the said Act but the fact remain that the impugned order so far as it relates to confiscation of cutting implements which cannot form the subject matter of a forest produce is wholly without jurisdiction. In this regard, I rely on a Single Bench decision of this Court as reported in 1997 C. Cr. L.R. (Cal) 316 in the case of Sanjoy Kumar Agarwalla vs. State of West Bengal had held where the impugned order was absolutely without jurisdiction this Court sitting in revision can set right the wrong. In view of the materials on record considering the submission of the learned lawyers appearing for the parties, I direct that the Memo No. 657/15-153 dated 11.2.2000 be set aside so far as it relates to confiscation of cutting tools etc. 8. The application is accordingly allowed. 9. There will be no order as to costs. Application allowed.