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2000 DIGILAW 829 (PAT)

Raghu Nandan Ram v. State Of Bihar

2000-07-04

M.Y.EQBAL

body2000
Judgment M.Y.Eqbal, J. 1. In the instant writ application, the petitioner has prayed for issuance of appropriate, writ/order or direction for quashing the order dated 18.4.2000 passed by the Forest Commissioner-cum-Secretary of the Department of Forest & Environment in Case No. VANMUK (C)-26/98 whereby he has set aside the order dated 23.9.1998 passed by the Deputy Commissioner, Hazaribagh being the appellate authority in Confiscation Appeal No. 34/97. BY the said order dated 23.9.1998, the Deputy Commissioner as appellate authority ordered for release of the vehicle in favour of the petitioner. 2. The facts of the case in a nut shell is that a Maruti van belonging to the petitioner was seized by the Forest Officials on the allegation that about 5 legs, of Katthas (Khair) was found in the dicky of the Maruti van. After making seizure a police case was registered being Case No. 692/96. Besides criminal case, a Confiscation proceeding was initiated being Confiscation Case No. 6/96 and show-cause notice was issued to the petitioner by the Confiscating authority namely Forest Officer-cum-Divisional Forest Officer, Hazaribagh asking the petitioner to show-cause as to why trie Maruti van should not be confiscated. 3. Aggrieved by and dissatisfied with the order and the Confiscation proceeding petitioner filed an appeal before the Deputy Commissioner, Hazaribagh being Confiscation Appeal No. 34/97 and prayed for an interim order for the release of the vehicle. The appellate authority by order dated 23.9.98 ordered for release of the vehicle on execution of the security bonds and directed that final action in the matter will be taken after decision of the trial Court. The Forest authorities filed a revision application before the Commissioner-cum-Secretary against the order dated 23.9.98. The said revision application was registered as Vanmuk (C)-26/98. The revisional authority after hearing both the parties allowed the revision application in terms of the order dated 18.4.2000 and set aside the order passed by the appellate authority releasing the vehicle in favour of the petitioner. 4. Mr. P.D. Agarwal, learned Counsel appearing for the petitioner assailed the impugned order passed by respondent No. 2 revisional authority as being illegal and wholly without jurisdiction. Mr. Agarwal mainly contended that the revision application itself was not maintainable against the interim order passed by the appellate authority. 4. Mr. P.D. Agarwal, learned Counsel appearing for the petitioner assailed the impugned order passed by respondent No. 2 revisional authority as being illegal and wholly without jurisdiction. Mr. Agarwal mainly contended that the revision application itself was not maintainable against the interim order passed by the appellate authority. In this connection, learned Counsel relied upon a single Bench decision of this Court in the case of Ganesh Ram Dokania V/s. State of Bihar and Ors. 2000 (1) PLJR 232 . 5. Having regard to the submissions made by the learned Counsel an interesting question falls for consideration is as to whether a revision lay before the revisional authority against the interim order passed by the appellate authority under the provisions of Indian Forest Act. 6. Before appreciating the submissions of the learned Counsel, it would be useful to refer the relevant provisions of the Forest Act. Chapter IX of the Indian Forest Act lays down the procedure for imposing penalty in the event a forest offence is committed in respect of any forest produce. Sec. 52 of the Act provides that when there is a reason to believe that a forest offence has been committed in respect of any forest produce, then such produce together with the articles used in committing any such offence may be seized by any Forest Officer or Police Officer. Sec. 52 has been substituted by Bihar Amendment (Bihar Act 9 of 1990). Sec. 52 of the Amended Act provides inter alia that after the seizure of the forest produce all the articles shall be produce before the authorised officer who shall make report of such seizure to the Magistrate and will initiate Confiscation proceeding. The confiscating authority accordingly shall issue show-cause notice to the persons from whom property is seized and any other person who have interest in such property to show-cause as to why the property should not be finally confiscated. The confiscating authority after hearing the parties passed final order in the said Confiscation proceeding. The confiscating authority accordingly shall issue show-cause notice to the persons from whom property is seized and any other person who have interest in such property to show-cause as to why the property should not be finally confiscated. The confiscating authority after hearing the parties passed final order in the said Confiscation proceeding. Sec. 52-A lays down the provision of appeal against the order of confiscating authority which reads as under: 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 Sec. 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. (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 of 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 complicities 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 confirmation, 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 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. 7. From perusal of the aforesaid provisions, it is manifest that Sub-sec. 4 of Sec. 52A empowers the appellate authority to pass such order of interim nature for custody, preservation or disposal of the subject matter of Confiscation. 7. From perusal of the aforesaid provisions, it is manifest that Sub-sec. 4 of Sec. 52A empowers the appellate authority to pass such order of interim nature for custody, preservation or disposal of the subject matter of Confiscation. Sec. 52B is the provision of evision against the order of the appellate authority, which reads as under: 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 of 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 subsection, 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 of 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 of for taking such further action as may be directed by such Court. (4) For entertaining hearing 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 exercised and followed while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (5) Notwithstanding anything to the contrary contained in the Code the Criminal Procedure, 1973 (Act No. 2 of 1974), the order passed under this Section shall be final and shall not be called in question before the Court. 8. In order to answer the questions raised by the learned Counsel for the petitioner, Sub-sec. 4 of Sec. 52B of the Act is quoted hereinabove, is worth to be looked into which provides that the revisional authority shall exercise the same power and follow the same procedure for entertaining hearing and deciding the revision under this Section as exercised and followed while entertaining hearing and deciding the revision under Code of Criminal Procedure, 1973. 9. Sec. 397 of the Code of Criminal Procedure provides the power of revision of the Revisional Court. 9. Sec. 397 of the Code of Criminal Procedure provides the power of revision of the Revisional Court. Sec. 397 of the Cr.P.C. reads as under: Calling for records to exercise powers of revision-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation: All Magistrate, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-sec. and of Sec. 398. (2) The powers of revision conferred by Sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the otherof them. 10. From bare perusal of the aforesaid provision, it manifest that the power of revision conferred by this Section shall not be exercised to relation to any interlocutory order passed in any appeal, inquiry, trial or other procedure. In other words revision does not lay under the code of Criminal Procedure against the interlocutory order passed in any appeal by the appellate authority. Reading together Sub-sec. 4 of Sec. 52B of the Forest Act and Sub-sec. 2 of Sec. 397 of the Code of Criminal Procedure, it is abundantly clear that the Secretary, Forest and Environment Department, Government of Bihar has not been conferred with the power to entertain revision against the inter-locutory order passed by the appellate authority in an appeal filed under Sec. 52A of the Indian Forest Act. 11. 2 of Sec. 397 of the Code of Criminal Procedure, it is abundantly clear that the Secretary, Forest and Environment Department, Government of Bihar has not been conferred with the power to entertain revision against the inter-locutory order passed by the appellate authority in an appeal filed under Sec. 52A of the Indian Forest Act. 11. Having regard to the facts of the case and the law discussed herein above, I fully agree with the view taken by the learned Single Judge in "Ganesh Ram Dokania" (supra) case that no revision lay before the Commissioner-cum-Secretary of the Department against the interim direction for the release of the vehicle (truck) passed by the appellate authority. 12. For the reason aforesaid, this Writ application is allowed and the impugned order passed by the Secretary, Forest and Environment Department, Government of Bihar staying the interim order passed fay the appellate authority releasing the vehicle in favour of the petitioner is set-aside.