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2001 DIGILAW 694 (PAT)

Arun Gupta v. State Of Bihar

2001-08-06

RADHA MOHAN PRASAD

body2001
Judgment Radha Mohan Prasad, J. 1. In this writ petition, the petitioner is aggrieved by the seizure of Khair wood by the Forester at Barauni Railway Station which was being carried from Tangla in Assam to Kanpur (Anwarganj) in the State of Uttar Pradesh in the wagon on the basis of a transit permit. 2. According to the case of the petitioner. one Chikan Boro, a businessman of Kanpur. who deals in Khair wood and other woods, intended to purchase Khair wood from Assam and accordingly after obtaining permission from the Forest Department, Government of Assam and getting transit permit (Annexure 5) issued by the Divisional Forest Officer, Darrang Forest Division, Mangaldoi, Assam, the Khair wood in question was booked at Tangia tor Kanpur (Anwarganj). A photocopy of the railway receipt has been annexed as Annexure 1. While the said wagon was being carried through the State of Bihar the same was intercepted at Begusarai by the Forester of Begusarai who seized all the Khair woods booked in the said wagon and forwarded the seizure list to the Chief Judicial Magistrate, Begusarai vide his Memo No. 3/95 dated 24.3.1995 (Annexure 2). The Divisional Forest Officer, Forest Extension Division, Begusarai vide his Memo No.567 dated 6th June. 1995 sought for a clarification with regard to genuineness of the transit permit issued tor the purpose of carrying the wood in question and in response thereof the Divisional Forest Officer, Darrang Division, Mangaldoi vide his Memo No. 2847 dated 3.7.1995 communicated the Divisional Forest Extension Officer, Begusarai that the said letter is genuine and it was duly issued by his Office. Copies of the said letters have been annexed as Annexure 3 and 4. It is stated that even prior to that the Divisional Forest Extension Officer, Begusarai vide his letter no. 307 dated 15th April, 1995 sought for a clarification with regard to the transit permit No. 5/142836 issued by the Divisional Forest Officer, Darrang. Division, Mangaldoi, who vide letter No.2034 dated 10.5.1995 sent the original transit permit (Annexure 5) which also showed that the papers are genuine. The Railway authorities who booked the goods also informed the Divisional Forest Officer, Forest Extension Division. Begusarai that the said Khair wood was booked on the basis of transit permit issued by the competent Officer of the Forest Division. 3. The Railway authorities who booked the goods also informed the Divisional Forest Officer, Forest Extension Division. Begusarai that the said Khair wood was booked on the basis of transit permit issued by the competent Officer of the Forest Division. 3. From the seizure list.(Annexure 2) it appears that the wagon in question carried a seal card. It is not the case of the respondents that at the time of seizure the seal was found to be broken. Learned counsel for the petitioner has, thus submitted that on the basis of the documents referred to above, it is clear that the wood in question was booked at Assam and was being carried to Kanpur in U.P. on a valid transit permit and the wagon in question was sealed by the railway authority in Assam. As such, according to the learned counsel for the petitioner, the Officers of the Forest Department of the State of Bihar is not empowered to conduct any search or seizure of the goods. 4. Mr. Dutta, learned Standing counsel No. IV. appearing for the State of Bihar and its officials, has submitted that under section 41 of the Indian Forest Act, the control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest produce in transit by land or water, is vested in the State Government which may make rules to regulate the transit of all timber and other forest produce. According to him, in course of transit of forest produce through the State of Bihar the authorities of the State of Bihar are fully competent to conduct search and seizure and if it is found that the same is being carried illegally and without anyvalid permit, the authorities are fully competent to seize the same. With reference to the statements made in the counter affidavit, he submitted that the Forester, Barauni seized the Khair wood which was being carried in the wagon in question as it did not have property hammer impression or the passing hammer impressions or any mark of identification of Forest Department of Assam and Government of Bhutan. With reference to the statements made in the counter affidavit, he submitted that the Forester, Barauni seized the Khair wood which was being carried in the wagon in question as it did not have property hammer impression or the passing hammer impressions or any mark of identification of Forest Department of Assam and Government of Bhutan. He submitted that from the transit pass annexed by the petitioner as Annexure 5 it will appear that the Khair wood booked in the wagon was of Bhutan and according to the communication by the Department of Forestry, Ministry of Agriculture, Royal Government of Bhutan (Annexure A) no round/sawn of timber can cross the checkpost of Bhutan without hammer impression. He also submitted that according to the terms and conditions of the Forest Produce Movement Order, contained in Annexure B, of Bhutan the purchaser is also required to put registered property hammer mark on the logs and in absence of those marks the Officers of the State Government rightly doubted the genuineness of the wood being carried under the transit pass issued by the Forest Department of Assam, contained in Annexure 5. According to him, the genuineness of the wood being carried under the said transit pass all the more became doubtful as at the time of booking of the same by the Railway it weighed 300 quintals whereas at the time of seizure it weighed only 198.30 quintals as is evident from Annexure 2(a). He also submitted that the Khair wood is specified wood under the Bihar Forest Produce (Regulation of Trade) Act, 1984 and under section 5 of the said Act no person other than (i) the Government, (ii) an Officer of the Government authorised in writing in this behalf and (iii) an agent in respect of the unit in which the specified forest produce is grown or found can purchase or transport or import or export such specified forest produce in and from such area. As such, according to him, once the specified forest produce is being carried by any person other than the aforesaid authority, the State and its authorities are well within the power to seize the same. 5. This Court is unable to accept the submission of the learned Standing Counsel No. IV. As such, according to him, once the specified forest produce is being carried by any person other than the aforesaid authority, the State and its authorities are well within the power to seize the same. 5. This Court is unable to accept the submission of the learned Standing Counsel No. IV. There cannot be any dispute that in view of the provision contained in Section 5 putting restriction on purchase or transport of specified forest produce and no person other than the aforementioned authority can purchase or transport or import or export the same in and from such area but the question in the present case is as to whether the State authorities were competent to intercept and commit search or seizure of the Khair wood in question which was being carried under valid transit permit and the railway receipt issued by the competent authority in Assam to Kanpur in U.P. 6. It is true that under section 41 of the Act the control of all timber and other forest produce in transit by land or water, is vested in the State Government but such control, in my opinion, cannot be with respect to such timber and other forest produce like the one in the present case where Khair Wood was booked at Assam and was being carried in sealed wagon particularly when there is no allegation even that the authorities of the Forest Department found the seal of the railway wagon broken. As regards absence of hammer/ property mark on the wood in question or shortage may not be of much relevance in the present case on account of the fact that respondents authorities of the State of Bihar had nothing to do with the same and if any one would have been aggrieved then he was the party to whom the delivery is to be made. It is not even alleged by the State authorities that the wood in question was being smuggled or was being carried in violation of any statutory provision. 7. There cannot be any doubt that although Article 301 of the Constitution guarantees that the trade, commerce and intercourse throughout the Country shall be free but the right to carry on inter-State trade and commerce may be subject to reasonable restrictions in the interest of general public. 7. There cannot be any doubt that although Article 301 of the Constitution guarantees that the trade, commerce and intercourse throughout the Country shall be free but the right to carry on inter-State trade and commerce may be subject to reasonable restrictions in the interest of general public. The Supreme Court in the case of M/s Bishamber Dayal Chandra Mohan V/s. State of U.P. & ors., reported in AIR 1982 S.C. 33 , held that "the word free in Article 301 does not mean freedom from laws or from regulations. Article 301 guarantees freedom of trade, commerce and intercourse throughout the Country from any State barriers and that freedom of trade, commerce and inter-course (sic) the country without any State barriers is not confined to inter-State trade but also includes Intra-State trade as well. In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between one State and another, but between any two points within the territory of India whether any State border has to be crossed or not." 8. Learned Standing counsel appearing for the State has not brought any provision relating to restrictions, if any, as provided in Part XIIl of the Constitution to the notice of this Court. 9. Under such circumstances, in my opinion, the respondents authorities were not legally justified in conducting search or seizure of the Khair wood in question. The impugned order of seizure, contained in Anraexure 2, thus, cannot be sustained and it is. accordingly, quashed. The respondents are directed to release the Khair wood seized under the impugned seizure (Annexure 2) forthwith on receipt of a copy of this judgment/order. In the facts and circumstances of the case, there shall be no order as to costs.