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2002 DIGILAW 247 (JHR)

Naresh Singh v. State Of Bihar

2002-02-26

M.Y.EQBAL

body2002
ORDER M.Y. Eqbal, J. 1. In this writ application the petitioners have prayed for quashing the order dated 15.3.2000 passed by Commissioner-cum-Secretary, Department of Forest and Pollution, Govt., of Bihar, Patna as revisional authority in Revision Case No. 36 of 1996, order dated 23.7.1996 passed by the Deputy Commissioner, Giridih as an Appellate Authority in Confiscation Appeal No. 2 of 1995 and the order dated 21.1.1995 passed by respondent No. 2, the Divisional Forest Officer, Giridih as Confiscating Authority in Confiscation Case No. 40 of 1995. These orders have been annexed as Annexures-1, 2, 3 to the writ application. 2. Brief facts of the case is that on 2.1.1995 the vehicle namely, tractor with trailer bearing registration No. BR 13-F 1337 was seized by the Range Officer in Khurchutta forest. The tractor was found loaded with 41 pieces of Sal rolas and the driver of the seized tractor could not show any paper regarding ownership and transportation of aforementioned wood. A criminal case was instituted and confiscation proceeding was also started by the Divisional Forest Officer, Giridih. On receipt of the notice of the confiscation proceeding, petitioners filed their show-cause and the confiscating authority after hearing the parties finally passed order of confiscation dated 10.1.95. The petitioner being aggrieved by the said order preferred an appeal before the Deputy Commissioner, Giridih being confiscation Appeal No. 2 of 1995. The Deputy Commissioner dismissed the appeal and affirmed the Order passed by the confiscating authority, Petitioner then preferred revision before the Secretary, Department of Forest, Govt. of Bihar being Revision Case No. 36 of 1996. The said revision was also dismissed on 15.3.2000 and the order of confiscating authority was affirmed, 3. Mr. V. Shivnath, learned counsel appearing for the petitioners assailed the impugned orders as being illegal and contrary to the facts and evidence on record. Learned counsel submitted that there is no evidence to show that the Sal rolas were cut from the forest area nor there was any evidence to show that there was illegal fellings of trees in the forest area. Learned counsel secondly submitted that the petitioners in their show-cause has very categorically stated that the petitioner had friendly relationship with Chahdra Mohan Besara who wanted the vehicle to carry some Sal rolas from his father-in-law house and as a matter of fact, the wood in question was cut from the raiyati land of a Gahjejore village. Learned counsel secondly submitted that the petitioners in their show-cause has very categorically stated that the petitioner had friendly relationship with Chahdra Mohan Besara who wanted the vehicle to carry some Sal rolas from his father-in-law house and as a matter of fact, the wood in question was cut from the raiyati land of a Gahjejore village. It was also stated in the show-cause that the petitioner had no knowledge that Sal rolas were cut from forest area and further that petitioners have not connived with the said Chandra Mohan Besara in committing the offence. According to the learned counsel inspite of these stand of the petitioner no finding has been recorded by any of the authority that the petitioner connived with Chandra Mohan Besara and he had knowledge about the occurrence which is mandatory requirement of law as envisaged under Sub-section (5) of Section 52 of the Indian Forest Act. 4. Before appreciating the submission made by the learned counsel, I would first like to refer Section 52 of the Indian Forest Act as amended by Bihar Amendment Act 9 of 1990, Sub-section 1 of Section 52 provides that "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, 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". Sub-section (2) provides that "Every officer seizing any property shall produce it before an office not below the rank of Divisional Forest Officer authorised by the State Government in this behalf. Sub-section (3) of Section 52 provides that "the authorised officer upon production of the seized property having satisfied that a forest offence has been committed, he may by passing a reasoned order confiscate the seized articles. Sub-section (5) of Section 52 is the relevant provision which shows that order of confiscating under Sub-section (3) shall be passed by the authorised officer after it is proved to his satisfaction that any such tools, arms, vehicles and other articles were used without knowledge or connivance of the person/owner of vehicle, tools, arms, boats etc. and that all reasonable and necessary precaution had been taken against use of such objects for the commission of forest offence". and that all reasonable and necessary precaution had been taken against use of such objects for the commission of forest offence". Sub-section (5) of Section 52 reads as under : "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 or as the case may be, without the 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." 5. From bare perusal of the aforesaid provisions, it is clear that the Confiscating Authority before passing final order of confiscation must record of finding after appreciating evidence that the owner of such vehicles, boats or tools had knowledge that his vehicle was likely to be used for carrying forest produce in contravention of the provisions of the Act. 6. In the instant case, from the order passed by the Confiscating Authority, it appears that petitioners took specific defence that they had no knowledge that the Sal Rolas were cut from the forest area. The Confiscating Authority drawn an inference that the owner of the Vehicle had knowledge about the offence as because transportation of Sal Rolas was illegal. Finding of the Confiscating Authority that the owner of the vehicle had not taken reasonable precaution against the use of the vehicle is not supported by evidence. The Confiscating Authority ought to have discussed the evidences before recording that finding. The Appellate Authority passed an ex parte order dismissing the appeal without passing a reasoned order. The Revisional Authority took the view that since the forest produce was being transported without any transit permit, a foreseen offence has been committed and therefore the order of the Confiscating Authority needs no interference. In my opinion, the revisional Authority has not correctly appreciated the law while passing the order for confiscating of vehicle. The matter needs reconsideration by the Divisional Forest Officer, who is Confiscating Authority. 7. For the reasons aforesaid, this writ application is allowed and the impugned order passed by the respondent authority are set-aside. In my opinion, the revisional Authority has not correctly appreciated the law while passing the order for confiscating of vehicle. The matter needs reconsideration by the Divisional Forest Officer, who is Confiscating Authority. 7. For the reasons aforesaid, this writ application is allowed and the impugned order passed by the respondent authority are set-aside. Confiscation Case No. 40 of 1995 is remitted back to the Divisional Forest Officer-cum- Confiscating Officer, Giridih for passing fresh order after appreciating entire evidence on record and in the light of observation made herein above.