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2002 DIGILAW 517 (CAL)

Ram Deo Sha v. State of West Bengal

2002-08-07

Gorachand De

body2002
JUDGMENT Gorachand De, J. By this application under sections 401/482 Cr. P. C. the present petitioner has prayed for setting aside the judgment and order dated 21.2.97 passed by the learned Additional District Judge, 2nd Court, Jalpaiguri, sitting in appeal under section 590 of Indian Forest Act, 1927 as amended by West Bengal Amendment (XXII) Act, 1988. By the said order the learned Additional Distract Judge while confirmed the order of the Authorised Officer of Cooch Behar Forest Division in Forest Case No. 23/COB/93-94 came to a finding that the order of confiscation of the vehicle, which was carrying un-authorised forest articles, was correctly made. 2. On the allegation of carrying 48 pieces of freshly cut Khair logs on 13.12.93 at about 2.20 A.M. by the truck bearing Registration No. WB-63/0022 without any legal sanction the articles with the truck were seized by the forest personnel, the proceeding was started, notices as regards confiscation of the vehicle were issued to the registered owner of the truck, and after hearing, the authorised Forest Officer came to a finding that those 48 pieces of freshly cut Khair logs were illegally removed from the Government Forest of West Bengal by the said truck bearing No. WB-63/0022 and thereby committed forest offence under section 41 of the Indian Forest Act, 1927 along with the rules made thereunder and also under sub-section (3) of the Prevention of Damage to Public Property Act, 1984 and thereafter, he passed an order of confiscation of the seized timbers as well as the truck. In the said order, the authorised officer also directed the Range Officer, Madarihat Range to take charge of the seized timbers and the truck and thereafter to sell them in public auction after the statutory period of appeal is over. 3. Against the said order, the present petitioner being the registered owner of the truck moved the District Judge, Jalpaiguri in appeal and Misc. Appeal No. 9 of 1994 was registered and it was transferred to the court at the learned Additional District Judge, 2nd Court, Jalpaiguri for final disposal. The learned Additional District Judge after hearing both sides and on perusal of the materials on records confirmed the order passed by the authorised officer and dismissed the appeal in the manner indicated hereinabove. 4. The learned Additional District Judge after hearing both sides and on perusal of the materials on records confirmed the order passed by the authorised officer and dismissed the appeal in the manner indicated hereinabove. 4. By the present application, the present petitioner has challenged the said order passed by the learned Additional District Judge, Jalpaiguri and contended that neither the authorised officer nor the learned Additional District Judge took into consideration that for committing forest offence, involving property of worth Rs. 40,000/-, the full truck valued few lacs was directed to be confiscated and sold it in public auction. It is also contended that the reason of confiscation of the entire truck has not been clarified in the order passed by the authorised officer or by the learned Additional District Judge, Jalpaiguri. 5. Mr. De, learned counsel for the petitioner however, placed reliance of a Division Bench's judgement of Orissa High Court in the case of Gurudev Singh Rai vs. Authorised Officer, reported in AIR 1992 Orissa 287, in support of his contention that the High Court has power to supplement words in statutory provision in appropriate cases and as such for commission of forest offence in respect of goods worth Rs. 40,000/-, it was incumbent upon the authorised officer or the appellate court to cofiscate the appropriate amount without confiscating the value of the entire truck. Accordingly, it is argued that for value of confiscated goods worth Rs. 40,000/-, this court is competent to pass an order of fine on Rs. 40,000/- and it would be just and proper for ends of justice. 6. Mr. De, also placed his reliance on a Single Bench judgment of this court in the case of Nazami Nissa vs. State of West Bengal, reported in (2001) 1 Cal. L.T. 442 (H.C) and contended that it would be proper to fine Rs. 40,000/- being the value of the goods for giving an opportunity to the owner of the vehicle to afford the order of confiscation of the vehicle. Accordingly, Mr. De concluded that in all fairness and for ends of justice the entire vehicle should not be confiscated for statutory amount of Rs. 40,000/-. Mr. 40,000/- being the value of the goods for giving an opportunity to the owner of the vehicle to afford the order of confiscation of the vehicle. Accordingly, Mr. De concluded that in all fairness and for ends of justice the entire vehicle should not be confiscated for statutory amount of Rs. 40,000/-. Mr. Ali Ahmed, learned counsel for the State however, made a very force-able argument alleging that the provision of section 482 of the Code has no manner of application in this case and as such, this court is not competent to sit over the concurrent finding of fact by the court below. It is also contended that this is not a case in which the provision of section 397 of the Code is applicable as can be found from the petition itself. Mr. Ali Ahmed further contended that there is no provision under the Forest Act or in the said amendment which authorises the court to impose any fine for setting aside the order of confiscation. It is also contended that this court has no power to go beyond the statutory provision of law and to convert the confiscation into a fine. Accordingly, Mr. Ali Ahmed concluded that there is no ground for interference with the concurrent finding of the court below. 7. After hearing the learned counsels for both sides and on perusal of the materials on records, it is to be noted that the seizure of 48 pieces of freshly cut Khair logs worth Rs. 40,000/- has been proved in this case and the concurrent finding of the court below in this regard does not require any interference. It is also to be noted form the concurrent finding of fact that the truck bearing No. WB-63/0022 was carrying those timbers unauthorisedly and it was duly seized by the Forest Personnel. So, without interfering with the findings of the court below with regard to this fact, it is to be mentioned that neither the Authorised Officer, nor the learned Additional District Judge, sitting in appeal, did considers the value of the truck directed to be confiscated. Judicial notice can be taken to the fact that the value of the running truck is undoubtedly more than Rs. 4 to 5 lacs, and as such before order of confiscation of such valuable property, for commission of an offence worth Rs. Judicial notice can be taken to the fact that the value of the running truck is undoubtedly more than Rs. 4 to 5 lacs, and as such before order of confiscation of such valuable property, for commission of an offence worth Rs. 40,000/-, it was incumbent upon the investigating agency to render proper explanation or justification. But after going through the findings of the authorised officer as well as of the appellate authority, I do not find that any such reason was assigned. The power of confiscation as indicated in the Act itself should not be considered to be a clean chit given to the confiscating agency, but it must be commensurate with the offence committed. The confiscating agency did not consider this aspect of the matter, nor the appellate authority justified as to why the truck was to be confiscated and its entire sale proceeds was to be adjusted. 8. Much was argued for imposition of fine by supplementing few words in the statutory provisions. But since there is no provision of imposition of fine by the authorised officer, it would not be proper to impose any fine by supplementing few words in the statutory provision. The vires of the Forest Act is not challenged in this court nor this court is competent to give verdict on that point and accordingly, I deem it proper not to add any new word in the statutory provision. Of course, it is to be noted that the provisions of West Bengal Amendment Act are not applicable in the State of Orissa and accordingly, the judgment cited in the case of Gurudev Singh Rai (supra) may not be applicable in the State of West Bengal. Considering the nature of the present case and the law on the point, it is doubtful whether High Court can impose fine in a case of this nature and accordingly, I deem it proper not to impose any fine in the manner done in the case of Nazami Nissa (supra). It has already been stated above that neither the authorised officer nor the appellate authority considered the value of the seized vehicle and as such, I find that unnecessary hardship has been caused to the owner of the vehicle on the basis of the order of confiscation of the entire vehicle without assigning any reason. It has already been stated above that neither the authorised officer nor the appellate authority considered the value of the seized vehicle and as such, I find that unnecessary hardship has been caused to the owner of the vehicle on the basis of the order of confiscation of the entire vehicle without assigning any reason. In this context I deem it proper to go through the relevant provision of the West Bengal Amendment Act in which the authorised officer had the discretion to confiscate any part of the vehicle under sub-section (4a) of section 59A of the Indian Forest (West Bengal Amendment) Act, 1988 which is quoted below:- "Where the authorised officer, after passing the order of confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle as aforesaid under sub-section (3), is of opinion that it is expedient in the public interest so to do, he may order such property or any part thereof and such tools, ropes, chains, boats, vehicles and cattle to be sold by public auction." 9. The particular words 'or any part thereof is indicative of the fact that the confiscating agency in a fit and proper case should consider whether the entire vehicle or any part of it is to be confiscated or not, or in other words, a discretionary power has been given to the authorised officer in this regard. But I find that this discretion given to the authorised officer was not judiciously exercised. Similarly, the Appellate Court also did not consider this aspect lawfully. The confiscation of a truck for an offence involving goods worth Rs. 40,000/- cannot be justified in the peculiar fact situation of this case. Thus, it is sufficiently clear that neither the authorised officer nor the appellate authority exercised their power in accordance with the provisions of law thereby resulting into a failure of justice. In a case of this nature the High Court exercising power under section 482 of the Code is required to stop such illegality in the interest of justice as well as to stop abuse of the process of law. In a case of this nature the High Court exercising power under section 482 of the Code is required to stop such illegality in the interest of justice as well as to stop abuse of the process of law. Accordingly, I hold and conclude that selling of the entire truck and to confiscate the entire sale proceeds without assigning any reason is opposed to the principle of law and as such I deem it proper to modify the order of confiscation to the extent that if the owner of the Truck fails to deposit with the Range Officer, Madarihat Range within four weeks from the date of communication of this order a sum of Rs. 40,000/- (Rupees forty thousand only) towards a part of the value of the confiscated truck, the seized truck shall be sold in public auction, and after defraying the cost of such auction and other incidental charges an amount of Rs. 40,000/-, equal to the value of the timbers, be confiscated to the State and the balance amount is to be refunded to the petitioner being the registered owner of the truck in question following the provision of sub-section (4b) of section 59A of the Indian Forest (West Bengal Amendment) Act, 1988, as far as practicable. However, the truck shall be released if the said amount of Rs. 40,000/- is deposited within the stipulated period. 10. The judgment and order of the appellate authority is thus modified and this application is disposed of. 11. Let a copy of this order be sent to the court below forthwith. 12. Urgent xeroxed certified copies of this order be given to the parties, if applied for. Appeal disposed of.