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2003 DIGILAW 140 (PAT)

Ekhtiyar Hussain v. State Of Bihar

2003-02-03

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the parties. 2. The petitioner being aggrieved by the order dated 15.6.2002 passed in revision case no. 12 of 2001 by the respondent no. 2 (Secretary, Forest & Environment Department, Govt. of Bihar, Patna) (Annexure-12) under which he has confirmed the order passed by the Collector, Kaimur in confiscation appeal no. 8/2001/2002 on 18.9.2001 which arose out of the confiscation case no. 58/2000 and the order dated 29.6.2001 passed by the Divisional Forest Officer, Sasaram has come to this Court. 3. The facts in nutshell and at least not disputed before me are that the petitioners truck bearing registration no. U.P.- 77A-2010 was seized on 25.12.2000 on apprehension that the petitioner had committed the forest offence relating to 130 bags of Kendu leaves. The seizure was effected in the evening near Suara river by the Officer-in-Charge Bhabhua. A complaint was made by the Forester to the Chief Judicial Magistrate, Kaimur about the said incident. In the report submitted by the Forester it was admitted that the transit permit was issued by Shri Kailash Singh, Range Officer which was valid for the period between 22.12.2000 and 25.12.2000 with regard to the kendu leaves in the name of the owner Shri Suresh Singh. After receiving the notice to show cause the petitioner submitted his reply, inter alia contending that because of a major break down in the truck the goods could not be transported from within the forest range and immediately after arranging for another driver Rajesh Kumar the goods were loaded for transportation. It was also contended that the petitioner did not commit any offence and he was required to change the driver perforce, therefore, the change of the driver from Shamshad to Rajesh would not show that the petitioner had committed any illegality. 4. The case of the Department was that if the permit was issued on 22.12.2000 and as the same was not used and exploited upto 24.12.2000 then it would lead to a presumption adverse to the interest of the petitioner. The Department also says that the change of the driver also shows an illegal motive on the part of the petitioner. The case of the Department was that if the permit was issued on 22.12.2000 and as the same was not used and exploited upto 24.12.2000 then it would lead to a presumption adverse to the interest of the petitioner. The Department also says that the change of the driver also shows an illegal motive on the part of the petitioner. The further stand of the Department was that the goods were seized in the forest area at the time of evening, therefore, and as the petitioner was using the said permit for second time the Department was justified in seizing the vehicle and confiscating the same. 5. The D.F.O. after giving proper opportunity of hearing to the petitioner recorded a finding that the case of the Department was absolutely justified and there were valid grounds for raising the presumption adverse to the interest of the petitioner. Relating to illegal/illicit transportation of the forest produce misuse/and attempting to use the permit second time the finding was recorded in affirmative. It was also held that the Department was also justified in presuming that the driver was changed to commit the offence. The said findings were confirmed by the appellate authority. 6. The revisional authority vide its order dated 15.6.2002 observed that though the driver carried a valid permit for transportation of 130 bags of kendu leaves but as the permit was used for the second time or was misused, therefore, the Department was justified in seizing the vehicle. It also recorded a finding that as the departmental officer was making an allegation against the petitioner that the permit was used for the second time the petitioner had no case. However, relating to seizure of the vehicle at an odd time the benefit was given to the present petitioner. 7. Regarding issuance of permits for transportation of the timber/wood and other forest produce, regulations/Rules of 1973 have been framed. Rule 4 provides that a valid permit shall be prepared in triplicate. The original copy would be retained by any person not below the authority of the Forester and two copies would be issued to the person who wants to transport the forest produce. It further says that every vehicle carrying the forest produce shall have its independent permit. 8. Rule 5 relates to checking/examination of the permit. The original copy would be retained by any person not below the authority of the Forester and two copies would be issued to the person who wants to transport the forest produce. It further says that every vehicle carrying the forest produce shall have its independent permit. 8. Rule 5 relates to checking/examination of the permit. According to sub-rule 1 of rule 5 when the goods are under transit the permit can be examined by any officer mentioned in sub-rule 1. According to sub-rule 2 of Rule 5 the permit would be required to be produced at every check-post so notified by the State Government. According to sub-rule 3 the check-post shall be closed after one hour of the sunset and would remain closed till sun-rise. Nobody would be allowed to cross the check-post during this period of closure. Sub-rule 4 of Rule 5 says that immediately after the produce is checked, the officer posted on the check-post (the checking officer) would take one copy of the permit and shall put a seal and date on the second copy of the permit stating checked/ issued (parit). According to sub-rule 4 one copy out of the two carried by the vehicle/ transporter shall be retained by the officer of the check-post simply to ensure that one copy of the permit is retained by the officer and the seal is affixed on the third copy of the permit to show that permit has been used and put a check so that the permits are not re-used, misused or used time and again. 9. In the present matter the Department says that the petitioner was trying to use the permit for the second time. If that was so then the Department was obliged to inform the first authority/appellate authority/revisional authority or in their wisdom at least this Court could be informed that at the first user of permit counter of the permit was retained by the checking officer and a seal was put on the third copy of the permit to be carried by the transporter. The second copy of the permit was never produced before any of the subordinate tribunals or before this Court. In absence of the production of the second copy of the permit which was required to be retained at the check-post, it cannot be said that the first consignment ever passed after due checking. The second copy of the permit was never produced before any of the subordinate tribunals or before this Court. In absence of the production of the second copy of the permit which was required to be retained at the check-post, it cannot be said that the first consignment ever passed after due checking. If the first consignment passed without checking, then the first consignment was an illegal transportation and not the second consignment which was carrying the two permits. The submission of the counsel for the State that the presumption ought to have been raised against the petitioner and was rightly drawn against the interest of the petitioner should not unnecessarily detain this Court. A presumption can be raised if there are factual foundation and it leads to only one direction, that is a presumption. After presuming a foundation further facts cannot be presumed. 10. When a permit is valid for a particular period then the permit holder is not always required to exploit the permit on day one, because he can use the permit within the period of its validity. Undisputedly, when the consignment and the vehicle were seized the permit was valid. The finding recorded by the learned revisional tribunal that the petitioner could cross the reserve forest within movement period would simply show that the petitioner could cross the check-post within the period or time available to him. On this no adverse inference can be drawn against the petitioner. 11. So far as the change of the drivers name is concerned, the petitioner had given a reasonable justification and a plausible reason. The submission was that the vehicle suffered a break down and the driver fell sick. Contrary to the statement made by the petitioner, nothing is available on the record. If the vehicle suffered a break down and the petitioner wanted to exploit the permit on last day within the period of its validity then nothing was wrong in it. Change of the driver would not convert the valid permit into an invalid permit. It would simply show that the petitioner had changed the driver. On the basis of change of the driver the only presumption could be that the petitioner had changed the driver for reasons personal to him but the length or extent of the presumption can not be to the extent that the petitioner had changed the driver to commit an illegality. 12. On the basis of change of the driver the only presumption could be that the petitioner had changed the driver for reasons personal to him but the length or extent of the presumption can not be to the extent that the petitioner had changed the driver to commit an illegality. 12. The last of the reason for confiscation of the vehicle was that one of the officers had said that the petitioner was trying to misuse and re-use the permit. I have already found that there is nothing on the record to show or suggest that the petitioner had already transported the first consignment, submitted the second copy of the permit at the checkpost and an officer competent to put the seal had put the seal on the counter retained by the petitioner. I fail to understand that what persuaded the officer to take such an illegal action against the petitioner. In fact, there is no material on the record to show that the petitioner committed any offence. 13. The petition deserves to and is accordingly allowed. The orders passed by the revisional authority (Secretary of the Department), the appellate authority, (The Collector) and the original authority (The Divisional Forest Officer) are set aside/quashed. Within 15 days from today theDepartment shall make every arrangement to return the property, i.e. the vehicle and the kendu leaves to the petitioner. 14. Before parting with the case, I would like to observe that the forest department in a confiscation proceedings should not delay the disposal of the matter for years together. When the matters like present are allowed after two years or so the seized property virtually loses its marketability/commercial value. By keeping the goods in their possession neither the department is benefited nor the person to whom the property belongs. If the Department wants to confiscate something then it must confiscate something which is of some value and worth confiscation. After two and half years if a truck or any vehicle is confiscated then by that time the value would go below the level and no useful purpose would be served by confiscating the vehicle. The articles which are confiscated in fact would also lose their value. In a case like present when the petitioner is held entitled to return of the vehicle and the articles then the Department must return something of value and not junk. 15. The articles which are confiscated in fact would also lose their value. In a case like present when the petitioner is held entitled to return of the vehicle and the articles then the Department must return something of value and not junk. 15. Instead of passing any orders in the present matter relating to the damages, I would leave the petitioner to approach the Civil Court to seek damages if his properties have suffered any damage because of the illegality on the part of the respondents, provided the law permits him to seek such compensation or such damages in the form of compensation. The petition is allowed.