Research › Search › Judgment

Bombay High Court · body

2003 DIGILAW 356 (BOM)

Anarkali Ashoksingh Thakur & others v. Authorised Officer, S. B. Khot & another

2003-03-27

P.S.BRAHME, R.M.S.KHANDEPARKAR

body2003
JUDGMENT - KHANDEPARKER R.M.S., J.:---Heard the learned Advocates for the parties. Perused the records. 2. The petitioner challenges the proceedings before the Forest authorities as well as the orders passed by the Forest authority and the lower Appellate Court in relation to confiscation of the property under the Indian Forest Act, 1927, hereinafter called as "the said Act". The challenge is two fold. Firstly, that the show cause notice issued by the respondent No. 2 was not accompanied either by the copies of the documents sought to be relied upon in support of the proceedings against the petitioner or even the list of witnesses and copies of their statements. Secondly, that the respondents failed to make report to the learned Magistrate having jurisdiction to try the offence in relation to seizure of the property, as was otherwise required to be made under section 52(2) of the said Act. 3. Upon hearing the learned Advocates and on perusal of the records, it is seen that, undoubtedly, the petitioner has raised the ground in the memo of appeal before the lower Appellate Court that the show cause notice was bad in law for non-supply of copies of the documents and the statements of witnesses along with such notice to the petitioner and that therefore, the proceedings for confiscation were bad in law. However, the fact remains that the petitioner had not made any such grievance while replying to the show cause notice issued by the respondent No. 2. The reply filed by the petitioner in response to the said show cause notice nowhere disclosed any prejudice having been caused to the petitioner on account of non-supply of copies of the documents or the statements of witnesses which were relied upon for issuance of the show cause notice to the petitioner. The learned Advocate for the respondent has also drawn our attention to the fact that the show cause notice issued to the petitioner was elaborate one, disclosing all the necessary details so as to enable the petitioner to meet the case which he was required to meet in answer to the said show cause notice. 4. If one peruses section 61-B of the said Act, it requires issuance of the show cause notice prior to the order of confiscation of any property under the said Act. 4. If one peruses section 61-B of the said Act, it requires issuance of the show cause notice prior to the order of confiscation of any property under the said Act. It nowhere requires copies of such documents to be furnished to the addressee of the show cause notice along with such show cause notice. The statutory provision dealing with issuance of show cause notice, therefore, does not make it obligatory upon the authorities proceeding to take steps for confiscation of the property under the said Act to furnish the copies of such documents to the addressee of the notice along with such notice. No doubt, this would not mean that the addressee would not be entitled to get copies of such documents in the course of the proceedings. Certainly, the addressee can insist for supply of such copies in order to facilitate the addressee to defend the case against the claim of confiscation of the property under the said Act. Mere non-supply of such copies along with the show cause notice, however, would not in any manner vitiate the proceedings initiated by the authorities under the said Act for confiscation of the property. In any case, the petitioner had nowhere made any grievance in reply to the show cause notice that he was in any manner prejudiced by non-supply of such copies or that he was handicapped in filing his reply to the show cause notice on account of non-supply of copies of such documents. Being so, interference in the writ jurisdiction in the impugned order merely on the ground of failure on the part of respondent in supply copies of such documents along with show cause notice is thoroughly uncalled for. 5. Being so, interference in the writ jurisdiction in the impugned order merely on the ground of failure on the part of respondent in supply copies of such documents along with show cause notice is thoroughly uncalled for. 5. As regards the second ground of challenge, placing reliance in the decision of the Madhya Pradesh High Court in (Kamleshkumar Chhabra v. State of M.P. and others)1, A.I.R. 1985 Madhya Pradesh 130, it was sought to be contended that strict compliance of section 52(2) of the said Act in the matter of making of report of seizure to the Magistrate is required to be insisted upon as seizure of property can lead to confiscation of the property and therefore, may have civil consequences and virtually, may result in taking away the livelihood of the party and therefore, failure on the part of the authority to make report of the seizure to the Magistrate cannot be condoned nor the provisions can be held to be of directive in nature and therefore, in the case in hand, the authorities having failed to comply with the said provisions of law, the entire proceedings are to be considered as vitiated and should be quashed and set aside. 6. Section 52(2) of the said Act provides that, "Every officer seizing any property under this section shall place on such property, (or the receptacle or vehicle (if any) in which it is contained.) a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made." 7. While considering the said section, the Division Bench of the Madhya Pradesh High Court in Kamleshkumar's case has held that, "the purpose for making a report to the Court having jurisdiction to try the offence is to enable the person from whom the property is seized to move the Court for necessary relief. As stated earlier, it cannot be said that the legislature, while conferring such power of seizure, intended to deprive the person of seeking his remedies in the Court of law. The power conferred is to be exercised strictly within the permissible limits prescribed by law. It certainly does not mean the abuse of power. As stated earlier, it cannot be said that the legislature, while conferring such power of seizure, intended to deprive the person of seeking his remedies in the Court of law. The power conferred is to be exercised strictly within the permissible limits prescribed by law. It certainly does not mean the abuse of power. The report required to be made to the Magistrate is with a purpose to enable the person deprived of property to move the Court for the release of the property, if he so desires". 8. Perusal of the said judgment of the Madhya Pradesh High Court, apparently discloses that the said ruling was given bearing in mind the purpose behind the provisions of law contained in sub-section (2) of section 52 of the said Act and more particularly, relating to the necessity of making report to the Magistrate. It is, however, to be noted that any such property which is seized under section 52 of the said Act can be subjected to confiscation if the property so seized happens to be one described under section 61-A of the said Act. The said section 61-A was introduced in the said Act pursuant to the Maharashtra Act VII of 1985 which is in force in the State of Maharashtra. Similarly, in terms of section 61-G, which is in force in the State of Maharashtra, pursuant to the introduction thereof in the said Act under Maharashtra Act VII of 1985, the jurisdiction to deal with the property subjected to confiscation under section 61-A has been exclusively given to the authorised officers under the said Act. Similarly, in terms of section 61-G, which is in force in the State of Maharashtra, pursuant to the introduction thereof in the said Act under Maharashtra Act VII of 1985, the jurisdiction to deal with the property subjected to confiscation under section 61-A has been exclusively given to the authorised officers under the said Act. Said section 61-G. in fact, provides thus : "Whenever any timber, sandalwood, firewood, charcoal or an other notified forest produce which is the property of the State Government, together with any tool, boat, vehicle or cattle used in committing any offence is seized under sub-section (1) of section 52, the Authorised Officer under section 61-A or the officer specially empowered under section 61-C or the Sessions Judge hearing an appeal under section 61-D shall have, and notwithstanding anything, to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, any other officer, Court, Tribunal or authority shall not have jurisdiction to make orders with regard to the custody possession, delivery, disposal or distribution of such property and any tool, boat, vehicle or cattle." 9. Besides, in terms of section 61-F, "when an order for confiscation of any property or any tools, boats, vehicles or cattle is passed under section 61-A or section 61-C or section 61-D and such order has become final in respect of the whole or any portion of such property, or tool, boat, vehicle or cattle such property or portion thereof or tool, boat, vehicle or cattle or it has been sold under Clause (a) of sub-section (4) of section 61-A, the sale proceeds thereof as the case may be, shall vest in the State Government free from all encumbrances." 10. Once a property is seized under the said Act and if it satisfies the description under section 61-A, the same can be dealt with in terms of section 61-A of the said Act. The person from whom such property is seized, cannot as a matter of right insist for return of the property to him even during the pendency of the investigation or proceedings under the said Act in relation to such property. The person from whom such property is seized, cannot as a matter of right insist for return of the property to him even during the pendency of the investigation or proceedings under the said Act in relation to such property. The question of demand for return of such property after order of confiscation is passed is totally out of question in view of the fact that such property by then vests in the State Government. Being so, the purpose for which, initially, the provision under section 52(2) of the said Act was incorporated, no more subsists in the State of Maharashtra in view of the provisions contained in sections 61-A to 61-G. in relation to the properties to which the provisions of section 61-A apply. Therefore, the decision of the Madhya Pradesh High Court is, in no way, helpful to the petitioner to contend that the proceedings in the case in hand are vitiated on account of non-compliance of section 52(2) of the said Act. This is not to hold that the authorities are not liable to make report to the Magistrate under section 52(2). Certainly, till and until the provision of section 52(2) is on statute book, the authorities are expected to comply with the said provision. However, in case of failure to comply with the said provision, the proceedings for confiscation cannot be said to be vitiated, though such failure on the part of authorities may warrant some other action against the erring officers. 11. In the case in hand, it is also to be noted that the seizing officer had, in fact, made a report to the Authorised Officer on 8th March, 1995 about seizure of the articles. Undoubtedly, it cannot be said to have been made to the Magistrate as well as within a reasonable time as is otherwise required to be made under section 52(2). But the fact remains that the report was made. 12. For the reasons stated above, we do not find any illegality being committed in the proceedings initiated by the respondents under the said Act non they are vitiated in any manner and therefore, no interference is called for in the impugned order on the grounds on which the same is challenged by the petitioner. Hence, the petition fails and is hereby dismissed. Rule is discharged with no order as to costs. Petition dismissed. -----