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Madhya Pradesh High Court · body

2003 DIGILAW 504 (MP)

State of M. P. v. Farida Bano

2003-04-03

AJIT SINGH

body2003
JUDGMENT This petition, by the State under section 482 of the Code of Criminal Procedure, 1973 is directed against the order dated 15.7.1999 passed by the VIth Additional Sessions Judge, Bhopal, in Criminal Revision No. 184/99 reversing the orders of confiscation of the truck. Sometime in the mid-night of 3.3.1997 Deputy Ranger, In-charge of the Flying Squad, on a routine patrol duty, found a truck bearing registration No. CPO 7385 unlawfully carrying 8000 pieces of green bamboos. Since he had sufficient reason to believe commission of forest offence, he seized the truck from the possession of Mohammad Saleem, who is a husband of the respondent. The truck is registered in the name of respondent but she is only a benamidar and Mohammad Saleem is the actual owner of the same and it is he who carries on the business of transport from the said truck. Forest offence POR No. 629/02 was registered and information in that regard was sent to the Authorised Officer and also to the Judicial Magistrate. Thereafter, proceedings for confiscation of the truck were initiated as contemplated under section 52 of the Indian Forest Act (hereinafter referred to as "the Act''). Notices with regard to these proceedings were issued to the respondent, her husband Mohammad Saleem and also to other co-accused persons. Mohammad Saleem received the notice on 5.4.1997 and thereafter he actively participated in the confiscation proceedings. He claimed himself to be the owner of the truck and stated that he has the power of attorney of the respondent for representing her in the proceedings and assured that he would produce the same within 2/3 days. His statement was recorded on 26.4.1997 before the prescribed authority, who thereafter issued a notice on 10.5.1997 by a registered post to the respondent informing her in detail about the confiscation proceedings of the truck and the assurance given by her husband Mohammad Saleem about submitting her power of attorney in his favour regarding the truck. It was requested to the respondent in the notice to give evidence in support of her case. The said notice was received by her on 15.5.1997. On 10.6.1997 Mohammad Saleem submitted a power of attorney dated 19.5.1997 of the respondent before the prescribed authority stating that all actions done by her husband in the proceedings were acceptable to her. It was requested to the respondent in the notice to give evidence in support of her case. The said notice was received by her on 15.5.1997. On 10.6.1997 Mohammad Saleem submitted a power of attorney dated 19.5.1997 of the respondent before the prescribed authority stating that all actions done by her husband in the proceedings were acceptable to her. The prescribed authority, after considering the evidence and material on record, by order dated 21.6.1997 directed for the confiscation of the truck. The respondent preferred an appeal which was also dismissed. Thereafter, she filed a criminal revision· which has been allowed by the impugned order essentially on the ground that the respondent was not properly served with the notice of confiscation proceedings and as such she was denied proper opportunity to defend her case. According to the learned Judge, mandatory provisions of section 52(4) of the Act were not complied with. Shri Vivekanand Awasthy, learned Government Advocate, has strenuously argued that the provisions of section 52 of the Act have been fully complied with and hence the impugned order of the revisional Court is illegal. Shri Y.K. Gupta, learned counsel for the respondent, on the other hand, has supported the order under challenge. Section 52 of the Act deals with the seizure of property liable to confiscation and provide the procedure therefore Section 52(4) reads as under: "52. Seizure of property liable to confiscation and procedure there-for -- (1) . . . . . . . . . . . . . . . . . . . . Section 52 of the Act deals with the seizure of property liable to confiscation and provide the procedure therefore Section 52(4) reads as under: "52. Seizure of property liable to confiscation and procedure there-for -- (1) . . . . . . . . . . . . . . . . . . . . (4) No order confiscating any property shall be made under Sub-section (3) unless the authorised officer-(a) sends an intimation in form prescribed about initiation of proceedings for confiscation of property to the magistrate having jurisdiction to try the offence on account of which the seizure has been made; (b) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property; (c) affords any opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and (d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose." From the perusal of sub-clause (b) of clause (4) of section 52, it is clear that notices are to be issued in writing to the person from whom the property is seized and to any other person who may appear to the Authorised Officer to have some interest in such property. In the present case, the truck was admittedly seized from Mohammad Saleem who himself has claimed to be an owner of the truck though it is registered in the name of respondent as a benamidar. A joint notice was issued on 5.4.1997 to Mohammad Saleem and the respondent which was received by Mohammad Saleem on the same day. Mohammad Saleem actively participated in the confiscating proceedings without raising any objection. On the contrary, he asserted during the confiscation proceedings that he has the power of attorney on behalf of the respondent, his wife, to participate in the proceedings and assured that he would submit the power of attorney within a day or so. As already stated above, Mohammad Saleem even gave a statement in this regard during the confiscation proceedings on 26.4.1997. As already stated above, Mohammad Saleem even gave a statement in this regard during the confiscation proceedings on 26.4.1997. Despite that, the prescribed authority sent a registered notice on 10.5.1997 to the respondent informing her in detail about the proceedings of confiscation of truck and the assurance given by her husband Mohammad Saleem for producing the power of attorney on her behalf in his favour. By the said notice, respondent was called upon to give evidence in her support. The said notice was received by her on 15.5.1997. Instead of giving any evidence, she preferred filing her power of attorney in favour of her husband Mohammad Saleem through him stating that all actions done by him were acceptable to her. Thus, in my opinion, the prescribed authority has substantially complied with the provisions of section 52(4) of the Act. The respondent has indeed been given full opportunity to defend her case but she preferred being represented by her husband Mohammad Saleem who, in fact, is the actual owner of the truck. The truck was also seized from Mohammad Saleem and he was fully conversant with the incident of forest offence. In view of the aforesaid, the impugned order suffers from illegality and material irregularity and is hereby quashed. The truck shall stand confiscated. The petition is allowed.