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2004 DIGILAW 7 (HP)

HIMGIRI HIRE PURCHASE PVT. LTD. v. STATE OF H. P.

2004-01-05

K.C.SOOD

body2004
JUDGMENT Kuldip Chand Sood, J. (Oral) - This petition is directed against the orders of learned Sessions Judge, Bilaspur, dated 7.5.2003,dismissing the appeal of the petitioner under Section 59 of the Indian Forest Act, against the order of Authorised Officer (DFO), Bilaspur, dated 14.10.1999. 2. In order to appreciate the controversy, few facts may be noticed: 3. On 27.8.1998, a Truck bearing registration No.HID 5079 was intercepted by the SHO Police Station, Sadar, in Nihal Sector at Bilaspur. The truck at the relevant time was driven by Karam Chand and was loaded with the timber without any transit pass or export permit. Respondents Kunj Lal and Rajesh Kumar also sitting in the truck. On search, 54 scants of timber (Deodar of different sizes) were recovered. A case in terms of FIR No. 148/98, for offences punishable under Sections 379,420 and 120-B of the Indian Penal Code and 41, 42 of Indian Forest Act was registered? 4. It appears that this truck was financed by the petitioner "Himgiri Hire Purchase Pvt. Ltd." And financial assistance was provided to the extent of Rs.72,000/-. The matter went to the Authorized Officer (DFO), Bilaspur, for confiscation of the truck, under Section 52 of the Indian Forest Act. The Authorized Officer directed confiscation of the truck, after hearing the registered owner and driver of the truck, from whom the truck was taken into possession. 5. Dissatisfied the petitioner carried an appeal, under Section 59 of the Indian Forest Act, before the Teamed Sessions Judge, Bilaspur, which was dismissed by the impugned judgment. 6. The contention of the petitioner is that under the Hire Purchase Agreement, it is the petitioner who is entitled to the custody of the truck in case the installments are not paid and as the installments had not been paid by the owner of the truck, therefore, this truck could not be confiscated by the Authorized Officer. 7. Section 52, as applicable to the State of Himachal Pradesh, after its amendment in the year 1991, reads: "Any Forest Officer or Police Officer may. 7. Section 52, as applicable to the State of Himachal Pradesh, after its amendment in the year 1991, reads: "Any Forest Officer or Police Officer may. If he has reasons to believe that a vehicle has been or is being used for the transport of timber (excluding fuel wood) resin, Khair wood and Katha in respect of which a forest offence has been or is being committed, require the driver or other person-in-charge of such vehicle to stop the vehicle and cause it to remain stationery as long as may reasonably be necessary to examine the contents in the vehicle and inspect ail records relating to the goods carried which are in the possession of such driver or other parson-in-charge of the vehicle. Every officer seizing any property under this section shall place on such property a mark indicating that the same has been seized, and shall, as soon as may be, make a report of such seizure- (a) Where the offence, on account of which the seizure has been made, is in respect of timber (excluding fuel wood), resin, khair wood and katha which is the property of the State Government, to the concerned authorised officer under sub-section (1) of Section 52-A:and (b) In other cases, to the Magistrate having jurisdiction to try the offence on account of which the seizure is made." 8. A bare perusal of Section 52 shows that if a forest produce is illegally transported in the vehicle, then such vehicle is liable to be seized by the authorized officer who seizes the goods carried in such vehicle. 9. Section 52-A and 52-B provides for confiscation of the vehicle and other forest produce and procedure thereof. 10. Section 52-A and 52-B reads: Confiscation by Forest Officers in certain cases - (1) Notwithstanding anything contained in-this-Chapter, where a forest offence is believed to have been committed in respect of timber (excluding fuel wood), resin, khair wood and katha, which is the property of the State Government, the officer seizing the property under sub-section (1) of Section 52 shall without any unreasonable delay produce it, together with all tools, ropes, chains, boats or vehicles used in committing such offence before an officer, authorized by the State Government in this behalf by notification published in the Original Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer). (2) Where an authorized officer seizes under sub-section (1) of Section 52 any timber (excluding fuel wood) resin, Khair wood and Katha, which is the property of the State Government, or where any such property is produced before an authorized officer under sub-section (1), once he is satisfied that a forest offence has bee committed in respect of such property, such authorized officer may, whether or not a prosecution is instituted for the commission is instituted for the commission of such offence, order confiscation of the property so seized together with all tools, ropes, chains, boats or vehicles used in committing such offence (Emphasis given) (3) (a) Where the authorized officer, after passing an order of confiscation under sub-section (2) is of the opinion that it is expedient in the public interest so to do, he may order confiscated property or any part thereof to be sold public auction. (b) Where any confiscated property is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under Section 52-A is set aside or annulled by an order under Section 59 or Section 59-Arbe paid to the owner thereof or the person from whom it was seized as may be specified in such order." 52-B. Issue of show cause notice before confiscation under Section 52-A. (1) No order confiscating any timber (excluding fuel wood) resin, khair wood and Katha, ropes chains, boats or vehicles shall be made under Section 52-A except after notice in writing to the person from whom it is seized and considering his objections, if any : Provided that no order confiscating a motor vehicle shall be made except, after giving notice in writing to the registered owner thereof, if in the opinion of the authorized officer it is practicable to do so, and considering his objections, if any. (Emphasis given) (2) Without prejudice to the provisions of sub-section (1), no order confiscating any tool, rope, chain, boat or vehicle shall be made under Section 52-A if the owner if the tool, rope, chain, boat or vehicle proves to the satisfaction of the authorized officer that it was used in carrying the timber (excluding fuel wood), resin, khair wood and katha without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the tool, rope, chain, boat or vehicle and that each of them had taken all reasonable and necessary precaution against such use." 11. A perusal of Section 52-A and proviso to Section 52-B clearly stipulates that if an offence is committed in respect of forest produce, which includes excluding fuel wood, resin, khair wood and katha which is the property of the State Government then the officer seizing the property under sub-section (1) of Section 52 has to produce such forest produce along with vehicle in which it was being carried and tools used for committing such an offence before the authorized officer, the DFO in this case. The Authorized Officer is competent to confiscate such forest produce so seized along with the vehicle and tools etc., after giving an opportunity to the person in writing from whom such forest produce or vehicle etc. seized, as also in the case of motor vehicle notice in writing to the registered owner. It is admitted position in this case that the registered owners of the vehicle are Amar Chand, Karam Chand, Kunj Lal, Rajesh Kuma and Parma Nand. The defence was taken before the authorized officer was that it was not to the knowledge of the owner of the vehicle that driver of the vehicle was involved in carrying illicit forest produce. The owner had not connived with the driver with the commission of offence nor any instruction to carry forest produce was given to the driver of the vehicle. The defence was rejected both by the Authorized Officer and the learned Sessions Judge in appeal. 12. Learned Sessions Judge noticed that one Santokh Singh was the original owner of the vehicle. The said Santokh Singh sold this vehicle to Amar Chand, therefore, the petitioner Himgiri Hire Purchase Pvt. Ltd. in this case was not entitled to any notice being not the registered owner of the vehicle. 12. Learned Sessions Judge noticed that one Santokh Singh was the original owner of the vehicle. The said Santokh Singh sold this vehicle to Amar Chand, therefore, the petitioner Himgiri Hire Purchase Pvt. Ltd. in this case was not entitled to any notice being not the registered owner of the vehicle. The learned Sessions Judge also noticed that the petitioner has also no control over the operation of the vehicle. 13. The present petitioner being not owner of the vehicle was not entitled to any notice. 14. In the facts and circumstances of the case, the petition is meritless which is dismissed.