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2005 DIGILAW 378 (CAL)

MINATI PAUL v. STATE OF WEST BENGAL

2005-06-16

JYOTIRMAY BHATTACHARYA

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JYOTIRMAY BHATTACHARYA, J. ( 1 ) THIS application under Article 227 of the Constitution of India is directed against the judgment and order dated 20th June, 2001 passed by the learned additional District Judge, 1st Court Jalpaiguri in Misc. Appeal No. 27 of 1999 affirming the order dated 20th September, 1999 passed by the authorized Officer, Jalpaiguri District and the Divisional Forest Officer, jalpaiguri Division. ( 2 ) BY the order impugned, the order passed by the Authorized officer confiscating the vehicle No. WGV-4088 along with the tools, forest produce seized by the State Government under Section 59a (3) of the Indian forest Act, 1927, was affirmed in appeal by the learned Additional District judge, 1st Court at Jalpaiguri. ( 3 ) BOTH the Authorized Officer as well as the learned Court below concurrently held that a forest offence had been committed in respect of the forest produce belonging to the State Government by the registered owner of the vehicle being Vehicle No. WGV-4088 which was used in commission of the said forest offence. Both the Authorized Officer as well as the learned Court below also concurrently held that the owner of the vehicle failed to prove that her vehicle was not used for carrying the said forest produce without the knowledge or convenience of herself or her agent or person in charge of the vehicle. Both the Authorized Officer as well as the learned Court below further held that the owner of the vehicle failed to prove that she herself or her agent or the person in charge of the vehicle had taken all reasonable and necessary precautions against the unauthorised use of the said vehicle for illegal transportation of the forest produce belonging to the State Government. ( 4 ) IN view of such aforesaid concurrent findings of fact, this Court sitting in its supervisory jurisdiction under Article 227 of the Constitution of india, cannot reassess the entire evidence on record for finding out the correctness and/or justification of the findings of the learned Court below, particularly when perversity in the judgment has not been made a ground of attack against the impugned order by the petitioner in this application under article 227 of the Constitution of India. ( 5 ) WITHOUT interfering with the aforesaid concurrent findings of fact, let me consider as to whether the vehicle can be released on imposition of fine in lieu of confiscation of the vehicle. ( 6 ) THE Court's power to release the vehicle by imposition of fine in lieu of confiscation of the vehicle is no longer a res Integra in view of the following decisions of this Hon'ble Court wherein on interpretation of the word "may" occurring under Section 59d (2) of the Indian Forest Act, this court uniformly held that confiscation of vehicle is discertionary and not mandatory and as such for the purpose of securing justice, vehicle may be released by imposition of fine in lieu of confiscation thereof in suitable cases :- (i) (2001 )3 Cal HN 70/ (Ram Dulal Ghosh v. Dy. Field Director), (ii) 2001 C Cr LR (Cal) 178 (Nazban Nissa v. State of West Bengal), (iii) (2003)1 Cal HN 217 (Ham Deo Sha v. State of W. B.), (iv) 1993 C Cr LR (Cal) 242 (Pijush Kanti Mondal v. State of West bengal ). ( 7 ) CONSIDERING the aforesaid decisions of this Hon'ble Court, I hold that the power of confiscation must be exercised in commensurate with the offence committed. ( 8 ) HERE in the instant case, I find that the approximate value of the seized sa/ sawn logs which were found lying in the said vehicle was assessed at about Rs. 80,000/- by the Authorized Officer. Considering the nature of the offence and particularly, in view of the fact that such an offence was committed by the petitioner for the first time, I am of the view that it will be proper to give an opportunity to the owner of the vehicle to avoid the order of confiscation of the vehicle by depositing a fine in lieu thereof. ( 9 ) ACCORDINGLY, I direct the Authorized Officer to release the vehicle bearing No. WGV-4088 to its registered owner on payment of fine amounting to Rs. 1,00,000/- (rupees one lakh) which is the expected value of the said vehicle. Such deposit should be made within a period of twelve weeks from the date of this order and the said vehicle will be released immediately within two days from the date of deposit of such fine by the petitioner. 1,00,000/- (rupees one lakh) which is the expected value of the said vehicle. Such deposit should be made within a period of twelve weeks from the date of this order and the said vehicle will be released immediately within two days from the date of deposit of such fine by the petitioner. ( 10 ) I, however, make it clear that in case the owner of the vehicle fails to deposit the said amount within the aforesaid period, then the order of confiscation of the vehicle which was passed by the Authorized Officer and affirmed by the appellate Court shall remain valid. ( 11 ) THE revisional application is thus disposed of. There will be, however, no order as to costs.