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2005 DIGILAW 624 (PAT)

Rajesh Kumar Agrawal v. State Of Bihar

2005-07-21

MRIDULA MISHRA

body2005
Judgment 1. Both these writ applications have been filed for quashing the seizure dated 28.10.2004 by which the truck loaded with Sawn Sisam bearing registration no. HR 38J 9285, and Truck bearing registration no. HR 38K 0981 loaded with panel Board and side patti have been seized in course of inter State movement. Prayer is also for quashing the consequential confiscation proceeding initiated, if any. 2. The petitioners have challenged the seizure of the truck and articles loaded on the trucks, on the ground that the State Government and the authorities of the Forest Department have no power or authority to stop inter-State movement and transportation of sisam and other forest produce particularly when the State Government has not made rules regulating the movement of timbers and forest produce out of the State, in exercise of powr conferred under Section 41 of the Indin forest Act, 1927. Seizure by the authority has been challenged because no rule has been framed by the State and the seizure is in violation of the order passed in the reported decision in the case of M/s. Bhartiya and sons V/s. The State of Bihar & Ors. [ 2001(4) PLJR 411 ]. 3. Petitioner no. 1 in C.W.J.C No. 14985 of 2004 is the proprietor of M/s Raj Timber, Sursand, District Sitamarhi and the petitioner no. 2 is the owner of truck bearing registration no. HR-38J/9285. Petitioner no. 1 in C.W.J.C. No. 15845 of 2004 M/s Mithila Saw Mills is manufacturer and timber supplie, having manufacturing unit at Bariarpur in the district of Sitamarhi. Petitioner no. 2 is the owner of truck bearing registration no. HR-38K/0981 which is engaged in transportation business as a public carrier. 4. Petitioner no. 1 in both the cases stated that they are licensee under the provisions of the Bihar Saw Mill Regulation, 1990. Their case is that they maintain regular stock register, duly verified by the Forest Officer from time to time. They used to file return in Form-D to the Divisional Forest Officer in accordance with the rules informing all dispatches outside the State. Retuns filed by them indicated sales in course of inter-State trade. Petitioner in C.W.J.C. No. 14985 of 2004 received order for supply of sawn sisam from Sri Mahabir Timber, Sridungergarh, District Bikaner, Rajasthan. Petitioner no. They used to file return in Form-D to the Divisional Forest Officer in accordance with the rules informing all dispatches outside the State. Retuns filed by them indicated sales in course of inter-State trade. Petitioner in C.W.J.C. No. 14985 of 2004 received order for supply of sawn sisam from Sri Mahabir Timber, Sridungergarh, District Bikaner, Rajasthan. Petitioner no. 1 in C.W.J.C. No. 15845 of 2004 received order from M/s Rajdhani Crafts, Jaipur, Rajasthan for supply of panel board and sisam side patti etc. Petitioner no. 1 in both cases engaged trucks bearing Registration No. HR 38J 9285 and No. HR-38K/0981 respectively through Sati Road lines, Sursand Road, Sitamarhi for transportation of goods and loaded with consignment. The petitioners intimated the Principal Chief Conservator of Forest, Bihar by filing an application that the consignment is going to be transported to Rajasthan as per the sale agreement and hence in view of judgment and order passed in C.W.J.C. No. 9632 of 2001. M/s Bhartiya and Sons V/s. State of Bihar and others, reported in 2001(4) PLJR 411 though there is no requirement of transit permit, even though if the department intends to issue any permits for the said consignment, the same be issued to them. No receipt was granted by the office of the respondent no. 3. The driver and Khalasi were provided with all relevant papers relating to the consignment i.e. Chalan, invoice, road permit in Form XXVIIB and similar for Rajasthan. Road permit in Form XXVIIB issued by the Commercial Taxes Department, State of Bihar and similar for Rajasthan bearing details relating to the consignment, showing inter-State movement/transportation from Bihar to Rajasthan. In the morning of 28.10.2004 the trucks were stopped by the Forester, Runnisaidpur, though the Divisional Forest Officer had already been intimated about the transaction and the consignment loaded on the truck. As the transaction related to inter-State sale, the Divisional Forest Officer had verbally been informed that since the State Government has not framed any rule relating to prescribed transit permit for inter-State sale the trucks loaded with consignment cannot be stopped from moving its final destination, for want of prescribed transit permit as the same cannot be issued for transaction. Even though above facts were known to the Forester, he detained the truck and a false case for alleged violation of Sections 41 and 42 of the Indian Forest Act, 1927 was framed. Even though above facts were known to the Forester, he detained the truck and a false case for alleged violation of Sections 41 and 42 of the Indian Forest Act, 1927 was framed. The truck alongwith loaded consignment were shown seized on 28.10.2004 and the report was sent to the Chief Judicial Magistrate, Sitamarhi. The driver of the truck produced all relevant documents and papers concerning the consignment which were duly received by the office of the Divisional Forest Officer, Tirhut Forest Division, Muzaffarpur, respondent no. 4, but for the reasons best known it was not mentioned in the invoice. 5. Petitioners have challenged the seizure of sawn, sisam timber and panel board and side patti as well as trucks, as wholly illegal, arbitrary, mala fide and without jurisdiction. Initiation of confiscation proceeding if any as a consequential measure of seizure has also been challenged as illegal. Prayer of the petitioner is for quashing the proceedings of confiscation. 6. The action of the respondents in refusing to issue transit permit and not allowing the movement of the consignment was earlier challenged by M/s Bhartiya and Sons, on the ground that this is violative of constitutional mandate as contained in Article 301 and was an infringement of the petitioners fundamental right guaranteed under Article 19(1)(g) of the Constitution. 7. This writ application was allowed on consideration of Section 41(1) of the Indian Forest Act, 1927 and Forest Produce (Regulation of Transit) Rules, 1973, it was held as follows: "I am totally unable to accept the submission. On the one hand is the mandate of Article 301 and the question of a fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution and on the other hand what is offered to restrict the constitutional mandate and to circumscribe the fundamental right under the Constitution is a far fetched authorization to the executive by implication based on omission of the rule to cover the field of movement of timber etc. outside the State. The respondent authorities seem to view the omission and the deficiency in the 1973 Rule as a source of their power to prohibit movement of timber etc. out side the State in disregard of Articles 301 and 19(1)(g) of the Constitution. To me this stand appears to be based on inverted logic. The failure of the State Government to frame rules regulating the transit of timber etc. out side the State in disregard of Articles 301 and 19(1)(g) of the Constitution. To me this stand appears to be based on inverted logic. The failure of the State Government to frame rules regulating the transit of timber etc. outside the State does not mean that the movement of timber outside the State is prohibited or that it empowers the executive to issue an order imposing ban against movement of timber outside the State. On the contrary the State Governments failure to frame rules to regulate the movement of timber outside the State simply means that the field is uncovered and there is no control or regulation over movement of timber etc. outside the State. 8. In this very judgment the State Government was advised to make comprehensive rule regulating the movement of timber etc. outside the State in exercise of the power under Section 41 of the Indian Forest Act or alternatively to take timber within the ambit of Bihar Forest Trade Act and the rules framed thereunder. Till such time legislative measures are taken, the respondents authorities were restrained to prohibit movement of timber outside the State. Till date no such rule has been framed which is apparent from the counter affidavit filed by the State and also from the letter of the Secretary, Department of Environment of Forest, Government of Bihar dated 15.4.2005, sent to Government Pleader No. 7. Government Pleader No. 7 has produced this letter before this Court from which it transpires that in compliance of the order passed in C.W.J.C. No. 9632 of 2001 the State Government is in the process of amending the Bihar Timber and Forest Produce (Regulation of Transit) Rules, 1973. The concerned file of the amendment is in process and it is expected that within two months the Government will notify the amendment. Admittedly on 28.10.2004 when the trucks of the petitioners loaded with consignment were seized no such rule for regulating the movement of timbers both within and outside the State was framed in exercise of powers conferred under Section 41 of the Indian Forest Act, 1927 . Till the dates, rules are in process and not final. Admittedly on 28.10.2004 when the trucks of the petitioners loaded with consignment were seized no such rule for regulating the movement of timbers both within and outside the State was framed in exercise of powers conferred under Section 41 of the Indian Forest Act, 1927 . Till the dates, rules are in process and not final. There being no such rule the State Government and the authorities of the Forest Department did not have any power or authority to prohibit movement and transportation of sisam and other forest produce outside the State, the action on the part of the respondents is wholly without jurisdiction as well as in clear contempt of the order/direction of this Court in the case of M/s Bhartiya & Sons vs. State of Bihar. 9. So far the seizure of the trucks and the consignment loaded on the trucks are concerned, have also been challenged by the petitioners. Counsel for the petitioners has submitted that under Section 51 of the Indian Forest Act, 1927 , the authorities are empowered to seize any Forest produce liable to confiscation when there is reason to believe that the forest offence has been committed in respect of any forest produce. The power of seizure can be exercised only when there is reason to believe that the forest produce with respect to which such offences have been committed, is the property of a Government and the offender is unknown. 10. The expression "reason to believe" has occured occurs in several statute like, Section 147(a) of the Income Tax Act, 1961. Section 178(c) of the Customs Act, Section 6 of the Gold Control Act, 1968 and Section 52 of the Indian Forest Act, 1927. Argument advanced by the petitioners counsel is that Section 66 of Gold Control Act and Section 52 of Forest Act. both relates to seizure and identical expression have been used as a pre-condition for exercising power of seizure. Reliance has been placed on a decision reported in A.I.R. 1982 Patna 152 In this case seizure under Section 66 of the Gold Control Act was under challenge. The finding recorded in the decision is "The condition precedent for application of Section 66 is the reasonable believe that the provisions of the act have been or are being attempted to be contravened. The finding recorded in the decision is "The condition precedent for application of Section 66 is the reasonable believe that the provisions of the act have been or are being attempted to be contravened. Thereafter the power extends to the seizure of such gold in respect of which contravention has been either made or is about to be made and the section did not permit an indiscriminate seizure with a view to fishing out materials to form a belief and justify it by reason culled therefrom. The belief must be of an honest and reasonable person based upon reasonable grounds. It was not a matter of subjective satisfaction". Section 52 of the Forest Act, 1927 also mentions the expression "reasonable believe" which postulates existence of reason for such belief, held in good faith. The petitioners case is that admittedly the forest produce which was loaded on the trucks was not a Government property. There were documents to show that the timbers/wood have been purchased by the petitioners after obtaining valid permission from the forest authority and the Local Mukhiya. The timbers were grown on the private field and valid permission for its purchase was issued by the local authority. So far the identity of owner is concerned that was also not unknown. There was nothing to show that any offence under the Forest Act has been committed. The condition precedent for seizure as provided under Section 52 of the Forest Act was totally absent. Unless there was any reason to believe that a Forest offence has been committed, entire exercise of seizure is illegal and such seizure must be quashed. It has also been argued that any confiscation proceeding consequent of such illegal seizure also must be dropped with respect to the seized articles. 11. On consideration of the scheme of the act and the decision referred to above with special reference to the provisions relating to search and seizure, I am of the opinion that Section 52 of the Act restricts such power conferred on the authority and that has to be exercised strictly in accordance with law. It is not disputed that the petitioners are licensee and all necessary legal documents were obtained by them from the authorities concerned, there is no such rule which prohibits or restrain inter-State Movement of the timber or any forest produce. 12. It is not disputed that the petitioners are licensee and all necessary legal documents were obtained by them from the authorities concerned, there is no such rule which prohibits or restrain inter-State Movement of the timber or any forest produce. 12. In the facts and circumstances of the case, there is no contravention of any of the provisions under the Forest Act or Bihar Forest Produce Act, 1984, the authorities cannot be permitted to make a indiscriminate seizure with a view to fishing out the material to form believe and justify it by reasons. The seizure is without jurisdiction and it is quashed. 13. So far the confiscation proceeding is concerned, the petitioners may approach the authorities for dropping the proceeding, if initiated any. However, it will be open to the authorities to pass an order in accordance with law considering the facts of the case. 14. According, both the writ applications are allowed.