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Himachal Pradesh High Court · body

2006 DIGILAW 147 (HP)

PUSHAP RAJ v. STATE OF H. P.

2006-05-23

V.K.GUPTA

body2006
ORDER 1. Truck No. HP-32-0341 belonging to the petitioner (the petitioner is its registered owner) and also being driven by the petitioner at the relevant time was seized on 5th June, 2000 purportedly in terms of S. 52 of the Indian Forest Act, 1927. As a sequel to the seizure of this truck and as a prelude to its confiscation u/S. 52-A of the Indian Forest Act, 1927 (Himachal Pradesh State Amendment), as required under S. 52-B of the said Act (Himachal Pradesh State Amendment), a notice was issued to the petitioner by the Authorised Officer, text whereof is reproduced herein-below for our ready reference :— "Shri Pushap Raj S/o. Shri Naginder Singh, Village Chachiot, P. O. Shalla Tehsil Chachiot, District Mandi, (HP) (Through S. H. O., Gohar). Whereas, it has been reported that truck No. HP-32-0341 owned by you has been apprehended indulging in transportation of different sizes of Deodar 20 sleepers and four frames on 5-6-2000. You are, therefore, directed through this notice to show cause as to why the said truck No. HP-32-0341 along with Deodar 20 sleepers and 4 frames are not confiscated to the State of H. P. Your reply must reach in the Court of the undersigned on 19-6-2000 at 10.00 a.m. i.e. on the date of the hearing of the case failing which it shall be presumed that you have nothing to say and exparte proceedings will be taken." 2. It is not denied by the petitioner that this notice was received by him but the petitioners contention is that the notice was not legal and valid inasmuch as it was not in conformity with the requirements of law as contained and prescribed in Ss. 52-A and 52-B (supra). The proceedings were initiated by the Authorised Officer consequent upon the receipt of the aforesaid notice by the petitioner and even though the petitioner did not file any reply thereto, evidence was recorded and the Authorised Officer passed the order of confiscation on 25th February, 2005 which was challenged by the petitioner before the learned Sessions Judge, Mandi who vide his judgment dated 5th August, 2005 dismissed the petitioners appeal against the aforesaid order dated 25th February, 2005. The petitioner has come up to this Court invoking this Courts jurisdiction under S. 482 of the Code of Criminal Procedure against the aforesaid order. 3. The petitioner has come up to this Court invoking this Courts jurisdiction under S. 482 of the Code of Criminal Procedure against the aforesaid order. 3. Section 52-A of the Act reads thus :— "52-A. 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 v fuelwood), 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 without any unreasonable delay produce it, together with all tools, ropes chains, boats or vehicles used in committing such offence before an Officer, authorise^, by the State Government in this behalf, by notification published in the Official Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer). (2) Where an authorized officer seizes under sub-section (1) of Section 52 any timber (excluding fuelwood) 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 been committed in respect of such property, such authorized officer may, whether or not a prosecution 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. (3) (a) Where the authorized officer, after passing an order of confiscation under subsection (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 by 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 S. 52-A is set aside or annulled by an order under S. 59 or S. 59-A, be paid to the owner thereof or the person from whom it was seized as may be specified in such order." 4. Even though under Section 52-A, the Authorised officer has been empowered to order confiscation of the property together with the vehicle used, in terms of S. 52-B (supra) issuance of a notice in writing to the person from whom the property and the vehicle are seized is a pre-requisite and a condition precedent for passing any such order of confiscation. Actually with respect to the issue of confiscation of a motor vehicle, proviso to Section 52-B additionally provides that no order of confiscation respecting the motor vehicle shall be passed until the registered owner of the vehicle has been given a notice in writing. Section 52-B for ready reference is reproduced hereinbelow which reads thus :— "52-B. Issue of show cause notice before confiscation under S. 52-A.— (1) No order confiscating any timber (excluding fuelwood), resin, khair wood and katha, ropes chains, boats or vehicles shall be made under S. 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 Authorised Officer it is practicable to do so, and considering his objections, if any. (2) Without prejudice to the provisions. of sub-section (1), no order confiscating any tool, rope, chain, boat or vehicle shall be made under S. 52-A if the owner of the tool, rope, chain, boat or vehicle proves to the satisfaction of the authorized officer that it was used in carrying the timber (excluding fuelwood), 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." 5. The question which arises for our consideration in this case is as to on what basis and under what circumstances can a vehicle be confiscated after it is seized in terms of S. 52 (supra). The question which arises for our consideration in this case is as to on what basis and under what circumstances can a vehicle be confiscated after it is seized in terms of S. 52 (supra). The answer lies in carefully reading sub-section (2) of Section 52-A because it is in this sub-section that the Legislature has provided that the occasion to confiscate the vehicle (along with the timber etc.) arises only if the Authorised Officer is satisfied that a forest offence has been committed with respect to the timber which is the property of the State Government. What, therefore, clearly emerges is that two essential pre-requisites must exist before the Authorised Officer starts assuming jurisdiction for the confiscation of the vehicle and these two essential pre-requisites are, firstly that the timber being carried in the vehicle should be (as per the allegations of the State) the property of the State Government and that with respect to this timber a forest offence, (in the opinion of the State Government) has been committed. Satisfaction of the Authorised Officer which obviously has to be reflected through the medium of a record in writing with respect to the aforesaid two pre-requisites is a sine qua non to his assuming the jurisdiction for confiscation of the vehicle (along with the timber). 6. Viewed thus, let us see whether the notice served upon the petitioner contained the aforesaid allegations or not. As we have seen the notice, it nowhere alleges that the vehicle in question at the relevant time and date was carrying any timber which was the property of the State Government and with respect whereof an offence had been committed and that the Authorised Officer was satisfied, based on these twin allegations that the vehicle ought to be confiscated. The notice merely stated and alleged that the vehicle in question owned by the petitioner "has been apprehended indulging in transportation of different sizes of Deodar 20 sleepers and four frames on 5-6-2000". Any one transporting in his truck timber by itself does not commit any offence and timber being transported in some ones truck by itself does not per se become the property of the State Government. Any one transporting in his truck timber by itself does not commit any offence and timber being transported in some ones truck by itself does not per se become the property of the State Government. The notice in question did not accuse the petitioner that on 5-6-2000 he was carrying in his truck timber which was the property of the State Government and that by carrying this timber being the property of the State Government, the petitioner was committing any offence. This apart, the notice also did not spell out that the Authorised Officer was satisfied about these two allegations and that based thereupon he was contemplating the confiscation of the vehicle. 7. A notice which is a prelude and a condition precedent to the initiation of a penal action must satisfy all the requirements of law because the purpose of issuing a notice is to inform the party concerned about the allegations against him so that he can effectively meet the allegations and properly defend himself. In criminal or quasi criminal proceedings it becomes the bounden duty of the State functionary, when serving a statutory notice upon a party concerned to incorporate in the notice all the essential particulars which constitute the necessary ingredients as pre-requisites so that the party to whom the notice is served is fully acquainted with all the necessary particulars based on the necessary ingredients and only in that situation the party would be expected to understand the case against itself and to effectively defend itself before the State functionary concerned. Any such defect in the notice cannot be called as a defect of formal nature because such a defect goes to the very root of the assumption of jurisdiction by the Authorised Officer. 8. The proceedings initiated upon a vitally defective notice are vitiated from the very beginning and, therefore, irrespective of the nature or quality of evidence led before the Authorised Officer they in the ultimate analysis become meaningless. 9. For the foregoing reasons, I have no hesitation in holding that since the notice served upon the petitioner was defective, the impugned order passed by the Authorised Officer on 25th February, 2005 based as it was upon the said notice should be treated as non est in the eyes of law because the proceedings initiated upon this notice were vitiated from the very beginning. Correspondingly the judgment of the learned Sessions Judge, Mandi rendered on 5th August, 2005 also deserves to be set aside. 10. As per the case set up by the respondents, the petitioner is alleged to have been carrying/transporting timber illegally in his aforesaid vehicle. The confiscation proceedings have been declared to be illegal as well as null and void by me only because of the aforesaid defect in the notice. It does not mean that the petitioner should be allowed to go scot free. In all such situations it is always open to the competent authority to redraw the notice by providing into the notice all the necessary and requisite details and all the material facts as well as all the material particulars and to serve such a notice afresh upon the petitioner. The Authorised Officer, therefore, will be at absolute liberty to start the proceedings afresh by serving a proper notice upon the petitioner, in the light of the aforesaid observations. The petitioner would be called upon to submit his reply to the notice within a period of two weeks from the date of the service of the notice. If the petitioner does not submit any reply to the show cause notice, if issued, the Authorised Officer may proceed to order the confiscation of the property based on his satisfaction, if he records such a satisfaction. If, however, the petitioner submits his reply to the show cause notice, the Authorised Officer shall conduct an enquiry into the matter and based on the material that comes forth in the course of such an enquiry pass appropriate order on the merits of the case and in accordance with law. 11. The petition is allowed and disposed of. Or. M. P. No. 49 of 2006. 12. In view of the disposal of the main petition, this application shall stand disposed of. Petition allowed.