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2009 DIGILAW 505 (HP)

MOHAMMAD MUSTAQ v. STATE OF H. P

2009-05-26

SURINDER SINGH

body2009
JUDGMENT Surinder Singh,J(Oral):-The present petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure challenging the order of confiscation of the vehicle, involved in the forest offence, passed by the Authorized Officer and its dismissal in appeal by the learned Sessions Judge. 2. In brief, the facts of the case giving rise to the present petition are that on 1.4.2000 truck No. HIH-496 was intercepted at forest Check Post, Bindrawani by the Deputy Ranger, it was found to have been carrying 18 scants of ‘Devdar’ scants. The driver of the truck immediately thereafter ran away and abandoned the truck. The Deputy Ranger seized the timber and the truck, informed the Range Officer. On 4.4.2000 the Range Officer informed the Authorized Officer, in writing about the above facts. 3. The record of the case further reveals that the Authorized Officer on his complaint asked the Range Officer to find out the truck owner and his particulars. The Range Officer appears to have supplied his address and necessary particulars. Thereafter the Authorized officer ordered to serve the owner of the truck .Mohammad Mustaq (minor) son of Sh. Yusaf, with a show cause notice upon him for 24.4.2000 in terms of Section 52-A of the Indian Forest Act. But on 4.4.2000 the petitioner through his counsel moved an application for the release of the truck pleading that he had no knowledge about the alleged offence and he also directed his driver Sh.Naginder Kumar not to indulge in any activity of the like nature. 4. The application for the release of the truck was forwarded to the Range Officer and later dismissed by the Authorized Officer. It was thereafter the petitioner herein filed reply to the show cause notice issued under Section 52-A of the ‘Act’, through his counsel averring the same facts as pleaded in his application for the release of the truck. 5. The witnesses of the department were examined. Sh.Yusaf the father of the minor petitioner had also examined himself before the Authorized Officer on 9.2.2001. A perusal of the evidence produced on record reveals that 18 scants were recovered from the truck in question. Neither the minor petitioner nor his father Yusaf was with the truck. According to Yusaf he had gone to Chakmore (Punjab) to attend the marriage of the son of his ‘Bua’ and only returned on 3rd April, 2000. A perusal of the evidence produced on record reveals that 18 scants were recovered from the truck in question. Neither the minor petitioner nor his father Yusaf was with the truck. According to Yusaf he had gone to Chakmore (Punjab) to attend the marriage of the son of his ‘Bua’ and only returned on 3rd April, 2000. When he did not find the truck at his place, he informed the matter to the police. On 4.4.2000 the police informed that the said truck was apprehended by the forest official while carrying the illicit timber, then he moved an application for the release of the truck pleading that he had no connivance or knowledge about the said offence committed by his driver and he took every precaution against such use. Even he had also instructed the driver not use the vehicle for transporting the illicit timber. But he did not know that what happened in his absence and despite his efforts he could not locate even the driver. This statement on oath was not challenged in the cross-examination by the Department. 6. As a matter of fact, Section 52-A has been added in the State of Himachal Pradesh w.e.f. 24.7.1991, which authorizes confiscation by the Authorized Officer in certain cases. The power of confiscation of the Authorized Officer under Section 52-A is absolutely not in dispute. But, however, there is condition precedent to make Section 52-B applicable in the case that no order of confiscation under this Section shall be made except after issuing the notice in writing. Section 52-B reads as under: “Issue of show cause notice confiscation under Section 52:- (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 whereof, if in the opinion of the authorized officer it is practicable to do so and considering his objection if any. (2) Withoutprejudice 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 such use”. 7. As per the above provisions no order of confiscation under Section 52-A shall be made, if the owner proves to the satisfaction of the authorized officer that the vehicle is used in carrying the timber without the knowledge or connivance of the owner himself, his agent, if any and the person-in-charge of the vehicle and each of them had taken all reasonable and necessary precaution against such use. 8. In the instant case, the show cause notice is alleged to have been issued to the petitioner through his counsel on 4.4.2000 which reads as under: “As it appears from the R.O.Mandi letter No.2/Md dated 2.4.2000 that your vehicle truck bearing No.HIH-496 is involved in the illegal export/smuggling of timber. To proceed further into the matter you are hereby ordered to appear before this authority along with reply of show cause notice on or before 22.4.2000” 9. It is evident from the above contents of the notice that it does not specify the material particulars regarding the alleged involvement of the truck in question in the commission of the offence. It is also not mentioned as to, on which date and where the truck was involved in the commission of the offence and when, where and from whose possession the timber was seized by the police. The material particulars could have been brought to the notice of the petitioner if a copy of the complaint of the Range Officer, Mandi referred to in the show cause notice was enclosed with the notice. But, the record does not disclose that it has been done. Therefore, the notice was ambiguous and devoid of necessary particulars. 10. The material particulars could have been brought to the notice of the petitioner if a copy of the complaint of the Range Officer, Mandi referred to in the show cause notice was enclosed with the notice. But, the record does not disclose that it has been done. Therefore, the notice was ambiguous and devoid of necessary particulars. 10. Even further, for the argument sake, if the notice had to be valid and proper, the reply whereof was given by the petitioner in which he clearly pleaded that he had taken all reasonable necessary precaution against the misuse of the truck as alleged. On oath he deposed before the authorized officer that the truck was used by the driver without his knowledge or connivance and he had taken necessary precautions, there is nothing to rebut this contention on record. There is nothing on record contrary to the above contention to support the findings otherwise arrived at by the authorized officer which was upheld in appeal. 11. Therefore, the cumulative effect of the above is that the prosecution has miserably failed to prove that the timber in question was being transported on 1.4.2000 in truck No.HIH-496 with the connivance or the knowledge of the owner and also the person-in-charge of the vehicle i.e. the father of the minor petitioner. Thus, the said truck was not liable to be confiscation. 12. Consequently, the petition is allowed. The order of confiscation passed by the authorized officer and confirmed in the appeal by the learned Sessions Judge is hereby set aside. The vehicle in question is ordered to be now released forthwith to the registered owner through his next friend on ‘Spurdari’ to the tune of Rs.2,00,000/- to the satisfaction of the Authorized officer. The matter stands accordingly disposed of.