JUDGEMENT 1. The petitioners pray for quashing the order dated 9.8.2003 passed by the Secretary-Respondent no. 2, in Confiscation Revision Case No. 12 of 2002 by which he has affirmed the order dated 29.4.2002, passed by the District Magistrate, Nalanda in Forest Appeal No. 13/01, as well as order dated 12.10.2001, passed by the respondent no. 4 Authorised Officer-cum Divisional Forest Officer, in Confiscation Case No. 12 of 2001. 2. (a) Petitioner no. 1 is a partnership firm consisting of three partners. Petitioner no. 2 is the driver of the truck bearing no. BRD 5657. The case of the petitioners is in narrow campass; On 30.6.2001, the petitioners truck, bearing no. BRD 5657 had gone to Nawadah for lifting metal stones for personal use. The truck after loading 250 Cft of metal chips from leased mine of one Rajeshwar Singh, a permit holder, was returning. On the way, one of the tyres of the truck burst on the main road near Rajgir. (b) Petitioner no. 2 got down to replace the punctured tyre. In the meanwhile Range Officer, Rajgir seized the truck leveling a false charge that it was found loading stone metals 4 KM inside the protected forest. The petitioner no. 2 was arrested on the spot. A seizure list was prepared and prosecution case was lodged against the petitioner and three others. A confiscation proceeding no. 12 of 2001 was initiated under the signature of Authorised Officer-cum-Divisional Officer, Nalanda. 3. The petitioners state that the truck was seized by the Range Officer on the main road near Rajgir but a seizure list has been prepared showing seizure of the truck in Tola-Sunder Ban within protected forest of Rajgir. 4. On 30.6.2001, the Range Officer (Respondent no. 4) sent a forwarding report to the Chief Judicial Magistrate, Nalanda, Biharsharif stating therein that Truck No. BRD 5657 was found loaded with metal chips drawn from illegal mining. 5. The Authorised Officer-cum-Divisional Forest Officer vide his memo no.1007, dated 4.7.2001 issued notice to petitioners asking to show cause as to why the truck and stone metals in question be not confiscated. 6. One of the partners of the firm filed show cause on 10.7.2001. He stated that the truck was seized on Falgu-Rajgir road, while the driver was repairing the punctured tyre. The mining challan was issued by the lease holder of Plot No.738 of Village Falgu of district Nawadah. 6. One of the partners of the firm filed show cause on 10.7.2001. He stated that the truck was seized on Falgu-Rajgir road, while the driver was repairing the punctured tyre. The mining challan was issued by the lease holder of Plot No.738 of Village Falgu of district Nawadah. It was stated in the show cause that the driver was directed to load the stones only from proper lease hold quarry, after payment of royalty. Thus, the driver was carrying the stones on bonafide belief that challan issued by Rajeshwar Singh, claiming himself to be a permit holder of plot no. 738 of Village Falgu of Nawadah district was in order. The driver (petitioner no. 2) in his evidence stated that his truck was seized while he was replacing the punctured tyre on Falgu-Rajgir road. He was carrying the stone metals on the basis of valid challan issued by lease holder. 7. The Authorised Officer-cum-Divisional Forest Officer, respondent no. 4 confiscated the truck alongwith stone metals vide order dated 12.10.2001, under Section 52 of the Indian Forest Act. Both appeals and revision preferred by petitioners were rejected vide order dated 29.4.2002, passed in Confiscation Forest (Appeal) No. 13 of 2001 by the District Magistrate, Nalanda at Biharsharif and the Secretary, Forest by his order dated 9.8.2003, passed in Revision Case No. 12 of 2002, respectively. 8. The petitioners have challenged the impugned order on the following grounds: (i) The notice initiating confiscation proceeding dated 4.7.2001 is bad in law, as it does not fulfill the requirement of Section 52(1) of the Forest Act(Bihar Amendment) of recording satisfaction that a forest offence was committed. (ii) The initiation of confiscation proceeding vide notice dated 10.7.2001 is without jurisdiction for want of notification in official gazette under Section 30C of Forest Act. (iii) The department has not discharged its primary burden of showing that a forest offence was committed, (iv) The confiscation power is discretionary and proportionality principle applied. (v) The State has not proved its case beyond reasonable doubt, (vi) The authorities ought to have held that the alleged offence was committed without the knowledge or connivance of the petitioners. 9. The first ground of the petitioner is that the notice initiating confiscation proceeding dated 4.7.2001 is bad in law, as it does not fulfil the requirement of Section 52(1) of the Forest Act, 1927 (hereinafter referred to as the Act). 9. The first ground of the petitioner is that the notice initiating confiscation proceeding dated 4.7.2001 is bad in law, as it does not fulfil the requirement of Section 52(1) of the Forest Act, 1927 (hereinafter referred to as the Act). The petitioner submits that before initiating a confiscation proceeding, the authorized officer shall have reasons to believe that a forest offence has been committed. According to him, reasons to believe can arise only if such facts pre-exist, constituting a forest offence and from these facts inference can be drawn for giving rise to reasons to believe that a forest offence has been committed. The fulfillment of these pre-conditions are must before an authorized officer can initiate a confiscation proceeding. He contends that such facts are absolutely lacking in the notice dated 4.7.2001 initiating confiscation proceeding by D.F.O.-cum-Authorised Officer, Nalanda Forest Division contained in Annexure-3. 10. Learned counsel submits that the notice initiating a confiscation proceeding contained in Annexure-3 merely states that from the report of the Range Officer, Rajgir, it is clear that the metals was loaded on Truck No.BRD 5657 on 30.6.2000. The truck was seized at 3 P.M. on the aforesaid date on Falgu-Rajgir road. The Chief Judicial Magistrate had been informed by the Range Officer of the seizure. A forest case has been lodged while giving due information of the seizure. Further more, it was stated in the notice that forest offence under Sections 33, 42 and 44 has been committed and a criminal prosecution has been initiated. Thus, he submits that the notice does not state the facts constituting the offence, on the basis of which confiscating officer may derive an inference or form an opinion that he had reason to believe that forest offence has been committed. The pre-condition of seizure under Section 52 did not stand fulfilled, therefore, no seizure itself could have been made. He further submits that the restraint of the statute on seizure and confiscation power must receive strict construction, as it leads to deprivation of property, which forms the only procedural safeguard. According to him, if the precondition under Section 52(1) is not satisfied, no order of confiscation under Section 52(4) could be made. 11. Counsel for the State submits that the notice initiating confiscation proceeding dated 4.7.2001, contained in Annexure-3 fulfills all pre-requisite condition for initiating confisc proceeding in respect of seized iter 12. According to him, if the precondition under Section 52(1) is not satisfied, no order of confiscation under Section 52(4) could be made. 11. Counsel for the State submits that the notice initiating confiscation proceeding dated 4.7.2001, contained in Annexure-3 fulfills all pre-requisite condition for initiating confisc proceeding in respect of seized iter 12. In order to appreciate the stand taken by learned counsel for the petitioner, it would be necessary to take note of Section 52 of the Forest Act and the State Amendment being Bihar Act 9 of 1990. "52. Seizure of property liable for confiscation. (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest Officer or police officer. (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made: Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be a report of the circumstances to his official superior". Section 52 as amended by Bihar Act: "52. Seizure of property liable to confiscation. (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing any such offence, may be seized by any forest officer or police officer". Seizure of property liable to confiscation. (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing any such offence, may be seized by any forest officer or police officer". (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, either produce the property seized before an officer not below the rank of the Divisional Forest Officer authorized by the State Government in this behalf by notification (hereinafter referred to as the authorized officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the property seized before the authorized officer, or where it is intended to launch criminal proceedings against the offender immediately, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made: Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his immediate superior. (3) Subject to sub-section (5), where the authorized officer upon production before him of property seized or upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded, confiscated forest produced so seized together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing such offence. The Magistrate having jurisdiction to try the offence concerned may, on the basis of the report of the authorized confiscating officer, cancel the registration of a vehicle used in committing the offence, the licence of the vehicle-driver and the licence of the arms. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of Forests of the forest-circle in which the forest produce, as the case may be, has been seized. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of Forests of the forest-circle in which the forest produce, as the case may be, has been seized. (4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer (a) Sends intimation about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made; (b) Issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorized officer to have some interest in such property; (c) Affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and (d) Gives to the officer effecting the seizure and the persons or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purposes. (5) No order of confiscation under sub-section (3) of any tools, arms, boats, vehicles, ropes, chains, or any other article ( other than the forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorized officer that any such tools, arms, boats, vehicles, ropes, chains or other article were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission of forest offence". 13. Section 52(1) of the Act gives power of seizure of property liable to confiscation if the Forest Officer or Police Officer has reason to believe that a forest offence, as defined in Section 2(3) of the Act is committed. 14. Sub-section (2) of section 52 enjoins upon the seizing officer to produce the property seized before an officer not below the rank of D.F.O., or if for a bonafide reason the same cannot be produced before the authorized officer and where it is intended to launch criminal proceeding, a report of such seizure should be made to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. 15. 15. Sub-section (3) of Section 52 of the Forest Act states that an authorized officer can order confiscation of seized items on being satisfied that a forest offence has been committed. 16. Sub-section (4) of Section 52 of the Forest Act would be also relevant as it substantially throws light on the point raised by the petitioner. It mandates that no order confiscating any property shall be made unless three conditions mentioned therein in clause (a), (b), (c), (d) thereof is fulfilled. 17. From perusal of Section 52 of the Bihar Amendment, it would appear that foundation for action in terms of Section 52(1) of the Act is the belief entertained by the concerned officer that forest offence has been committed. 18. In the aforesaid background it has to be seen whether the notice disclosed that there were reasons for the authorized officer to believe that a forest offence has been committed. The term "reasons to believe" used in Section 52(1) of the Act that a forest offence has been committed is distinct from the term "being satisfied" referred in Section 52(3) that a forest offence has been committed. Mere belief that a forest offence has been committed would fulfill the requisite condition for initiating a confiscating proceeding, whereas being satisfied that a forest offence has been committed, would require strict proof, which would necessarily be based on objective materials, as the proision is punitive. 19. The notice initiating confiscation proceeding discloses the following facts and circumstances: (i) From the report of the Range Officer it is clear that metal was loaded in Truck No. BRD 5657 on 30.6.2000. (ii) From the report of the Range Officer, Rajgir it is apparent that a truck no. BRD 5657 was seized with metal (forest produce) on 30.6.2000 at 3 P.M. at Falgu Rajgir Road. (iii) The Chief Judicial Magistrate was informed of the seizure for initiating a criminal prosecution. (iv) The notice also stated that a criminal prosecution has been filed before the Chief Judicial Magistrate for infringement of Sections 33, 42 and 44 of the Forest Act, 1927 (Bihar Amendment, 1989), being Case No. 12/01. 20. The aforesaid facts are sufficient in ordinary course, for entertaining and forming belief that a forest offence has been committed. (iv) The notice also stated that a criminal prosecution has been filed before the Chief Judicial Magistrate for infringement of Sections 33, 42 and 44 of the Forest Act, 1927 (Bihar Amendment, 1989), being Case No. 12/01. 20. The aforesaid facts are sufficient in ordinary course, for entertaining and forming belief that a forest offence has been committed. The notice sufficiently takes cognizance of the fact that a criminal prosecution has been launched for commission of forest offence under Sections 33, 44 and 42 of the Forest Act. 21. In view of aforesaid facts, it cannot be said that there was no pre-existing facts and circumstances, which could have provided sufficient reasons to the authorised officer for forming a belief that a forest offence has been committed. After return of the notice, if the authorized officer is satisfied that a forest offence has been committed, he can pass order confiscating the seized material otherwise not. 22. Thus the contention of the petitioners that notice confiscating proceeding is bad in law, as it does not fulfill the requirement of Section 52 (1) of the Forest Act Bihar Amendment, is devoid of any merit and the same is answered against the petitioners. The show cause notice of confiscation contained in Annexure-3 reveals that there were reasons to believe that forest offence has been committed in respect of forest produce. 23. Learned counsel for the petitioners next contended that initiation of a proceeding vide notice dated 10.7.2001 is without jurisdiction. He submits that a publication of notification under Sections 30 and 31 of the Act in the official gazette is a pre-condition for creating a forest offence. In the instant case there has been no notification in the official gazette, etc. fixing dates prohibiting quarrying of stone and removal of forest produce from forest land. Under Section 31, the notification issued under Section 30, should be translated into local vernacular and every such notification has to be affixed in public place in every town and in the neighbour hood. As the concerned notifications have not been made in official gazette under Section 30(C) and 31 of the Forest Act, which are material preconditions, the entire proceeding is without jurisdiction. As the concerned notifications have not been made in official gazette under Section 30(C) and 31 of the Forest Act, which are material preconditions, the entire proceeding is without jurisdiction. In support of his contention learned counsel has relied upon a decision in the case of State of Bihar V/s. Munshi Kahar, reported in 1963 Patna 195 and in the case of Santokhi Rana & Ors V/s. State of Bihar, reported in 1977 PLJR 141. 24. Before I dwell upon this issue, it would be necessary to quote Sections 30 and 31 of the Act which runs as under: "30. Power to issue notification reserving trees etc.The State Government may, by notification in the Official Gazette (a) declare any tree or class of trees in a protected forest to be reserved from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such terms provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning a lime of charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest produce in such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, or any land in such forest". 31. Publication of translation of such notification in neighbourhood.The Collector shall cause a translation into the local vernacular of every notification issued under Section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification". 25. Thus, as per Section 30(c), the State Government may by notification in the official gazette fix a particular date prohibiting use or extraction of forest produce or metals. Section 31 requires translation into a local vernacular and every notification has to be fixed in public place in the near about areas. 26. The petitioners submits that a confiscation proceeding can be initiated if an offence is committed in respect of forest produce under the Forest Act only. Section 31 requires translation into a local vernacular and every notification has to be fixed in public place in the near about areas. 26. The petitioners submits that a confiscation proceeding can be initiated if an offence is committed in respect of forest produce under the Forest Act only. Violation of any other Act would not form ground for initiation of a confiscation proceeding under Section 52 of the Forest Act. The infringement of Forest Act would not be applicable as there has been no notification in the official gazette under Sections 30 and 31 of the Forest Act. 27. However, counsel for the State submits that though a copy of the gazette notification under Sections 30 and 31 was not produced, nevertheless a copy of notification dated 29.5.1953 under Section 30 of the Forest Act was produced before the revisional court. He submits that the petitioners apart from committing forest offence have committed offence under Section 2 of the Forest Conservation Act as well as Section 27 of the Wild Life Protection Act, 1972. The Forest Conservation Act prohibits use of forest land for non-forestry purposes without the prior approval of the Central Government. Section 2 of the Act is also quoted herein below for easy reference. "Section 2.Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order for use of forest land for men forestry purposes". 28. It appears from the order of the Revisional Court that the Honble Apex Court vide order dated 14.3.2000 in Writ Petition 202/1995 has restrained the removal of dead, deceased, dying or wind falling trees, drift woods and grasses from any National Park or Game Century. The Honble Apex Court clarified that the forest land occurring in Section 2 of the Forest Conservation Act not only include forest, as understood in the dictionary sense but also cover any area recorded as forest irrespective of ownership. 29. It would appear from materials on record that the Honble Apex Court in a number of decisions has banned the mining the forest land, century and national park. The Wild Life Protection Act, 1972 prohibits the entry into the century without prior permission of Chief Wild Life Warden. 29. It would appear from materials on record that the Honble Apex Court in a number of decisions has banned the mining the forest land, century and national park. The Wild Life Protection Act, 1972 prohibits the entry into the century without prior permission of Chief Wild Life Warden. In my view, there seems alleged violation of the order of the Honble Apex Court passed in T.N.Godavarman Thirumalpad vs. Union of India, besides infringement of Sections 33, 44 and 42 of the Forest Act, as such the non-production of gazette notification under Sections 30 and 31 of the Indian Forest Act would not render the confiscation proceeding void ab initio, when there is a notification, though may be not gazetted. 30. The petitioners next contend that the respondents ignored the proportionality principle and failed to appreciate that petitioner no. 1 had instructed the driver to bring metals from valid lease holder. The petitioner in his show cause stated that petitioner no. 2, the driver was bringing metals on the basis of challan issued by a lease holder. The driver was instructed to take all precautions while purchasing metals from valid lease holder. He states that the truck was seized on Falgu-Rajgir road while one of the tyres of the truck was being repaired by the driver of the truck. The driver in his statement contained in Annexure-5 also stated that he brought stone metals from the lease hold land of the person who issued the challan. Besides this, his truck is under seizure since last nine years now and being uncared and unattended, it has almost lost its functional value. He submits that the Apex Court in a case reported in 2005 PLJR 207(SC) has observed that a seized truck under Forest Act can be released on its present face value. He further submits that the case of the State has not been proved beyond reasonable doubt. 31. Mr. Abhay Kumar Singh, learned Senior Counsel submitted that principle of proportionality has to be read into every act where punishment is prescribed. In support of his contention, he relied upon a decision in the case of Keshavaji Ravji & Co. & Ors. V/s. Commissioner of Income Tax, reported in (1990) 2 SCC 237 (Para-24). The principle of proportionality is an implied part in every such enactment where punishment is prescribed, unless contrary intention appears from the provision. In support of his contention, he relied upon a decision in the case of Keshavaji Ravji & Co. & Ors. V/s. Commissioner of Income Tax, reported in (1990) 2 SCC 237 (Para-24). The principle of proportionality is an implied part in every such enactment where punishment is prescribed, unless contrary intention appears from the provision. It is essential rule that sentence imposed must be proportional otherwise it would be violation of Articles 14, 19 and 21 of the Constitution. In support of his contention, learned counsel relied upon a decision in the case of Bachan Singh V/s. State of Punjab, reported in (1980) 2 SCC 684 . He further submits that Chief Justice Laskin of Canada Supreme Court said that the death cannot be penalty for theft, nor a sledge hammer can be used to crack a nut. The seriousness of the crime would depend upon nature of act, degree of harm done and degree of actors culpability. In the case of Dilip N. Shroff V/s. Commissioner of Income Tax, reported in (2007) 6 SCC 329 , the Apex Court laid down the principle, underlining tests of a penal proceeding. The Apex Court observed that a section is penal, if its consequences are intended to act as effective deterrent which will put stop to such practices which legislature considered to be against public interest. Further more, the Apex Court observed that a penalty proceeding are quasi criminal in nature and character, and element of mens rea on part of the offender is necessary. 32. Learned counsel further submits that Annexure-3 does not allege any mens rea on part of the petitioners. Further more primary burden of proof which was initially on the department has not been discharged. Relying upon the aforesaid decision, learned counsel submits that penalty proceedings need strict construction. In other words, entirety of circumstance must point to the conclusion of a deliberate action. He submits that in the case of Brigin Shaw V/s. Brigin Shaw Bregen, reported in 1938 (60) CLR 336, Justice Shaw Lays observed that measure of proof vis-a-vis in civil and criminal case would vary. In the case of a civil proceeding, preponderance of probability would be sufficient, whereas in criminal proceeding the guilt is to be proved beyond all reasonable doubt. In the case of a civil proceeding, preponderance of probability would be sufficient, whereas in criminal proceeding the guilt is to be proved beyond all reasonable doubt. In Brigin Shaw case the court held that charge of adultery would be a serious reflection on character and as such the same has to be proved beyond all reasonable doubt. Learned counsel basing his submission on aforesaid judgment states that similarly the allegations of the respondents that there was implicit consent of the petitioner, casts aspersion on his character and the same has to be proved beyond all reasonable doubt. In this context learned counsel also relied upon decisions in the case of Mahmud Khan Mahbool Khan, reported in 1997(10) SCC 600 and in P.P.Abduila V/s. Competent Authority, reported in (2007) 2 SCC 510 . 33. Counsel for the State submits that if the truck of petitioner no. 1 has been seized from protected area, the former cannot escape the rigors of vicarious liability. 34. It would appear from the notice initiating confiscation proceeding that the place of seizure has not been mentioned as any protected forest area. On the contrary, the notice states that the truck was seized from Falgu-Rajgir road. It is also not in dispute that the driver produced a challan issued by Rajeshwar Singh, a lease holder for quarrying stone metals for which he seems to have valid licence. The petitioner no. 1 asserts that the challan is genuine. Even if challan issued by Rajeshwar Singh is false, it would be latter, who would be responsible for the same. There is no material on record to allege that petitioner no. 1 at least was aware that challan may be fake. Even assuming the prosecution case to be true, there is no material on the record to show that the petitioner No. 1 was having any knowledge that the metal chips are being extracted from the forest area or from unleased land. On the contrary, it has been asserted that the driver was instructed to load metal chips from valid lease holder. If Rajeshwar Singh who issued the challan was not a valid lease holder, the petitioner no. 1 need not be penalised on that score. The truck has already remained in seizure for over nine years. On the contrary, it has been asserted that the driver was instructed to load metal chips from valid lease holder. If Rajeshwar Singh who issued the challan was not a valid lease holder, the petitioner no. 1 need not be penalised on that score. The truck has already remained in seizure for over nine years. A reasonable satisfaction is not a state of mind attained or established independently of nature and consequences of the facts to be proved. 35. In the aforesaid circumstances, I find that the petitioner no. 1, the owner of the truck, has been successful in placing its case that the alleged offence was committed without his knowledge and connivance. 36. In the result, this writ petition succeeds and the impugned order dated 9.8.2003 passed by the Secretary-Respondent no. 2, in Confiscation Revision Case No. 12 of 2002, by which he has affirmed the order dated 29.4.2002 passed by the District Magistrate, Nalanda in Forest Appeal No. 13/01 as well as order dated 12.10.2001 passed by the Respondent no.4 in Confiscation Case No. 12 of 2001 are set aside and the respondent authorities are directed to release the truck in question in favour of the petitioner no. 1 forthwith.