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2011 DIGILAW 2379 (PAT)

State of Bihar v. Vijay Kumar

2011-11-30

ADITYA KUMAR TRIVEDI

body2011
JUDGMENT A.K. Trivedi, J.-State of Bihar through Department of Environment and Forest has challenged order dated 25.5.2010 passed by First Additional Sessions Judge, Hilsa in Criminal Revision No. 27 of 2010 filed on behalf of respondent, Vijay Kumar, owner of truck bearing Registration No. 1109 BR 1 GA 2215 whereby and whereunder the learned Revisional Court ordered for release of the vehicle which was seized in accordance with Indian Forest Act (Bihar Amendment). 2. Factual matrix of case whatever been gathered from Annexure-2, the prosecution report, is to the effect that on 21.1.2010 truck bearing Registration No. 1109 BR 1 GA 2215 was intercepted laden with forest produce, accordingly seizure was made followed with launching of prosecution. Owner of the vehicle had filed petition for release of the vehicle whereupon report was called for which discloses initiation of confiscation proceeding and on account thereof, vide order dated 15.3.2010 prayer was rejected. However, the owner filed• Criminal Revision No. 27 of 2010 which was heard by learned Additional Sessions Judge, Hilsa who vide order dated 25.5.2010 allowed the revision setting aside the order of the learned lower court holding that a commercial vehicle cannot be detained and no confiscation proceeding can be initiated against a commercial vehicle. It is this order which is under challenge. 3. Contention on behalf of petitioner is that the order impugned clearly suggests that the learned Revisional Court had misconstrued the existing law because of the fact that no such provision is available contrary to it Section 52 of Forest Act (BIHAR AMENDMENT) which prescribes confiscation includes apart from other conveyance. Then submitted that by State amendment, the jurisdiction of criminal court has been ousted as is evident from Section 52C of Indian Forest Act (Bihar Amendment). In the aforesaid background the finding of the learned lower court that no confiscation proceeding could be initiated with regard to commercial vehicle is not tenable. 4. At the other hand, the learned counsel for respondent submitted that keeping the vehicle idle is' against the principle laid down by the Hon'ble Apex Court as has been held in Sundar Bhai Ambalal Desai reported in 2003(4) PLJR 244 (SC). Apart from this also submitted that even during course of confiscation proceeding, the seized vehicle can be released on proper undertaking. To support his plea also relied upon 2010(1) Eastern Criminal Cases 298. 5. Apart from this also submitted that even during course of confiscation proceeding, the seized vehicle can be released on proper undertaking. To support his plea also relied upon 2010(1) Eastern Criminal Cases 298. 5. In order to appreciate rival contention, it looks better to incorporate Section 52C of the Indian Forest Act (Bihar Amendment). "52C. Bar of Jurisdiction of Courts etc. in certain circumstances.-{1) On receipt of intimation under sub-section (4) of section 52 about initiation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court, Tribunal or Authority (other than the authorized officer, Appellate Authority and Revision Authority referred to in sections, 52, 52A and 52B) shall have jurisdiction to make orders with regard to possession, delivery, disposal / or distribution of the property in regard to which proceedings for confiscation are initiated in this Act, or any other law for the time being in force". 6. Therefore, by inception of aforesaid Section, the jurisdiction of criminal court has been ousted with regard to entertaining and considering the matter of release once a confiscation proceeding has been initiated. In a leading decision reported in 2004(2) PLJR page 96 (State of West Bengal & Ors. vs. Sujit Kumar Rana) the Hon'ble Apex Court dealt with relevant provisions of different states amendment over confiscation as well as jurisdiction of criminal court for release during pendency of confiscation proceeding and after noticing the same along with relevant case laws under para-46 it has been observed "the upshot of our aforementioned discussion is that once a confiscation proceeding is initiated the jurisdiction of the criminal court in terms of Section 59-G (Bengal Amendment) of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High Court can exercise such a power only in exercise of its power of judicial review". 7. Another judgment on this score happens to be reported in 2005(1) PLJR page 207(SC). 8. With regard to inclusion of conveyance, it is included under 'Section 52 of Forest Act (Bihar Amendment). 9. The High Court can exercise such a power only in exercise of its power of judicial review". 7. Another judgment on this score happens to be reported in 2005(1) PLJR page 207(SC). 8. With regard to inclusion of conveyance, it is included under 'Section 52 of Forest Act (Bihar Amendment). 9. The case law cited by the learned counsel for the O.P. is not at all applicable in the facts and circumstances of this case because of the fact that in the case so cited, no confiscation proceeding was ever initiated. Furthermore it happens to be a case under EC Act and that happens to be reason behind that at para-5 it has been concluded "the release will be subject to result of the criminal case and /or confiscation proceeding, if any, initiated before the Collector. 10. Therefore, the finding of the learned Revisional Court appears to be perverse and is accordingly quashed. Consequent thereupon, petition is allowed.