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2012 DIGILAW 1210 (JHR)

Kamla Devi v. State of Jharkhand

2012-08-13

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the parties. This writ petition is directed against the order dated 20th September,2004 passed in Confiscation Appeal No.14/2001 by the Appellate Authority cum Conservator of Forest, Hazaribagh, respondent no.2 affirming the order dated 30th April,2001 passed by the Divisional Forest Officer cum Licensing Authority, respondent no.3, whereby, under the provisions of Section 12 of the Bihar Saw Mills (Regulation) Act,1990, the seized log of woods, plants and machinery, implements and equipments have been confiscated and the licence in the name of the husband of the petitioner no.1 namely Bijan Mistri and father of the rest of the petitioners was cancelled. These petitioners have been substituted in place of the original licensee on his death during pendency of the appeal before the appellate authority. The short facts of the case are that the licence in the name of the sole proprietor Bijan Mistri, owner of M/s Shiv Shankar Furniture and Saw Mill at Rani Bandh Dhaiya, Dhanbad was existing under the provisions of Bihar Saw Mills(Regulation) Act, 1990. However, on 24.01.2001, during course of inspection by the Forest Officer, the plant and machinery, implements and equipments of the said firm such as trolley machine, band saw electric meter, diesel engine, stock register along with 189 pieces of shemal logs were seized for the alleged violation of the provisions of the Act,1990 and as per the terms and conditions of the licence. The licensee was issued show cause notice on 17.2.2001 asking him to explain as to why the seized articles be not confiscated. The licensee thereafter appeared and produced the valid transit permit explaining his stand that he was not involved in any violation of the Act of 1990 and the logs of woods seized from the premises of the firm were under valid transit permit brought in the said saw mill. The petitioner was again served a show cause notice under Section 7 of the Act, which was also duly replied inter alia stating that the logs were procured under valid transit permit from Koderma Range issued by the competent forest officer and it was further contended that the inspection and seizure were not conducted by the authorized person under Section 8 of the Act, as only the licensing authority under the Act or the duly authorized person on his behalf can conduct such inspection and seizure. It was further contended that the seized logs of woods bore the hammer mark of Forest Department and in respect of the difference in number and seizes of the log of woods, it was submitted on the part of the licensee that as per practice of the trade, the measurement of the forest produce is done in terms of to be “feet” and not in terms of the number and seizes. It was further contended that the stock register also bears the measurement in terms of to be “feet” and “meter” under the prescribed format, which the saw mill owner required to file periodically. Accordingly, the licensee explained the details of 354 logs having been obtained under six transit permits and tallying with the stock register but the raiding party refused to measure in terms of cubic feet rather they relied upon size and number and proceeded against the licensee under the penal provision of the Act,1990. It is submitted on behalf of the counsel for the petitioner that the confiscating authority, however, refused to accept the defence of the licensee and proceeded to confiscate the seized logs of shimal woods and the plants and machinery prescribed herein-above as also in the impugned order in purported exercise of power under Sections 16, 13(1)(e) and 10 of the Act and also proceeded to revoke the licence of the petitioner under Rule 4(2)(c) of the Bihar Saw Mills (Regulation) Rules,1993 for having been failed to maintain the details in the prescribed Form D as per the said Rules. It is submitted that the petitioner thereafter approached this Court, however, this Court refused to entertain the writ petition and allowed the petitioner to agitate his grievances before the appellate court vide order dated 11.5.2001 passed in CWJC No.2072/2001(Annexure-4) and the petitioner thereafter approached the appellate authority being Conservator of Forest, Hazaribagh in Confiscation Appeal No.14/2002 (Annexure-5). It is submitted that even before the appellate authority the licensee pleaded vehemently the aforesaid grounds stating clearly that these seized log of woods being 189 in numbers were actually part of the same log of woods, which were obtained under valid transit permit but have been cut into pieces. It is submitted that even before the appellate authority the licensee pleaded vehemently the aforesaid grounds stating clearly that these seized log of woods being 189 in numbers were actually part of the same log of woods, which were obtained under valid transit permit but have been cut into pieces. It is further stated that before the appellate authority it was pleaded that none of the plants and machinery said to have been confiscated were found to be in use for such alleged act of cuttings of illegally obtained forest produce, which can be a ground for confiscating the plaints and machinery and implements of the licensee, as it is the admitted case that the proprietor of the said firm had a valid licence in his favour and it was not a case where the act of cuttings etc. of log woods was being done without any valid transit permit by unauthorized persons. Reference has been made to the provisions of Section 13(1)(e) of the Act in order to support the contention that the confiscating authority has to verify that the plants and machinery, implements and equipments have been used in the commission of offence. However, it is submitted on behalf of the petitioner that the appellate authority failed to take into account the illegality in the original order and the defence of the licensee and proceeded to uphold the original order of confiscation by dismissing the appeal. As already noted above, the original licencee died during the pendency of the appeal and his legal heirs were substituted, who are present petitioners in this writ petition, praying the said relief. A counter affidavit has already been filed on behalf of the respondents, wherein stand has been taken in support of the impugned order. Learned counsel for the respondents, by referring to the impugned order dated 22.06.2002 passed by the Original Authority (Annexure-6) and also the appellate order dated 20.09.2004 (Annexure-7), submitted that the concerned authorities have taken into account all the contentions of the petitioner raised herein and passed the impugned orders, which cannot be found fault with. Learned counsel for the respondents, by referring to the impugned order dated 22.06.2002 passed by the Original Authority (Annexure-6) and also the appellate order dated 20.09.2004 (Annexure-7), submitted that the concerned authorities have taken into account all the contentions of the petitioner raised herein and passed the impugned orders, which cannot be found fault with. It is submitted on behalf of the counsel for the respondents that the contention of the petitioner that the illegally seized log of woods were nothing but part of the same log of woods procured under six valid transit permits, is wholly contrary to the record and the fact that as per the stock register 189 log of woods were found to be in excess of the woods procured under valid transit permit. Further it is submitted on behalf of the counsel for the respondents that as per the transit permit the log of woods procured had a total length of 1625 feet whereas the length of the total number of logs seized including 189 found beyond the transit permit and 165 out of the transit permit of 220 the total length found on measurement was 2093 feet, which obviously is much beyond the log of woods obtained or procured under the transit permit. It is further contended on behalf of the counsel for the respondents that on the request of the licensee, in spite of having been granted enough opportunity, no one appeared on his behalf for ensuring the measurement of the seized woods in terms of the volume as stated by the petitioner. By referring to the impugned orders, the learned counsel submitted that the petitioner licensee did not appear for measurement of the volume of the seized woods. It is further submitted on behalf of the counsel for the respondents that the licensee is supposed to maintain the details of the materials in the prescribed proforma but he failed to do so and even during the course of confiscation proceeding the regularly filled up forms were not produced by the licensee. It is submitted that all the contentions of the licensee have been taken into account and as per the provisions of the Act of 1990, specifically Section 16 thereof, the burden of proof lies upon the licensee to show that the woods seized during the inspection were obtained under valid transit permit and acts of sawing etc. It is submitted that all the contentions of the licensee have been taken into account and as per the provisions of the Act of 1990, specifically Section 16 thereof, the burden of proof lies upon the licensee to show that the woods seized during the inspection were obtained under valid transit permit and acts of sawing etc. were not done in contravention of the provisions of the Act or Rules made thereunder. Accordingly, it is submitted that the licensee had failed to discharge the burden of proof and was found to have indulged in violation of the specific provision of the Act of 1990 including the terms and conditions of the licence as per the Rules of 1993, whereunder the impugned order of confiscation has been passed. Learned counsel for the respondent also justified the order of confiscation of the plants and machinery, implements and equipments on the specific ground that the woods found to have been illegally procured and seized during the inspection, are with an intention to be cut into pieces and sold in the market. Although the petitioner may have a valid license, as a matter of fact, it was being used for illegal purposes. It is further submitted that during the inspection and seizure alleged forest produce, fresh dust of wood cuttings etc., carried out in the saw mill were found and which must have been sold in the open market. As such the plants and machinery, implements and equipments of the saw mill were used for illegal purposes. According to the counsel for the respondents, the appellate authority has also applied his mind over all the contentions of the licensee/ petitioner herein and found no fault with the order of the original authority and accordingly, the impugned order of confiscation has also been confirmed by the Appellate Authority. I have heard the counsel for the parties and gone through the records and the impugned orders. It appears that the issue raised in the writ petition is in relation to the action taken by the competent Authority under the provisions of Bihar Saw Mills (Regulation) Act, 1990 and the licensing authority i.e. the District Forest Officer is the authority, who is empowered to carry on inspection either himself or through the authorized person under the aforesaid Act. The appellate authority has also in the impugned order taken into account that the inspection was carried out by the authorized officer on behalf of the licensing authority. Under the provisions of the aforesaid Act, during course of inspection of any saw mill if unaccounted woods is found in the saw mill, the licensing officer may order confiscation the whole or portion of the plants and machinery, implements and equipments, which have been used for the commission of offence. Under the provisions of the aforesaid Act, during course of inspection of any saw mill if unaccounted woods is found in the saw mill, the licensing officer may order confiscation the whole or portion of the plants and machinery, implements and equipments, which have been used for the commission of offence. The relevant provisions of Section 10 and 13 of the said Act are quoted herein-below: “10.-Keeping of account of stock of wood in saw mill and saw pit:-All wood whether sawn or not, found in or brought to the saw mill or saw pit or at the site of sawing at any time or during any period by any person in any manner or by any means for purpose of sawing or for any other purpose shall always be properly accounted for and all relevant evidence, documents, receipts, order and certificate as are necessary to show that the wood is legally obtained, shall be maintained and made available at the time of inspection, it shall be presumed in respect of the stock of wood which is not accounted for satisfactorily that the same has been obtained unlawfully and the stock of wood shall be liable for confiscation.” “13.-Confiscation of saw mills etc:-(1) Save as provided in clause(b) of section 5, (a) Where a saw mill or saw pit is established or operated in an area declared to be a prohibited area under sub-section(1) of Section 6, or (b) Where a saw mill or saw pit is established or operated without a licence or without renewal of licence under sub-sections (2) and (4) respectively of Section 7: or (c) where the saws mill or saw pit is operated after suspension or revocation of a licence under sub section (5) of section 7; or (d) where the saw mill or saw pit is operated with the aid of electrical energy or electrical installation in contravention of the provision of subsection (1) of section 11 ; or (e) unaccounted wood is stored in the saw mill or saw pit, the licensing officer may order confiscation of the stock of wood unlawfully stored together with whole or portion of the plants and machinery, implements and equipments which have been used in the commission of the offence. (2) No order confiscating any property shall be made under sub-section(1) unless the person from whom the property is seized and in the case the owner of such property is known, such person is given- (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and (c) a reasonable opportunity of being heard in the matter, (3) Any forest officer not below the rank of a conservator of forests empowered by the State Government in this behalf by notification, may within thirty days from the date of order of confiscation by the licensing officer under sub section (1) either “suo moto” or on application call for and examine the records of that order and may make such enquiry or cause such enquiry to be made and pass such orders as he may thing fit: provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard. (4) Any person aggrieved by an order passed under sub-section(3) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized and the District Judge shall, after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge so passed shall be final. Where an order of confiscation of any property passed under sub section (1) or sub-section (3) or sub-section (4) has become final in respect of the whole or any portion of such property, such property of the portion thereof as the case may be, shall vest in the State Government free from all encumbrances. Where an order of confiscation of any property passed under sub section (1) or sub-section (3) or sub-section (4) has become final in respect of the whole or any portion of such property, such property of the portion thereof as the case may be, shall vest in the State Government free from all encumbrances. (5) An order of confiscation under sub-section (1) or sub-section(3) or sub-section (4) shall not be deemed to bar the imposition of any such other penalty to which the person from whom the property is seized is liable under this Act.” From perusal of the aforesaid provisions, it appears that the licensee has to keep the accounts of stock of woods in saw mill and saw pit to show that the wood is legally obtained and all relevant evidence, documents, receipts, order and certificate are made available at the time of inspection, failing which it shall be presumed, in respect of the stock of woods that it is not accounted for satisfactorily and the same has been obtained unlawfully and is liable for confiscation. The provisions of Section 16 of the Act are also quoted hereinbelow: “16.-Burden of Proof:-(1) Where wood, whether sawn or unsawn, is recovered from a saw mill or saw pit for which no valid licence exists in accordance with the provisions of this Act or the rules made thereunder, it shall be presumed that saw mill or saw pit was in operation until the contrary is proved, the burden of proving the same shall lie on the accused. (2) Where, in any prosecution for an offence against this Act or rules made there under, it is established that any wood declared unlawful was seized in the premises of a saw mill of a person, or at any site where sawing was being done, it shall be presumed such person has contravened the provisions of this Act or rules made thereunder until the contrary is proved, the burden of proving the same shall lie on the accused.” As per the said provision, in case where wood is recovered from saw mill or saw pit, the burden of proof, that the same were validly obtained under valid permit and licence and were not being used in contravention of the provisions of the Act or Rules, squarely lies upon the licensee. From the conspectus of the facts and circumstances and from the case of the parties, it appears that the licensee had the six valid transit permits from Koderma Forest issued by the competent forest officer for transporting certain forest produce and during course of inspection of the saw mill of the licensee 189 logs of shimal woods were found to be unaccounted and also the measurement of the said unaccounted logs of woods together with that of those under the transit permit were found to be much in excess totaling 2093 feet against the valid transit permit for 1625 feet. Accordingly, it was found that not only in terms of the measurement but also in number of the woods seized were found to be much in excess from the procurement under valid transit permit, although the petitioner submits that the measurement of the logs of woods were to be made in cubic feet or meter. It appears from the impugned order that despite opportunity having been granted to the licensee by the confiscating authority he did not appear for such measurement and, therefore, the contention that the total woods, which were found during inspection, were procured under six transit permits of the licensee, is not supported by any findings of fact recorded by the confiscating authority. On the contrary, the logs of woods found in the saw mill are counted not only in terms of number but also measured in terms of their measurement and on this count they have been found much in excess of the valid transit permit. It has also been found during the course of proceeding before the competent authority that the regular records of egress and ingress and the daily operations have not been regularly maintained and the returns were also not periodically filled by the licensee in the prescribed Form D, which may be in contravention of the provisions of the Act to show that the petitioner licensee had procured the said woods found beyond the valid transit permit. Even during the physical inspection the fresh dust of wood cuttings were also found and the records of which were found to be not maintained by the licensee. Even during the physical inspection the fresh dust of wood cuttings were also found and the records of which were found to be not maintained by the licensee. The submission of the counsel for the respondents that these logs of woods are actually illegally procured and mixed with the validly procured woods under transit permit and sold in the market in the name of the legally procured log of woods from a forest depot or office thus appears to be justified. Apparently, the plant and machinery, implements and equipments under a license of saw mill are also used for the cuttings of woods in pieces for the purposes of illegally selling in the market and when the confiscation authority found unaccounted log of woods during inspection, for which the confiscation proceedings were initiated by him, the confiscating authority's order for confiscation of the plants and machinery, implements and equipments, which were used in cuttings of the log of woods obtained otherwise under the valid transit permit cannot be found fault with. It appears that the confiscating authority and the appellate authority have taken into account all the material facts before arriving at a finding and passed the impugned order dated 20th September 2004. There are findings of fact over the question in relation to the procurement of illegal forest produce, which the petitioner licensee has failed to account and on whom the burden of proof lies as per provisions of the Act. The learned counsel for the petitioner has not been able to show any illegality, perversity in the order of the appellate authority which requires interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. I do not find that the orders of the confiscating authority or the appellate authority suffer from any error of law or on fact on the face of record either. In the aforesaid facts and circumstances and the reasons discussed, I do not find any merit in this writ petition, which is, accordingly, dismissed.