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2012 DIGILAW 221 (MP)

Kuldeep Sharma v. State Of Madhya Pradesh

2012-02-21

SUJOY PAUL

body2012
JUDGMENT ( 1. ) SINGULAR question involved in the present writ petition is whether an accused is entitled to engage an advocate in seizure/confiscation proceedings before the Authorised Officer under the Indian Forest Act, 1927 ? ( 2. ) THE petitioner's request for engaging an advocate in confiscation proceedings is turned down by communicating the order dated 12th January,2012 ( Annexure P/1) which is assailed in the present petition. THE petitioner submits that as per section 30 of the Advocates Act, ,1961 read with sections 19 and 72 of the Indian Forest Act, 1927 (for brevity "1927 Act") the petitioner is entitled to engage an advocate even in confiscation proceedings. ( 3. ) PER contra, Ms. Sangita Pachori, learned Government Advocate supported the impugned order and submits that the petitioner is not entitled to engage an advocate in confiscation proceedings. ( 4. ) I have heard learned counsel for the parties at length. ( 5. ) SECTION 30 of the Advocates Act, 1961 (hereinafter, referred to as "1961 Act"), gives right to the advocates to practise throughout the territories to which 1961 Act extends, these are (1) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. ( 6. ) THE petitioner by placing reliance on section 19 of the 1927 Act submits that a pleader/advocate can appear before the Authorised Officer. Shri Saxena submits that section 30 (ii) of 1961 Act provides that an advocate can appear in proceedings before any person who is legally authorised to take evidence. Shri Saxena then relied on section 72 of 1927 Act which reads thus- "72. State Government may invest Forest Officers with certain powers. Shri Saxena submits that section 30 (ii) of 1961 Act provides that an advocate can appear in proceedings before any person who is legally authorised to take evidence. Shri Saxena then relied on section 72 of 1927 Act which reads thus- "72. State Government may invest Forest Officers with certain powers. (1) THE State Government may invest any Forest Officer with all or of the following powers, that is to say :- (a) power to enter upon any land and to survey, demarcate and make a map of the same; (b) the powers of a civil court to compel the attendance of witnesses and the production of documents and material objects; (c) power to issue a search warrant under the Code of Criminal Procedure, 1898 ( 5 of 1898); and (d) power to hold an enquiry into forest offences, and, in the course of such inquiry, to receive and record evidence. (2) Ary evidence recorded under clause (d) of sub-section (1) admissible in any subsequent trial before a Magistrate, provided that it has been taken in the presence of the accused person." ( 7. ) LEARNED counsel for the petitioner submits that a conjoint reading of section 30 of 1961 Act and section 72 of 1927 Act makes it crystal clear that the petitioner can appear before the Authorised Officer through his counsel. Section 2 (2) contend the definition of " Forest Officer" which reads thus- " 'Forest Officer' means any person whom the State Government or any office empowered by the State Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest Officer." In the considered opinion of this Court, confiscation proceedings are governed by section 52 (Madhya Pradesh Amendment in 1927 Act). A minute and microscopic reading of this section shows that if there is reason to believe for the Forest Officer that forest offence has been committed, he may seize the vehicle, material, ropes, chains etc. which are used in the alleged forest offence. A minute and microscopic reading of this section shows that if there is reason to believe for the Forest Officer that forest offence has been committed, he may seize the vehicle, material, ropes, chains etc. which are used in the alleged forest offence. Subsection (4) of section 52 aforesaid prescribes that the Authorised Officer is required to send an intimation in the form prescribed about the proceedings of confiscation to the Magistrate and issue a parallel notice in writing to the accused whose property is seized and then afford an opportunity to the accused person to submit a representation within a reasonable time. ( 8. ) THE words 'reason to believe' are considered by the Apex Court in various judgments including N.Nagendra Rao and Co. v. State of A.P. (1994) 6 SCC 205 : ( AIR 1994 SC 2663 ). It is held in para 5 as under - "THE expression 'reason to believe' means that even though formation of opinion may be subjective but it must be based on material on record." ( 9. ) A reading of section 52 aforesaid shows that it does not contain any provision and procedure for recording evidence for the purpose of confiscation of the vehicle or property etc. The Apex Court in State of West Bengal v. Sujeet Kumar Rana (2004) 4 SCC 129 : ( AIR 2004 SC 1851 ) held that the West Bengal Amendment in 1927 Act is a complete code in itself. This Court had an occasion to consider the West Bengal amendment in juxtaposition to similar amendment in section 52 by the State of Madhya Pradesh in a recent judgment of this Court in the case of Ramniwas v. Game Range, Chambal Sanctuary, (MCRC No.213/12 decided on 3rd February, 2012 at Gwalior). This Court opined that the amendment by the State of West Bengal is analogous/ pari materia qua the amendment made by the State of Madhya Pradesh. In Sujeet Kumar Rana's case ( supra ), the Apex Court has held that the aforesaid amendment is a complete code in itself by giving sufficient safeguards both substantive and procedural against any arbitrary exercise of power. ( 10. ) IN this view of the matter, it is clear that section 52 is a special provision dealing with the seizure of the property under 1927 Act. Section 72 of 1927 Act is a general provision. ( 10. ) IN this view of the matter, it is clear that section 52 is a special provision dealing with the seizure of the property under 1927 Act. Section 72 of 1927 Act is a general provision. General powers given in section 72 aforesaid are unless attracted and applicable in the confiscation proceedings, it cannot be said that the Authorised Officer will record evidence. IN other words, the powers under section 72 of 1927 Act are general powers which may be attracted in other provisions, but so far as confiscation proceedings are concerned, the same are governed by section 52 which is a complete code in itself. IN absence of any such provision to record evidence in section 52, section 72 of 1927 Act and section 30 of 1961 Act cannot be pressed into service. IN the considered opinion of this Court, section 30 (ii) of 1961 Act has no application and appearance of advocates is rightly prohibited by the Authorised Officer. Since the Authorised Officer is not legally authorised to take evidence in section 52 proceedings under 1927 Act, the question of appearance of advocates by claiming right from section 30 (ii) of 1961 Act does not arise. . ( 11. ) THE Kerala High Court in Writ Petition No. 16012/92, decided on January 8th , 1993 held that in confiscation proceedings, there is no question of any examination-in-chief and consequently there is no question of any cross-examination of the officials involved in seizure etc. Thus, it is clear that in confiscation proceedings, no evidence is recorded. ( 12. ) SO far as reliance on section 19 of 1927 Act is concerned, a careful reading of section 19 shows that it gives right to a person who has made a claim under the Forest Act regarding something. Such claim can be made before the Forest Settlement Officer, Appellate Officer or in the court in the course of any enquiry or appeal under this Act. In the opinion of this Court, the Authorised Officer is not the Forest Settlement Officer and the petitioner has not submitted any claim before the said Authority, and therefore, section 19 of 1927 Act has no application in the instant case. Admittedly, the impugned order is not passed by the Appellate Officer or court in the course of any enquiry. In the opinion of this Court, the Authorised Officer is not the Forest Settlement Officer and the petitioner has not submitted any claim before the said Authority, and therefore, section 19 of 1927 Act has no application in the instant case. Admittedly, the impugned order is not passed by the Appellate Officer or court in the course of any enquiry. Thus, in the absence of showing any enabling provision, I am unable to hold that the Authorised Officer has committed any error of law in passing the order dated 12th January, 2012 impugned in the instant petition as Annexure P/1. ( 13. ) IN view of the above, the present petition is dismissed but with no order as to costs. Petition dismissed.