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Jharkhand High Court · body

2012 DIGILAW 664 (JHR)

Sibo Devi v. State of Jharkhand

2012-04-30

N.N.TIWARI

body2012
Order 1. The petitioner has prayed for quashing the order dated 22nd September, 2010 passed in Revision Petition No.2/Forest Case (Confiscation) No.54/2009 by the Respondent No.2, whereby the petitioner's revision has been dismissed. He has also prayed for quashing the order dated 25th November, 2008 passed in Confiscation (Forest) Appeal No.107 of 2008 by the Respondent No.3 as also the order dated 5th June, 2008 passed in Confiscation Case No.43 of 2006 by the Respondent No.4, whereby the said respondent had passed order for confiscation of the petitioner's tractor and trailor, being Registration Nos.JH02B 5728 and JH02B 5729, respectively. 2. According to the petitioner, she is that she is the registered owner of the tractor, being Registration No.JH02B 5728, and trailor, being Registration No.JH02B 5729. On a written application of one Gurudhan Prasad, Senior Secretary Inspector, CCL, Mandu, (Charhi) P.S. Case No.136 of 2006 was registered on 28th April, 2006 under Sections 379/411 of the Indian Penal code, Section 30(2) of the Coal Mines Act and Section 33 of the Indian Forest Act against the petitioner and three others. The petitioner's tractor and trailor were also seized. 3. The prosecution case, in brief, was that on a secret information that some persons are illegally loading steam coal on a tractor from Ulhera Pool Dump, Parej, situated at the land of Forest Department, the police chased and stopped the tractor. The vehicle was found loaded with six tones of coal. Five-six persons were found boarded on the tractor. Out of them, three persons were apprehended. 4. It is relevant to mention that the petitioner was not apprehended, but her name was also included, as she happened to be the owner of the tractor. 5. The confiscation proceeding against the tractor, trailor and six tones of steam coal was initiated in the court of Authorized Officer-cum-Divisional Forest Officer, Ramgarh Forest Division, Ramgarh, being Confiscation Case No.43 of 2006. Show cause notice was issued to the petitioner. She had appeared and filed her reply, stating, inter alia, that the steam coal, which was given by the CCL employee, was for personal use. The loading capacity of the trailor is 22.5 tones. It is wholly false to allege that six tones of steam of coal was loaded on the trailor. Show cause notice was issued to the petitioner. She had appeared and filed her reply, stating, inter alia, that the steam coal, which was given by the CCL employee, was for personal use. The loading capacity of the trailor is 22.5 tones. It is wholly false to allege that six tones of steam of coal was loaded on the trailor. It was further stated that the coal was not the forest produce, rather it was the property of the CCL and transportation of coal does not come within forest offence. It was for personal consumption and was received by the CCL employee. The Authorized Officer-cum-Divisional Forest Officer, however, did not consider the petitioner's written statement and the ground taken by her. The Authorized Officer has not decided as to whether the coal, which was said to be seized, was forest product and comes within forest offence. Even if the report is taken at its face value transportation of coal in night without valid paper does not attract the provision of Section 33 of Indian Forest Act. 6. The petitioner challenged the said order before the Deputy Commissioner, Ramgarh on several grounds, but he also did not consider the same and dismissed the appeal. The petitioner preferred revision before the Principal Secretary, Forest and Environment Department, Government of Jharkhand, being Forest Revision No.2/Forest Case (Confiscation) 54/2009. The revisional authority without going into the facts and grounds taken by the petitioner has cryptically and summarily rejected the petitioner's revision, holding that there was no justification for setting aside the orders of the courts below. 7. Aggrieved by the said impugned order, the petitioner has preferred this writ petition. 8. The petitioner has challenged the impugned orders mainly on the ground that none of the authorities has come to the finding that the steam coal, which was said to be loaded on the petitioner's trailor, is a forest produce. In view thereof, there was no reason before the authorities concerned to believe that any forest offence was committed and the vehicle, in question, was involved in committing forest offence. It has been further submitted that there is no evidence on record to show that steam coal was brought from the forest land. No description of the land has been given by the respondents with plot number, Khata number and survey number to identify that the seized coal was loaded from any forest land. It has been further submitted that there is no evidence on record to show that steam coal was brought from the forest land. No description of the land has been given by the respondents with plot number, Khata number and survey number to identify that the seized coal was loaded from any forest land. The vehicle was seized merely on assumption and suspicion and without any legal basis. 9. Learned counsel appearing on behalf of the petitioner submitted that the respondents have no authority to confiscate the vehicle unless there is clear reason on record to believe that forest offence has been committed in respect of forest produce and her vehicle was involved in any such forest offence. He further submitted that the petitioner is the registered owner of the vehicle and she has valid paper for holding the same. The respondents have no authority to confiscate the petitioner's property contrary to the provisions of law. Confiscation of the petitioner's vehicle is wholly arbitrary, illegal and violative of Article 300A of the Constitution of India. Learned counsel referred to and relied upon a decision of this Court in Mahesh Kumar Aahuja Vs. State of Jharkhand & Ors. [ 2008(2) JCR 140 (Jhr.)]. 10. The writ petition has been contested by the respondents. It has been stated, inter alia, that though Khata number, Plot number and other descriptions of the land were not mentioned, the petitioner's vehicle was found loading steam coal from the forest land. Witnesses have proved that the coal was loaded from the place comes within forest demarcation. He further submitted that it can be presumed that any article lying on the front land is forest produce. The coal comes within the definition of the forest produce under Section 2 subsection 4(b)(iv). The coal is a mineral and product of mines and quarries and as such in view of the said legal presumption, the petitioner had to prove that the coal loaded on her vehicle was not a forest produce, which she failed to establish. The order of the Authorized Officer as well as the orders of the appellate and revisional authorities are, thus, wholly legal and valid and the same warrant no interference. 11. I have heard learned counsel for the parties and considered the facts and materials on record as well as submissions made by learned counsel for the parties. 12. The order of the Authorized Officer as well as the orders of the appellate and revisional authorities are, thus, wholly legal and valid and the same warrant no interference. 11. I have heard learned counsel for the parties and considered the facts and materials on record as well as submissions made by learned counsel for the parties. 12. In the instant case, it has been alleged that the steam coal was loaded from the dumping ground of CCL and that dumping ground is within the forest area. 13. On that basis, it has been alleged that the loading of coal was from the forest area without any valid paper and the same attracts mischief of Section 33 of the Indian Forest Act and all the articles, including the vehicles, are liable for confiscation under Section 52 of the said Act. 14. As stated above, the petitioner has denied to have committed any forest offence. The petitioner has stated that she is a registered owner of the vehicle and she has been implicated in the case only for that reason. The petitioner has further claimed that the coal loaded on the trailor is not a forest produce. The coal was on the dumping ground of CCL and it was being transported for personal use. 15. Section 52 of the Indian Forest Act provides for seizure of property liable to confiscation. It runs as follow: “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, 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.” 16. The said provision makes it clear that 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. 17. By Bihar amendment, in Section 52 of the Indian forest Act, the procedure has been laid down for confiscating such seized property. The same, inter alia, provides that where the Authorized Officer seizes any forest produce or produced before him after seizure by Forest Officer and he is satisfied that a forest offence has been committed in respect thereof he may by order in writing and reasons to be recorded confiscate the property so seized together with all tools, arms, boats, vehicles etc. 18. It further appears from the amended provision i.e. Section 52(3) that before confiscation, the Authorized Officer has to be satisfied that a forest offence has been committed in respect thereof. 19. According to the interpretation provided in Section 2 of the said Act, 'forest offence' means the offence punishable under the Act or any Rule made thereunder. 20. In the instant case, the case amongst other has been registered under Section 33 of the Indian forest Act apparently for removing a forest produce. 21. Coal is said to be forest produce on the ground that it is a mineral and a product of mines and quarry and included in the definition provided in subsection 2(4)(b)(iv) of Section 2 of the Indian forest Act. Subsection (2)(4)(b)(iv) of Section 2 runs as follows: “(iv) pit, surface soil, rock and minerals (including limestone, laterite, mineral oils, and all products of mines or quarries);” 22. On plain reading of the said definition, it is clear that any mineral or product of mines or quarries can be said to be forest produce wherein it is found or brought from a forest as has been specifically provided in Clause (b) of subsection(4). 23. In the instant case, except a vague statement that the dumping ground of the CCL was on forest land, there is no allegation or proof on record to contend that coal was found or was brought from the forest. 23. In the instant case, except a vague statement that the dumping ground of the CCL was on forest land, there is no allegation or proof on record to contend that coal was found or was brought from the forest. There is no such finding on record either by Authorized Officer or by appellate or revisional authorities and there is no material on record for the satisfaction of the Authorized Officer that a forest offence was committed by the said vehicle. The Authorized Officer has proceeded on presumption that since the coal was loaded in night without any valid paper, it is involved in forest offence. 24. In Mahesh Kumar Aahuja's case (Supra), this Court has held that confiscation of the property of a citizen cannot be made wantonly and casually unless there is cogent evidence on record to substantiate the allegation of violation of some provisions of law. 25. Admittedly, in the instant case, there is no material on record to establish that the coal, which was loaded on the petitioner's vehicle was a forest produce or the vehicle was involved in committing any forest offence. 26. It is well settled that suspicion, however, strong is not a substitute of a legal evidence. The order of the Authorized Officer only on suspicion is, thus, wholly perverse, illegal and unsustainable. The orders of the appellate authority as well as revisional authority affirming the said illegal order, for the same reasons, are vitiated. 27. In view of the above discussions, the writ petition is allowed. The impugned orders, contained in Annexures2, 3 & 4, are quashed. 28. The respondents are directed to release the petitioner's vehicle forthwith.