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2015 DIGILAW 1424 (RAJ)

Suresh Kumar v. State of Rajasthan

2015-07-30

PRASHANT KUMAR AGARWAL

body2015
ORDER : The petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 27.01.2015 passed by the Additional Sessions Judge No.2, Jaipur Metropolitan in Criminal Revision Petition No.2/2015 whereby learned revisional Court by dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 18.12.2014 passed by the appellate authority (Chief Conservator of Forest) Rajasthan, Jaipur passed in Appeal No.183/2014 whereby the learned appellate authority upheld and affirmed the order dated 25.11.2014 passed by the Authorized Officer (Assistant Conservator of Forest) Sikar whereby the learned Authorized Officer ordered to confiscate tractor trolly bearing registration No.RJ-23-RA-7413 alongwith forest produce in respect of FIR No.41/42 dated 12.09.2014. The prayer of the petitioner, who is registered owner of the aforesaid vehicle, is that all the above three orders be quashed and set aisde and the aforesaid seized vehicle may temporarily be released in his favour on "Supurdginama" during the course of trial of the case. Brief relevant facts for the disposal of this petition may be stated as below:- (1) The aforesaid tractor trolly was seized and detained on 12.09.2014 by a competent forest officer in a forest area on the premise that it was found carrying stones illegaly mined from that forest area without any valid permit or transit pass and in this regard FIR No.41/42 came to be registered for offences under Sections 32,33,41 and 42 of the Rajasthan Forest Act, 1953 (hereinafter to be referred as "the Act"). (2) Report regarding commission of forest offences and seizure of the vehicle with a prayer to initiate confiscation proceedings regarding the seized vehicle and forest produce was sent by the Seizure Officer to the Authorized Officer (Assistant Conservator of Forest), Sikar on 19.09.2014. (3) On prima facie being satisfied that the aforesaid vehicle was involved in commission of forest offences in respect of the aforesaid forest produce, requisite intimation as per Section 52 (4) (a) of the Act was sent by him in the prescribed form to the concerned Magistrate about initiation of proceedings for confiscation of the seized vehicle and forest produce and show cause notices were also served upon the petitioner (being registered owner) and also on the driver of the vehicle. (4) Petitioner appeared before the Authorized Officer and filed his written submissions alongwith some documents. (4) Petitioner appeared before the Authorized Officer and filed his written submissions alongwith some documents. The main contention of the petitioner was that the stones which have been seized are his personal property and were being transported from one place to another for construction purpose and they do not come within the purview of forest produce. It was prayed by him that the vehicle be released in his favour. (5) On the basis of material made available on record and after hearing the respective parties, the Authorized Officer vide order dated 25.11.2014 came to a finding that the vehicle in question was found being used for transportation of forest produce in the form of stones illegally mined from a forest area without a valid permit or transit pass with the knowledge and consent of the petitioner and forest offences under Sections 32,33,41 and 42 of the Act have been committed and as the seized vehicle has been found involved in commission of aforesaid forest offences, it is liable to be confiscated. (6) Aggrieved with the order dated 25.11.2014, petitioner preferred appeal under Section 52-A of the Act before the appellate authority (Chief Conservator of Forest) Rajasthan, Jaipur and the learned appellate authority after hearing the petitioner, dismissed the appeal vide order dated 18.12.2014. The learned appellate authority affirmed and upheld the finding of the Authorized Officer and refused to release the vehicle in favour of petitioner. It was held by the appellate authority that Authorized Officer is empowered to order confiscation of the seized vehicle if he is satisfied that it was involved in the commission of a forest offence even in absene of conviction of the accused by a criminal Court. (7) Still dissatisfied, petitioner preferred revision petition before the Additional Sessions Judge No.2, Sikar under Section 52-B of the Act but without any success. The learned revisional Court rejected the contention of the petitioner that vehicle can be confiscated only when accused is convicted for a forest offence by criminal Court after trial. It was observed by the revisional Court that provisions of Sections 52, 52-A, 52-B 52-C of the Act have overriding effect to provisions of Section 55 of the Act and Authorized Officer is empowered to confiscate the seized vehicle and the forest produce even before forest offence is found proved by the criminal Court. It was observed by the revisional Court that provisions of Sections 52, 52-A, 52-B 52-C of the Act have overriding effect to provisions of Section 55 of the Act and Authorized Officer is empowered to confiscate the seized vehicle and the forest produce even before forest offence is found proved by the criminal Court. Inviting attention towards Section 55 of the Act, it was submitted by the learned counsel for the petitioner that as per this provision a vehicle found to be used in committing a forest offence is liable to confiscation only if the accused is convicted for such offence after trial by a competent criminal Court. It was further submitted that in the present case trial is yet to be commenced and, therefore, the seized vehicle can be released by a competent Forest Officer on suitable conditions according to provisions of Section 53 of the Act. It was also submitted that during the course of trial provisions of Sections 52, 52-A, 52-B and 52-C are not applicable. It was pointed out that it is possible that after trial the accused is acquitted due to paucity of evidence or otherwise or with a finding that no forest offence has been committed and, therefore, one must not be deprived of possession of his vehicle merely on suspicion on the part of forest officer that it was involved in commission of a forest offence. In support of his submissions, learned counsel for the petitioner relied upon the order dated 24.4.2015 passed in S.B.Civil Writ Petition No.4362/2015 and order dated 14.11.2014 passed in S.B.Criminal Misc.Petition No.2529/2014. On the other hand, it was submitted by the learned Public Prosecutor that provisions of Section 55 of the Act are subject to the provisions of Section 52, 52-A, 52-B and 53-C i.e. these provisions have overriding effect to the provisions of Section 55 and in a case where Authorized Officer as per sub-section (3) of Section 52 of the Act after conducting inquiry has ordered confiscation of the seized vehicle, it cannot be released even temporarily to the owner as, as a result of confiscation it vests absolutely in the State and all rights of the owner therein are lost. It was submitted that on confiscation the vehicle absolutely vests in the State and when there is total loss of value to the owner, there is no question of its being released in his favour as he no more has ownership or any other right in it. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law. Sub-section (1) of Section 52 of the Act provides 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 machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any such offence, may be seized by any forest officer or a police officer not below the rank of a head-constable. Thus, as per this provision a vehicle found involved in commission of a forest offence is liable to be seized by a forest officer or a police officer on his belief that a forest offence has been committed in respect of any forest produce. Sub-section (2) of Section 52 of the Act provides that every officer seizing any property shall as soon as may be either produce the property so seized before an officer not below the rank of Assistant Conservator of Forest authorized by the State Government in this behalf by notification i.e. authorized officer, or make a report about the seizure to such officer. Thus, as per this provision the seized property, which includes a vehicle also, shall be produced before the Authorized Officer or a report to that effect be made to him by the seizing officer. Sub-section (3) of Section 52 provides that where Authorized Officer upon production before him of property seized or upon receipt of report about the 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, confiscate forest-produce so seized together with all machinery, arms, tools, boats, vehicle, ropes, chains or any other article used in committing such offence. Thus, as per this provision the authorized officer has been empowered to confiscate the forest-produce and the vehicle etc. Thus, as per this provision the authorized officer has been empowered to confiscate the forest-produce and the vehicle etc. after conducting inquiry as contemplated under sub-section (4) and sub-section (5) of Section 52 of the Act if he is satisfied that in respect of such forest-produce, a forest offence has been committed. It is thus clear that an independent and separate power has been conferred upon the authorized officer to order confiscation of vehicle if after inquiry he finds that it was involved in the commission of a forest offence and order of confiscation is not in any manner dependent upon the launching of criminal proceedings against the accused or his conviction by a competent criminal Court after trial. Sub-section (1) of Section 55 of the Act, upon which strong reliance has been made on behalf of the petitioner, provides that all timber or forest produce which is not the property of the State Government and in respect of which forest offene has been committed, and all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any forest offence, shall, subject to the provisions of Sections 52, 52-A, 52-B and 52-C, be liable to confiscation upon conviction of the offender for such forest offence. It is thus clear that provisions of Section 55 are subject to the provisions of Sections 52, 52-A, 52-B and 52-C and these provisions have overriding effect to provisions of Section 55 of the Act. Although, as per provisions of sub-section (1) of Section 55 of the Act, a vehicle is liable to confiscation only upon conviction of the offender for a forest offence, but as this provision is subject to the provisions of Section 52 of the Act, in a case where after inquiry the Authorized Officer has ordered confiscation of a vehicle found to be involved in the commission of a forest offence, the provisions of sub-section (1) of Section 55 would not apply and the seized vehicle found involved in the commission of a forest offence is liable to confiscation irrespective of the fact whether criminal proceedings against the accused are launched or not or after trial accused has been convicted or not by the criminal Court. A proceeding for confiscation can be initiated irrespective of the fact that as to whether prosecution for a forest offence has been lodged or not. A proceeding for confiscation can be initiated irrespective of the fact that as to whether prosecution for a forest offence has been lodged or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. The proceedings for confiscation under sub-section (3) of Section 52 of the Act are altogether different then criminal proceedings before a criminal Court where on proof of guilt an accused is to be convicted and awarded punishment. The condition precedent for initiating confiscating proceedings and order of confiscation by an Authorized Officer, as per provisions of sub-section (3) of Section 52 of the Act, is commission of a forest offence and not conviction of the accused after trial by a criminal Court. An order of confiscation of forest produce/vehicle in a proceeding under Section 52 of the Act would not amount either to penalty or punishment. The vehicles which are found to be involved in the commission of forest offences are liable to be confiscated to the State so as to deter the owners thereof, as far as possible, to involve their vehicle so as to facilitate the commission of forest offences. Merely because after trial accused may be acquitted by the criminal Court, it cannot be said that the order passed by the confiscating officer becomes bad in law. I am of the considered view that as a result of confiscation, the vehicle vests absolutely in the State and all rights of the owner are lost and there is no question of its being released even temporarily in his favour as he has no more ownership or any other right in it. No provision has been made in the Act to the effect that the confiscated property or value thereof would be liable to be returned to the owner thereof in the event, the criminal trial ends in an acquittal. No provision has been made in the Act to the effect that the confiscated property or value thereof would be liable to be returned to the owner thereof in the event, the criminal trial ends in an acquittal. In the present case, the vehicle in question was found involved in the commission of the aforesaid forest offences and it was seized by a competent forest officer and report regarding its seizure was made to the authorized officer with a prayer to initiate confiscation proceedings and the Authorized Officer after being satisfied that the vehicle was involved in the commission of forest offences issued show cause notice to the petitioner and he after conducting due inquiry and affording opportunity of hearing to the petitioner came to a definite finding that the vehicle in question was involved in the commission of forest offences and it is liable to be confiscated. The order of the Authorized Officer was upheld by the appellate authority as well as by the revisional Court. Learned counsel for the petitioner was unable to show any ground to interfere in the orders under challenge. When the vehicle in question is liable to be confiscated, there is no question of its release even temporarily in favour of the petitioner as on confiscation it absolutely vested in the State and all rights of the petitioner in it are lost. Consequently, the criminal misc. petition being meritless is, hereby, dismissed.