ORDER : J.K. Maheshwari, J. Invoking the jurisdiction under Article 226/227 Constitution of India, seeking writ in the nature of certiorari to quash the order dated 03/12/2006 passed in Criminal Revision No.172/2005 and to quash the proceedings of the confiscation of the Bus bearing No.CPV/549 and its auction, this petition has been preferred. 2. The facts which are not in dispute that the bus bearing No.CPV/549 was owned and registered in the name of Shri Krishn Pal Singh (petitioner), was plied under the valid permit vide Annexure P-2. Petitioner has given it on rent, executing an agreement with the driver and conductor to ply the said bus on the route as specified in permit. It is not in dispute that at the check post Hinothi on 19/12/2004 at about 9.00 AM the said bus was intercepted by forest officials and, as alleged, on the roof top of the bus 4 bags of "Kullu Gond" were found loaded. One of the co-accused Sapan Jain owe the liability of the said forest produce, however the offence under sections 5(a), 15(2) of the Madhya Pradesh Vanoupaj Vyapar Viniyam Adhiniyam, 1969, (hereinafter referred to as Vanoupaj Adhiniyam) read with section 41 of the Indian Forest Act, 1927 and section 39(d) of the Wild Life Protection Act, 1972 Amended in 1991 and 2003 was registered at Crime Case No.7553/2015, making Laxman Singh (Driver), Ajay (Conductor) and Sapan Jain S/o Munnalal Jain accuseds. They were tried by the competent court framing the charge under section 5/16 of the Vanoupaj Adhiniyam and also of section 26(1)(h) of Indian Forest Act. The Court found that charges levelled were not proved by the prosecution, however, acquitted them vide judgment dated 25/11/2005, by Judicial Magistrate First Class, Rehali in Criminal Case No.209/2005. Against the said judgment no appeal was filed by the Forest Department, however it remained unchallenged. It is also not in dispute that proceedings for confiscation were started during pendency of trial but prior to decision the competent authority has passed the order confiscating the vehicle in question on 10/04/2005. The said order has been confirmed by the appellate court on 31/08/2005, against which a revision was filed before the court of Sessions, however, during pendency of Revision, the judgment of acquittal was passed by trial court, which was brought before the revisional court. The said order has been confirmed by the appellate court on 31/08/2005, against which a revision was filed before the court of Sessions, however, during pendency of Revision, the judgment of acquittal was passed by trial court, which was brought before the revisional court. On filing the copy of the judgment of acquittal, the revisional court held that looking to the defence of accuseds, it cannot be presumed that forest produce "Kullu Gond" was not in the bags seized from the roof top of the vehicle. The court has held that mere acquittal of the accused persons would not cause any prejudice to the proceedings of confiscation, however revision was dismissed against which this petition has been filed, challenging the orders of confiscation of vehicle. 3. Learned counsel for petitioner after reading the findings of acquittal recorded in para 13, 14 and 17 of the judgment has strenuously urged that prosecution has failed to prove that the goods in question transported on the roof top of vehicle was the forest produce "Kullu Gond", however, trial court found that commission of the forest offence has not proved. In addition, looking to the discussion made by the authority in the order impugned, it is clear that conductor and driver were not having knowledge regarding loading of forest produce, by co-accused Sapan Jain on the roof top of the bus. In the said context referring the provisions contained in section 52(5) of the Indian Forest Act urged that satisfaction recorded to confiscate the vehicle, confirmed by the revisional court is without due consideration of the material available, and without due application of mind which is unsustainable. Reliance has been placed on the judgment in the case of Sarjoo Prasad S/o Mullu Choudhary v. State of M.P reported in 2006(2) MPLJ 65 , and urged that order impugned and the proceeding of auction may be set aside. 4. Per Contra, learned Panel Lawyer referring section 52(5) of the Indian Forest Act submits that authority competent was satisfied that the vehicle in question was used for loading forest produce "Kullu Gond", and the owner of the bus and its agents have failed to establish that necessary precautions were taken by them. 4. Per Contra, learned Panel Lawyer referring section 52(5) of the Indian Forest Act submits that authority competent was satisfied that the vehicle in question was used for loading forest produce "Kullu Gond", and the owner of the bus and its agents have failed to establish that necessary precautions were taken by them. In such situation, findings recorded by the confiscating authority confirmed by appellate and revisional court do not warrant interference in exercise of the jurisdiction under Article 226/227 of the Constitution of India, however prayed for dismissal of the petition. 5. After hearing learned counsel appearing on behalf of the parties at length firstly the provision contained for seizure of the property and its confiscation under section 52 of the Indian Forest Act with M.P. Amendment would be relevant to deal with the issue, however, the same is quoted as under:- "52. Seizure of property liable to confiscation and procedure therefore:-(1) When there is reason to believe that a forest offence has been committed in respect of any reserved forest and protected forest or forest produce, the produce and all tools, boats, vehicles, ropes, chains or any other article used in committing 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 either produce the property seized before an officer not below the rank of an Extra Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or where it is, having regard to quantity or bulk or either genuine difficulty, not practicable to produce property seized to the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, 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 the 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. 3. 3. Subject to sub-section(5), where the authorised officer upon production before his of property seized or upon receipt of report about 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 tools, vehicles, boats, ropes, chains or any other article under in committing such offence. A copy of order of confiscation shall be forwarded without any undue delay to the Conservator of forests of the forest circle in which the timber or forest-produce, as the case may be, has been seized. 4. No order confiscating any property shall be made under sub-section (3) unless the authorised officer- (a) sends an intimation in form prescribed about intimation of proceedings for confiscation of property to the magistrate having jurisdiction to try the offence on account of which the seizure has been made. (b) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property. (c) affords such an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and (d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose. 5. No order of confiscation under sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than timber or forest-produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such tools, vehicles, boats, ropes, chains or other articles were used without his knowledge or connivance or, as the case may be, without the knowledge or necessary precautions had been taken against use of objects aforesaid for commission of forest-offence. 6. The seized property shall continue to be under custody until confirmation of the order of the authorised officer by the Appellate Authority or until the expiry of the period for initiating 'suo motu' action by him whichever is earlier, as prescribed under section 52-A. 7. 6. The seized property shall continue to be under custody until confirmation of the order of the authorised officer by the Appellate Authority or until the expiry of the period for initiating 'suo motu' action by him whichever is earlier, as prescribed under section 52-A. 7. Where the authorised officer having jurisdiction over the case is himself involved in the seizure or investigation, the next higher authority may transfer the case to any other officer of the same rank for conducting proceedings under this section." 6. On perusal of the aforesaid, it is clear that on having reasons to believe regarding commission of the forest offence including forest produce or the vehicle may be seized by forest or police officer. On seizure of the property it shall be produced before the Officer not below the rank of an extra Assistant Conservator Forest authorised by a notification published by the State Government. In case looking to the quantity or other genuine necessity if production of the property is not practicable then the officer seized the property shall forthwith report the lodging of the prosecution to the Magistrate having jurisdiction, in case the offender is unknown, the forest produce seized would be the property of the Government, and an intimation in this regard be given to the superior officials. Sub section (3) confers the power to the Authorised Officer that on satisfying that the forest offence has been committed may pass an order in writing, recording the reasons to confiscate the forest produce seized together with tools, vehicles, boats, ropes, chains or other articles used in commission of the offence, forwarding a copy of the said order to the Conservator of the Forest of the circle. It is clarified that the order of confiscation shall not be passed unless intimation in the form prescribed regarding proceedings of the confiscation of the property is sent to the Magistrate having jurisdiction to try the offence and issuing a notice in writing to the person from whom the property is seized and to any other person who may appear before the authorised officer to have interest in the said property. Thereafter, affording an opportunity to the person affected the order may be passed under sub section (3). Thereafter, affording an opportunity to the person affected the order may be passed under sub section (3). But, with respect to the tools, vehicles, boats, ropes, chains or any other article other than timber or forest-produce seized, confiscation may not be directed in case the person from whom the property is seized or entrusted proves to the satisfaction that the said article was used without his knowledge or connivance of himself or his servant or agent and that all reasonable and necessary precaution has been taken against use of objects aforesaid for commission of the forest offence. 7. In view of the foregoing discussion, it is apparent that in case of seizure of tools and vehicles, boats, ropes, chain or any other article other than timber or forest-produce it is required to be proved for the satisfaction that its use was without knowledge or connivance in commission of forest offence then confiscation is not permissible. Indeed, section 52 does not deal the issue of confiscation on having conviction for the said offence but it deals with the satisfaction of the Authorised Officer to commission of the forest offence. In case the registration of the forest offence and the charge framed in this regard has not been brought at home the accused shall not be convicted and acquitted from the said charge, then such event may have material bearing in the matter of release of the vehicle, if any, confiscated, but the judgment of acquittal cannot be ignored. 8. In the context of the aforesaid legal position and to appreciate the facts of the present case, it is necessary to observe that one Sapan Jain was a passenger in the vehicle bearing No.CPV 549. As per allegation he loaded 4 bags of "Kullu Gond" over rooftop of the bus. While checking violation of the Vanoupaj Adhiniyam was found by forest officials however the offence was registered against Sapan Jain (passenger), Laxman Singh (Driver) and Ajay (Conductor). After framing the charge the evidence were adduced by the parties but the court found that the driver and conductor plying the bus under agreement of rent with the owner. The seizure of the forest produce kept on the roof top of the vehicle was not proved by the cogent evidence brought by the prosecution. After framing the charge the evidence were adduced by the parties but the court found that the driver and conductor plying the bus under agreement of rent with the owner. The seizure of the forest produce kept on the roof top of the vehicle was not proved by the cogent evidence brought by the prosecution. However in absence to prove seizure of forest produce, the commission of forest offence was not made out in court of law, however accused persons were acquitted. The seizure of the forest produce kept on the roof top of the vehicle was not proved by the cogent evidence brought by the prosecution. However in absence to prove seizure of forest produce, the commission of forest offence was not made out in court of law, however accused persons were acquitted. The finding recorded by the trial court in paras 13, 14, and 17 is relevant, which is reproduced below as under:- ^^13- izLrqr ifjokn esa lyXu cl dz0&lh0i0Ofg 0549] ds okgu pkyd vfHk;qDr yPN mQZ y{eu rFkk ifjpkyd vt;dqekj] ds dFku ls ;g izdV gksrk gS] fd fnukad 19-12-2004 dks mDr cl esa os dze'k% pkyd ,oa ifjpkyd ds :i esa dk;Z dj jgs FksA fdUrq vfHk;kstu ds }kjk ijh{k.k djk;s x;s fdlh Hkh vfHk;kstu lk{khx.k us mDr laca/k esa dksbZ lk{; vfHkys[k esa izLrqr ugha dh gSA ouj{kd jkds'kdqekj ¼v0l0&1½] us U;k;ky;hu ijh{k.k dafMdk dz0 6] esa lk{; izLrqr dh gS fd mlus vfHk;qDrx.k liu tSu] vt;] y{keu tSu ds uke ls cksfj;kWa dh tIrh dh dk;Zokgh fd;k FkkA vfHk;kstu ds }kjk vfHk;qDrx.k vt;] y{keu ds mDr cl esa dk;Z djus laca/kh dksbZ izek.k i= vFkok okgu ekfyd ds dFku ,oa vU; dksbZ nLrkost ftlls fnukad 19-12-2004 dks lR;fot; daEiuh cl dz0 lh0ih0Ogh 549] esa mDr vfHk;qDrx.k dk dk;Z fd;k tkuk nf'kZr gksrk gks] izLrqr ugha fd;s x;s gSaA 14- mDr fLFkfr esa vfHk;kstu vfHk;qDrx.k y{ke.k ,oa vt; ds fo:) /kkjk&5@16 e0iz0 ouksmit O;kikj fofu;eu vf/kfu;e ,oa /kkjk 26¼1½¼p½ Hkkjrh; ou vf/kfu;e 1927] ds vijk/k dks ;qfDr;qDr lansg ls ijs lkfcr djus esa vlQy jgk gSA 17- Qwypan ¼v0l05½ us izfrijh{k.k dafMdk dz06] esa ;g dFku fd;k gS fd tc mlus cl ds mij cksfj;kWa ns[kh Fkh rks cksfj;kWa esa fof'k"V igpku ds fpUg ugha Fks os lkekU; cksfj;ka FkhA mlus okgu pSd djrs le; cl ds mij j[kh gqbZ cksfj;ksa dks [kksy dj ns[kk Fkk D;ksafd og okgu esa j[ks x;s fdlh Hkh lkeku dks viuh ethZ ls [kksydj ns[k ysrk gSA mlus cksfj;kWa [kksyus ds iwoZ fdl O;fDr dh gS] dh dksbZ tkudkjh fdl O;fDr ;k=h] cl dUMDVj ,oa M~kbZoj ls ugha yh FkhA lk{kh us ;g Hkh Lohdkj fd;k gS fd mDr cl esa rhu&pkj cksfj;kWa pkoy dh j[kh gqbZ FkhA ijUrq mlus mudks [kksydj ugha ns[kk FkkA mlus cl ds mij ls gh dqYyw xksan dh rkSy dh FkhA cksfj;kWa cl ds uhps ugha mrkjk FkkA bl izdkj mDr lk{kh dh lk{; ls ;g Li"V gS fd] vfHkxzghr fd xbZ cksfj;ksa esa dksbZ fof'k"V igpku ds fpUg ugha FksA rFkk vfHk;kstu ds }kjk ,slk dksbZ nLrkost vfHkys[k esa izLrqr ugha fd;k x;k gS ftlls vfHk;qDr liu tSu }kjk mDr cl esa ;k=k dj dqYyw xksan dh cksfj;ksa dk ifjogu fd;k tkuk izdV gksrk gksA vfHk;kstu ds }kjk ;k=h fVfdV] yxst jlhn] fgukSrh ukds dk okgu ds vkod ,oa tkod dk jftLV~j] cl ds ;kf=;ksa ds dFku] okgu ekfyd] ds dFku dh nLrkosth ,oa ekSf[kd lk{; vfHkys[k esa izLrqr ugha dh xbZ gSA Hkkjrh; lk{; vf/kfu;e dh /kkjk&114&¼N½ ds vuqlkj ;fn dksbZ lk{; tks is'k dh tk ldrh Fkh vkSj ;fn is'k ugha dh tkrh gS rks ;fn ,slh lk{; vfHkys[k esa izLrqr dh tkrh rks izLrqrdrkZ dk leFkZu ugha djrh ;g m)kfjr fd;k tk ldrk gSA izLrqr izdj.k esa vfHk;kstu ds }kjk mDr nLrkosth ,oa ekSf[kd lk{; ds vfrfjDr fofun`f"V ouksmit dks vf/klwfpr {ks= esa izfrcaf/kr fd;s tkus lac/kh e0iz0 'kklu dh vf/klwpuk Hkh izLrqr dj iznf'kZr ugha djkbZ xbZ gSA^^ 9. On perusal of the evidence brought before the trial court it is apparent that engagement of the conductor and driver on the bus was not proved. The cogent evidence is also not available that transportation of forest produce in the bags seized by the forest team was being done. The identification marks on the bags having forest produce were not proved by prosecution. In absence of proving the transportation of the forest produce giving indication on the forest produce by cogent evidence as specified in law, court acquitted the accused persons, who were allegedly said to be agent of petitioner. 10. It is not in dispute that the bus owner (petitioner) was not found on spot and prior to seizure he was not given intimation. No evidence has been brought to establish the fact that in the knowledge and with the connivance of the petitioner, the alleged seized forest produce was transported on the bus. Thus, the competent court found that commission of the offence regarding transportation of the forest-produce by the vehicle in question is not proved. 11. No evidence has been brought to establish the fact that in the knowledge and with the connivance of the petitioner, the alleged seized forest produce was transported on the bus. Thus, the competent court found that commission of the offence regarding transportation of the forest-produce by the vehicle in question is not proved. 11. In addition to the aforesaid in para 4 sub para 1 of the order directing confiscation of the vehicle by the competent authority dated 10/04/2005 is also relevant, which is reproduced as under:- ^^?kVuk LFky ij igqWapus ds iwoZ muds LVkWQ }kjk dksbZ dk;Zokgh ugha dh xbZ Fkh] muds igqWapus ds ckn dk;Zokgh 'kq: dh xbZ FkhA ;g lgh gS fd mUgksaus iapukek izn'kZ ih&2 cukus ds igys cl dUMsDVj ls iwNrkN dh FkhA mUgsa ;kn ugha gS fd cl dUMsDVj us mUgsa ;g crk;k Fkk] fd lokfj;ksa us pkoy dk yxst dgdj cksfj;kWa cl ij yknh FkhaA mUgksaus cl dh lokfj;ksa ls iwNrkN dh Fkh ijUrq fdrus yksxksa ls iwNk Fkk crk ugha ldrk u gh muds uke] irk crk ldrk gWwA eSa rks la[;k Hkh ugha crk ldrk ijUrq ,d ls vf/kd lokfj;kWa FkhA mUgksaus mu lokfj;ksa ds uke vkSj irs ys[k ugha fd;s u gh ds'k Mk;jh esa mYys[k fd;kA ;g ckr lgh gS fd ftu lokfj;ksa ls mUgksaus iwNrkN dh Fkh muesa ls ,d ^^liu tSu^^ us crk;k Fkk fd ;g dqYyw xksan mudk gS vkSj mUgksaus gh eksgyh cl ij yknh FkhA ;g lgh gS fd vfHk;qDr liu tSu us ;g ugha crk;k Fkk fd mlus xksan dh tkudkjh dUMsDVj dks nsdj cl ds mij yknh FkhA mUgksaus iapukek cukus ds iwoZ dUMsDVj dh yxst cqd ugha ns[kh FkhA blfy, ;g ugha crk ldrk fd liu tSu us dUMsDVj ls fdl oLrq dk yxst cuok;k FkkA bl ckr dh tkudkjh mUgsa ugha gS fd liu tSu us dUMsDVj ls pkoy dh cksjh dgdj cl ij yknk Fkk rFkk yxst cuok;k FkkA lHkh cksfj;kWa flyh gqbZ FkhA ijUrq cksfj;ksa esa Nsn Fks ftlls dqYyw xksan fn[k jgh Fkh vkSj ns[kk tk ldrk Fkk fd cksfj;ksa esa D;k oLrq gS ysfdu cksfj;ksa esa Nsn gksus dk mYys[k mUgksaus iapukek izn'kZ ih&2 esa ugha fd;kA bl izdj.k dh tIrh] iapukek vkSj rqykbZ dk iapukek ,d lkFk vyx&vyx O;fDr;ksa }kjk rS;kj fd;k x;kA ;g lgh gS fd liu tSu us ou vijk/k dwYyw xksan dk Lohdkj fd;k FkkA ;g lgh gS fd tIr 'kqnk cl ;k=h cl gS tks fof/kor ijfeV ij eksgyh&lkxj ds chp pyrh gS rFkk ?kVuk ds le; Hkh vius fu/kkZfjr ih0MCY;w0Mh0 ekxZ ij pyrh FkhA^^ 12. In view of the evidence brought before the confiscating authority in confiscation proceeding the loading of the forest produce on the roof top was not proved bringing cogent evidence and the loading in the knowledge of the driver and conductor of the vehicle, obvious, the owner of the bus (petitioner) who was not available on the spot cannot have knowledge or connivance of loading the forest-produce over the vehicle. Thus, neither loading of the forest produce is proved indicating the commission of forest offences, nor in the knowledge or connivance of driver, conductor or owner the forest produce was loaded on the bus, is proved however confiscation of the bus and its auction is not in conformity to law. 13. The judgment of Full Bench of this Court in the case of Madhukar Rao v. State of M.P reported in 2000(1) MPLJ (F.B) 289, is on the point of release of the vehicle used in commission of the offence of forest produce is relied upon; though it deals with the issue of release of the vehicle in the context of the provisions of the Wild Life Protection Act, wherein the Court held that without conclusion of the trial proving the offence enumerated in the Wild Life Protection Act confiscation of the property is not in accordance with law. The said judgment of the Full Bench has been affirmed by the Supreme Court on filing an appeal by the State Government in the case of State of M.P. and others v. Madhukar Rao, reported in 2008(1) JLJ 427 . The apex court in para 15 and 16 has held as under :- 15.We have, therefore, no doubt that the provisions of Section 50 of the Act and the amendments made thereunder do not in any way affect the Magistrates power to make an order of interim release of the vehicle under Section 451 of the Code. 16. Learned counsel submitted that Section 39(1)(d) of the Act made the articles seized under Section 50(1)(c) of the Act as Government property and, therefore, there was no question of their release. 16. Learned counsel submitted that Section 39(1)(d) of the Act made the articles seized under Section 50(1)(c) of the Act as Government property and, therefore, there was no question of their release. The submission was carefully considered by the Full Bench of the High Court and on an examination of the various provisions of the Act it was held that the provision of Section 39(1)(d) would come into play only after a court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence. Any attempt to operationalise Article 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations leveled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid. In our opinion, the High Court has taken a perfectly correct view and the provisions of Section 39(1)(d) cannot be used against exercise of the Magisterial power to release the vehicle during pendency of the trial. 14. It may be fairly observed that the judgment of Madhukar Rao (supra) is in the context of the provision of the Wild Life Protection Act, but the analogy as laid down in the said judgment to prove the guilt during trial in the competent court which may have material bearing to the word "there is a reason to believe that a forest offence has been committed" used in section 52 of the Indian Forest Act. Thus after acquittal from the charges by the Magistrate court with the findings of not proving the commission of forest offence, recording contrary satisfaction by the forest officer can not accepted. In addition, the exceptions carved out under sub section (5) of section 52 regarding knowledge and connivance with respect to commission of the forest offence by owner, driver and conductor has also not been established, however, the analogy of the judgment of Madhukar Rao (supra) can be followed, in the facts and context of the provisions of the Indian Forest Act. 15. 15. In view of the forgoing discussion, in my considered opinion, the confiscation as directed by the competent authority is without due application of mind and the revisional court has also not applied its mind in the right perspective of law as described in section 52 of the Indian Forest Act, and in view of discussion made herein above, therefore, the orders of confiscation are hereby set aside. 16. Accordingly, this petition is hereby allowed and the orders impugned (Annexure P-4) dated 10/04/2005, (Annexure P-5) dated 31/08/2005 and (Annexure P-7) dated 08/12/2006 are quashed. It is made clear that if auction of the bus took place it be declared as null and void. The respondents are directed to take appropriate action as per law. In the facts of this case no order as to cost.