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Madhya Pradesh High Court · body

2016 DIGILAW 873 (MP)

Santra Bai Lodha v. State of M. P.

2016-09-28

ANAND PATHAK

body2016
ORDER 1. Petitioner has preferred this petition under section 482 of the Code of Criminal Procedure, 1973 against the order dated 18.8.2015 (Annexure P-1) passed by the Special and Additional Sessions Judge, Shivpuri in Criminal Revision No.74/2011 whereby the order dated 12.5.2011 (Annexure P-2) passed by the appellate authority Forest Circle, Shivpuri in Appeal No.01/2011 has been affirmed which in turn has confirmed the order dated 27.12.2000 (Annexure P-3) passed by the competent authority cum Sub-Divisional Officer, Forest Beenaganj. 2. The matter pertains to confiscation of the vehicle under the Indian Forest Act, 1927 (for brevity ‘the Act’) and its provisions. As per submission of the petitioner, she is vehicle owner of tractor Mahindra having registration No.RJ17/RA-2037. On the input received by the forest office regarding transportation of some contraband teak wood at Chachoda Rajgarh Road on 18.4.2010, the forest authority stopped the vehicle in question and caught hold of the vehicle and the goods whereas the persons driving the vehicle fled away. Thereafter, teak wood was seized and confiscation proceedings have started in respect of vehicle in question. The confiscation proceedings were undertaken by the competent authority, Sub-Divisional Officer, Forest Circle Beenaganj and passed the order dated 27.12.2010 for confiscation of the vehicle. Petitioner preferred appeal under section 52(d) of the Act before the Chief Conservator of Forest-cum-appellate authority. Petitioner suffered in appeal, therefore, had an occasion to file revision before the Special and Additional Sessions Judge, Shivpuri but met the same result because of passing of the order dated 18.8.2015 in criminal revision preferred by her. 3. Being crestfallen by the orders passed by the Additional Sessions Judge as well, appellate authority and the competent authority respectively, petitioner preferred the present petition challenging the confiscation proceedings as well as subsequent appellate and revisional orders on the ground that the said confiscation proceeding could not have been invoked by the authority till the criminal case is pending against the present petitioner under the provisions of the Act and the M.P. Vanopaj Vyapar Viniyaman Adhiniyam, 1969. He relied upon the judgment rendered by the apex Court in the case of State of M.P. and others v. Madhukar Rao [ 2008(1) JLJ 427 ], Full Bench of this Court in the case of Madhukar Rao v. State of M. P. and others [ 2000(1) JLJ 304 (FB)=2000(1) MPLJ (FB) 289], and the judgment of Coordinate Bench in the case of Premdas v. State of M.P. and others [ 2013(2) MPLJ 218 ]. 4. Counsel for the respondent/State opposed the prayer of the petitioner and submitted that the authorities and Court below have rightly passed the order. He prayed for dismissal of the petition. 5. Heard learned counsel for the parties and perused the record. 6. Chapter IX of the Act deals in respect of penalty and procedure. section 52(3) and (5) of the Act deals in respect of confiscation which reads as under: “52. Seizure of property liable to confiscation and procedure therefor. 52(3) Subject to sub-section (5), where the authorized officer upon production before him 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 used 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. 52(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 authorized 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 connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of objects aforesaid for commission of forestoffence.” Similarly, section 55 of the Act deals in respect of exigencies for confiscation which reads as under : “55. Forest-produce, tools, etc., when liable to confiscation. Forest-produce, tools, etc., when liable to confiscation. -- (1) All timber or forest produce which in either case is not the property of the Government and in respect of which a forestoffence has been committed, and all tools, boats, vehicles, ropes, chains or any other article, in each case used in committing any forest offence, shall be liable to provisions of sections 52, 52A, 52B and 52C, be liable to confiscation upon conviction of the offender for such forest -offence. (2) Such confiscation may be in addition to any other punishment prescribed for such offence.” 7. Perusal of section 52(3) and (5) as well as section 55 makes the case clear in favour of petitioner because the confiscation can be made upon conviction of offender in such forest offence committed by him for which his vehicle has been seized. The law in this regard is well settled. 8. The Division Bench of this Court in the matter of Kailash Chand and another v. State of Madhya Pradesh and others [ AIR 1995 MP 1 ], has held that the scheme of the Act providing for a separate confiscation procedure has a substantial public purpose to serve and is in tune with Articles 48A and 51A(g) of the Constitution of India. According to the Division Bench no repugnancy exists between section 52(3) and 53C of the Act as amended. Therefore, from perusal of section 52(3) and 52(5) as well as section 55 of the Act makes the case clear in favour of the petitioner because confiscation can be made upon the conviction of the offender in such forest offence committed by him for which his vehicle has been seized. 9. The said harmonious construction of the provisions of the Act appears logical also. The legislative intent must have been to confiscate the vehicle after trial in respect of offence committed under the Act is over. Before that confiscation may prejudicially affect the property and its owner. If as contended in the impugned order, seizure of property merely on accusation would make the property confiscated, it would have the result of depriving an accused of his property without proof of his guilt. This interpretation would mean that a specified officer under the Act merely by seizure of property of an accused would deprive him of his property which he might be using for his trade, profession or occupation. This interpretation would mean that a specified officer under the Act merely by seizure of property of an accused would deprive him of his property which he might be using for his trade, profession or occupation. This would be a serious encroachment on the fundamental right of a citizen under Article 19(1)(g)of the Constitution to carry on his trade, occupation or business. 10. Even otherwise, if the confiscation proceedings are treated to be final before the criminal proceeding then the confiscated vehicle is if auctioned in the interregnum period (between confiscation and completion of trial) then how the property of the acquitted person in the criminal trial would be returned back or compensated would be the question. Same is the case with the vehicle being decayed and got rusted after confiscation if subsequently the accused is acquitted from the allegations of forest offence in the criminal trial. Therefore, the legislative intent is clear that the confiscation proceeding can only be held and culminated after criminal trial for commission of forest offence is over. 11. Initially a Full Bench of this Court in the case of Madhukar Rao (supra), has laid the principles that once the criminal case was pending, confiscation proceedings should not be held and finalized. The judgment rendered by the Full Bench has been affirmed by the Supreme Court in the case of State of M.P. v. Madhukar Rao (supra), and it has been held by the Supreme Court in the aforesaid case that the provisions of section 50 of the Wild Life (Protection) Act, and the amendment made to the said Act [Section 39(1)(d)] do not in any way affect the powers of the Magistrate to pass interim order with regard to release of the vehicle and it is further held that when the criminal case is pending final order with regard to confiscation of the vehicle should not be passed. This principle laid down in the case of Madhukar Rao (supra), is again reiterated and affirmed by the Supreme Court in the case of Principal Chief Conservator of Forests v. J.K. Johnson [ AIR 2012 SC 61 ], and it has been held that the provisions of Act do not permit Specified Officer to deal with the property seized for commission of the offence until and unless final decision in the criminal proceedings are not taken. 12. 12. Thus, meandering through the interpretational realm, the legal position is settled. 13. In view of the above settled legal position coupled with the provisions contained in the Act, the impugned orders directing confiscation and forfeiture of the vehicle is unsustainable and it cannot be done until and unless criminal proceedings are finalized and in the present case as the criminal proceedings are still pending, the action impugned cannot be sustained. 14. Accordingly, this petition is allowed. Impugned order dated 18.8.2015 (Annexure P-1) passed by the revisional Court, the order dated 12.5.2011 (Annexure P-2) passed by the appellate authority and the order of confiscation dated 27.12.2010 (Annexure P-3) passed by respondent No.2 are hereby quashed and the vehicle in question is directed to be returned back to the petitioner and liberty is granted to the State Government to proceed with the matter in accordance with law after criminal case is finalized. As the vehicle in question is in custody of the State Government and as the possibility of the vehicle being destroyed cannot be ruled out, interest of justice requires that the custody of the vehicle should be given to the petitioner on certain conditions. 15. In view of the above, it is directed that the vehicle in question (tractor Mahindra having registration No.RJ17/RA-2037) shall be returned to the petitioner on the petitioner’s furnishing a bank guarantee to the tune of Rs.2.00 lacs to be kept alive during the pendency of the criminal case and petitioner shall further give an undertaking that she shall not alienate the vehicle till decision of the criminal case and shall produce it before the Court as and when required. With the aforesaid, the petition stands disposed of.