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Madhya Pradesh High Court · body

2017 DIGILAW 411 (MP)

Umesh Kumar Soni v. State of M. P.

2017-03-27

J.P.GUPTA

body2017
ORDER : 1. The petitioner has filed this petition under section 482 of the Code of Criminal Procedure seeking quashment of the order dated 21-6-2014 passed by the Additional Sessions Judge, Rewa, District Rewa in Criminal Revision No. 127/2014 whereby the order dated 11-4-2014 passed by the respondent No. 1 in Appeal No. 280 and the order dated 7-1-2013 passed by the respondent No. 2 in forest Crime No. 2442/15 for confiscating the seized Tractor Trolley, have been affirmed. 2. In brief, the relevant facts of the case are that the petitioner is the owner of the seized tractor trolley bearing Registration No. MP-53-AA-0166. On 5-2-2012 the said tractor trolley was found illegally transporting the firewood in the forest area by the forest department and on inquiry, no valid and legal documents were found for illegal cutting and transporting the firewood. Thereafter, the said tractor trolley was seized and forest Crime No. 2442/15 was registered for the offence under sections 26(1)(Cha), 41 and 52 of the Indian Forest Act, 1927. After completing all due formalities of the seizure proceedings of the forest produce as well as the tractor trolley, the matter was immediately referred to the competent authority having jurisdiction. A show cause notice was issued to the petitioner by the forest officials on 13-3-2012 and a reply was filed by the petitioner on 16-3-2012. The learned competent authority/respondent No. 2 after examining the relevant documents, material witnesses and the evidence available on record vide its order dated 7-1-2013 passed an order for confiscating the seized tractor trolley. Against the said order, the petitioner filed an appeal before the Appellate authority and Conservator of Forest, Circle Rewa which was too dismissed vide order dated 11-4-2014. Against which, the petitioner filed Criminal Revision No. 127/2014 before the learned Additional Sessions Judge, Rewa which has also been dismissed vide impugned order dated 21-6-2014. Hence, this petition. 3. It has been contended by learned counsel for the petitioner that the orders passed by the respondents are ex-facie arbitrary, illegal and without jurisdiction. Learned courts below have failed to appreciate the fact that since the criminal trial in respect of the alleged forest offence was pending, no proceedings for confiscation of the seized tractor trolley of the petitioner could have been taken place. Learned courts below have failed to appreciate the fact that since the criminal trial in respect of the alleged forest offence was pending, no proceedings for confiscation of the seized tractor trolley of the petitioner could have been taken place. It is also submitted that this matter is squarely covered by the law laid down by this court in the case of Premdas vs. State of M.P. and Others, 2013 (13) MPHT 342. Therefore, the orders impugned be quashed and the seized tractor trolley be returned to the petitioner being registered owner. 4. Learned Panel Lawyer appearing for the respondents/State has argued in support of the impugned orders and stated that since the confiscation order has been passed by the confiscating authority, confirmed by the appellate authority as well as the Revisional Court, no interference is required to be done in the petition filed under section 482 of Criminal Procedure Code. Hence, the petition be dismissed. 5. Having considered the contentions of learned counsel for the parties and on perusal of the record, it is found that there is a concurrent finding of the courts below with regard to the seized vehicle to have been used in commission of transportation of forest produce illegally in the knowledge of the owner of the vehicle and the finding does not appear perverse or otherwise contrary to law. So far as the petitioner’s objection based on the judgment of this court in the case of Premdas (supra) is concerned, the petitioner has nowhere disclosed the fact that in which court which criminal proceeding was pending at the time of passing of the confiscation order. Therefore, the law laid down in the aforesaid case that no confiscation proceeding can be concluded before disposal of the criminal case is not attracted in this case. Hence, on the basis of the aforesaid judgment, the petitioner cannot get any relief in this case. 6. This petition has been filed under section 482 of the Criminal Procedure Code. This court is expected to exercise the powers vested under section 482 of the Criminal Procedure Code very sparingly with a view to secure the ends of justice or to prevent misuse of process of the court. 6. This petition has been filed under section 482 of the Criminal Procedure Code. This court is expected to exercise the powers vested under section 482 of the Criminal Procedure Code very sparingly with a view to secure the ends of justice or to prevent misuse of process of the court. Now, in this case, this short question is put for consideration whether the order of confiscation of the vehicle is must or the authority concerned could have exercised other discretionary powers looking to the fact of the case that in this case the seized vehicle was being used by the owner of the vehicle for the purpose of transporting firewood, in which, near about 25 in number long size wood and ½ Chatta of firewood were loaded. It also appears from the record that it is the first offence of the petitioner. The value of forest produce may not be more than thousands rupees and the value of the seized properties is in lakhs and the powers vested to the authority for confiscation under section 52 of the Forest Act is not mandatory but it is discretionary. Similarly, the provisions of section 68 of the Indian Forest Act empower certain forest officers to compound the offences and release the forest produce or vehicle without any further proceedings. Here it would be beneficial to re-produce the aforesaid provisions of sections 52 and 68 of the Forest Act:- “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. xxx xxx xxx (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. 68. Power to compound offences: (1) The State Government may, by notification in the Official Gazette, empower a Forest Officer: (a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest-offence, other than an offence specified in section 62 or section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed. (b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer. (2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property. (3) A Forest Officer shall not be empowered under this section unless he is a Forest Officer of a rank not inferior to that of a Ranger and the sum of money accepted as compensation under clause (a) of sub-section (1) shall in no case be less than two times the value of the forest produce: Provided that in case the forest produce in respect of which an offence has been committed is not the property of the Government or in case the value of the forest produce is less than one thousand rupees and, if the offender has committed the offence for the first time, the suspected person may be discharged and the property (other than the forest produce), if any, seized may be released on payment of the sum of ten thousand rupees or the value of the seized property, whichever is less; the seized forest produce may be released only it if is not the property of the Government or on the payment of the value thereof, as the case may be. In the present case, admittedly, offences under sections 26(1)(cha), 41 and 52 of the Forest Act have been registered against the petitioner. In other words, it is not a case of the offences under sections 62 and 63 of the Act. In the present case, admittedly, offences under sections 26(1)(cha), 41 and 52 of the Forest Act have been registered against the petitioner. In other words, it is not a case of the offences under sections 62 and 63 of the Act. Therefore, the provisions of section 68 of the Act are applicable in the present case.” 7. Having gone through the aforesaid provisions and the facts and circumstances of the case where the provisions of section 52 of the Forest Act with regard to confiscation are discretionary, the authority concerned is expected to first take recourse of section 68 and if the matter has remained unresolved then initiation of the proceedings under section 52 of the Act should be considered. The object of the provisions of section 68 of the Act is very clear. As per provisions, in petty cases instead of starting confiscation proceeding directly, the offence may be compounded by the competent officers. If in petty matters, the powers vested under section 68 of the Act to compound the offences are not exercised and in every case confiscation proceeding is started, it cannot be said that the act of the authority is reasonable or justifiable, and the proceeding of confiscation should be initiated only in such cases, in which, in view of the facts and circumstances of the case, stringent and coercive process is required to prevent the forest offence with a view to put up an example before the offenders. 8. In view of the aforesaid discussion, in this case without exercising the powers to compound the offence under section 68 of the Forest Act, initiating the proceeding for confiscation and ultimately passing the order of confiscation has caused injustice to the petitioner as this is not a case, in which, he should be deprived of getting the vehicle having worth of rupees lakhs where the value of the forest produce is not more than thousands rupees and the offence has been committed for the first time. The power vested under section 52 of the Forest Act is discretionary and it is trite law that the discretionary power should be exercised objectively not arbitrarily or capriciously. In the present case, it does not appear that the power has been exercised objectively rather it appears that it has been exercised in arbitrary and capricious manner. The power vested under section 52 of the Forest Act is discretionary and it is trite law that the discretionary power should be exercised objectively not arbitrarily or capriciously. In the present case, it does not appear that the power has been exercised objectively rather it appears that it has been exercised in arbitrary and capricious manner. Therefore, with a view to secure the ends of justice, the impugned orders are set-aside and the concerned forest authority is directed to examine the case with a view to exercising the powers vested under section 68 of the Forest Act and provide an opportunity to the petitioner to resolve the matter, failing which, the competent authority may take recourse in accordance with law with regard to the seized vehicle.