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2018 DIGILAW 789 (JHR)

Muniya Devi v. State Of Jharkhand

2018-04-07

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. B.K. Dubey, counsel appearing on behalf of the petitioners. 2. This writ petition has been filed for the following reliefs:- "For a direction to quash the order dated 05.08.1992 passed by the Divisional Forest Officer, Chatra in confiscation case no. 7/91 contained in annexure 3 as well as order dated 10.9.96 passed by the appellate authority in confiscation appeal No. 56/95 and also the order dated 20.8.2001 by which respondent no. 2 has confirmed the order passed by the confiscating authority and that of the appellate authority i.e., the Deputy Commissioner though none of the courts had exercised their jurisdiction judiciously as they have not applied their judicial mind and did not consider that so far the commodities are concerned which were allegedly seized from the truck were of the petitioner or the petitioner has got any concern with the same and at no point of time the petitioner claimed the same as well as it is evident that the petitioner was not present in the vehicle in question and for the same set of allegation a criminal case was also instituted and in the criminal case the petitioner was acquitted as the criminal court held that the prosecution has failed to prove its case that the truck in question was illegally transporting the commodity and so after taking materials into consideration the learned trial court acquitted the petitioner but the confiscating authority, without application of judicial mind, confiscated the vehicle in question though no proper opportunity was given to the petitioner to adduce evidence and even the authority has confiscated the vehicle of the petitioner and so the order is wholly illegal, without jurisdiction and based on violation of the principles of natural justice." 3. Counsel for the petitioners by referring to Annexure-1 to the writ petition submits that the truck of the original writ petitioner bearing number UTN 2713 was seized pursuant to order dated 01.04.1991 and from the truck of the petitioner a total of 1775 kilograms of "Katha" in gunny bags were recovered and a seizure list was prepared and pursuant to the aforesaid, First Information Report was also lodged. 4. The confiscation proceeding was initiated and under section 41 and 42 of the Indian Forest Act read with the provisions of Bihar Forest Produce (Regulation of Trade) Act, 1984 was initiated. 5. 4. The confiscation proceeding was initiated and under section 41 and 42 of the Indian Forest Act read with the provisions of Bihar Forest Produce (Regulation of Trade) Act, 1984 was initiated. 5. Counsel submits that in the criminal case the original writ petitioner was acquitted vide judgment dated 21.09.1995 by the Court of learned Judicial Magistrate, Chatra. He submits that as there is an order of acquittal in the criminal case so nothing survives in the confiscation case and accordingly the order of confiscation as contained in Annexure-3 dated 05.08.1992, order of appellate authority as contained in Annexure-4 dated 10.09.1996 and the order of the revisional authority as contained in Annexure-5 of this writ petition dated 20.08.2001 are also fit to be set-aside. 6. He submits that out of the same incident two cases, one criminal prosecution and other was the confiscation proceeding being civil proceeding were initiated and the original writ petitioner has been acquitted under the criminal proceeding, therefore, the confiscation proceeding should also be set-aside. Counsel for the petitioner has relied upon the judgment passed by this Hon''ble Court 2011 (3) JLJR 36 and he submits that the case of the petitioner is squarely covered by the said judgment in which, when the person was acquitted of the criminal charge, confiscation proceeding was quashed. 7. Counsel for the respondents on the other hand submits that the criminal proceeding as well as confiscation proceeding are two separate proceedings and so far as the acquittal in criminal case is concerned the same has nothing to do with the confiscation proceeding involved in this case. 8. He submits that inspite of repeated opportunities granted to the original writ petitioner, the original writ petitioner did not filed any show-cause reply to the show cause notice in connection with the confiscation proceeding and accordingly under the facts and circumstances of this case and considering the fact that admittedly "katha" was recovered from the truck of the original writ petitioner, order dated 05.08.1992 for confiscating the truck of the original writ petitioner along with the goods was passed. 9. He further submits that the order of confiscation was subsequently challenged before the appellate authority which was dismissed and against which the revision petition was also dismissed. 10. 9. He further submits that the order of confiscation was subsequently challenged before the appellate authority which was dismissed and against which the revision petition was also dismissed. 10. Counsel for the respondents submits that all the three authorities have consistently held against the original writ petitioner and there is no perversity or illegality in the impugned order and therefore the same does not call for any interference by this Court under Article 226 of the Constitution of India. 11. Counsel for the respondents also submits that mere acquittal in the criminal case cannot be a ground for quashing confiscation proceeding and two proceedings are to be judged as per independent provisions of the Act. 12. He has also referred to section 52 of Indian Forest Act, 1927 and as per the Bihar Amendment 52 of the Indian Forest Act, 1927 which reads as under:- "52. Seizure and its procedure for the property liable for 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, arms, boats, vehicles, chains or any other article used in committing any such offence, may, be sized by any Forest Officer or Police Officer. (2).... (3) Subject to Sub-Section (5), where the authorised officer upon and 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, arms, boats, vehicles, ropes, chains or any other article used in committing such offence. The Magistrate having jurisdiction to try the offence concerned may, on the basis of the report of the authorised confiscating officer, cancel the registration of a vehicle used in committing the offence, the licence of the vehicle-driver and the licence of the arms. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of the Forests of the forest circle in which the forest-produce, as the case may be, has been seized. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of the Forests of the forest circle in which the 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 authorized officer- (a) sends an intimation about initiation 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 authorized officer to have some interest in such property; (c) affords 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 purposes. (5) No order of confiscation under sub-section (3) of any tools, arms, boats, vehicles, ropes, chains or any other article (other than the 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, arms, 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 the objects aforesaid for commission of forest-offence." 13. After hearing the counsel for the parties and after considering the facts, this Court finds no reason to grant relief to the writ petitioners and the writ petition is dismissed on account of following facts and reasons:- a) section 52(5) of Indian Forest Act, 1927 read with Bihar amendment clearly provides that no order of confiscation under sub-section (3) shall be made, if the person referred to in clause - (b) of sub-section (4) proves to the satisfaction of the authorized officer that any such tool 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 precaution has been taken against use of objects for commission of forest offence. b) From the perusal of this sub-section, it is apparent that it was for the original writ petitioner to file his show-cause reply and demonstrate before the concerned authority that the vehicle which belongs to the original writ petitioner was used without his knowledge or connivance and that he had taken all reasonable and necessary precaution so that the same may not be used for the commission of forest offence. c) In the instant case, the original writ petitioner never filed a show-cause reply and therefore the onus which was to be discharged by virtue of section 52 (5) of the Indian Forest Act, 1927 read with Bihar Amendment was never discharged by the original writ petitioner and accordingly the vehicle from where the forest produce was recovered were rightly seized. d) The impugned order dated 05.08.1992 clearly demonstrates that repeated dates were given to the original writ petitioner to file his show-cause reply and ultimately the impugned order was passed considering the materials available on record and considering the fact that this very vehicle of the original writ petitioner was earlier also used for the commission of forest offence. Against this the appeal was dismissed and the revision was also dismissed. Against this the appeal was dismissed and the revision was also dismissed. e) From the perusal of the order of revision, it has been recorded that the original writ petitioner had failed to prove his innocence and as per the provisions of Section 52 (5) the onus was certainly upon the original writ petitioner to prove that his vehicle was used without his knowledge or connivance which has not been discharged by the original writ petitioner before the authorities below. f) Therefore, this Court finds that the order of confiscation was rightly passed and the orders under the Act has to be examined independent of the criminal proceeding and merely because the petitioner has been acquitted in the criminal case that does not discharge the petitioner of his duty to discharge his onus as conferred under section 52 (5) of the Indian Forest Act, 1927 read with Bihar Amendment. g) So far as the judgment which has been relied upon by the petitioner as contained in 2011 (3) JLJR 36 is concerned there is a clear finding in the said case that the confiscation authority after taking into consideration the material brought on record did held candidly that it was on account of the connivance on the part of the driver and the cleaner that the offence was committed. This court finds that in the said case by virtue of the aforesaid findings, the onus as contemplated under section 52(5) of Indian Forest Act, 1927 read with Bihar Amendment was duly discharged. This is not the situation in the instant writ petition. h) In the instant case as there is no such similar findings and the instant case stands on a different facts and footing as compared to what has been decided by this Hon''ble Court 2011 (3) JLJR 36 . i) Under the facts and circumstances of this case the writ petition stands dismissed.