Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 331 (UTT)

AVATAR SINGH v. STATE OF UTTARAKHAND

2019-05-13

ALOK SINGH

body2019
JUDGMENT Hon'ble Alok Singh, J 1. Brief facts of the present case, inter alia, are that petitioner no. 1 is resident of Village Dalyawala Banas Talla, P.O. Kimsar, Tehsil Yamkeshwar, District Pauri Garhwal. Petitioner is an agriculturist and had grown Khair trees in his field. Petitioner sought permission from the Forest Department to cut down 30 trees of Khair, situated in plots no. 3671, 3672, 3673, 3674, 3675, 3676 and 3677. The Divisional, Lansdowne, after due verification and spot inspection gave permission to the petitioner to cut down 30 trees of Khair vide order dated 25.05.2018. Thereafter, the forest officials along with Village Pradhan and Revenue Inspector made a spot inspection and prepared a report about the number of trees and radius of tree and description of the wood produced out of those trees. Petitioner no. 1 sold the trees to petitioner no. 2. Petitioner no. 2 in pursuance of the purchase of tree cut down the trees. Forest officials made a report and recommended for transit pass. Petitioners were transporting the aforesaid forest produce from village Banas to Kotdwara market on the basis of transit pass where forest officials detained the truck and seized the goods and forest officials lodged an FIR. Feeling aggrieved, petitioner has approached this Court. 2. Heard Mr. S.K. Posti, Advocate for the petitioner and Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand and perused the record. 3. Mr. S.K. Posti, Advocate for the petitioner submits that respondent authorities have seized the forest produce / wood of the petitioners, which is a private property. Since wood is perishable items, therefore, he has moved an application to the Divisional Forest Officer for release of the aforesaid goods but respondents are not taking any action on the application. 4. Section 52 of the Indian Forest Act, 1927 reads as under: “Section 52 - Seizure of property liable to 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, boats, carts or cattle used in committing any such offence, maybe 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, 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 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. 5. State of Uttarakhand made amendments in the aforesaid Act and inserted Section 52A, which reads as under: “52-A. Procedure on seizure: (1) Notwithstanding anything contained in this Act or any other law for the time being in force, where a forest offence is believed to have been committed in respect of any forest produce, which is the property of the State Government, the officer seizing the property under sub-section (1) of Section 52 shall, without unreasonable delay, produce it together with all the tools, boats, vehicles, cattle, ropes, chains and other articles used in committing the offence before an officer, not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them. (2) The authorised officer shall, without any undue delay, forward a copy of the order made under sub-section (1) to his official superior. (3) Where the authorised officer passing an order under sub-section (1) is of the opinion that the property is subject to speedy and natural decay he may order the property or any part thereof to be sold by public auction and may deal with the proceeds as he would have dealt with such property if it had not been sold and shall report about every sale to his official superior. (4) No order under sub-section (1) shall be made without giving 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 : Provided that in an order confiscating a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objections if any will suffice. (5) No order of confiscation of any tool, boat, vehicle, cattle, ropes, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, cattle, rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence. 52-B. Appeal- Any person aggrieved by an order of confiscation may, within thirty days of the date of communication to him of such order, prefer an appeal to the Conservator of Forests of the circle who shall, after giving an opportunity of being heard to the appellant and the authorised officer, pass such order as it may think fit confirming, modifying or annulling the order appealed against and the order of the Conservator of Forests of the circle shall be final. 52-C- Order of confiscation not to prevent any other punishment:- No order of confiscation under Section 52-A or 52-B shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act. 52-D. Bar of Jurisdiction in certain cases. Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, whenever any forest produce belonging to the State Government together with any tool, boat, vehicle, cattle, rope, chain or other article is seized under sub-section (1) of Section 52, the authorised officer under Section 52-A or the State Government under Section 52-B shall have jurisdiction, to the exclusion of every other officer, court, Tribunal or authority, to make orders with regard to the custody, possession, delivery, disposal or distribution of the property." 6. From perusal of Annexure No. 6 to the writ petition, it clearly transpires that after confiscation of petitioners' wood, an FIR has already been lodged in the matter. Now, two separate proceedings viz. under the Forest Act and under Criminal Procedure Code have been initiated against the petitioners. Wood seized by the forest officials is a case property of the aforesaid two cases. Petitioners have not brought on record what is the stage of these proceedings. Therefore, this Court cannot pass order for release of the wood or anything else seized by forest officials nor can direct the Divisional Forest Officer to release the same. 7. There is another aspect of the matter. Permit was made in the name of petitioner no. 1 Avtar Singh while as per case of the petitioners, petitioner no. 1 has sold these wood to petitioner no. 2 Shobhit Thapliyal. Permit is non transferable. The Divisional Forest Officer has not authorized Mr. Shobhit Thapliyal to carry out the wood. In paragraph 7 of Annexure No. 6 to the writ petition, petitioners stated that on 02.07.2018, Forest Official confiscated the wood while his transit pass was valid till 01.07.2018. Petitioners have not enclosed copy of seizure memo or copy of FIR. 8. As per Section 52 (1) of the Indian Forest Act, Forest Officer has power to seize the forest produce, if he has reason to believe that forest offence is committed. Forest Officer seized and confiscated the wood and lodged the FIR. In my opinion, Forest Officer proceeded as per Act. It is not the case of the petitioners that respondents Department have not followed the procedure. If petitioners are aggrieved, they have remedy under the Act, which they can avail, if they so advised. 9. I do not find any merit in the petition. Accordingly, writ petition fails and is hereby dismissed. CLMA No. 6101 of 2019 also stands disposed of accordingly.