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2021 DIGILAW 13 (MP)

Pramod Gupta v. Chief Conservator of Forests

2021-01-07

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through physical hearing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/physical distancing in letter and spirit. 2. With the consent of the parties, the matter is finally heard through physical hearing. 3. The present petition is being filed under Section 482 of Cr.P.C. challenging the order 30.01.2020 passed by the learned Sessions Judge, Shivpuri in Revision Petition Case No. 132/2019, whereby the revision petition was filed by the petitioner has been dismissed and order dated 26.07.2019 passed by the respondent no. 1 in Appeal No. 19/3065 and the order dated 28.09.2018 passed by the respondent No. 2 have been affirmed. 4. It is submitted that in a sudden inspection in beet of Lakhnakhedi Chamber R.F. No. 516 tractor attached trolley bearing No. M.P.33/A.A.7618 was found carrying and transporting sand and accordingly a case was registered as Case No. 470/2018 on 11.04.2018 and the vehicle of the petitioner was seized and the matter was sent to the respondent No. 2 for confiscation of the said vehicle and the information regarding the same was sent to learned Judicial Magistrate First Class, Guna and thereafter the proceeding of confiscation has been started. It is submitted that the petitioner is owner of the vehicle in question and vehicle has been confiscated without following the provision as contemplated under the Act. It is submitted that the vehicle in question was given to Gram Panchayat Bheelkheda, District Guna for rent of Rs. 15000/- per month by the petitioner to which the statements of the Officers of Gram Panchayat and affidavits are being filed along with the petition. Prior to the seizure of the vehicle by the respondents-authorities several complaints were being made by the petitioner against the respondents-authorities and the Officers regarding their corruption and illegal acts. 15000/- per month by the petitioner to which the statements of the Officers of Gram Panchayat and affidavits are being filed along with the petition. Prior to the seizure of the vehicle by the respondents-authorities several complaints were being made by the petitioner against the respondents-authorities and the Officers regarding their corruption and illegal acts. Counsel for the petitioner has argued that the vehicle cannot be confiscated until and unless the criminal proceedings are not finalized regarding seizure of vehicle but in the present matter neither any criminal proceedings have been filed by the respondents-authorities before any court of law nor any criminal proceedings are pending before any court of law. It is submitted that not even a charge sheet has been submitted against the petitioner with respect to the illegal transportation of sand, therefore, confiscation of the vehicle of the petitioner is totally illegal. It is further pointed out that as the vehicle in question was given on rent to the Gram Panchayat Bheelkheda, District Guna. The factum of transportation of sand was not in the knowledge of the petitioner. The vehicle was given on rent to the concerning Gram Panchayat but they will be carrying out such illegal activities was not in the knowledge of the petitioner, in such circumstances, without giving any opportunity of hearing and filing objections to the petitioner and without deciding the objections, if filed, the confiscation of the vehicle is not permissible. He has relied upon the judgment passed in the case of Premdas s/o Mangaldas Bairagi vs. State of M.P. and others reported in 2013 (2) MPLJ 218 . It is submitted that the order passed by the learned Magistrate and subsequent order passed in the revision is per se illegal and contrary to the relevant provisions. Thus, he has prayed for setting aside the aforesaid orders. 5. It is submitted that the order passed by the learned Magistrate and subsequent order passed in the revision is per se illegal and contrary to the relevant provisions. Thus, he has prayed for setting aside the aforesaid orders. 5. Per contra, learned Panel Lawyer appearing for the State has vehemently opposed the application filed by the petitioner and has supported the impugned orders and has submitted that the same are rightly being passed taking into consideration under the law laid down by the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Uday Singh in Criminal Appeal No. 524/2019 which has been recently decided by the Hon'ble Supreme Court vide its judgment dated 26th March, 2019 considering the several judgments of the Hon'ble Supreme Court and also the amended provisions of the Forest Act. It is argued that the petitioner's vehicle was found carrying illegal sand which has been admitted by the petitioner, therefore, in such circumstances, the vehicle in question as was found and involved illegal transportation of sand was rightly being confiscated. She has further relied upon the judgment passed by the Coordinate Bench of this Court in the case of Shri Niwas Dubey Vs. State of M.P. in M.Cr.C. No. 21295/2017 vide order dated 01.03.2018 and also in the case of State of West Bengal and Others vs. Sujit Kumar Rana reported in Cr. A. No. 453/1997 decided 20.01.2004 ( 2004 (4) SCC 129 ). She has prayed for dismissal of the petition. 6. Heard the learned counsel for the parties and perused the record. 7. From the perusal of the record, it is seen that the petitioner's vehicle was found carrying illegal sand without there-being any valid license for the same. An information being received by the authorities, the vehicle was being confiscated by subsequent for non-production of the valid license and the same was seized. The intimation was immediately sent to the authorities and the offence under the Indian Forest Act, 1927 was being registered. Further a notice was issued to the petitioner pertaining to the same. The confiscation proceedings were initiated under Section 26 (1) and Section 41 of the Indian Forest Act, 1927. The intimation was immediately sent to the authorities and the offence under the Indian Forest Act, 1927 was being registered. Further a notice was issued to the petitioner pertaining to the same. The confiscation proceedings were initiated under Section 26 (1) and Section 41 of the Indian Forest Act, 1927. The contention of the petitioner is that the proceedings were contrary to law laid down by the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Others vs. Madhukar Rao, 2008 (14) SCC 624 as no criminal proceedings are being finalized against the petitioner, in such circumstances, till the finalization of criminal proceedings no confiscation of the vehicle could have been ordered. Recently, the Hon'ble Supreme Court in the case of Uday Singh (supra) has considered the aspect of confiscation of the vehicle and has held as under:- "Upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under Section (4) (a) of Section 52, the bar of jurisdiction under sub-section 1 of Section 52 C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act, 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of Cr.P.C., to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 of Cr.P.C. was not available to the Magistrate, once the authorized officer initiated confiscation proceedings. The Madhya Pradesh amendments to the Indian Forest Act, 1927 are infused with a salutary public purpose. Protection of forests against depredation is a constitutionally mandated goal exemplified by Article 48-A of the Directive Principles and the fundamental duty of every citizen incorporated in Article 51-A(g). By isolating the confiscation of forest produce and the instruments utilised for the commission of an offence from criminal trials, the legislature intended to ensure that the confiscation is an effective deterrent. The absence of effective deterrence was considered by the legislature to be a deficiency in the legal regime. The State Amendment has sought to overcome that deficiency by imposing stringent deterrents against the activities which threaten the pristine existence of forests in Madhya Pradesh. The absence of effective deterrence was considered by the legislature to be a deficiency in the legal regime. The State Amendment has sought to overcome that deficiency by imposing stringent deterrents against the activities which threaten the pristine existence of forests in Madhya Pradesh. As an effective tool for protecting and preserving environment and these provisions must receive a purposive interpretation. The State shall individually protect and improve the environment, safeguards and forest and wild life of country." 8. It is further observed that itself the duty of every citizens of India is to protect and improve the natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures. For, it is only when the interpretation of law keeps pace with the object of the legislature that the grave evils which pose a danger to our natural environment can be suppressed. The avarice of humankind through the ages has resulted in an alarming depletion of natural environment. The consequences of climate change are being down on every day of our existence. Statutory interpretation must remain eternally vigilant to the daily assaults on the environment. 9. The Hon'ble Supreme Court further in the case of Kailash Chand & another Vs. State of Madhya Pradesh and others, AIR 1995 MP 1 has considered that the criminal prosecution is not an alternative to confiscation proceedings. The two proceedings are parallel proceedings, each having a distinct purpose and object. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence. The object of prosecution is to punish the offender. 10. Explaining the underlying purpose and object of the State amendment, the Division Bench of this Court has held as under:- "The scheme of the Central Act contemplating successful prosecution of the offender leading to confiscation has been drastically modified by the 1983 Act to provide for an additional procedure of confiscation, a procedure which is less cumbersome and more expeditious than the procedure of prosecution and at the same time, assuring necessary safeguards to the affected persons. The scheme of the Central Act provides for prosecution incidentally leading to confiscation of property. The scheme of the amendments introduced by the 1983 Act prescribes an independent procedure for confiscation. The scheme of the Central Act provides for prosecution incidentally leading to confiscation of property. The scheme of the amendments introduced by the 1983 Act prescribes an independent procedure for confiscation. The intention is to ensure that the vehicle used in the transaction is no longer available for such misuse and to act as deterrent for the offender and others. These objects can be well served by confiscating the vehicle." 11. Making the aforesaid interpretation of law by the Hon'ble Supreme Court in the Uday Singh's case, the order passed by this Hon'ble Court and passed by the High Court and in exercising of power under Section 482 of Cr.P.C. and directing for release the vehicle was quashed by the Hon'ble Supreme Court. 12. The Coordinate Bench of this Court in the case of Shri Niwas Dubey Vs. State of M.P. (supra) considering the judgment of the Hon'ble Supreme Court in the case of Divisional Forest Officer and another Vs. G.V. Sudhakar Rao and others reported in AIR 1986 SC 328 and State of Madhya Pradesh and Others vs. Kallo Bai, 2017 (14) SCC 502 and the Court at the Principle Seat, Jabalpur in the case of Wakeel Khan vs. State of MP decided on 08.02.2018 in M.Cr.C. No. 348/2016 has declined to release the vehicle. The case in hand was also with relation to illegal excavation of sand and the Court has observed that the menace of illegal excavation of sand is increasing day by day in the locality and therefore, it is required to be dealt with firmly. 13. Section 58 of the Wild Life (Protection) Act, 1972 deals with forfeiture of property deprived from illegal hunting and trade. The complete procedure has been prescribed for forfeiture of property. Since the proceedings for forfeiture of the tractor are yet to be completed, therefore, at this stage, it would not be proper for this Court to give any finding with regard to innocence or involvement of the applicant in the crime. Accordingly, the petition under Section 482 of Cr.P.C. was rejected by the Coordinate Bench of this Court vide order dated 01.03.2018 in M.Cr.C. No. 21295/2017 (Shri Niwas Dubey vs. State of M.P.). 14. In the present case also the confiscation proceedings are pending consideration. Accordingly, the petition under Section 482 of Cr.P.C. was rejected by the Coordinate Bench of this Court vide order dated 01.03.2018 in M.Cr.C. No. 21295/2017 (Shri Niwas Dubey vs. State of M.P.). 14. In the present case also the confiscation proceedings are pending consideration. The order impugned has been passed taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Uday Singh (supra). The petitioner could not point out any illegality in the order impugned passed by the learned trial Court regarding release of vehicle in question. 15. Accordingly, the petition is meritless and devoid of substance and the same is hereby rejected. The orders passed by the Courts below are hereby affirmed. 16. E-copy of this order be provided to the applicant and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.