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2021 DIGILAW 369 (MP)

Nagendra Singh Gaur v. State of M. P.

2021-03-16

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. The present petition is being filed under Section 482 of Cr.P.C. challenging the order dated 28.11.2020 passed by the learned Additional Sessions Judge, Vijaypur in Case No. 1/2020, whereby the order dated 31.10.2020 passed by Judicial Magistrate First Class in Case No. 132/2020 was affirmed. It is submitted that by the order dated 31.10.2020 the applications under section 451, 457 of Cr.P.C. filed by the petitioner was rejected. 2. As per the prosecution story the Forest Department officials received an information regarding transportation of Chambal River sand which is being loaded in a Dumper (Truck) from near Village Rayadi. After receiving such information, while forest staff went towards the Village Rayadi, Barotha Ghat, which is prohibited area of the National Chambal Sanctuary they saw that a yellow colour dumper is coming from the upper area of Rayadi Ghat. At that point of time, the staff tried to stop the said vehicle by giving hand sign, the driver did not stop it. The staff informed about the incident to the superior authorities and followed the dumper which was loaded with sand, upto Vijaypur. Due to over speed, the vehicle could not be stopped. Thereafter the forest department personnel informed the incident to the SHO, PS Gaswani. Ultimately, the dumper vehicle was stopped by the police staff of the Police Station Gaswani. After a while, the forest department staff reached at Gaswani. They thoroughly inspected the dumper and found that the vehicle was loaded with Chambal river sand. The driver was not found at the spot. After inspection and inquiry, the said vehicle bearing registration No. MP-20-HB-6172 was seized for illegally carrying Chambal river sand from Barotha Ghat, a prohibited area of National Chambal Sanctuary. 3. Counsel for the petitioner has argued that the petitioner is the owner and possessor of the seized dumper vehicle. The vehicle was carrying sand with proper E-Pass from Venus Mining and Mineral Karera, Shivpuri to Sheopur and driver was Raveendra Kumar. Since the vehicle was having mechanical problem near Village Dhobani and despite the efforts to get it repaired by the driver the vehicle could not be repaired. Learned counsel further submitted that the driver was carrying valid pass to transport the sand and the vehicle is seized from the road side by the police. Since the vehicle was having mechanical problem near Village Dhobani and despite the efforts to get it repaired by the driver the vehicle could not be repaired. Learned counsel further submitted that the driver was carrying valid pass to transport the sand and the vehicle is seized from the road side by the police. 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. 4. 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. He 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. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record, it is seen that the petitioner's vehicle was found carrying illegal sand. 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. 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 41, 52 of the Indian Forest Act. 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 52C 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. 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. 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." 7. 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. 8. 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. 9. 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 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." 10. Making the aforesaid interpretation of law by the Hon'ble Supreme Court in the Uday Singh's case, the order passed by the High Court 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. 11. 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, 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. 12. 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 dumper (truck) 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 petitioner 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.). 13. 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). 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.). 13. 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. 14. Accordingly, the petition is merit-less and devoid of substance and the same is hereby rejected. The orders passed by the Courts below are hereby affirmed. 15. E-copy/Certified copy as per rules/directions.