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2023 DIGILAW 375 (ALL)

Sabira Begum v. State of U. P.

2023-02-07

ABDUL MOIN

body2023
JUDGMENT : ABDUL MOIN, J. 1. Heard learned counsel for the petitioner and Dr. Uday Veer Singh, learned Additional Chief Standing Counsel for the State-respondents. 2. In pursuance to the order dated 24.01.2023 original records have been produced by learned Additional Chief Standing Counsel and who has himself gone through the records. 3. After perusal of the record learned Additional Chief Standing Counsel states that there is no order or document on record per which the authority has recorded that the motorcycle recovered from the spot was used in committing the forest offence. 4. The aforesaid statement is recorded. 5. Instant petition has been filed praying for the following main reliefs: “(i) Issue a writ, order or direction in the nature of certiorari to set-aside the order dated 02.12.2021 in Appeal No. 03/81-2-2021-13G/2021 and order dated 04.03.2020 in Range Case No. 22/2019-2020 read with Confiscation Case No. 05/2019-2020 passed by opposite party no. 2 and 3 respectively which is annexed as Annexure No. 1 and 2 to this writ petition. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to release the Motorcycle Royal Enfield UP-46-H-2760, Chasis No. ME3U3S5C1HLC216071 and Engine No. U3S5C1HL216071 in favour of the petitioner.” 6. The case set forth by the learned counsel for the petitioner is that the petitioner is the registered owner of Motorcycle Royal Enfield No. UP-46-H-2760 (hereinafter referred to as the ‘vehicle’). On 26.12.2019, a relative of the petitioner namely Saddam had requested the petitioner to lend him the vehicle for a day for his personal urgent work. The petitioner being the resident of the village and it being a usual practice of helping the neighbours/relatives in their hour of need, the vehicle was given by the petitioner to Saddam. 7. It is contended that on 27.12.2019 at about 04:00 PM the petitioner received information from a villager that at about 05:00 AM on 27.12.2019 Saddam has been arrested by the police from the forest area on the ground of being involved in an illegal felling of trees from the reserved forest area and that the petitioner’s vehicle has also been recovered by the authorities from the spot in question. 8. It is contended that the Regional Forest Officer vide his order dated 27.12.2019, a copy of which has been filed as Annexure CA-3 to the counter affidavit, recommended for confiscation of the vehicle. 8. It is contended that the Regional Forest Officer vide his order dated 27.12.2019, a copy of which has been filed as Annexure CA-3 to the counter affidavit, recommended for confiscation of the vehicle. In pursuance thereto, a notice dated 18.01.2020 was issued to the petitioner under Section 52-A of the Indian Forest Act, 1927 (hereinafter referred to as the ‘Act 1927’) asking her as to why the vehicle be not confiscated. The petitioner claims to have submitted her reply on 19.02.2020, a copy of which is Annexure CA-4 to the counter affidavit indicating that (a) her relative Saddam had taken the vehicle on 26.12.2019 and (b) the petitioner has never indulged in any criminal activities or has violated any of the provisions of the Act, 1927. 9. Placing reliance on both the grounds as taken by the petitioner in her reply it was prayed that the vehicle be released. 10. The competent authority vide order dated 04.03.2020, a copy of which is Annexure-2 to the petition, did not agree with the reply submitted by the petitioner and thus passed an order under Section 52-A(1) of the Act, 1927 confiscating the vehicle. 11. Being aggrieved, the petitioner filed an appeal under Section 52-B of the Act, 1927 which has been rejected vide order dated 02.12.2021, a copy of which is Annexure-1 to the petition, primarily reiterating the grounds which had been taken by the authority while passing the impugned order dated 04.03.2020. 12. Being aggrieved against both the orders instant petition has been filed. 13. The argument of learned counsel for the petitioner is that Section 52(1) of the Act, 1927 read with Section 52A(1) and (2) of the Act 1927 categorically give the power of seizure of the property, which is believed to have been used in committing of any forest offence but that the officer concerned has to record that the property being sought to be seized has been used in committing the forest offence. It is contended that the authorities have failed to record in their orders that the vehicle in question was being used or had been used in committing of any forest offence and as such the seizure and subsequent confiscation of the vehicle is against the provisions of the Act, 1927. 14. It is contended that the authorities have failed to record in their orders that the vehicle in question was being used or had been used in committing of any forest offence and as such the seizure and subsequent confiscation of the vehicle is against the provisions of the Act, 1927. 14. It is further contended that the order impugned dated 04.03.2020 would indicate that despite the petitioner in her reply dated 19.02.2020 having categorically stated that her relative Saddam had taken away the vehicle for some urgent personal work and that the petitioner has never been involved in any criminal activities as such the natural corollary to it is that the vehicle was used in illegal activities by Saddam without her knowledge yet the competent authority in his order impugned dated 04.03.2020 has failed to hold that as the vehicle was used with the knowledge of the petitioner for a forest offence as such the vehicle is liable for confiscation. 15. Elaborating the same, the argument of learned counsel for the petitioner is that when a duty is cast upon the authority concerned in terms of sub-section (5) of Section 52-A of the Act, 1927 of giving a finding with regard to the provisions of sub-section (5) of Section 52-A of the Act, 1927 then without any such finding of the vehicle having been used with the active connivance or knowledge of the vehicle owner for committing a forest offence, the order of confiscation dated 04.03.2020 will not be legally valid in the eyes of law. It is also contended that even the appellate authority has failed to consider this aspect of the matter and as such both the orders impugned merit to be quashed. 16. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that in the counter affidavit the criminal cases which have been lodged against Saddam have been brought on record by means of Annexure CA-2, a perusal of which would indicate that there are 12 cases lodged against Saddam under the provisions of the Act, 1927. Placing reliance on the criminal history of Saddam, it is argued that when the relative of the petitioner namely Saddam was a known violator of the provisions of the Act, 1927 as such the petitioner, while giving her vehicle to Saddam for use, should have been more careful about the same. Placing reliance on the criminal history of Saddam, it is argued that when the relative of the petitioner namely Saddam was a known violator of the provisions of the Act, 1927 as such the petitioner, while giving her vehicle to Saddam for use, should have been more careful about the same. It is also contended that this aspect of the matter has been considered threadbare by the competent authority while passing the order impugned dated 04.03.2020 and the said order has been affirmed with the dismissal of the appeal vide order dated 02.12.2021 and as such there is no infirmity or illegality in the said orders and the writ petition deserves to be dismissed. 17. Heard learned counsel for the parties and perused the record. 18. As already indicated above the records had been summoned by the Court which have been produced by learned Additional Chief Standing Counsel. The learned Additional Chief Standing Counsel has also perused the records for the purpose to ascertain as to whether there is any order regarding recording of reasons as provided under Section 52(1) of the Act 1927 that the vehicle seized was being used for committing a forest offence and has indicated that there is no order on record either recording or stating that the vehicle recovered from the spot was being used in forest offence. 19. From a perusal of the records, it emerges that the petitioner is the owner of the vehicle in dispute. She is resident of a village. Her relative namely Saddam had requested the petitioner for use of the vehicle on 26.12.2019 for some urgent personal work and the petitioner had lent him the vehicle. On 27.12.2019, the petitioner claims to have come to know about Saddam having been caught with another person in illegal felling of trees in a reserved forest area and the petitioner’s vehicle was also recovered from the spot. A notice was issued to the petitioner by the competent authority for the purpose of confiscation of the vehicle to which the petitioner submitted her reply on 19.02.2020 categorically taking the pleas that (a) her relative Saddam had taken the vehicle on 26.12.2019 and (b) the petitioner has never indulged in any criminal activities or has violated any of the provisions of the Act, 1927. Her reply did not find favour with the authority and the order impugned dated 04.03.2020 was passed whereby the vehicle of the petitioner has been confiscated. The appeal filed against the said order has also been rejected by the appellate authority vide order dated 02.12.2021. Being aggrieved against both the orders, instant petition has been filed. 20. The main argument of learned counsel for the petitioner is that in terms of Section 52(1) and Section 52A(1) of the Act 1927, for the purpose of seizure of a vehicle, the authorities have to record that the vehicle was being used in committing forest offence. 21. In order to consider the argument, the provisions of Section 52 and 52A (amendment for Uttar Pradesh) of the Act 1927 are to be considered, which, for the sake of convenience, are reproduced below: “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, may be 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. Uttar Pradesh (i) Same as in Gujarat (1) and (2) [Vide Uttar Pradesh Act 21 of 1960, Section 7 (w.e.f. 2-11-1960)] Gujarat (1) for the word “carts” substitute the word “vehicles.” [Vide Gujarat Act 15 of 1960, Sections 3 and 4(2) (w.e.f 8-12-1960)] (2) after sub-section (1), insert the following sub-section, namely: “(1A) Any Forest-officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe that a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle and inspection of all records relating to the forest produce and in possession of such driver or other person in charge of the vehicle or any other person in the vehicle.” [Vide Gujarat Act 19 of 1983, Section 2 (w.e.f. 24-5-1983)] Uttar Pradesh (i) in sub-section (1), for the words “vehicles or cattle” substitute the words “vehicles, cattle, ropes, chains or other articles.” (ii) for sub-section (2), substitute the following sub-section, namely: (2) Any Forest Officer or Police Officer may, if he has reason to believe that a boat or vehicle has been, or is being, used for the transport of any forest produce in respect of which a forest offence has been, or is being, committed, require the driver or other person in charge of such boat or vehicle to stop it, and he may detain such boat or vehicle for such reasonable time as is necessary to examine the contents in such boat or vehicle and to inspect the records relating to the goods transported so as to ascertain the claims, if any, of the driver or other person in charge of such boat or vehicle regarding the ownership and legal origin of the forest produce in question. (3) 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, and if the seizure is in respect of forest produce which is the property of the State Government, shall also make a report to the authorised officer. [Vide Uttar Pradesh Act 1 of 2001, Section 6] “52A. 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, authorized 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 authorized officer shall, without any undue delay, forward a copy of the order made under sub-section (1) to his official superior. (3) Where the authorized 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 such 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 authorized 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, rope, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorized 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.” 22. From a perusal of Section 52(1) of the Act, 1927 it emerges that where there is a reason to believe that forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, vehicles, cattle, ropes, chains or other articles used in committing any such offence, may be seized by any Forest-officer or Police-officer. As per the State amendment, the forest officer or police officer if he has reason to believe that a vehicle has been or is being used for transport of forest produce in respect of which there is reason to believe that a forest offence has been or is being committed then such vehicle can be stopped for the purpose of examination of contents. Likewise Section 52A(1) of the Act 1927 provides that where a forest offence is believed to have been committed in respect of forest produce, the officer seizing the property under Section 52(1) of the Act, 1927 shall produce it together with the tools boats, vehicles and other articles used in committing the offence before an officer not below the rank of District Forest Officer 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 respect of tools, boats vehicles etc, may also confiscate them. 23. From the aforesaid it is apparent that the officer seizing the property under the provisions of the Act 1927, more particularly Section 52(1) of the Act read with Section 52A of the Act 1927 can seize such forest produce alongwith the tools including the vehicles that have been used in committing of a forest offence. 23. From the aforesaid it is apparent that the officer seizing the property under the provisions of the Act 1927, more particularly Section 52(1) of the Act read with Section 52A of the Act 1927 can seize such forest produce alongwith the tools including the vehicles that have been used in committing of a forest offence. Thus, at the time of seizure, it would have to be recorded that the vehicle and other tools which have been seized, were being used in committing the forest offence. 24. In the instant case, from a perusal of records, it clearly emerge that there is no order on record of the respondents to indicate that the vehicle in question had been recorded as a vehicle which was being used in committing of forest offence. Incidentally, in the notice dated 27.12.2019, a copy of which is annexure CA 3 to the counter affidavit, the authority has only recorded about the vehicle being recovered from the spot in question but has failed to record that the vehicle was being used for the purpose of committing of forest offence. Accordingly, considering the mandatory provisions of Section 52 read with Section 52A of the Act, 1927 it is apparent that the seizure of the vehicle of the petitioner is against the provisions of the Act, 1927. 25. Another argument of learned counsel for the petitioner that under sub-section (5) of Section 52-A of the Act, 1927, the onus is cast on the authority that the vehicle has been used without the knowledge or connivance of the vehicle owner also has merit as in the impugned order, the authority has failed to discharge the onus while passing the order impugned and this aspect of the matter has also not been considered by the appellate authority while rejecting the appeal and as such the orders impugned merit to be set-aside on this ground also. From a perusal of Section 52-A of the Act, 1927, it emerges that the said section pertains to the procedure to be adopted by the authorities for the purpose of seizure. From a perusal of Section 52-A of the Act, 1927, it emerges that the said section pertains to the procedure to be adopted by the authorities for the purpose of seizure. The said provision requires a notice to be issued to the vehicle owner prior to any confiscation and sub-section (5) of Section 52-A of the Act, 1927 provides that no order of confiscation of any vehicle shall be made if any person proves to the satisfaction of the authorized officer that such vehicle was used without the knowledge or connivance of the vehicle owner. 26. A perusal of the reply as given by the petitioner dated 19.02.2020 would indicate that the vehicle of the petitioner had been given to her relative for some urgent personal work. The petitioner has also specifically indicated in her reply that at no stretch of time has she ever been involved in any criminal activities under the Act, 1927. Thus, the crux of the reply of the petitioner was that the vehicle had been used by Saddam who had been caught in the illegal felling of trees from the reserved forest along with the vehicle without the knowledge of the petitioner that the vehicle would be used for any alleged criminal activities. Thus, the competent authority, while passing an order under sub-section (5) of Section 52-A of the Act, 1927, was required to record a finding that the vehicle had been used with the knowledge and connivance of the petitioner for commission of the forest offence prior to passing an order for confiscation of the vehicle of the petitioner but a perusal of the order would indicate that said finding has not been given by the authority concerned while passing the order dated 04.03.2020 and thus on this ground the order impugned dated 04.03.2020 merits to be quashed being against the mandatory provisions of sub-section (5) of Section 52 of the Act, 1927. As this aspect of the matter has also not been considered by the appellate authority while passing the order dated 02.12.2021 as such the said order also merits to be quashed. 27. As this aspect of the matter has also not been considered by the appellate authority while passing the order dated 02.12.2021 as such the said order also merits to be quashed. 27. This aspect of the matter has also been considered by the Apex Court in the case of Assistant Forest Conservator and Others vs. Sharad Ramchandra Kale, (1998) 1 SCC 48 wherein the Apex Court has held as under: “The truck of the respondent was ordered to be confiscated by the Assistant Conservator of Forest, as it was found involved in commission of a forest offence. The order was confirmed by the Conservator of Forest. Against this order, the respondent preferred an appeal to the Session Court but it was dismissed. Therefore, he approached the High Court with a petition under Article 227 of the Constitution. The High Court set aside the order of confiscation on the ground that the authorities had failed to establish that the owner of the truck had any knowledge that his truck was likely to be used for carrying forest produce in contravention of the provision of the Forest Act. This finding was based upon the evidence on the record. Therefore, we do not consider it proper interfere with such finding.” 28. Accordingly, keeping in view the aforesaid discussion, the Writ Petition is allowed. The impugned orders dated 02.12.2021 and 04.03.2020, copies of which are annexure 1 and 2 respectively to the petition, are quashed. The authority is directed to release the vehicle of the petitioner in accordance with law within a period of six weeks from the date of receipt of certified copy of this order provided there is no legal impediment.