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2023 DIGILAW 713 (JHR)

Deepak Kumar v. State of Jharkhand

2023-05-17

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been filed for quashing order dated 24.07.2018 (Annexure-6 to the writ petition) passed by the Revisional Authority-cum-Additional Chief Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi (the respondent no. 2) in Revision Case No. 84 of 2017 whereby the said revision preferred by the petitioner has been dismissed upholding the order dated 10.06.2017 passed by the Deputy Commissioner, Hazaribag-cum-Appellate Authority under Indian Forest Act, 1927 (the respondent no. 3) in Confiscation Appeal (IFA) No. 03/2015 as well as the order dated 13.02.2015 passed by the Authorised Officer-cum-Divisional Forest Officer, Hazaribag West Division, Hazaribag (the respondent no. 4) in Confiscation Case No. 32 of 2014 (G. Case No. 449 of 2014) whereby two trucks (Hywa) bearing registration nos. JH-12D-8826 (belonging to the petitioner) and JH-12E-2278 along with the loaded stone boulders have been confiscated. Further prayer has been made for issuance of direction upon the respondent no. 4 to forthwith release the truck (Hywa) bearing registration no. JH-12D-8826 in favour of the petitioner. 2. The brief facts as stated in the present writ petition is that an offence case bearing G(F)no.-449/2014 was instituted on an application dated 20.09.2014 given by Forest Guard- Krishna Kumar Choudhary to Forest Ranger Officer, Barhi Forest Range (the respondent no. 5) stating that on the said date, he intercepted two trucks (Hyva) bearing registration nos. JH-12D-8826 and JH-12E2278 loaded with 500 cft. stone boulders each in ‘Dapok’ forest area. On such interception, the drivers of the said vehicles fled away and no one was present there to handover the documents or to explain anything about the loaded stone boulders on the said trucks. Accordingly, the trucks were seized with the help of the officials of Barhi Police Station and the offence report no. 1963 dated 20.09.2014 was prepared. On 13.10.2014, the respondent no. 5 submitted the prosecution report arraying the petitioner as well as two other persons as accused for the offences allegedly committed under Sections 33/41/42 of the Indian Forest Act, 1927 (as amended vide Bihar Amendment Act, 1989). 3. The petitioner is the owner of one of the seized trucks bearing registration no.- JH-12D-8826. Subsequently, the respondent no. 5 submitted the prosecution report arraying the petitioner as well as two other persons as accused for the offences allegedly committed under Sections 33/41/42 of the Indian Forest Act, 1927 (as amended vide Bihar Amendment Act, 1989). 3. The petitioner is the owner of one of the seized trucks bearing registration no.- JH-12D-8826. Subsequently, the respondent no. 4 initiated a confiscation proceeding being Confiscation Case No. 32 of 2014 (G. Case No. 449/2014) and vide order dated 13.02.2015 passed the order of confiscation of the aforesaid trucks including the truck bearing registration no. is JH-12D-8826 belonging to the petitioner. Thereafter, the petitioner and others preferred Confiscation Appeal (IFA) No. 03 of 2015 before the respondent no. 3 which was dismissed vide order dated 10.06.2017. Aggrieved with the said orders passed by the respondent no. 4 as well as the respondent no. 3, the petitioner preferred Revision Case No. 84 of 2017 before the respondent no. 2 which was also dismissed vide order dated 24.07.2018. Hence, the present writ petition. 4. Learned counsel for the petitioner submits that his truck bearing registration no. JH-12D-8826 was carrying 500 cft. stone boulders in a lawful manner and therefore, the initiation of confiscation proceeding by the respondent no. 4 was itself illegal. It is contended that while the respondent no. 4 was conducting the proceeding of Confiscation Case No. 32 of 2014, the petitioner had produced the delivery challan as well as the transport challan (Form-D) both dated 19.09.2014, however ignoring the same, the respondent no. 4 arbitrarily held that the trucks were illegally carrying stone boulders from the notified forest area pertaining to ‘Dapok’ forest and accordingly confiscated the said trucks vide impugned order dated 13.02.2015. Moreover, the appellate authority i.e., the respondent no. 3 passed the order dated 10.06.2017 in a cryptic manner merely observing that though the vehicles were seized in the month of September, 2014 but the challan produced was valid only till the month of March, 2014. The revisional authority- the respondent no. 2, without applying his independent mind, also made similar observation that the challan produced by the petitioner was valid only till March, 2014 while the trucks were seized in September, 2014 and hence vide order dated 24.07.2018 dismissed the revision preferred by the petitioner. 5. The revisional authority- the respondent no. 2, without applying his independent mind, also made similar observation that the challan produced by the petitioner was valid only till March, 2014 while the trucks were seized in September, 2014 and hence vide order dated 24.07.2018 dismissed the revision preferred by the petitioner. 5. It is further submitted that the confessional statement of the accused is not admissible in the eye of law and hence the same cannot be used as an evidence against the petitioner. Moreover, the said vehicle was not seized within the forest area and there is no material on record to show that the loaded stone boulders were quarried from the forest area. The vehicle in question is a commercial vehicle and as such the same may be released in favour of the petitioner who is the real owner of the same. 6. A counter affidavit has been filed on behalf of the respondent nos. 4 and 5 justifying the process of confiscation initiated by the respondent no. 4 and the orders passed by the said respondent as well as the respondent nos. 3 and 2 in appellate as well as revisional proceedings respectively. 7. Mr. Prabhat Kumar, learned S.C.-II appearing on behalf of the respondents, submits that the stone boulders are forest produce as per section 2(4)(b)(iv) of the Act, 1927 (in short, “the Act, 1927”). It is further submitted that release of a vehicle transporting forest produce without any valid authority, allegation of which has been found true during investigation, cannot be claimed merely on the ground that it is a commercial one. The said vehicle was seized within the forest area and as per the provisions contained under Section 69 of the Act, 1927, the onus lies upon the claimant to prove that forest produce was lawfully obtained otherwise contrary view has to be taken. The petitioner has failed to prove that the seized materials were lawfully obtained. It is also submitted that the petitioner being the owner of the truck in question has failed to prove correctness/genuineness of delivery challan produced with respect to stone boulders being transported through the vehicle in question, rather the police during investigation found that the said challan was forged and fabricated. 8. Heard learned counsel for the parties and perused the materials available on record. 9. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The main submission of learned counsel for the petitioner is that though the transport challan was submitted before the respondent no. 4 during confiscation proceeding, yet same was not taken into consideration and thereby the respondent no. 4 ordered for confiscating the truck in question. 10. Reference may be made to order dated 24.04.2023 passed in the present case which reads as under: “In course of argument, learned counsel for the petitioner refers the copy of challan dated 19th September, 2014 issued by the competent authority for transportation of boulders through the petitioner’s vehicle bearing Registration No.JH-12D-8826 (Annexure-7 to the supplementary affidavit dated 16th January, 2019), whereas on perusal of the order dated 10th June, 2017 passed by the appellate authority i.e. Deputy Commissioner, Hazaribagh it appears that as per the report of the District Mining Officer, Giridih, the challan produced by the petitioner was valid till March, 2014. Under the said circumstances, let the records of Confiscation Case no.32 of 2014 and Confiscation (IFA) No.03 of 2015 be produced before this Court on the next date fixed so as to verify the said aspect. Put up this case under the same heading on 17th May, 2023.” 11. Pursuant to the said order, Mr. Prabhat Kumar, learned S.C.-II appearing on behalf of the respondents, produces the original records of Confiscation Case No. 32 of 2014. Office is directed to retain a photocopy of the said records. The respondents have however failed to produce the record of Confiscation Appeal (IFA) No. 03 of 2015. 12. On perusal of the record of Confiscation Case No. 32 of 2014 produced before this Court, it appears that the transport challan (Form-D) No. 9775739 dated 19.09.2014 (Annexure-7 to the supplementary affidavit dated 16.01.2019 filed on behalf of the petitioner) is available in the same. The said transport challan contains the name and address of the lessee, details of lease hold land i.e. plot no. 2018 Chino, name of the mineral i.e., “boulder”, as well as name and address of the purchaser i.e., “Bajrang Mineral Works”. The said challan also contains the quantity of mineral i.e., 500 cft, the registration no. of the vehicle mentioned as “JH-12D8826” as also the name of its owner i.e., “Deepak Kumar” (the petitioner herein). The impugned order dated 13.02.2015 passed by the respondent no. The said challan also contains the quantity of mineral i.e., 500 cft, the registration no. of the vehicle mentioned as “JH-12D8826” as also the name of its owner i.e., “Deepak Kumar” (the petitioner herein). The impugned order dated 13.02.2015 passed by the respondent no. 4 suggests that the petitioner being owner of the vehicle in question had specifically contended that the stone boulders were being transported from the leased mine area under valid challans. The respondent no. 4 while rejecting the said contention observed that the owners of the vehicles failed to produce any evidence of valid purchase of stone boulders loaded in the trucks and they were not able to establish that stone boulders were being transported with valid purchase documents such as cash memo, tax vouchers, valid transit permits etc. It was also observed that besides delivery challan, which was not a purchase document, no other valid paper was shown by the petitioner. 13. This Court is of the considered view that the respondent no. 4 committed an error in only mentioning about the delivery challan and not about the transport challan (Form-D) which was brought on record by the petitioner. 14. So far as the order passed by the appellate authority-the respondent no. 3 is concerned, the same is not only cryptic but contains unverified fact that the challan produced by the petitioner was valid only till the month of March, 2014. Though the said observation appears to have been made on the basis of letter no. 1252 dated 27.05.2017 issued by the District Mining Officer, Giridih, however the respondents have neither annexed the said letter with their counter affidavit nor the original record of appellate authority i.e., Confiscation Appeal (IFA) No. 03/2015 has been produced before this Court in terms with order dated 24.04.2023. 15. Moreover, since the respondent no. 4 does not mention any such fact in the confiscation proceeding whereas the delivery challan as well as the transport challan (Form-D) suggest that those were issued for 500 cft. of stone boulders on 19.09.2014 from the leased hold area, the said factual observation made by the respondent no. 15. Moreover, since the respondent no. 4 does not mention any such fact in the confiscation proceeding whereas the delivery challan as well as the transport challan (Form-D) suggest that those were issued for 500 cft. of stone boulders on 19.09.2014 from the leased hold area, the said factual observation made by the respondent no. 3 that the vehicle in question was seized in the month of September, 2014, but the challan produced by the petitioner was valid till the month of March, 2014, appears to be contrary to the original record of Confiscation Case No. 32 of 2014 produced before this Court. The revisional authority i.e., the respondent no. 2 merely reiterated the said observation of the respondent no. 3 and dismissed the revision preferred by the petitioner without verifying the said fact from the documents available on record. 16. It thus emerges that the confiscating authority i.e., the respondent no. 4, committed a serious error in not recording the fact with respect to transport challan (Form-D) dated 19.09.2014 in the order dated 13.02.2015 and came to an erroneous finding that 500 cft. stone boulders were being illegally transported through the vehicle in question. The appellate as well as the revisional authorities also went into the issue that the challan produced by the petitioner was valid only till the month of March, 2014, however the said fact does not appear to be in conformity with the documents available on record and therefore all the orders passed by the said authorities cannot be sustained in law. 17. Accordingly, the orders dated 13.02.2015, 10.06.2017 and 24.07.2018 passed by the respondent nos. 4, 3 and 2 respectively are set aside. The respondent no. 4 is directed to forthwith release the vehicle bearing registration no. JH-12D-8826 to the petitioner on his -+due identification. 18. The writ petition is accordingly allowed.