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2012 DAILYLAW 255 (PAT)

Krishna Vijay Singh v. State of Bihar

2012-02-10

VIKASH JAIN

body2012
ORDER The present writ petition has been filed for setting aside the order dated 14.7.2011 passed by the Principal Secretary, Forest Department, Bihar in Revision Case No. 4 of 2011 by which he has affirmed the order dated 28.1.2011 passed by the learned District Magistrate, Aurangabad in Forest Appeal No. 52/09 and order dated 14.10.2009 passed by Authorized Officer-cum-Forest Officer in confiscation Forest Case No. 14/09 by which tractor of the petitioner has been confiscated. 2. It appears that the petitioner who is the owner of tractor along with trailer bearing registration no. BR26A-2575 were seized by Forest Officers on 26.6.2009 on the allegation that the said vehicle was being loaded in Gamahariya protected forest area with about 50 cft. Moram and in respect of which Confiscation Case No. 14 of 2009 came to be registered. In the process the driver of the vehicle Jagdish Muiya was also arrested. 3. Against the seizure of the tractor and trailer the petitioner approached the District Magistrate, Aurangabad in Appeal Case No. 52/2009 raised the plea that it was out of ignorance and inadvertence on the driver’s part that the tractor had entered the protected forest area and that the petitioner being the owner had no knowledge of such infraction. 4. The appellate authority dismissed the appeal but, however, side by side also directed that the challan which was not available at the time of seizure but, produced by the petitioner subsequently, be verified by the Mines Development Officer. 5. The appellate order was further impugned in Revision Case no. 4 of 2011 before the Principal Secretary, Department of Forest, Bihar. The petitioner’s plea of ignorance was once again reiterated. As regards the challan produced by the petitioner it was held that once direction by the appellate authority had already been given to the Mines Development Officer to investigate the genuineness of the same, no purpose would be served in examining the genuineness thereof by the revisional authority. 6. Learned counsel for the petitioner further submits that the tractor and trailer are valuable assets and indispensable for his livelihood and such right ought not to have been interfered lightly without first examining the facts and the veracity of his claim, the genuineness of the challan being one of the evidences to establish the same. 7. 6. Learned counsel for the petitioner further submits that the tractor and trailer are valuable assets and indispensable for his livelihood and such right ought not to have been interfered lightly without first examining the facts and the veracity of his claim, the genuineness of the challan being one of the evidences to establish the same. 7. In support of his contention the learned counsel for the petitioner has relied on (1979) 3 SCC 322 [Sat Pal Vs. The State of Haryana], the relevant portion of para 4 may be extracted as follows : “Secondly, the truck of the appellant was a very valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as to work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant. Having regard to these special circumstances, we are clearly of the opinion that this was a fit case in which the Court ought to have exercised its discretion under the proviso in not imposing the penalty of confiscation.” 8. Learned counsel for the petitioner has further drawn attention to the provisions of Section 52 of the Indian Forest Act, 1927 as substituted by the Bihar Amendment, sub-section (5) whereof reads as follows:- “(5) No order of confiscation under sub-section (3) of any tools, arms, boats, vehicles, ropes, chains or any other article (other than the forest produce seized) shall be made if any person referred to in clause (b) of sub-section(4) proves to the satisfaction of authorized officer that any such tools, arms, boats, ropes, chain or other articles were used without his knowledge or convenience or, as the case may be, without the knowledge or convenience of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission of forest-offence.” 9. He therefore yet again emphasizes non-liability for confiscation of tractor and trailer by reason of his expressed lack of knowledge, connivance or concurrence in the commission of any offence. 10. Learned counsel for the State appears and has been heard. He therefore yet again emphasizes non-liability for confiscation of tractor and trailer by reason of his expressed lack of knowledge, connivance or concurrence in the commission of any offence. 10. Learned counsel for the State appears and has been heard. He invites attention to the order of the appellate authority wherein it is observed that the driver of the tractor had specifically stated that it was on the instructions of the owner that the Moram was being loaded from the protected forest area. He therefore supports the order of the respondent authorities and submits that no illegality in the matter whatsoever has been committed. 11. After hearing the learned counsels for the parties and having gone through the materials on record I am of the view that there is a dichotomy in the appellate authority’s action in dismissing the appeal on one side while in the same breath directing verification of the challan. Such direction suggests lack of application of judicial mind inasmuch as adverse inference against the petitioner ought not to have been drawn until the result of the verification of the challan arrived and genuineness or otherwise thereof was first established. In such circumstances, the report of the Mines Development Officer ought to have been awaited as the same would be a material evidence to decide the fate of the appeal. The disposal of the appeal by the appellate authority thus appears to be premature as evidently he himself felt the necessity to consider the genuineness or otherwise of the challan produced by the petitioner. This aspect of the matter appears to have eluded the revisional authority as well. 12. In the above circumstances, therefore, the impugned order dated 28.1.2011 passed by the learned District Magistrate, Aurangabad in Forest Appeal No. 52 of 2009 as also the revisional order dated 14.7.2011 passed by the Principal Secretary, Forest Department, Bihar in Revision Case No. 4 of 2011 are hereby set aside with a direction to the District Magistrate, Aurangabad to take into consideration the report of the Mines Development Officer with regard to the verification of the challan as and when received and pass orders afresh after hearing the parties. 13. In the interest of justice, liberty is also granted to the petitioner to approach the Divisional Forest Officer, Aurangabad with a representation for release of his tractor and trailer bearing registration no. BR 26A-2575. 13. In the interest of justice, liberty is also granted to the petitioner to approach the Divisional Forest Officer, Aurangabad with a representation for release of his tractor and trailer bearing registration no. BR 26A-2575. If any such representation is filed within a period of three weeks hereof, the tractor and trailer shall be released provisionally subject to furnishing of proper and adequate security to the satisfaction of the concerned authorities. 14. With the aforesaid observations, this writ petition stands disposed of. 15. Let the order be communicated to the concerned authorities by Fax at the cost of the petitioner. ?