Patna High Court
Dilip Kumar Pandey vs State Of Bihar And Ors. on 6 February, 1998
Equivalent citations: 1998(2)BLJR1103
JUDGMENT S.K. Chattopadhyaya, J.
1. Noticing divergent views expressed by two learned Single Judges of this Court in the case of Anil Kumar Gupta v. State of Bihar and Ors. 1996 (1) PLJR 863 and Md. Akhtar and Ors. v. State of Bihar and Ors. 1995 (2) East Cr. C. 345, one of us (Loknath Prasad, J.) by his order dated 1.5.97 referred the matter to the Division Bench to resolve the aforesaid conflicting views.
2. The factual matrix of the case is that the vehicle of the petitioner was seized by the Forester in connection with a forest offence. It was found that the vehicle had a secret chamber meant for concealing some articles and in that very chamber two kgs. of Kattha, which is admittedly a forest produce, was being carried in the said vehicle. A case under the Indian Forest Act was instituted and prosecution report was submitted against driver and the owner of the concerned vehicle. A Confiscation Case No. 24/94 was initiated by the Divisional Forest Officer, Hazaribagh and being noticed the petitioner, claiming himself to be the owner of the vehicle, entered appearance and filed his show cause. However, after hearing the parties the vehicle was ordered to be confiscated to the State Government for violation of the provisions of the Indian Forest Act. The petitioner preferred an appeal against the said order of confiscation but without any success. Impugning the orders of D.F.O. as well as the Deputy Commissioner, the petitioner has moved this Court in this writ application. Before the learned Single Judge the only submission was advanced on behalf of the petitioner that for only 2 kgs of Kattha, which was valued of Rs. 150/- or so, the forfeiture of the vehicle, which is valued more than a lakh, is illegal and even for such a petty offence it is neither desirable nor will be in the interest of the parties as it will cause considerable hardship and loss to the petitioner. In support of this contention, reliance was placed in the case of Anil Kumar Gupta's case (supra), where it has been held that if a vehicle is seized for an offence regarding carrying of meagre value of forest produce then it is not fair to seize and confiscate the same and for the ends of justice, only fine may be imposed and the vehicle may be released to the owner. However, on behalf of the State, it was submitted that in deciding Anil Kumar Gupta's case (supra) the learned Single Judge had not taken into consideration the decisions of other Single Bench in the case of Md. Akhtar and Ors. (supra) and the decision in the case of Baldeo Yadav v. State of Bihar and Ors. 1996 (1) East Cr. C. 369, where, inter alia, it was held that the criminal Court has no jurisdiction to release the vehicle. As aforesaid, because of the divergent view expressed by two learned Single Judges in two different judgments, this matter has been placed before us.
3. In order to appreciate the legal position, the decisions of the aforesaid cases may be looked into. In the case of Anil Kumar Gupta (supra), the facts were that the truck of the petitioner was illegally transporting 200 pieces of Khair wood and as such, the truck was seized and a confiscation proceeding was initiated. A separate application for release of the truck was filed contending, inter alia, that total value of Khair wood loaded on the truck was about Rs. 2000/- land in view of this meagre amount the confiscation of the truck, valued at Rs. 5 lacs, was not justified in law. However, this contention did not find favour with the D.F.O. and the prayer was refused. The petitioner, impugned the said order of confiscation before this Court and this Court disposed of the same by giving liberty to the petitioner to avail statutory remedies of appeal and revision. When the revisional Court also did not agree with the contention raised by the petitioner and dismissed the revision application, said order was challenged in criminal writ before this Court. The learned Single Judge though observed that the petitioner was unable to produce any decision of the Supreme Court or of our High Court in support of the proposition that where the value of the contraband seized is meagre compared to the value of the vehicle on which the contraband was loaded, the vehicle could not be confiscated, but relying on the decisions reported in AIR 1985 Kerala 184, AIR 1992 Orissa 287 and AIR 1967 SC 276, has agreed with the submission made on behalf of the petitioner that though Section 52(3) of the Forest Act does not provide for imposition of fine in lieu of confiscation, such a provision can be read therein in the interest of justice. Having held thus, the order of confiscation was set aside and the truck was released by directing the petitioner to pay a fine of Rs. 10,000/-. However, in the case of Md. Akhtar (supra) and Baldeo Yadav (supra) the question as to whether in lieu of fine, the confiscated of vehicle can be released, was not strictly an issue for consideration. In both the cases the point for consideration was as to whether in absence of any provision relating to confiscation in Bihar Forest Produce (Regulation of Trade) Act, 1984, the confiscation made under Indian Forest Act, 1927 (hereinafter referred to as 'Central Act') was a valid or not and as to whether pending confiscation proceeding the Magistrate has any power to order release of the vehicle under Section 457 of the Code of Criminal Procedure.
In the case of Md. Akhtar (supra), the learned Single Judge has held that when confiscation proceedings are initiated after seizure of the specified forest produce, the Magistrate has no power to order release of the vehicle.
Similarly, in Baldeo Yadav's case (supra), it has been held that if goods etc. are sought to be confiscated in the absence of any corresponding provision regarding confiscation in the Regulation of Trade Act, it is provisions as contained in Sections 52(4), 52-A etc. of the Central Act, would be applicable and as such, confiscation made under the Central Act is valid.
4. From the aforesaid discussions, it is clear that apparently the point, which was involved in the case of Anil Kumar Gupta (supra), was not the subject matter of consideration either in the case of Md. Akhtar or in the case of Baldeo Yadav. In such view of the matter, we are required to deal with the decisions of other High Courts on which the learned Single Judge in Anil Kumar Gupta's case has placed reliance.
5. In the case of K.R. Pushpan v. State of Kerala and Ors. , the Division Bench, considering Section 61-A of Kerala Forest Act, 1961, has held that confiscation of the vehicle would be illegal and unsustainable if the value of the contraband alleged to have been carried in the vehicle is negligible, compared to the value of the vehicle. Though the Division Bench have observed that this question is well settled by the decision of the Supreme Court and of that Court but unfortunately no such decision has been referred by their Lordships, which could have helped us in deciding the issue.
Similarly, in Gurudev Singh Rai v. Authorised Officer-cum-Asstt. Conservator of Forests and Anr. , the Division Bench of the Orissa High Court has held that even in absence of statutory provision for imposition of fine in lieu of confiscation of Vehicle, the High Court can supplement words in statutory provision to that effect my reading the words in a statute which are not there. Their Lordships, in paragraph 17 of the judgment has observed as follows:
Having deeply reflected over the question at hand, we are of the firm view that if the deficiency in Section 56(2-a), of which reference has been made above, would have come to the knowledge of the legislature, it would have definitely provided for imposition of fine as an alternative punishment' in those cases where the authorities may not be satisfied about the desirability of confiscation and may not also feel happy in allowing the owner of the vehicle to go scot-free. We, therefore, read in the aforesaid section a power to impose fine in lieu of confiscation in appropriate cases. What could be the appropriate cases cannot be laid down with rigidity the same has to be left to the satisfaction of the appropriate authority.
6. In these backgrounds, the real question to be decided in this case is as to whether in absence of any particular provision in a statute the Court can substitute its own to do justice to a party. In this context the intention of legislature in enacting the Central Act has to be noticed. With a view to consolidate the law relating to forest, transit of forest produce and duty leviable on timber and other forest produce, Indian Forest Act was enacted in 1927. This Act has been extensively amended by Bihar Act 9 of 1990 with a view to prevent the growing menace of ruthless exploitation of Government forests by illicit felling of valuable forest produce by unscrupulous traders particularly from the reserved forests by providing for a machinery for confiscation of illegally felled trees or forest produce by the forest authorities. It was realised that for maintaining the environment and ecological balance the forests and forest produce are to be protected. It cannot be denied that key to forest creation lies in its protection.
7. Sub-section (3) of Section 2 of the Central Act defines 'forest offence' as an offence punishable under this Act or any rule made thereunder. It is to be remembered that Section 52 of the Central Act does not speak of seizure of any vehicle, even where any forest officer or police officer has reason to believe that a forest offence has been committed. However, Bihar Act 9 of 1990 has substituted the said section by specifically introducing the provisions of seizure and confiscation in respect of vehicles also. Section 52 as amended by Bihar Act 9 of 1990, read as follows:
52. Seizure and its procedure for the property liable for 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 tolls, arms, boats, vehicles, ropes, chains or any other article used in committing any such offence, may be seized by any Forest 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, either produce the property seized before an officer not below the rank of the Divisional Forest Officer authorised by the State Government in this behalf by notification (hereinafter referred to as the authorized officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the property seized before the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, make d 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 immediate superior.
(3) Subject to Sub-section (5), where the authorised officer upon production before him of property seized or upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to b" recorded, confiscate forest produce so seized together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing such offence. The Magistrate having jurisdiction to try the offence concerned may, on the basis of the report of the authorised confiscating officer, cancel the registration of a vehicle used in committing the offence, the licence of the vehicle-driver and licence of the arms. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of Forest of the forest circle in which the forest produce, as the case may be, has been seized.
(4) No order confiscating any property shall be made under Sub-section (3) unless the authorised officer-
(a)sends an intimation about initiation of proceedings for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;
(b) issue a 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;
(c) affords an opportunity to the persons referred to in Clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and
(d) gives to the officer effecting the seizure and the persons or person to whom notice has been issued under Clause (b), a hearing on the date to the fixed for such purports.
(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 authorised officer that any such tools, arms, boats, vehicles, ropes, chains or other articles were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects of aforesaid for commission of forest offence.
From bare perusal of the aforesaid provision, it is clear that the legislature has not intended that a vehicle, which has been found us illegal transporting of forest produce and is seized by the authorized officer, the same should be released without being confiscated in lieu of paying fine to the extent of the amount of forest produce, which were loaded in the vehicle for illegal transportation. Another aspect of this provision is also required to be kept in mind that no property, referred in Sub-section (1) of Section 52 can be confiscated unless a notice to show cause is given to the affected person and opportunity of hearing is given. Not only that, Sub-clause (5) of Section 52 provides that if the person proves to the satisfaction of authorized officer that any such vehicle, tools etc. or other articles were used without his knowledge or connivance or as the case may be, without knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of the vehicle etc. for commission of forest offence, confiscation order cannot be made under Sub-section (3) of Section 52. Thus, it is clear that amended provision of Section 52 prescribes a detailed procedure for confiscation of the forest produce and the vehicle etc.
8. Section 68 of the Central Act, which deals with power to compound offences has also been substituted by Bihar Act 9 of 1990, which reads as follows:
68(1) The State Government may, by notification in the official Gazette, empower a forest officer--(a) To accept from any person against whom a reasonable suspicion exist that he has committed any forest offence other than an offence specified in Clauses (c) and (d) to Section 26 Clauses (c) and (d) to Section 33 or Section 62 or Section 63, sum of money by way of compensation for the offence with such person is suspected to have committed, and (b) When any property has been seized as liable for confiscation, to release the same on payment of the value thereof as estimated by such officer.
(2) On the payment of such sum of money or such value, or both as the case may be, to such officer, the suspected person, in custody, shall be discharged, the property, if any, seized shall be released, and no further proceedings shall be taken against such person or property.
(3) Forest Officer shall not be empowered under this section unless he is a forest officer of a rank not inferior to that of an Assistant Conservator of Forest.
This provision contemplates that a forest officer specifically empowered by Government Notification to accept sum of money by way of compensation for the offences other than an offence specified in Clauses (c) and (d) to Section 26, Clauses (c) and (d) to Section 33 or Section 62 or Section 63, from the person, who is suspected to have committed any forest offence. However, Clause (b) to Sub-section (1) of Section 68 specifically says that when any property has been seized as liable for confiscation, to release the same on payment of the value thereof as estimated by such officer. Thus, it is clear that a vehicle, which is liable for confiscation under Section 52 of the Bihar Act, may be released on payment of the value of the vehicle and not otherwise. Thus, it is absurd to think that a vehicle, which has been found illegally transporting any forest produce of meagre value, can be released merely on payment of the value of articles loaded on the vehicle by way of compensation. It is to be remembered that no procedure is thereby which a vehicle can be released in lieu of fine.
9. Similarly, Sub-section (2) of Section 68 contemplates that the suspected person in custody shall be released and the property, if any seized, shall be released on payment of such sum of money or such value or both, as the case may be. Further no proceeding shall be taken against such person or property. Thus, from reading the procedure, it will be clear that intention of the legislature is to punish the owner of the vehicle etc. for committing a forest offence and i.e., why, Statute does not speak of release of vehicle by merely payment of fine. The value of the seized property, which is liable for confiscation, has to be paid and only thereafter the seized property can be released. It appears that the provision of Section 68 of Bihar Act was not brought to the notice of the learned Single Judge in the case of Anil Kumar Gupta's case (supra) and, therefore, the learned Single Judge has relied on the decision of the aforesaid Orissa High Court as well as Kerala High Court in coming to his conclusion that where the value of the forest wood is of meagre value, as compared to the value of the vehicle, it is not fair to seize and confiscate the vehicle. In this context, it is important to refer to the decision of the Apex Court in the case of Biswabahan Das v. Gopen Chandra Hazarika and Ors. . In that case the Forest Beat Officer detected that respondent-Hazarika had illegally felled some green trees and converted them into firewood, although under the agreement between him and the authorities he was only entitled to cut and collect firewood from dead and fallen trees. Having admitted his mistake, Hazarika had paid compensation of Rs. 50/- in respect thereof taking the plea that the mistake has been committed by his labourers in collecting some broken and fallen green trees in his absence. The Board, however, was not satisfied with this explanation and took the view that the fact of Hazarika having compounded the offence did not clear his conduct although he had succeeded in getting a subsequent settlement of a forest mahal. The Board, thereafter, held that in view of the conduct of Hazarika, it did not consider him to be a suitable candidate and thus the settlement made with him was not proper. The High Court, however, relying on Section 345(6) of the Code of Criminal Procedure concluded that the compounding of the offence had the effect of an acquittal with the result that once the offence was compounded the Board was not entitled to take into account the property or otherwise of the conduct of Hazarika in respect of the offence with which he had been charged. When the matter was agitated before the Supreme Court on behalf of the parties, their Lordships noticed the provisions as laid down in Section 62(1) of the Assam Forest Regulation, which has the marginal note "power to compound offences" with some provisions. This provision of the Regulation is practically at par with the provisions as laid down in Section 68 of the Bihar Act. Interpreting the provisions of the Regulations, their Lordships, inter alia, observed as follows:
It must be borne in mind that although the marginal note to Section 62 of the Assam Regulation is "power to compound offences" the word "compounding" is not used in Sub-section (1) Clause (a) of that section. That provision only empowers a forest officer to accept compensation for a forest offence from a person suspected of having committed it. The person so suspected can avoid being proceeded with for the offence by rendering compensation. He may think that he was being unjustly suspected of an offence and he ought to defend himself or he may consider it prudent on his part to pay such compensation in order to avoid the harassment of a prosecution even when he is of the view that he had not committed the offence. By adopting the latter course he does not remove the suspicion of having committed the offence unless he is to have such benefit conferred on him by some provision of law. In effect the payment of compensation amounts to his acceptance of the truth of the charge against him. Sub-section (2) of Section 62 only protects him with regard to further proceedings, but has not the effect of clearing his character or vindicating his conduct.
Having observed thus, it was held that composition of an offence was permissible under the law, the effect of such composition should depend on what the law provided for.
10. Thus, in my considered opinion, when dealing with an offence under the Forest Laws the Court is required to look to the conduct of the offender because an unscrupulous trader may try to transport forest produce illegally with the risk of being apprehended. If he knows that if the vehicle etc. is seized by the forest officials for contravention of forest laws and he will get scot-free by releasing the vehicle on payment of merely a fine in lieu of confiscation of his vehicle, he may indulge in this kind of offence repeatedly, I am of the firm opinion that this is not the intention of the legislature and specially in view of the aims and objects for enacting forest laws, the legislature never intended that such type of owners of the vehicles will be easily get their vehicles released by payment of a mere fine. It is true that in the case of State of M.P. v. Azad Bharat Finance Co. and Anr. , their Lordships, while interpreting the provisions of Section 11 of the Opium Act, has held that the word "shall" does not always mean that the enactment is obligatory and mandatory and it depends upon a context in which the word "shall" occurs and the other circumstances, but this decision when fall for consideration before the Apex Court in C.T. Shang v. S.D. Baijal, , their Lordships in paragraph 32-33 has observed as follows:
The earlier decision of this Court has not been referred to in this case. Moreover what appears to have weighed with this Court that unless the owner of the truck knew that hirer used the truck in transporting contraband opium it would be unjust to confiscate the conveyance. In the instant case the owner of the vessel has been defined in Section 2(i) of M.Z.I. Act as including any association of persons, whether incorporated or not, by whom the vessel is owned or chartered. The charterer company and its Managing Director, have been convicted for contravention of Section 5 of the Act and Rule 8 (1)(q) of the Rules framed thereunder and penalty has been awarded. So the charterer who is deemed to be the owner of the trawler was held guilty of the offence of breach of terms of the permit.
In the very said decision, while construing the provisions of Sections 13, 22 and 25 of Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Rules, 1982, Rule 16 of 1982 Rules and relying on the decision in the case of F.N. Roy v. Collector of Custom, Calcutta , it was held as follows:
It is not open to the Court to consider the graveness of the offence and other extenuating circumstances and to make no order for confiscation of the offending vessel concerned. Confiscation of the vessel is the immediate statutory consequence of the finding that an offence either under Section 10 or 11 or 12 has been proved and its master has been convicted. Section 13 is thus mandatory and it is not open to the Court as soon as the master of the vessel is convicted of an offence under Section 12 and is awarded penalty to refrain from making an order confiscating the offending vessel.
11. In view of this law laid down by the Supreme Court, there cannot be two opinions of the fact that in view of Sub-section (3) of Section 52 of Bihar Act, confiscation of the vehicle is the immediate statutory consequence on the finding that a forest offence had been committed in respect of the seized vehicle, forest produce and tools etc. If this be the intention of the legislature in enacting different provisions for confiscation and compounding of offences, in my view, the Court cannot read differently by presuming the underlined intention of the legislature.
12. In the case of State of Kerala v. Mathai Verghese and Ors. , their Lordships have observed that a Court can merely interpret the section; it cannot re-write, re-cast or re-design the section. In interpreting the provisions the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to legislate have not been conferred on the Court.
13. At this juncture, it is pertinent to mention the observation of their Lordships in the case of Sri Mandiv Sita Ramji v. Governor of Delhi and Ors. , where their Lordships have cautioned the courts by holding that 'the observation of the procedure laid down by Statute before depriving of a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken, the Judges cannot afford to be wiser'.
14. Though in other context, the Supreme Court recently in the case of State of M.P v. Swaropchandra , has observed that it is seen that when the Act was made with a view to prevent illicit transportation of the forest produce or the specified forest produce and seizure and confiscation have been provided for, could it be said that the legislature intended to exclude the confiscation of the container i.e., vehicle or receptacles or boats, carts or tools, used for carriage of the specified forest produce i.e., content, in contravention of the provisions of the Act? The answer is obviously no.
15. In view of the aforesaid authoritative pronouncement of the Supreme Court, in my view, the Division Bench decision in the case of Gurudeo Singh Rai (supra) cannot be said to be a settled law which hold the filed. Though the Division Bench has taken note of the proposition of law in Maxwell on Statutes to the effect that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except on a case of necessity, or the absolute intractability of the language used and the Courts are very reluctant to substitute words in a statute or to add words to it, and it has been said that they will only do so where there is repugnancy to good sense. The Division Bench has expressed the view that if the deficiency in Section 56 (2a) of Orissa Forest Act, 1972 would have come to the knowledge of the legislature, it would have definitely provided for imposition of fine as an alternative punishment in those cases where the authorities may not be satisfied about the desirability of confiscation and may not also feel happy in allowing the owner of the vehicle to go scot-free. Having observed thus, the learned Judges read in the aforesaid section a power to impose fine in lieu of confiscation in appropriate cases. However, their Lordships were of the view that what could be the appropriate cases cannot be laid down with rigidity the same has to be left to the satisfaction of the appropriate authority.
16. However, it is pertinent to mention here that though the Orissa High Court has found some deficiency in Section 56(2a) of the Orissa Forest Act but as the same section has not been quoted in the judgment, it is not possible to find out about the deficiency mentioned by the Division Bench.
17. On the other hand, as discussed above, the Bihar Act has not only provided for detailed procedure for seizure and confiscation but also has laid down the procedure for compounding the forest offenses. Thus, it cannot be said that there is any deficiency either in Section 52 or in Section 68 of the Bihar Act 9 of 1990.
18. Having given my anxious thought on the points raised before us, I am of the view that the decision in the case of Anil Kumar Gupta (supra) cannot be held to be a good law and is thus overruled.
19. Having held thus, I am of the view that the petitioner cannot, get any relief on the basis of decision in the Anil Kumar Gupta's case. Secondly, the instant petition is also liable to be dismissed on the ground that the petitioner has not exhausted the statutory remedy of revision under Section 52-B of the Bihar Act before coming to this Court by filing this writ application.
20. In the result, I find no merit in this application, which is accordingly dismissed and interim order dated 8.5.1997 is vacated.