Rajasthan High Court - Jaipur
Unnas S/O Mahardin vs State Of Rajasthan on 22 July, 2022
Author: Birendra Kumar
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 981/2022
Unnas S/o Mahardin, R/o Village Joriya District Alwar.
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Sanjay Khan
For Respondent(s) : Mr. Chandragupt Chopra, PP
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
22/07/2022
1. In this petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 13.1.2022 whereby the learned Additional Chief Judicial Magistrate, Bhiwadi District Alwar refused the prayer of the petitioner for interim custody of the seized vehicle under the provisions of Section 457 Cr.P.C.
2. The vehicle of the petitioner was seized in connection with FIR No. 340/2021 registered with Police Station Chaupanki (District Police Bhiwadi) District Alwar for offences under Section 379, 511, 332, 353 and 120B IPC as well as for offence under Section 33, 41 and 42 of the Rajasthan Forest Act and under Section 29, 32 and 52 of the Indian Forest Act. According to the FIR on 16.12.2021, the forest officer got confidential information that in "Jodiya Ke Pahad" forest area, illegal mining is being done by the named accused persons after damaging the security wall to the extent of 5-6 meters. The Forest Officer along with some others went to the place and saw that illegal mining was going on. (Downloaded on 27/07/2022 at 09:44:19 PM)
(2 of 5) [CRLMP-981/2022] Initially, the miscreants pelted stones on the team of forest officer however the police reached there and thereafter miscreants fled away but the Tractor with Trolley bearing Registration No. RJ-40- RA- 3672, which was being used for carrying compressor for drilling hole in the hills were seized by the police along with other articles mentioned in the FIR.
3. Learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283 and other judgments of this Court for his submission that continued detention of the vehicle would not serve any purpose as the respondent has not brought anything on the record that any confiscation proceedings is going on in respect of the seized vehicle.
4. Learned Public Prosecutor opposed the prayer on the ground that illegal mining and removal of forest products is not only loss to an individual but to the society at large, ecological imbalance caused by such destruction is national concern and in several judgments, the States have been directed to ensure restoration of ecological imbalance and to stop damage being caused to the nature. If the vehicles involved in such illegal activity are released to the offender, it would be encouraging illegal mining.
5. The State respondents have neither brought before this Court nor produced any material before the court below, which would be evident from the impugned order, that a proceeding for confiscation is already going on or has been completed as required under the law, by the competent authority.
6. In State of Karnataka Vs. K. Krishnan reported in AIR 2000 SC 2729, the Hon'ble Supreme Court was considering the identical issue and observed in para 7 of the judgment as follows: (Downloaded on 27/07/2022 at 09:44:19 PM)
(3 of 5) [CRLMP-981/2022] "Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattles, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother- earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come."
7. In State of Madhya Pradesh Vs. Uday Singh & other connected matters reported in (2020) 12 SCC 733, the Hon'ble Supreme Court was considering the identical provisions in Madhya Pradesh Forest Act, 1927 and held that the jurisdiction of (Downloaded on 27/07/2022 at 09:44:19 PM) (4 of 5) [CRLMP-981/2022] the Court to release such property under Section 451 Cr.P.C. as per the ordinary procedure is barred by operation of Section 52- C(1) of the Forest Act, 1927, therefore, the High Court could not have directed release of such property in exercise of powers under Section 482 Cr.P.C.
8. Section 52C of the Rajasthan Forest Act, 1953 reads as follows:
"52C. Bar to jurisdiction of Court, etc. under certain circumstances. -(1) On receipt of intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property, which is subject matter of confiscation, has been made, no court, tribunal or authority (other than the authorised officer, the Appellate Authority and the Court of Sessions referred to in Secs. 52, 52-A and 52-B), shall have jurisdiction to make orders with regard to possession, delivery, disposal, or distribution of the property in regard to which proceedings for confiscation are initiated under Section 52, notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force.
Explanation. - Where under any law for the time being in force, two or more Courts have jurisdiction to try forest offence, then receipt of intimation under sub-section (4) of Section 52 by one of the Courts of Magistrates having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts. (2) Nothing in sub-Section (1) shall affect the power saved under Section 61.]"
9. Neither the impugned order reveals that the learned Magistrate was informed about initiation of the confiscation proceedings nor anything has been brought to the notice of this Court that confiscation proceedings has already started. In the situation, no fruitful purpose would be served by continued detention of the seized tractor and trolley, therefore, it is directed as under:
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(5 of 5) [CRLMP-981/2022]
(i) that the petitioner shall deposit Bank Guarantee of Rs. 3 lacs for tractor as well as of Rs. 3 lacs for the trolley to ensure compliance of the order of the competent court.
(ii) The petitioner shall file an undertaking on oath that in future he would not indulge in any such illegal activity or damage or removal of forest products nor the released vehicle would be used for the purpose.
10. It is made clear that in case confiscation proceedings in respect of the said vehicle has already started or the vehicle has been already confiscated, then the said vehicle shall not be released as held in the case of State of Madhya Pradesh Vs. Uday Singh (supra).
11. To the aforesaid extent, this petition stands allowed.
(BIRENDRA KUMAR),J BRIJ MOHAN GANDHI /77/81 (Downloaded on 27/07/2022 at 09:44:19 PM) Powered by TCPDF (www.tcpdf.org)