Patna High Court
Bijay Krishna Sahay vs State Of Bihar Ors. on 1 July, 1998
Equivalent citations: 1998(3)BLJR1699
Author: R.A. Sharma
Bench: R.A. Sharma, A.K Prasad
JUDGMENT R.A. Sharma, J.
1. Doubting the correctness of decision of this Court in Jamuna Prasad Singh and Anr. v. State of Bihar. Cr. WJC No. 120/93 reported in 1994 (2) East Cr. C. 204, a learned Single Judge, vide order dated 8.5.1977, has referred the following questions to Division Bench for decision:
(i) Whether only Ranger and Officers above the rank of Ranger are entitled to search and seize forest produce, vehicle, etc. or even the Forester is competent to seize them under Indian Forest Act as amended "by the Bihar Amendment Act; and
(ii) Whether the entire criminal case is bound to fail and consequently the confiscation proceeding is also not maintainable if the seizure is illegal?
The Division Bench, when this case was listed before it, noticed two conflicting decisions of two different Division Benches in Vishnu Sharma v. The State of Bihar and Anr. 1993 BBCJ 528 and Jamuna Prasad Singh and Anr. v. State of Bihar, (supra). It, therefore, vide order dated 2.12.1997 the operation portion of which is reproduced below, referred the matter to Full Bench:
5. Under these circumstances, we feel that the aforesaid two Division Bench judgments of this Court require consideration by a larger Bench, as well doubt the correctness of the legal proposition laid down in those decision. We are of the view that this writ application be heard and disposed of by a larger Bench.
The operative portion of the order reference mentioned above, gives an impression as if the Division Bench has directed the writ petition itself to be heard and decided by a larger Bench. But the said order of reference and the observations made therein have to be read along with the order dated 8.5.1997 passed by the learned Single Judge referring only two questions to the Division Bench for decision, the relevant portion of which reads as under:
Under the circumstances, I also feel that the entire matter may be considered by larger bench, that is the Division Bench only for a limited propose, if only a Ranger and above the rank of Ranger are entitled to make search and seizure or even the Forester is competent to make seizure in view of the provisions of Section 52-D. Further, the matter require consideration if the seizure will be illegal, then the entire criminal case is bound to fail and consequently the confiscation proceeding is also not maintainable.
2. In view of the order of reference passed by the learned Single Judge, the Division Bench's jurisdiction was confined to decide only two questions referred to it and the whole writ petition was not before it. It, therefore could not have referred the writ petition to Full Bench for decision. The observation. of the Division Bench as regards hearing and decision by the larger Bench in its order of reference relates to the decision on the questions referred to in the writ petition. It therefore necessarily follows that the Full Bench has to decide only the questions referred to by the learned Single Judge.
3. In the instant case, a truck loaded with Felspar stone, which is admittedly a forest produce, was seized by the Forester, Teludih, on 13.12.1996, who after seizure, reported the matter to the Authorised Officer (the Divisional Forest Officer, Giridih). After receipt of the said seizure report, the Authorised Officer initiated proceedings for confiscation of forest produce and vehicle and notice in this regard was given to the petitioner pursuant to which he filed his show cause. The Authorised Officer also communicated the information about the pendency of the confiscation proceedings before him to the Chief Judicial Magistrate before whom criminal case with regard to the same matter for offence under the Forest Act was pending. At this stage, the petitioner filed this writ petition challenging the seizure of the truck and the forest produce, the entire prosecution in Forest Case No. 477/96 including initiation of confiscation proceeding. As after filing of the writ petition, confiscation order was also passed, that has also been challenged by means of amendment application.
QUESTION No. 14. The first question relates to power of seizure of the forest produce and the vehicle in which it was being carried. The Indian Forest Act (hereinafter referred to as the Act) has been amended by the Bihar Amendment Act 9 of 1989, whereby, in place of Section 52, Sections 52 to 52-D have been inserted in the Act. Hereinafter Sections 52 and 52-D as inserted by the above Bihar Amendment Act will be referred to if and when such reference is required Sections 52 and 52-D deal with seizure Both these sections, insofar as they are relevant, are reproduced below:
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 tools, arms, boats, vehicles, chains or any other article used in committing any such offence, may, be sized 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, either produce the property seized before an office not below the rank of the Divisional Forest Officer authorised by the State Government in this behalf by notification (hereinafter referred to as authorised officer) or where, it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce that property seized befofe the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, make a report of such seizure of 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 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 and 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 be 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 oasis 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 the licence of the arms. A copy of order confiscation shall be forwarded without undue delay to the conservators of the forest circle in which the forest produce, as the case may be, has been seized
52. D. Power of entry, inspection, search and seizure.- Notwithstanding anything contained in any other law for the time being in force may Forest Officer not below the rank of Range Officer of Forest or any Police Officer not below the rank of a Sub-Inspector may, if he has reasonable grounds to believe that any forest offence has been committed in contravention of this Act, enter upon, inspect and search any place premises, appurtenances thereto land, vehicle or boat and seize any illegal forest produce and all tools, arms, boats, vehicles, ropes, chains or any other article used in committing such offence.
5. Forest Produce" has been defined in Section 2(4) of the Act, which reads as under:
2 (4). forest produce" includes,:
(a) the following whether found in, or brought from, a forest or not, that is to say:
timber, charcoal, caouthouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds (kuth) and myrabolams; and
(b) the following when found in, or brought from a forest, that is to say:
(i) trees and leaves, flowers and fruits, and all other parts or produce no hereinbefore mentioned of trees;
(ii) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants;
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax and all other parts or produce of animals; and
(iv) peat, surface soil, rock and minerals (including limestone, laterite. minerals, oils and all products of mines or quarries);
Forest Offence" has also been defined in Section 2(3) of the Act, which is also reproduced below:
2 (3). forest offence" means an offence punishable under this Act or under any rule made thereunder.
6. Various provisions in different Chapters of the Act have specified various offences. For example, in Chapter 2, Section 26 deals with the forest offences. Similarly, Sections 33, 42 and 51 in Chapters 4, 7 and 8 have also specified various offences. Some of those offences relate to the forest produce, while the others do not. Forest Offence is not always in respect of forest produce.
7. "Seizure" means taking into possession of another's property. In Chandrika Sao and Anr. v. The State of Bihar 1963 (14) STC 398 (SC). the Supreme Court has defined the seizure as under:
...In our opinion, merely holding books found lying in the premises for perusing them cannot property be regarded as seizure because seizure implies doing something over and above holding an article in one's hand. According to the Shorter Oxford Dictionary, seizure among other things, means confiscation or forcible taking possession (land or goods); a sudden and forcible taking hold.
Reference in this connection, may also be made to Mangat Rai v. State of M.P. .
8. Taking possession of another's property after dispossessing him is seizure. Such a power can be exercised both under Sections 52 and 52-D Although both these sections empower the concerned officer to seize forest produce, vehicle etc. but power under Section 52-D is much wider than the power conferred by Section 52. Under Section 52-D, the Range Officer has the power to enter upon, inspect and search any place, premises, appurtenances thereto, land, vehicle or boat and seize the illegal forest produce along with vehicle, etc. But such wide power cannot be exercised under Section 52, whereunder the power is confined to seizure only. Both Sections 52 and 52-D visualise two different situations. The area of operation and the purpose for which they have been enacted are different. Section 52 empowers the Forest Officer or Police Officer to seize any forest produce, "if there is reason to believe" that a forest offence in respect thereof has been committed This section is confined to a case where a forest offence has been committed in respect of any forest produce. It does not deal with any other forest offence. Section 52 will cover a case where the Forest Officer finds that forest produce has been or is being removed in contravention of law or where theft of forest produce has been or is being committed. In such a case, he can seize, the forest produce together with vehicle, etc. But it seizure of forest produce without inspection and/or search is not possible, power of seizure under Section 52 cannot be availed of because it does not authorise inspection and search On the other hand Section 52-D deals with "any forest offence" Such an offence may or may not be in respect of the forest produce Under this section, any Forest Officer nor below the rank of Range Officer or any Police Officer not below the rank of Sub-Inspector can, "if he had reasonable ground to believe" that forest offence has been committed, exercise any of the powers mentioned therein including the power of seizure. Section 52-D will cover a case where the Ranger Officer receives an information or gathers knowledge about commission of forest offence which provides reasonable ground to believe that such an offence has been committed. In such a case, he can exercise all or any of the powers conferred by the said section.
9. "Forest Officer" has been defined in Section 2 (2) of the Act which is as under:
2 (2). Forest Officer" means any person whom the State Government or any officer empowered by the State Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest Officer.
According to the above provision, any officer appointed by the State Government to "carry out all or any of the purposes of this Act or to do anything required by this Act, or any rule made thereunder" is a Forest Officer. It is not disputed that Forester, who seized petitioner's forest produce and the vehicle, is one of such officers who has been so appointed by the State Government as a Forest Officer in exercise of the power conferred on it by Section 2(2) of the Act. The latest notification issued by the State Government empowering the various officers including the Forester to act as Forest Officer is dated July 1, 1995 a copy of which has been placed before us by Sri P.D. Agrawal, Government Advocate and the same has not been disputed by the learned Counsel for the petitioner. The Forester, therefore, being a Forest Officer, is empowered to seize the forest produce along with the vehicle in exercise of the powers conferred on him by Section 52, provided he has "reason to believe" that a forest offence in respect of forest produce has been committed. However, the position would be different if seizure is made under Section 52-D whereunder an officer not below the rank of Ranger Officer or the Police Officer not below the rank of Sub-Inspector is empowered to seize. Although, the Forester is a Forest Officer in view of the Government notification mentioned above, but he is not a Ranger Officer. He, therefore, cannot exercise any power mentioned in Section 52-D although he can seize the forest produce, vehicle etc. under Section 52. provided the condition precedent laid down therein exists.
10. In Vishnu Sharma v.. The State of Bihar, (supra), the seizure of the timber and the vehicle in which it was being carried by the Forester was declared invalid on the ground that Section 52 cannot apply to such a case and only Section 52-D will be applicable to it. It is not possible to agree with the above view. Under Section 52, a Forester can seize the truck and the forest produce if he has reason to believe that a forest offence in respect of forest produce has been committed. Timber is admittedly a forest produce and its seizure along with the truck in which it was being carried by the Forester cannot be held to be invalid in the absence of any finding about the non-existence of the condition precedent laid down in Section 52. No such finding was recorded by the Bench. The decision of this Court in Vishnu Sharma v. The State of Bihar and Anr., (supra), is therefore, overruled.
11. Jumuna Prasad Singh Anr. v. State of Bihar Ors. (supra), where the seizure of sandalwoods, which was being transported without transit permit by the Forester (Beat) Officer was upheld under Section 52 of the Act, represents the correct position.
QUESTION No. 212. The Authorised Officer under Sub-section (3) of Section 52 (reproduced hereinbefore) initiates confiscation proceedings upon production before him of property seized or upon receipt of report about the seizure, as the case may be. but he can confiscate such property only if he "is satisfied that a forest offence has been committed in respect thereof". This section permits confiscation of seized property only if it is proved on the basis of relevant evidence/material that the forest offence has been committed in respect thereof The illegality of search and seizure will have no bearing on the confiscation proceedings and the order passed therein. The same is the position with regard to the criminal case instituted in the criminal Court on the basis of the report about the seized property. Both the Authorised Officer and the Criminal Court get jurisdiction upon the production of the seized property or upon receipt of the report in respect thereof. They are not concerned with the legality or illegality of the search and seizure. Valid seizure is neither the foundation of the jurisdiction of the Authorised Officer to confiscate the seized property, not is it a condition precedent for taking cognizance of forest offence by the Court In this connection, reference may be made to H. N. Rishbud Anr. v. State of Delhi , wherein the Apex Court has held that the police report on the basis of which cognizance is taken under Section 190, Cr. P C. need not be valid and legal report. The relevant extracts of the said decisions of the Apex Court are reproduced below:
(9) The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases But it does not necessarily follow that an invalid investigation nullifies the cognizance or trail based thereon.
*** *** **** A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or. trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. PC as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the Jurisdiction of the Court to take cognizance...
The Supreme Court also held that taking of cognizance on the basis of the invalid police report "is only in the nature of error in a proceeding antecedent to the trial" and to such a situation, Section 537, Cr. PC (old) is attracted. It was accordingly laid down as under:
If, therefor, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation docs not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor AIR 1944 PC 73 (C) and Lumbhardar Zutshi v. The King AIR 1950 PC 26 (D).
These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court We are. therefore, clearly, also of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby The same rule was reiterated in Dindayal Sharma v. State of U.P.. and Bai Radha v. State of Gujarat . The latter case relates to search under Suppression of Immoral Traffic in Women and Girls Act
13. Neither the criminal case will fail, nor the confiscation proceeding with become not maintainable, even if the search and seizure are ultimately found to be illegal, provided commission of forest offence was been proved on the basis of relevant evidence/material. The source from which such evidence/material has been obtained is also not relevant. The relevant evidence/material cannot be excluded from evidence even if it was obtained on illegal search and seizure. In Pooran Mai v. Director of Inspection (Investigation) Income Tax , the Supreme Court, in this connection, has laid down as follows:
...It, therefore, follows that neither by invoking the spirit of our constitution nor by a strained construction of any of the fundamental rights can well spell out the exclusion of evidence obtained on an illegal search *** *** *** So are as India is concerned, its law of evidence is modelled on the rules of evidence which prevailed in English law and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search of seizure,...
*** *** *** ...It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out...
*** *** *** In that view, even assuming, as was done by the High Court that the search and seizure were in contravention of the provisions of Section 132 of the Income-Tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no writ of prohibition, in restraint of such use could be granted...
Supreme Court in Kishan v. State of Uttar Pradesh , the relevant extracts of which are quoted below, has held that illegal search does not vitiate the seizure of property:
...So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues...
14. The Authorised Officer can take into account the relevant evidence/material even if obtained on illegal search and seizure after giving reasonable opportunity of being heard in respect thereof to the persons whose property is sought to be confiscated. Same will be the position with regard to the criminal proceedings initiated in respect of the forest offence.
15. Our answer to the questions referred to are as follows:
(i) Under Section 52, a Forester can seize forest produce together with tools, arms, boats, vehicles, chains or any, other articles used in committing a forest offence if he has reason to believe that such an offence has been committee in respect of any forest produce. But he cannot exercise any such power under Section 52-D, whereunder only a Forest Officer not below the rank of Range Officer and a Police Officer not below the rank of Sub-Inspector can make seizure.
(ii) Illegality of the search and seizure will have no bearing on the confiscation proceedings and the criminal case. Neither the criminal case will fail, nor would the confiscation proceedings become not maintainable, even if search and seizure are illegal.
16. Let the records of this case be placed before the learned Single Judge for decision of the writ petition in accordance with law.