Rajasthan High Court - Jaipur
Gheesu vs State Of Rajasthan And Ors on 18 August, 2022
Author: Birendra Kumar
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 436/2018
Gheesu S/o Sukkha B/c Jat, R/o Datakalan Tehsil Mandal District
Bhilwara, Raj.
----Petitioner
Versus
1. State of Rajasthan Through PP.
2. Assistant Chief Conservative Officer, Forest Department,
Bharatpur.
3. Chief Conservative Officer, Forest Department, Jaipur.
----Respondents
For Petitioner(s) : Mr. V.D. Agnihotri for Mr. Jeetendra Kumar Pandey For Respondent(s) : Mr. Prashant Sharma, Dy.G.A. HON'BLE MR. JUSTICE BIRENDRA KUMAR Judgment reserved on : 04/08/2022 Date of Pronouncement : 18/08/2022 REPORTABLE
1. A brief background to this petition under Article 226 and 227 of the Constitution of India, is that FIR No.72/2016 (wrongly typed in the FIR as 72/2006) was registered against accused Ayyub, Aadil, Aasif, Gheesu and Nishar with Police Station Kaman in the District of Bharatpur for violation of provisions of Section 30, 32 and 33 of the Rajasthan Forest Act, 1953 (hereinafter referred to as `the Act of 1953') having allegations that the accused persons were found cutting the green trees in the forest area and were making way for movement of the vehicle. An L.N.T.(Poklen) machine model No. E.C. 210 B without registration number was also seized alleging the vehicle was being used for commission of the offences under the Act of 1953. The (Downloaded on 22/08/2022 at 11:36:14 PM) (2 of 7) [CRLW-436/2018] occurrence was allegedly committed in the intervening night of 2- 3rd October, 2015.
2. By order dated 9.3.2016, the competent authority decided to confiscate the said vehicle. The petitioner claiming ownership on the said vehicle challenged the order of confiscation under Section 52A of the Act of 1953 before the appellate authority in Appeal No. 15/2016. The appeal was dismissed by order dated 28.6.2016 and the order of confiscation was confirmed. The appellate court directed that the confiscation will be subject to the result of trial of the accused. The petitioner challenged the order of the appellate authority before the learned Sessions Judge under Section 52B of the Act of 1953 in Criminal Revision No. 70/2017. The Criminal Revision was dismissed on 8.11.2017 as barred by limitation, thereafter the petitioner approached this Court under Section 482 Cr.P.C in S.B. Cr. Misc. Petition No. 6180/2017 which was dismissed as withdrawn vide order dated 11.4.2018 with liberty to the petitioner to pursue alternative legal recourse according to law. Hence this petition.
3. The challenge to the order of the competent authority is on the ground that it suffers from non compliance of the mandates of law. The appellate authority did not consider the non compliance of mandate of law and the revisional authority dismissed the Criminal Revision Petition on technical ground. Since the issue raised is non compliance of mandatory requirements of Section 52 of the Act of 1953, the said provision is being reproduced below in toto:
"52. Seizure of property liable to confiscation and procedure therefore: - (1) When there is reason to believe that a forest offence has been committed in (Downloaded on 22/08/2022 at 11:36:14 PM) (3 of 7) [CRLW-436/2018] respect of any forest produce, such produce, together with all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing any such offence, may be seized by any Forest Officer or a Police Officer not below the rank of a head constable.
(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 an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter in this Chapter referred to as the authorised officer) or where it is, having regard to quantity or bulk or other genuine difficulty, not practicable to produce property seized before the authorised officer, make a report about the seizure to the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, make a 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 State 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 official superior.
(3) subject lo 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 be recorded, confiscate forest-produce so seized together with all machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article used in committing such offence. A copy of order of confiscation shall be forwarded without any undue delay to the chief Conservator of Forests of the region in which the forest produce has been seized.(Downloaded on 22/08/2022 at 11:36:14 PM)
(4 of 7) [CRLW-436/2018] (4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer- (a) sends an intimation in prescribed form 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) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorised 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 person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose.
(5) No order of confiscation under sub-section (3) of any machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article (other than timber or 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 machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any other article 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 objects aforesaid for commission of forest offence."
4. Learned counsel for the petitioner contends that the appellate authority, though confirmed the order of confiscation, however directed that the said confiscation would be subject to the result of the trial as such till conclusion of the trial, if the vehicle would remain lying, it would cause damage and destruction to the vehicle. Learned counsel further contends that (Downloaded on 22/08/2022 at 11:36:14 PM) (5 of 7) [CRLW-436/2018] the petitioner appeared before the competent authority and filed affidavit along with supporting documents stating therein that the seized vehicle was hypothicated to SRIE Equipment Finance Limited. Moreover, the petitioner used to provide such vehicle on hire to different customers. This time, the vehicle was provided to Shakuntala Sharma and Raeesh to use it in Bhuapurigarh Tehsil Kaman mines area. It was validly leased out to them. Co- accused Ayub, Adil, Nishar and Aasif were working for Shakuntala and Raeesh. The petitioner had hired out the vehicle for being used in the approved leasehold mining area and had no knowledge of misuse of the vehicle in the forest area. Learned counsel contends that it is prosecution case that though the vehicle was seized at the place of incident, however the accused persons managed escape of the vehicle after scuffle with the prosecution party, therefore, it is admitted case of the prosecution that the vehicle was lifted from some other place than the so called place of seizure which corroborates the case of the petitioner that the vehicle was seized from authorised mining area.
5. Learned State counsel did not controvert the factual situation of the case, by filing a counter affidavit however opposed the prayer of the petitioner for release of the vehicle on the ground that once the vehicle was confiscated and the confiscation was based on valid grounds, the writ court should not go into disputed question of fact.
6. The provisions of sub-section (3) of Section 52 (supra) of the Act of 1953 empowers the authority to confiscate the referred things including the vehicle involved in the commission of offence under the Forest Act, however, the said provision is subject to (Downloaded on 22/08/2022 at 11:36:14 PM) (6 of 7) [CRLW-436/2018] sub-section (5) thereof. Sub-section (4) thereof provides that no order of confiscation of any property shall be made under sub- section (3) unless the authorised officer issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property.
7. The impugned order reveals that authorised officer was conscious that the vehicle was under hyphothication to the referred financer, therefore, real ownership of the vehicle was with the financer and not with the petitioner at the time of seizure. Therefore, before affecting confiscation, it was mandatory to give notice to the financer as well and in absence of notice, the whole confiscation proceedings was vitiated in law.
8. Sub-section (5) of Section 52 prohibits confiscation if the person noticed under sub-section 4 (b) proves to the satisfaction of authorised officer that the vehicle was used without his knowledge or connivance or as the case may be, without the knowledge of connivance of his servant or agent and that all reasonable and necessary precautions was taken against use of objects aforesaid for commission of forest offence.
9. The petitioner asserted that he had hired out the vehicle to Shakuntala for its use on the mining area leased out to her. Nothing was brought on record to controvert the aforesaid assertion of the petitioner. The petitioner stated on oath that he had no knowledge that his vehicle was used for any other purpose than for which it was hired out. This fact was not also not controverted by any other material on record, rather the competent authority observed that the petitioner has not produced any document that he had no knowledge of the use of (Downloaded on 22/08/2022 at 11:36:14 PM) (7 of 7) [CRLW-436/2018] the vehicle in unauthorised manner. Hardly any documentary evidence would be there to prove mental state of a fact. In absence of contrary material on record, there was no reason to reject the claim of the petitioner by the competent authority. Evidently, the order of the competent authority suffers from non compliance of mandatory provisions of Section 52(4) (b) and sub- section (5) of Section 52 of the Act of 1953, the competent authority committed serious lapses in decision making process as it did not follow the mandates of law.
10. The appellate authority did not appreciate the aforesaid infirmity in the order of the competent authority, hence the order of the appellate authority is also not sustainable in law. Consequently, both the orders stand hereby quashed.
11. The petition is accordingly allowed. It is directed that the confiscated vehicle be handed over in provisional custody of the petitioner on furnishing a bank guarantee of Rs. 3 lac along with two sureties of the like amount. The petitioner would ensure that vehicle is not used for any illegal activities and he shall not dispose of the vehicle without permission of the Court where trial is going on.
(BIRENDRA KUMAR),J BRIJ MOHAN GANDHI /77/89 (Downloaded on 22/08/2022 at 11:36:14 PM) Powered by TCPDF (www.tcpdf.org)