Madhya Pradesh High Court
The State Of Madhya Pradesh vs The Company S.S.C. Project Ltd. Byavra ... on 22 March, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.35482/2020
State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra
through its Director
Gwalior, Dated:22/03/2021
Smt. Uma Kushwaha, Panel Lawyer for the applicant/State.
None for the respondent, though served.
Heard finally.
This application under Section 482 of Cr.P.C. has been filed against the order dated 17-2-2020 passed by 7 th A.S.J., Shivpuri in Criminal Revision No.109/2018, thereby setting aside the order of confiscation dated 6-6-2018 by which Dumper No.MP 09 HF 2501 and CAT Poklane Machine passed by Appellate Authority/Chief Conservator of Forest Shivpuri, were confiscated.
According to the applicant, an information was received from an informer that on 7-7-2014, in Maksudangarh Sub-Range at Compartment No. P770, one Poklane Machine is illegally extracting in the protected Forest Area of Forest Department at Bhander River, and one Dumper is also parked there. When the forest officials went on the spot, they found one Poklane Machine and a Dumper bearing No. MP 09 HF 2501. Their drivers, namely, Ismail Khan and Jasrath were interrogated, but they were unable to show any license. Accordingly, the Poklane Machine and the Dumper were seized and information was given to the Authorized Officer and Sub-Divisional Forest Officer. Accordingly, proceedings for confiscation of Poklane 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director Manchine and Dumper bearing No. MP 09 HF 2501 were started. Letter dated 9-7-2014 was issued to the J.M.F.C. Raghogarh informing the initiation of confiscation proceedings. Further, a show cause notice was also issued to Purshottam Modani on 6-11-2014.
On the application filed by the respondent, the matter was transferred from Sub-Divisional Forest Officer, Binaganj to Divisional Forest Officer, Guna. The Authorized officer, Guna, after recording evidence of both the parties, by order dated 13-4-2016 directed for confiscation of Poklane Manchine and Dumper bearing No. MP 09 HF 2501.
Being aggrieved by the order of the Authorized Officer, the respondent preferred an appeal before the Chief Conservator of Forest, Circle Shivpuri.
The Appellate Authority by order dated 6-6-2018 dismissed the appeal and affirmed the order passed by the Authorized Officer.
Being aggrieved by the order of the Appellate Authority, the respondent preferred a Criminal Revision before the Sessions Court, Guna, which was registered as Cr.R. No.109/2018. The Court below by the impugned order dated 17-2-2020, has allowed the revision, and the order of confiscation has been set aside.
Challenging the order passed by the Revisional Court, it is submitted by the Counsel for the State that confiscation proceedings 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director and the criminal prosecution are two different proceedings and are not interdependent on each other. Therefore, the Court below committed a material illegality by setting aside the order of confiscation on the ground that unless and until, the wrongdoer is held guilty for committing forest offence, the vehicle cannot be confiscated. It is further submitted that criminal proceedings have now been initiated against Ismail Khan and Jasrath by order dated 10-6-2020 passed by Authorized officer. It is further submitted that Poklane Manchine and Dumper bearing No. MP 09 HF 2501 were illegally extracting from the Forest Area.
None appears for the respondent though served. The Court below has allowed the criminal revision, mainly on the ground that unless and until, the wrongdoer is convicted, the confiscation of the vehicle is bad.
The question is no more res integra.
The Supreme Court in the case of State of M.P. Vs. Kallo bai, (2017) 14 SCC 502 has held as under :
14. Sub-section (1) of Section 15 empowers forest officers concerned to conduct search to secure compliance with the provisions of the Adhiniyam. On a plain reading of sub-section (2), it is clear that the officer concerned may seize vehicles, ropes, etc. if he has reason to believe that the said items were used for the commission of an offence under the Adhiniyam. Confiscation proceedings as contemplated under
4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director Section 15 of the Adhiniyam is a quasi-judicial proceedings and not a criminal proceedings. Confiscation proceeds on the basis of the "satisfaction" of the authorised officer with regard to the commission of forest offence. Sub-section (3) of the provision lays down the procedure to be followed for confiscation under the Adhiniyam. Sub-section (3- A) authorises forest officers of rank not inferior to that of a Ranger, who or whose subordinate, has seized any tools, boats, vehicles, ropes, chains or any other article as liable for confiscation, may release the same on execution of a security worth double the amount of the property so seized. This provision is similar to that of Section 53 of the Forest Act as amended by the State of Madhya Pradesh. Sub-section (4) mandates that the officer concerned should pass a written order recording reasons for confiscation, if he is satisfied that a forest offence has been committed by using the items marked for confiscation. Sub-section (5) prescribes various procedures for confiscation proceedings. Sub-section (5-A) prescribes that whenever an authorised officer having jurisdiction over the case is himself involved in the seizure, the next higher authority may transfer the case to any other officer of the same rank for conducting confiscation proceedings. Sub-section (6) provides that with respect to tools, vehicles, boats, ropes, chains or any other article other than timber or forest produce seized, confiscation may be directed unless the person referred to in clause (b) of sub-section (5) is able to satisfy that the 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 the use of such objects for commission of forest offence.
15. Section 15-A provides the remedy of appeal against the order of the authorised officer under Section 15 in confiscation proceedings. Section 15-B of the Adhiniyam provides for revision before the Court of Session against the order of the appellate authority in the confiscation proceedings. 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director
16. Under Section 15-C of the Adhiniyam, a jurisdictional bar on courts and tribunals have been provided for, if the confiscation proceedings are initiated under Section 15 of the Adhiniyam. Moreover sub-section (2) of Section 15-C provides that nothing hereinbefore contained shall be deemed to prevent any officer authorised in this behalf by the State Government from directing at any time the immediate release of any property seized under Section 15. The necessary proposition which follows such a provision is that, in a case where the authorised officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed, the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC gives way. The Magistrate while dealing with a case of seizure of forest produce under the Act should first examine whether the power to confiscate the seized forest produce is vested in the authorised officer under the Act and if he finds so, then he has no power to pass any order dealing with interim custody/release of the seized material. Such ouster of jurisdiction would aid in proper implementation of the Adhiniyam. If in such cases the power to grant interim custody/release of seized forest produce is vested in the Magistrate, then it will defeat the very scheme of the Act. Such a consequence is to be avoided.
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22. In view of the foregoing discussions, it is apparent that Section 15 gives independent power to the authority concerned to confiscate the articles, as mentioned thereunder, even before the guilt is completely established. This power can be exercised by the officer concerned if he is satisfied that the said objects were utilised during the commission of a forest offence. A protection is provided for the owners of the vehicles/articles, if they are able to prove that they took all reasonable care and precautions as envisaged under sub-section (5) of Section 15 of the Adhiniyam and the said offence was committed without their knowledge or connivance.
6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director Thus, it is clear that conviction of a wrongdoer is not the basic requirement for confiscation of vehicle. The confiscation proceedings and the trial of an accused are two different proceedings and are independent to each other.
The cross examination of witnesses of the department was done in detail by Purshottam Modani. The only defence of the respondent before the Authorized Officer was that on the orders of the Gram Panchayat Maksudangarh, one Poklane Machine and a Dumper bearing No. MP 09 HF 2501 were sent for cleaning the river. However, no order of the Gram Panchayat was filed in this regard. Further, the respondent also failed to see that why one Poklane Machine and a Dumper bearing No. MP 09 HF 2501 were sent inside the forest area, without the permission of the Forest Officials. Under these circumstances, when the respondent did not dispute that one Poklane Machine and a Dumper bearing No. MP 09 HF 2501 were not involved in extracting, then it was incorrect on the part of the Court below to set aside the order of Confiscation.
Accordingly, the order dated 17-2-2020 passed by VIIth A.S.J., Shivpuri in Criminal No.109/2018 is hereby set aside. The order of Confiscation is hereby affirmed.
The effect and operation of order dated 17-2-2020 was stayed by this Court by interim order dated 7-12-2020. Accordingly, it is 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35482/2020 State of M.P. Vs. The Company S.S.C. Project Ltd. Byavra through its Director directed that if the Poklane Machine and a Dumper bearing No. MP 09 HF 2501, were already released in compliance of order dated 17- 2-2020, then the respondent shall immediately handover the same to the Authorized Officer, within a period of 1 month from today and shall produce the acknowledgment of the same before the Principal Registrar of this Court within a period of 15 days thereafter. If the vehicles were never released, then the respondent shall file his affidavit before the Principal Registrar of this Court within a period of 1 month in this regard along with the letter of Authorized Officer.
With aforesaid observations, the application filed by the State under Section 482 of Cr.P.C. is Allowed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.03.23 18:07:25 +05'30'