Patna High Court
Pramod Kumar @ Parmod Kumar vs The State Of Bihar on 21 September, 2017
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.45284 of 2016
Arising Out of Forest Case No. -69 Year- 2016 District- SASARAM (ROHTAS)
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Pramod Kumar @ Parmod Kumar Son of Dinanath Singh, Resident of Village- Bali
Pakar, P.S.- Paliganj, District- Patna.
.... .... Petitioner
Versus
The State of Bihar
.... .... Opposite Party
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Appearance :
For the Petitioner/s : Mr. Anuj Kumar, Ansul, Advocate
For the Opposite Party/s : Mr. Tarkeshwar Nath Thakur, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
Date: 21-09-2017
Whether the truck bearing Registration No. BR-25G-
3355, which has been seized in connection with Forest Case No. 69 of
2016 leading to Confiscation Case No. 152 of 2016 for illegal
transportation of stone chips mined from Fazilpur Reserve Forest
Area in contravention of the provisions of Indian Forest Act, 1972 (for
short „the Act‟) can be released by this Court in exercise of power
under Section 482 of the Code of Criminal Procedure, 1973 (for short
„Cr.P.C.‟) during the pendency of the confiscation proceeding or such
power can only be exercised by competent authority of forest, is the
question involved in the present case.
2. The short facts of the case are that the petitioner is the
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owner of seized truck bearing Registration No.BR-25G-3355. The
truck was intercepted near Dehri Gammon Bridge and was seized with
allegation that it was carrying 700 cft. illegally mined stone chips of
Fazilpur Reserve Forest Area.
3. On the basis of the aforesaid allegations, the prosecution
report was filed in the court of Sub-divisional Judicial Magistrate,
Civil Court, Dehri-on-Sone (Rohtas) along with a copy of seizure list
on 17.05.2016 pursuant to which Forest Case No. 69 of 2016 was
registered for contravention of the provisions of Sections 33, 41 and
42 of „the Act‟.
4. Subsequently, a confiscation proceeding was initiated
for confiscation of the aforesaid truck by the Divisional Forest
Officer, Sasaram, vide Confiscation Case No. 152 of 2016. A notice
in writing was issued to the petitioner to appear before the authorized
officer and explain as to why the vehicle be not confiscated. The
petitioner filed his show-cause in the Confiscation Case No. 152 of
2016 so instituted on 12.07.2016. He made a prayer for interim release
of the vehicle in terms of Section 53 of „the Act‟. Though, in the
application filed on 17.10.2016 before this Court, a plea has been
made that the seized truck has not been released, it is not known what
happened in the proceeding before the Authorised Officer, as copy of
the order sheet of confiscation case has not been brought on record.
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but the same has not been released.
5. Learned counsel for the petitioner submits that the
petitioner runs his vehicle on hire. He contends that the stone chips
did not belong to any reserve forest area, but was taken from
Sonebhadra, Uttar Pradesh for which royalty was also paid. He has
submitted that on 16.05.2016, the truck was in-route to Paliganj to
deliver stone chips to purchaser Ma Sherawali Enterprises Pvt. Ltd.,
Naubatpur, Paliganj. On demand, papers were shown to the
authorities, but they refused to go through it or even admit the
existence of the papers. He submitted that there is no report or
material to substantiate the allegation that the stone chips was of the
Fazilpur Reserve Forest Area. According to him, the allegation is
nothing but mere ipse dixit of the persons lodging the prosecution
report. He submitted that the petitioner is a petty businessman and the
truck is his only source of livelihood. According to him, no useful
purpose would be served in detaining the said vehicle. He submitted
that the power of confiscation vested in the officers of the Forest
Department, who are executive authorities, is wholly improper in
view of the principle of separation of executive and judicial power
and the law laid down by a Division Bench of this Court, vide order
dated 15.12.2016, passed in Letters Patent Appeal No. 2200 of 2016
and Letters Patent Appeal No. 2240 of 2016. He submitted that this
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Court in exercise of power under Section 482 of the Cr.P.C. can
release the vehicle even during the pendency of the confiscation
proceeding.
6. Per contra, learned Additional Public Prosecutor for the
State submitted that since the vehicle was used in commission of the
forest offence, which is liable for forfeiture, should not be released.
He submitted that in such matters, the criminal courts would have no
jurisdiction to direct for release of a seized vehicle. He submitted that
once the vehicle is seized for a reason to believe that it has been used
in committing forest offence and the seized vehicle is subjected to
confiscation proceeding upon prior intimation to the Magistrate, no
court shall have jurisdiction to order for release of such vehicle on
furnishing sureties. He submitted that in Letters Patent Appeal No.
2200 of 2016 and Letters Patent Appeal No. 2240 of 2016, the
Division Bench has not laid down any law rather it has released the
vehicle provisionally pending decision in Letters Patent Appeal No.
1647 of 2015 in which the Division Bench has formulated certain
questions and has referred them to be answered by a Larger Bench.
He contended that the reference has not been answered till date. He
contended that the mere reference does not take away or wipe out the
precedentiary value of the law laid down by the Supreme Court in
State of Karnataka vs. K. A. Kunchindammed [(2002) 9 SCC 90],
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wherein the Supreme Court set aside the order of the High Court
whereby a direction for interim release of vehicle seized in connection
with forest offence was made. He submitted that the Supreme Court
clearly laid down in the said case that the learned Magistrate and the
learned Session Judge were right in holding that it is the Authorised
Officer under „the Act‟, who is vested with power to pass order of
interim custody of the vehicle and not the Magistrate and the High
Court was in error in taking a view to the contrary and in setting aside
the orders passed by the Magistrate and the Session Judge on that
basis.
7. I have heard learned counsel for the parties at length and
carefully perused the record.
8. The arguments advanced on behalf of the parties need
examination of the relevant provisions of „the Act‟. Chapter IX of „the
Act‟ prescribes punishment and procedure in respect of offences
under the Forest Act. Section 52 of the „the Act‟ empowers forest
officers or the police officers to seize forest-produce together with all
tools, arms, boats, vehicles, ropes, chains or any other article used in
committing any such offence if they have reason to believe that a
forest offence has been committed of any forest-produce.
9. Section 53 of the „the Act‟ empowers the forest officer of
a rank not inferior to that of a Ranger to release the property seized
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on the execution of a bond by the owner for the production of the
property before the Magistrate having jurisdiction to try offences as
and when the same is required.
10. Section 54 of „the Act‟ provides that after receipt of the
report, the Magistrate is empowered to take such measures as may be
necessary for the arrest and trial of the offender and the disposal of the
property according to law.
11. Section 55 of „the Act‟ provides that all timber or forest-
produce which is not the property of Government and in respect of
which a forest offence has been committed, and all tools, boats, carts
and cattle used in committing any forest offence shall be liable to
confiscation.
12. Clause (2) of Section 55 of „the Act‟ provides that such
confiscation may be in addition to any other punishment prescribed
for such offence.
13. The State Legislature having noticed the merciless abuse
of the forest produce by unscrupulous persons in Bihar has amended
„the Act‟ by the Bihar Amendment Act 9 of 1989 (Bihar Act 9 of
1990) whereby, in place of Section 52, Sections 52 to 52-D have been
inserted in the Act. The amended provisions provide stringent
punishment under various Sections and also incorporate the provisions
for confiscation of the forest-produce, tools, vehicles, etc. used in
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commission of the forest offence by the Authorized Officer. The
amended provisions, as contained in Section 52, 52-A, 52-B, 52-C and
52-D, are extracted hereinbelow:-
"52. Seizure and its procedure for the
property liable for confiscation :-(1) When there is
reason to believe that forest-offence has been
committed in respect of any forest-produce, such
produce, together with all tools, arms, boats, vehicles,
ropes, chains or any other article used in committing
any such offence, may be seized 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 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 authorised 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 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
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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 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 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 the licence of the
arms. A copy of order on confiscation shall be
forwarded without undue delay to the Conservators
of Forests 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
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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 persons or persons to whom notice has been
issued under clause (b), a hearing on date to be fixed
for such purposes.
(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
aforesaid for commission of forest-offence.
52-A. Appeal against the order of confiscation.-
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Any person aggrieved by an order of confiscation
may, within thirty days of the order, or if the fact is of
such order has not been communicated to him within
thirty days of date of knowledge of such order, prefer
an appeal in writing, accompanied by such fee
payable in such form as may be prescribed, along
with the certified copy of order of confiscation to the
District Magistrate (hereinafter referred to as
Appellate Authority) of the District in which the
forest-produce has been seized.
Explanation.- (1) The time required for
obtaining certified copy of order of confiscation shall
be excluded while computing period of thirty days
referred to in this sub-section.
(2) The Appellate Authority referred to in
Section 52-A, may, where no appeal has been
preferred before him "suo motu" within thirty days of
date of receipt of copy of order of confiscation by
him, and shall on presentation of memorandum of
appeal issue a notice for hearing of appeal or, as the
case may be, of "suo motu" action to the officer
effecting seizure and to any other person (including
appellant, if any) who in the opinion of the Appellate
Authority, is likely to be adversely affected by the
order of confiscation, and may send for the record of
the case:
Provided that no formal notice of appeal need
be issued to such amongst the appellant, officer
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effecting seizure and any other person likely to be
adversely affected as aforesaid as may waive the
notice or as may be informed in any other manner of
date of hearing of appeal by the appellate authority.
(3) The Appellate Authority shall send
intimation in writing of lodging of appeal or about
"suo motu" action to the authorised officer.
(4) The Appellate Authority may pass such
order of "Interim" nature for custody, preservation or
disposal (if necessary) of the subject-matter of
confiscation, as may appear to be just or proper in the
circumstances of the case.
(5) The Appellate Authority, having regard to
the nature of the case of the complexities involved,
may permit parties to the appeal to be represented by
their respective legal practitioners.
(6) On the date fixed for hearing of the appeal
or "suo motu" action, or on such date to which the
hearing may be adjourned, the Appellate Authority
shall peruse the record and hear the parties to the
appeal if present in person, or through any agent duly
authorised in writing or through a legal practitioner,
and shall thereafter proceed to pass an order of
confirmation, reversal or modifications of order of
confiscation:
Provided that before passing any final order the
Appellate Authority may if it is considered necessary
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for proper decision of appeal or for proper disposal of
"suo motu" action, make further inquiry itself or
cause it to be made by the authorised officer, and
may also allow parties to file affidavits for asserting
or refuting any fact that may arise for consideration
and may allow proof of facts by affidavits.
(7) The Appellate Authority may also pass
such orders of consequential nature as it may deem
necessary.
(8) Copy of final order of order of
consequential nature, shall be sent to the authorised
officer for compliance or for passing any order
appropriate in conformity with the order of Appellate
Authority.
52-B. Petition for revision before Secretary,
Forest and Environment Department,
Government of Bihar against the order of the
Appellate Authority.-(1) Any party to the appeal,
aggrieved by final order or by order of consequential
nature passed by the Appellate Authority, may within
thirty days of the order sought to be impugned,
submit a petition for revision to the Secretary, Forest
and Environment Department, Government of Bihar.
Explanation.- In computing the period of thirty
days under this sub-section, the time requisite for
obtaining certified copy of Appellate Authority shall
be excluded.
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(2) The Secretary, Forest and Environment
Department, Government of Bihar may confirm,
reverse or modify any final order of consequential
nature passed by the Appellate Authority.
(3) Copies of the order passed in revision shall
be sent to the Appellate Authority and in the
Authorised Officer for compliance or for passing
such further order on for taking such further action as
may be directed by such Court.
(4) For entertaining, hearing and deciding a
revision under this section, the Secretary, Forest and
Environment Department, Government of Bihar shall
as far as may be, exercise the powers and follow the
same procedure as exercised and followed while
entertaining, hearing and deciding a revision under
the Code of Criminal Procedure, 1973.
(5) Notwithstanding anything to the contrary
contained in the Code of Criminal Procedure, 1973
the order passed under this Section shall be final and
shall not be called in question before the Court.
52-C. Bar of jurisdiction of Courts etc. in
certain circumstances.- (1) On receipt 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, or Tribunal or Authority (other than the
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authorised officer, Appellate Authority and Revision
Authority referred to in Sections 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 or 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-produce, then on receipt of
intimation under sub-section(4) of Section 52 by one
of the Courts of Magistrate 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.
52-D. Power of entry, inspection, search and
seizure ;-Notwithstanding anything contained in any
other law for the time being in force any Forest
Officer not below the rank of a Range Officer of
Forests 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 entry 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
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chains or any other article used in committing such
offence."
14. It would be manifest from a reading of Section 52 of the
State Amendment that no order of confiscation under sub-section (3)
of machinery, arms, tools, boats, cattle, vehicle, ropes, chains or any
other article used in committing such offence can be made if any
person referred to in clause (b) of sub-section (4) proves to the
satisfaction of the forest 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 he 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 aforesaid for commission of forest offence.
15. Section 52-A of the State Amendment provides for
appeal against the order of confiscation before the District Magistrate
of the District in which the forest-produce has been seized. The
appellate authority is vested with the power to pass an order of
confirmation, reversal or modification of the order of confiscation.
16. Section 52-B of the State Amendment provides for the
forum of revision before the Secretary, Forest and Environment
Department, Government of Bihar against final order passed by the
appellate authority. In sub-section (5) of Section 52-B, it is set out that
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notwithstanding anything to the contrary contained in the Cr.P.C. the
order passed by the revisional court shall be final and shall not be
called in question before any court.
17. Section 52-C of the State Amendment bars the
jurisdiction of the Court 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.
Section 52-C prescribes that no Court, Tribunal or Authority other
than Authorized Officer, the Appellate Authority and the Revisional
Authority referred to in Sections 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 notwithstanding anything to the contrary
contained in „the Act‟ or any other law for the time being in force.
18. Section 61 of „the Act‟ saves the power to release the
seized property. It reads as under :-
"61. Saving of power to release property seized.--
Nothing hereinbefore contained shall be deemed to
prevent any officer empowered in this behalf by the
State Government from directing at any time the
immediate release of any property seized under
section 52."
19. Thus, on a careful reading of the relevant provisions of
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„the Act‟; it would be manifest that an authorized officer upon being
satisfied that a forest offence has been committed with the use of
vehicle may confiscate the vehicle by order in writing and for reasons
to be recorded. However, the forest officer cannot order for such
confiscation unless he sends an intimation in a prescribed form about
the initiation of proceeding for confiscation of property to the
Magistrate having jurisdiction to try the offence on account of which
the seizure has been made
20. Section 52-C of the State Amendment completely bars
the jurisdiction of the Court to make orders with regard to possession,
delivery, disposal or distribution of the property seized immediately
on receipt of intimation under sub-section (4) of Section 52 of the Act
about the initiation of proceedings for confiscation. This bar is
notwithstanding any thing to the contrary contained in the Act or in
any other law for the time being in force.
21. The provisions of State Amendment discussed above,
clearly shows that once a confiscation proceeding is initiated after the
vehicle is seized for the reason to believe that it has been used in
committing forest offence upon prior intimation in prescribed form to
the Magistrate, no Court including the court of Magistrate shall have
jurisdiction to order for release of such vehicle on execution of bond
or on furnishing sureties.
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22. In State of W. B. & Ors. vs. Sujit Kumar Rana [(2004)
4 SCC 129 ], the Supreme Court while considering Section 59-G of
„the Act‟, as amended by West Bengal Act 22 of 1988, which is
identical to Section 52-C of „the Act‟, as amended by the Bihar Act 9
of 1990.
23. In that case, a truck of the respondent carrying forest
produce and said to be without transit permit was detained and seized.
Upon a report of the said seizure, show-cause notice was issued to the
respondent by the Authorized Officer as to why the vehicle shall not
be confiscated. The owner of the truck replied to the said notice,
praying for release of the same. A writ petition was filed by the
respondent thereunder under Article 226 of the Constitution of India
before the High Court of Calcutta, which was disposed of by directing
the Divisional Forest Officer to complete the confiscation proceedings
expeditiously and preferably within a period of five weeks.
Subsequently, the High Court of Calcutta passed an ex parte order
directing that the custody of the truck be given to the owner on his
executing bond to the satisfaction of the Divisional Forest Officer
with a further direction that the same would not be taken out of the
territorial limit of the State of West Bengal. The Divisional Forest
Officer filed an application for vacating the said order of the High
Court, which was rejected by the High Court. The order of the High
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Court was challenged by the State of West Bengal before the Supreme
Court.
24. After having heard the parties and examined the
provisions prescribed under Section 482 of the Cr.P.C., the Supreme
Court held that a confiscation proceeding is independent of a criminal
proceeding and once a confiscation proceeding is initiated, the
jurisdiction of the criminal court in this behalf stands excluded. It
observed as under :
"31. The said authority before passing a final
order in terms of Section 59-A (3) of the Act is
required to issue notice and give opportunity of
hearing to the parties concerned. Unless such a notice
is issued, the confiscation proceeding cannot be said
to have started. Once, however, a confiscation
proceeding is initiated; in terms of Section 59-G of
the Act, the jurisdiction of the criminal court in
this behalf stands excluded. The criminal court
although indisputably has the jurisdiction to deal
with the property which is the subject-matter of
offence in terms of the provisions of the Code of
Criminal Procedure but once a confiscation
proceeding is initiated, the said power cannot be
exercised by the Magistrate."
(emphasis mine)
25. The Supreme Court further held that the criminal court
had no power to deal with the property seized under „the Act‟. While
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saying so, it observed as under :-
"33. From a bare perusal of the
aforementioned provision, it would be evident that
the inherent power of the High Court is saved only in
a case where an order has been passed by the criminal
court which is required to be set aside to secure the
ends of justice or where the proceeding pending
before a court amounts to abuse of the process of
court. It is, therefore, evident that power under
Section 482 of the Code can be exercised by the
High Court in relation to a matter pending before
a court; which in the context of Code of Criminal
Procedure would mean "a criminal court" or
whence a power is exercised by the court under
the Code of Criminal procedure. Once it is held
that the criminal court had no power to deal with
the property seized under the Act, the question of
the High Court exercising its jurisdiction under
Section 482 of the Code of Criminal Procedure
would not arise."
(emphasis mine)
26. While concluding in State of W. B. vs. Sujit Kumar
Rana (Supra), the Supreme Court observed as under :-
"46. The upshot of our aforementioned
discussion is that once a confiscation proceeding is
initiated, the jurisdiction of the criminal court in
terms of Section 59-G of the Act being barred, the
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High Court also cannot exercise its jurisdiction
under Section 482 of the Code of Criminal
Procedure for interim release of the property. The
High Court can exercise such a power only in exercise
of its power of judicial review."
(emphasis mine)
27. In State of Karnataka vs. K. Krishnan [(2000) 7 SCC
80], while dealing with a similar provision, the Supreme Court
observed in paragraph 7 and 8 as under :-
"7. 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, cattle, etc., used in the commission of
the forest offence, which are liable to forfeiture,
should not be released. This, however, does not debar
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the officers and the authorities under the Act
including the Appellate Authority from passing
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
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offences. Its casualty will be the forests as the
same cannot be replenished for years to come.
8. The approach adopted both by the
Authorised Officer and the High Court completely
ignores the importance of the forests and the
purpose of the object for which the Act was made.
As the appellant-State has not prayed for quashing
the order of the Authorised Officer we refrain to deal
with that even though we do not approve it. We are,
however, satisfied that the High Court had
adopted a very casual approach while disposing of
the petition under Section 482 of the Code of
Criminal Procedure. Besides that the order
impugned is contrary to law, we have our
reservations with respect to the powers of the
High Court under Section 482 CrPC in the matter
which we do not express in this case."
(emphasis mine)
28. In Divisional Forest Officer & Anr. vs. G. V.
Sudhakar Rao & Ors. [(1985) 4 SCC 573], the Supreme Court
observed in paragraph 12 as under:
"12. ... The conferral of power of
confiscation of seized timber or forest produce
and the implements etc., on the Authorised Officer
under sub-section (2-A) of Section 44 of the Act on
his being satisfied that a forest offence had been
committed in respect thereof, is not dependent
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
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upon whether a criminal prosecution for
commission of a forest offence has been launched
against the offender or not. It is a separate and
distinct proceeding from that of a trial before the
Court for commission of an offence. Under sub-
section (2-A) of Section 44 of the Act, where a Forest
Officer makes a report of seizure of any timber or
forest produce and produces the seized timber before
the Authorised Officer along with a report under
Section 44(2), the Authorised Officer can direct
confiscation to Government of such timber or forest
produce and the implements etc. if he is satisfied that
a forest offence has been committed, irrespective of
the fact whether the accused is facing a trial before a
Magistrate for the commission of a forest offence
under section 20 or 29 of the Act."
(emphasis mine)
29. In State of W. B. vs. Gopal Sarkar [(2002) 1 SCC 495],
relying on the judgment in Divisional Forest Officer vs. G. V.
Sudhakar Rao (Supra), the Supreme Court observed in paragraph 10
as under :
"10. On a fair reading of the provision it is
clear that in a case where any timber or other forest
produce which is the property of the State
Government is produced under sub-section (1) and an
Authorised Officer is satisfied that a forest offence
has been committed in respect of such property he
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
25/35
may pass order of confiscation of the said property
(forest produce) together with all tools, ropes, chains,
boats, vehicles and cattle used in committing the
offence. The power of confiscation is independent
of any proceeding of prosecution for the forest
offence committed. This position is manifest from
the statute and has also been held by this Court in
Divisional Forest Officer and Anr. v. G. V.
Sudhakar Rao and Ors., (1985) 4 SCC 573 ..."
(emphasis mine)
30. In State of M. P. vs. S. P. Sales Agencies and Ors.
[(2004) 4 SCC 448], the Supreme Court had an opportunity to deal
with the question as to whether confiscation proceeding can be
initiated only after launching of the criminal prosecution or it is open
to the forest authorities upon seizure of forest-produce to initiate both
or either. Relying on the ratio laid down in the Divisional Forest
Officer vs. G. V. Sudhakar Rao (Supra) and State of W. B. vs.
Gopal Sarkar (Supra), the Supreme Court held that the power of
confiscation is independent of any criminal prosecution for forest
offence committed.
31. In State of Karnataka vs. K. A. Kunchindammed
(Supra) while dealing with the same subject-matter, in reference to the
provisions of Forest Act after noticing the purpose and scheme of „the
Act‟, the Supreme Court held that the High Court was in error in
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
26/35
taking a view to the contrary and setting aside the orders passed by the
Magistrate and the Session Judge whereby they had held that it was
the Authorised Officer under „the Act‟, who was vested with the
power to pass order for interim custody of the vehicle and not the
Magistrate. The court observed :-
"23. ... The position is made clear by the non-
obstante clause in the relevant provisions giving
overriding effect to the provisions in the Act over
other statutes and laws. The necessary corollary of
such provisions 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 thereof the general power
vested in the Magistrate for dealing with interim
custody/release of the seized materials under the
CrPC has to give way. The Magistrate while
dealing with a case of any seizure of forest
produce under the Act should examine whether
the power to confiscate the seized forest produce is
vested in the Authorised Officer under the Act
and if he finds that such power is vested in the
Authorised Officer then he has no power to pass
an order dealing with interim custody/release of
the seized material. This, in our view, will help in
proper implementation of provisions of the special
Act and will help in advancing the purpose and object
of the statute. If in such cases power to grant interim
custody/release of the seized forest produce is vested
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
27/35
in the Magistrate then it will be defeating the very
scheme of the Act. Such a consequence is to be
avoided.
24. From the statutory provisions and the analysis
made in the foregoing paragraphs the position that
emerges is that the learned Magistrate and the
learned Sessions Judge were right in holding that
on facts and in the circumstances of the case, it is
the Authorised Officer who is vested with the
power to pass order of interim custody of the
vehicle and not the Magistrate. The High Court
was in error in taking a view to the contrary and
in setting aside the orders passed by the
Magistrate and the Sessions Judge on that basis."
(emphasis mine)
32. In Shambhu Dayal Agarwala vs. State of West Bengal
[(1990) 3 SCC 549], the Supreme Court while examining the
provisions of the Essential Commodities Act, 1955, particularly
Section 6 E of that Act which bars the jurisdiction of Court, Tribunal
or Authority with regard to release of seized vehicle, vessel or other
conveyance in the commission of the offence held that Section 6 E
was enacted to debar the courts from making any order with regard to
release of any vehicle or other conveyance used in commission of the
offence.
33. The decision rendered in Shambhu Dayal Agarwala
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
28/35
(supra) has been reiterated and followed by the Supreme Court in
State of Bihar & Anr. vs. Arvind Kumar & Anr. [(2012) 12 SCC
395] in which the foodgrains of public distribution system were seized
from a place. The first information report was lodged under Sections 7
and 10 of the Essential Commodities Act as well as Sections 421 and
424 of the Indian Penal Code. The criminal writ was filed before this
Court to quash the confiscation proceeding and/or to release the
confiscated goods. By observing that keeping the seized goods for a
long time may not be justified, this Court allowed the writ petition and
directed for the release of the confiscated goods. When the petitioner
approached the court of Chief Judicial Magistrate, Patna for releasing
the goods in pursuance of the order passed by this Court by moving an
application, the learned Chief Judicial Magistrate dismissed the
application on the ground that no document was filed to prove the
ownership of the seized material. The petitioner again approached this
Court, which directed for the release of the goods. The State of Bihar,
being aggrieved by the order of release, filed an appeal before the
Supreme Court.
34. While setting aside the order of the High Court directing
the release of the goods, the Supreme Court remitted the matter back
to the High Court for fresh consideration observing that there was no
cogent material on record before the High Court on the basis of
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
29/35
which direction to release the goods so seized could be issued. It
further observed: "we are at pains to observe that the High Court
has dealt with the issue in most casual and cavalier manner
without any application of mind showing complete disregard of
the legislature enacting the provisions for general welfare". It
further observed as under :-
"What we found shocking in the instant case
is that the petition was filed before the High Court
for quashing of the FIR and alternatively for
releasing the seized items and the High Court
without giving any reason whatsoever disposed of
the petition observing as under:
"Considering the submissions of the parties,
in the opinion of the Court, continuing the
seizure of the seized items for a long time
may not be justified, at least the seizure of
the wheat."
(emphasis mine)
35. In State (NCT of Delhi) vs. Narender [(2014) 13 SCC
100], while examining the provisions of Delhi Excise Act, particularly
Sections 33, 58, 59 and 61 of that Act as also Sections 457 of the
Cr.P.C. which bars the jurisdiction of the Court from releasing the
seized vehicle used in commission of offence, the Supreme Court,
relying upon the decision in State of Karnataka vs. K. A.
Kunchindammed (Supra), set aside the judgment and order of the
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017
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High Court and held that the High Court exceeded in its
jurisdiction in directing for release of the vehicle on security.
36. In that case, a „Cruiser Force‟ vehicle bearing
Registration No. H R 56 7290 was seized by police carrying 27
cartons, each containing 12 bottles of 750 ml mashaledar country-
made liquor and 20 cartons, each containing 48 quarters of Besto
Whisky. All the 47 cartons were embossed with „Sale in Haryana
Only‟. On the basis of an information given by the police constable,
an FIR was instituted under Section 33(1)(a) and Section 58 of the
Excise Act, 2009. During the course of investigation, the respondent
Narender claimed himself to be the owner of the vehicle filed an
application for its release on security before the Metropolitan
Magistrate which was rejected, vide order dated 24.05.2011 holding
that he has no power to release the seized in connection with the
offence under the Delhi Excise Act. Aggrieved by the order of the
Magistrate, the respondent filed an application before the Delhi High
Court under Section 482 of the Cr.P.C. assailing the order of the
learned Metropolitan Magistrate. The High Court, vide its order dated
28.11.2011, directed the vehicle to be released in favour of the registered owner on furnishing security to the satisfaction of Metropolitan Magistrate. Being aggrieved by the order of the High Court, the State of Delhi preferred an appeal before the Supreme Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017 31/35 Court. Taking into consideration the provisions prescribed under Section 61 of the Delhi Excise Act, the Supreme Court held that the general power of the Magistrate under the Cr.P.C. for releasing the vehicle has to yield where a statute makes a particular provision with regard to its confiscation and disposal. Under the aforesaid circumstances, it held that the Metropolitan Magistrate was right in rejecting the application for release whereas the High Court erred in directing for release of the vehicle.
37. Thus, having regard to the fact that „the Act‟ is a special Statute for the purpose of preserving the forest and forest-produce in the State. The necessary corollary of the provisions prescribed therein 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 thereunder, the general power vested in the Magistrate of dealing with interim custody/release of seized materials under Cr.P.C. has been taken away. As seen under Section 54 of „the Act‟, the Magistrate, upon receipt of report under sub-section (2) of Section 52, is empowered to take such measures, as may be necessary for the arrest and trial of the offender and disposal of the property. According to law, he has been restricted to pass any order for disposal of property seized. No order confiscating any property shall be made unless the Magistrate having jurisdiction to try Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017 32/35 the offence on account of which seizure has been made receives an intimation provided under sub-section (4) of Section 52 of the Bihar Amendment under „the Act‟. Thus, the clear mandate of law under „the Act‟ is that once the vehicle is seized with a reason to believe that it has been used in committing an offence and seized vehicle is subjected to confiscation proceeding upon prior intimation to the Magistrate, no Court shall have jurisdiction to order for release of such vehicle on or without sureties.
38. As far as the order dated 15.12.2016 passed in Letters Patent Appeal No. 2200 of 2016, which was heard analogous with Letters Patent Appeal No. 2240 of 2016 is concerned, noticing the similar provisions of the Essential Commodities Act, as are contained in „the Act‟ and, in the light of the order passed in Letters Patent Appeal No. 1647 of 2015 (Baleshwar Roy vs. The State of Bihar & Ors.), the Division Bench has directed for provisional release of the seized vehicles pending confiscation proceeding to the satisfaction of the Authorised Officer-cum-Divisional Forest Officer, Rohtas at Sasaram on certain conditions. The Division Bench adjourned the matter to be listed after disposal of Letters Patent Appeal No. 1647 of 2015 wherein the following questions were framed vide order dated 19.19.2016 and the matter was referred to the Larger Bench for consideration :-
Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017 33/35 "(1) Whether the Collector, who has seized any animal, vehicle, vessel or other conveyance used in carrying essential commodity, has the jurisdiction to release such animal, vehicle, vessel or other conveyance, and if so, on what conditions?
(2) Whether the Separation of judicial and executive functions will empower the Collector to confiscate the animal, vehicle, vessel or other conveyance without trial as the deprivation of a property can be ordered by a Court only after trial of the criminal case? (3) Whether the provisions of Section 6-D of the Act, so as to inflict any other punishment after confiscation, would stand the legal scrutiny on the touchstone of double jeopardy.
(4) Whether the power of confiscation of the goods and the vehicle vesting with the Collector as an Executive Authority can be said to be legal in view of the principle of separation of executive and judicial power and/or that the power of confiscation of the goods and the vehicle can be exercised only by the Court."
39. It would be evident from the aforesaid order dated 15.12.2016 that no ratio has been laid down by the Division Bench in Letters Patent Appeal No. 2200 of 2016.
40. As far as the reference made by the Division Bench to the Larger Bench is concerned, the reference has not been answered by the Larger Bench till date. Hence, in the opinion of this Court, mere reference does not obliterate or extinguish the precedentiary value of Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017 34/35 the ratio laid down by the Supreme Court in the cases, discussed hereinabove.
41. At this stage, it would be apposite to refer to Article 141 of the Constitution of India which reads as under:-
"141. Law declared by Supreme Court to be binding on all courts- The law declared by the Supreme Court shall be binding on all courts within the territory of India."
42. A mere reading of Article 141 brings into sharp focus its expanse and its all pervasive nature. When the Supreme Court decides the principle, it would be binding on all the courts including the High Court.
43. Thus, in view of the law laid down by the Supreme Court in State of W. B. vs. Sujit Kumar Rana(Supra), State of Karnataka vs. K. Krishnan (Supra), Divisional Forest Officer vs. G. V. Sudhakar Rao (Supra), State of W. B. vs. Gopal Sarkar (Supra), State of M. P. vs. S. P. Sales Agencies (Supra), State of Karnataka vs. K. A. Kunchindammed (Supra), State of Bihar vs. Arvind Kumar (Supra) and State (NCT of Delhi) vs. Narender (Supra), I am of the considered opinion that allowing the application of the petitioner for release of the truck bearing Registration No. BR-25G- 3355 after initiation of the confiscation proceeding under „the Act‟ Patna High Court Cr.Misc. No.45284 of 2016 dt.21-09-2017 35/35 would not only be against the provisions of „the Act‟, as amended by the Bihar Amendment Act 9 of 1989 (Bihar Act 9 of 1990), but the same would also amount to passing an order in complete breach of the law laid down by the Supreme Court in its various judgments.
44. Accordingly, the application is dismissed.
(Ashwani Kumar Singh, J.) Kanchan/-
AFR/NAFR AFR CAV DATE 05.09.2017 Uploading Date 22.09.2017 Transmission 22.09.2017 Date