Madhya Pradesh High Court
Umashankar Usrete S/O Shri Haridas ... vs State Of Madhya Pradesh Through Its ... on 19 February, 2008
ORDER K.K. Lahoti, J.
1. This petition is directed against the order-dated 30.6.2001 in Criminal Revision No. 44/2000 by the Second Additional Sessions Judge, Seoni by which the order passed by the appellate Authority annexure P/2 dated 23.6.2000 was affirmed.
2. The learned Counsel submitted that the competent authority issued a show cause notice to the petitioner and the petitioner in reply explained that the vehicle was used without his knowledge or connivance and that all reasonable and necessary precautions were taken against the use of the vehicle for commission of any forest offence. The competent authority vide order 23.7.1999 Annexure P/1 after appreciating the evidence produced before him found that the forest produce was transported without his knowledge and connivance and he had taken all the precautions for use of the said vehicle in the forest offence. The order passed by the competent authority Annexure P/1 was challenged by the Range Officer, Kanhiwada before the Conservator of Forest, who happens to be the appellate authority under Section 52A of the Indian Forest Act, 1927. The appellate authority-issued notice to the petitioner and by reversing the finding of the competent authority found that the petitioner failed to prove that the vehicle was used without his knowledge and connivance by his servant and directed confiscation of the vehicle. The order passed by the appellate authority was assailed by the petitioner before the Sessions Judge, Seoni which was decided by order Annexure P/5 by the Second Additional Sessions Judge, Seoni on 30.6.2001.
3. Before the revisional authority, the petitioner's contention was that such appeal was not maintainable before the appellate authority as under Section 52A of the Act only an appeal is provided against an order of confiscation but the revisional Court turned down the aforesaid contention in paras 8 to 13 of the order and dismissed the revision. It is submitted that under Section 52-A of the Act, no such appeal is provided to the Range Officer. Apart from this, the Range Officer was not a person aggrieved as provided under Section 52-A of the Act. Reliance is placed to judgment of the Apex Court in Adi Pherozshah Gandhi v. H.M.Seervai and submitted that this petition be allowed and the orders passed by the Revisional Court and the appellate authority may be set aside.
4. The learned Counsel appearing for the State opposed the aforesaid contention and submitted that under Section 52A of the Act, the appellate authority was rightly approached by respondents by filing an appeal. The appellate authority was having jurisdiction under Section 52A of the Act to entertain and decide the appeal against an order releasing the property in confiscation proceedings.
5. To appreciate rival contentions of the parties, the legal position in this regard may be seen. Section 52-A of the Act reads as under:
52-A. Appeal against order of confiscation (1) Any person aggrieved by an order of confiscation may, within thirty days of the order, or if fact 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 and payable in such form as may be prescribed, and by certified copy of order of confiscation to the Conservator of Forests of the forest circle in which the forest produce, has been seized.
Explanation.-(1) The time requisite 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 Sub-section (1), may, where no appeal has been preferred before him, "suomotu" 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 "suomotu" 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 record of the case:
Provided that no formal notice of appeal need be issued to such amongst the appellant, officer-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.
The aforesaid provision specifically provides that an appeal is provided against an order of the confiscation within 30 days from the date of the order. Sub-section (2) also provides 'suo motu' power to the appellate authority to take cognizance against the order of confiscation, but Sub section (1) or Sub section (2) does not provide any appeal against an order releasing the property from seizure.The legislation has specifically provided an appeal against an order of confiscation and has not provided an appeal against an order of release of the property from seizure.
6. The appeal is a creature of the statute and until and unless such appeal is provided under the Act, the appellate authority was having no jurisdiction to entertain an appeal filed by Range Officer, Kanhiwada. A Division Bench of Orissa High Court in the case of Rajkishore Mohanty v. Sate of Orissa: AIR 1999 Orissa 37 considering the similar situation held that the Conservator of Forest should have exercised that power either suo motu or on an application, in case where order of 'confiscation' is made by authorized officer and when the authorized Officer has ordered release of the seized goods/vehicle on payment of fine, it is an order of 'non confiscation'. Hence the appeal was not maintainable before the Conservator of Forest.
7. The language of Section 52-A of the Act is very clear and it is not necessary for this Court to take help of any other statute to decide the controversy between the parties. But for the sake of reference, it may be mentioned here that under the Contempt Courts Act, 1971, Section 19 provides an appeal from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt, but in case, no punishment is awarded or the proceedings are closed, no appeal can be entertained against dismissal of the proceedings. If the Court comes to its conclusion that there is no violation of its order by the contemner and refused to take any action against the contemner for the alleged disobedience, such order of refusal is not appealable under Section 19 of the Act. The apex Court in D.N.Taneja v. Bhajan Lal 1988 (5) SCC 26 considering the question held that right to appeal under Section 19 of the Contempt of Courts Act, 1971 is available only when High Court in exercise of its jurisdiction imposes punishment on the contemner, but dismissal of the contempt application by High Court does not amount to exercise of its jurisdiction for contempt within the meaning of Section 19(1) and hence the appeal would not lie and a remedy by way of appeal under Article 136 of the Constitution is open in such case. Section 52-A of the Act specifically provides an appeal against an order of confiscation and no appeal is provided if the property is released or confiscation proceedings are dismissed. The language of Section is very clear and there is no scope for filing an appeal against such an order. When the statute specifically has not made any provision for filing an appeal against the order dismissing the proceedings, then such an appeal cannot be filed before the appellate authority under Section 52-A of the Act.
8. The person aggrieved would mean a person who has suffered legal injury or one who has been deprived with something which he would have entitled to obtain in the usual course. In the present case, the Range Officer who initiated proceedings for confiscation of the vehicle under Section 52 of the Act may be a person aggrieved, but was not entitled to file an appeal under Section 52-A of the Act. As such, an appeal has not been provided under Section 52-A of the Act, hence the appellate authority erred in entertaining the appeal filed by the Range Officer. The Revisional Court also erred in not considering the aforesaid objection raised by the petitioner in proper perspective. The Revisional Court ought to have taken cognizance in the matter and should have considered the aspect in the light of the specific provision under Section 52-A of the Act.
9. In the result, the orders passed by the appellate Court (Annexure P/2) and the Revisional Authority (Annexure 5) are not sustainable under the law and both the orders are hereby quashed. As this Court has found that the appeal itself was not maintainable before the Conservator of Forest, so it is not necessary in this petition to deal with other contentions of the petitioner. This petition is accordingly allowed. The vehicle of the petitioner be released forthwith by the respondents. No order as to cost.