Himachal Pradesh High Court
Rakesh Kumar vs State Of H.P. & Another on 21 October, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 490 of 2019 Reserved on: 01.10.2019 Decided on: 21.10.2019 .
_____________________________________________________________________ Rakesh Kumar ...Petitioner.
Versus State of H.P. & another ...Respondents.
Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. O.C. Sharma, Advocate.
For the respondents/State: Mr. Shiv Pal Manhans and Mr. P.K. Bhatti, Additional Advocates General, with Mr. Raju Ram Rahi, Deputy Advocate General.
_____________________________________________________________________ Chander Bhusan Barowalia, Judge The present petition is maintained by the petitioner under Section 482 Cr.P.C. against order dated 11.03.2019, passed by learned Authorized Officer-cum-Divisional Forest Officer, Nalagarh, and against order dated 22.07.2019 passed by learned Additional Sessions Judge, Nalagarh, District Solan, H.P. in Criminal Revision No. 54-NL/10 of 2019.
2. The facts giving rise to the present petition can be summarized as under:
As per the petitioner, on 11.09.2017, Shri Gurdev Singh, the then Forest Guard, Incharge, Dharampur Beat, Dharampur Block of Baddi Range alongwith Shri Bhagat Ram, Forest Worker, came to 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -2-
know about illicit felling of 13 khair trees in Retwali DPF C-1e along the roadside of Chhalondewali road. Ten logs were taken into possession, as rest of the timber was missing from the spot. The matter was reported to the police by the Forest officials, vide letter No. .
227/B, dated 12.09.2017, and SHO, Police Station Barotiwala registered FIR No. 113/2017, dated 13.09.2017, under Sections 379, 411 IPC and Section 33 of the Indian Forest Act. The recovered logs of timber were taken into possession and the same were handed over to Shri Ravi Kant, the then Forest Guard, Incharge Baddi Beat. During further investigation, 24 fresh stumps of Khair were found, so the police were informed and suspicion was on Shri Ramesh Chand, resident of village Chhalondewali, from whom 104 logs of khair were recovered. Police conducted thorough investigation and analyzed the call details of Shri Ramesh Chand, which revealed that his mobile location was around the site from where the said trees were felled on 9th and 10th September, 2017. One Ram Partap disclosed that he saw S/Shri Dila Ram, Desh Raj, Ramesh Chand and Raj Kumar while they were felling the trees. Thus, the police called these persons to the police station, where they admitted that they felled the trees. During the course of investigation it was unearthed that illicitly felled trees were transported through Pickup, having registration No. HP12A-
8401, owned by Shri Rakesh Kumar (petitioner herein). As the petitioner was found involved in the alleged offence, he was arrested ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -3- on 20.01.2018 and the petitioner gave demarcation of M/s Orient Herbs Ltd. Plot No. 97, Baddi, where Khair wood was unloaded from his pickup. The petitioner also got demarcation of the spot by the police in Retwali DPF from where the Khair wood of illicitly felled trees .
was loaded in his pickup by Shri Ramesh Chand and others.
Subsequently, the vehicle of the petitioner, i.e., pickup having registration No. HP12A-8401, was taken into possession alongwith its documents and its custody was handed over to learned Authorized Officer-cum-DFO, Nalagarh Division. The seized timber, i.e., 139 logs of Khair, were entrusted in the custody of Forest Officials and the police submitted final report. The petitioner moved an application before the learned Authorized Officer-cum-DFO Nalagarh for release of his vehicle, i.e., pickup having registration No. HP12A-8401, but the same was dismissed, vide order dated 11.03.2019. Precisely, the application was dismissed on the ground that the petitioner is habitual offender. As per the petitioner, he was neither made accused in the FIR nor he was apprehended while allegedly transporting the forest produce in vehicle having registration No. HP12E-7827. The petitioner preferred a criminal revision before the learned Additional Sessions Judge, Nalagarh, but the same was also dismissed, vide order dated 22.07.2019, hence the petitioner preferred the present petition laying challenge to the impugned orders passed by the learned Authorized Officer-cum-DFO, Nalagarh and by the learned ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -4- Additional Sessions Judge, Nalagarh. Mainly, the petitioner has based his claim that his vehicle, having registration No. HP12A-8401, was not found transporting the alleged forest produce, so the vehicle has been wrongly confiscated. As per the petitioner, the vehicle is .
losing its value, as since January, 2018, it is parked in open campus of DFO, Nalagarh, and is exposed to rain and sunlight. He has alleged that the learned Authorized Officer and also learned Additional Sessions Judge, Nalagarh, did not appreciate the fact that the petitioner was not apprehended transporting the alleged seized forest produce, i.e., 139 khair logs in his vehicle, having registration No. HP12A-8401. The petitioner was only involved by the police at the instance of accused Dila Ram, Desh Raj, Ramesh Chand and Raj Kumar in FIR No. 113 of 2017, but the learned Authorized Officer and also the learned Additional Sessions Judge, failed to appreciate this fact. In the above backdrop, the petitioner is seeking release of his vehicle by allowing the present petition and by setting aside the impugned orders.
3. The respondents/State by filing reply to the petition refuted the contentions raised by the petitioner. Succinctly, the respondents alleged that the matter is pending adjudication before the learned Authorized Officer, so the petition is liable to be dismissed. As per the respondents, the petitioner has not come to the Court with clean hands. The respondents contended that the learned Additional ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -5- Sessions Judge has dismissed the appeal preferred by the petitioner against the impugned order dated 11.03.2019 passed by the learned Authorized Officer, on the ground of having no jurisdiction to hear the interim application under Section 52A of the Indian Forest Act.
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Lastly, the respondents pray that the petition may be dismissed, as it has no merits.
4. Heard. The learned Counsel for the petitioner has argued that police did not find the involvement of the vehicle of the petitioner in the alleged offence, as no forest produce was recovered from the vehicle. The petitioner was involved by the police at the instance of the accused persons and during the course of investigation the involvement of the vehicle of the petitioner was not clearly found. He has further argued that the vehicle of the accused has been confiscated without sufficient evidence and the same is made to park in the campus of DFO Nalagarh. Due to rain and sunlight the vehicle is losing its value, as the same has not been used since January, 2018. Lastly, he has argued that the impugned orders passed by the learned Authorized Officer and by the learned Additional Sessions Judge, be set aside and the vehicle of the petitioner may be ordered to be released by allowing the present petition. In order to support his arguments, he has placed reliance on some judicial verdicts of the Hon'ble Supreme Court as well as of different High Courts.
::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -6-5. On the other hand, the learned Additional Advocate General has argued that the police found the involvement of the vehicle of the petitioner in the alleged offence, so his vehicle was confiscated. He has further argued that the vehicle has been rightly .
confiscated under the relevant provisions of law and the learned Authorized Officer has rightly dismissed the application for release of the said vehicle. He has argued that the learned Revision Court has no jurisdiction to release the vehicle in an appeal, so preferred by the petitioner, so the order, dismissing the revision, is also within the confines of law and needs no interference. He has argued that the vehicle of the petitioner was allegedly used in transporting the forest produce, so it is required to be confiscated. He has argued that keeping in view the involvement of the vehicle of the petitioner, the same may not be released and the present petition may be dismissed.
6. At the very outset, it would be apt to highlight Section 52 of the Indian Forest Act, 1927, which reads as under:
"52. Seizure of property liable to 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, boats, carts or cattle 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, make a ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -7- 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 .
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.
STATE AMENDMENTS ......
Himachal Pradesh.-In Section 52, in sub-
section(1),-
(1) For the words 'carts', substitute the word "vehicles".
[Vide Himachal Pradesh Act 25 of 1968, sec. 4 (w.e.f. 17-2-1968).] (2) For sub-section (2), substitute the following sub-sections, namely:-
"(2) Any Forest-Officer or Police-Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of timber (excluding fuelwood) resin, khair wood and katha in respect of which is forest-offence has been or is being committed, require the driver or other person-in-charge such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person-in-charge of the vehicle.
(3) Every Officer seizing any property under this section shall place on such property a mark indicating that the same has been seized, and shall, as soon as may be, make a report of such seizure-::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -8-
(a) Where the offence, on account of which the seizure has been made, is in respect of timber (excluding fuelwoood), resin, khair wood and katha which is the property of the State Government, to the concerned authorized officer under sub-
.
section (1) of Section 52A; and
(b) In other cases, to the Magistrate having jurisdiction to try the offence on account of which the seizure is made."
In view of the above, it would be necessary to also highlight Section 52A as amended by the State of Himachal Pradesh, which is as under:
"Himachal Pradesh.- After section 52, insert the following sections, namely:-
"52A. Confiscation by Forest Officers in certain cases.-(1) Notwithstanding anything contained in this Chapter, where a forest-
offence is believed to have been committed in respect of timber (excluding fuelwoood), resin, khair wood and katha, which is the property of the State Government, the officer seizing the property under sub-section (1) of section 52 without any unreasonable delay produce it, together with all tools, ropes, chains, boats or vehicles used in committing such offence before an officer, authorized by the State Government in this behalf, by notification in the Official Gazette, not below the rank of an Assistant Conservator of forests (hereinafter referred to as the authorized officer).
(2) Where an authorized officer seizes under sub-section (1) of section 52 any timber (excluding fuelwood) resin, khair wood and katha, which is the property o the State Government, or where any such property is produced before an authorized officer under sub-section (1), once he is satisfied that a forest-offence has been committed in respect of such property, such authorized officer may, ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP -9- whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property so seized together with all tools, ropes, chains, boats or vehicles used in committing such offence.
(3)(a) Where the authorized officer, after .
passing an order of confiscation under sub-
section (2), is of the opinion that it is expedient in the public interest so to do, he may order confiscated property or any part thereof to be sold by public auction.
(b) Where any confiscated property is sole as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under section 52A is set aside or annualled by an order under section 59 or section 59A, be paid to the owner thereof or the person from whom it was seized as may be specified in such order."
[Vide Himachal Pradesh Act 15 of 1991, sec. 5 (w.e.f. 24-7-91).]
7. After harmonious reading of Section 52 and Section 52A (as amended by the State of Himachal Pradesh) coupled with the facts of the case, it is clear that Section 52 of the Act postulates that seizure of some 'forest produce' has to be effected from the confiscated vehicle, but in the instant case police did not find or recover any 'forest produce' from the vehicle of the petitioner. It has come on record that the vehicle of the petitioner was only involved by the police, as the accused persons stated that earlier they transported the logs in his vehicle. Thus, the key ingredient of recovery of 'forest produce' is missing, as the police or the forest officials did not effect any recovery ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP
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of forest produce from the vehicle of the petitioner and in fact it can be said that no forest offence qua 'forest produce' exists against the present petitioner, so there is no plausible and acceptable justification for confiscation of the vehicle of the petitioner by the learned .
Authorized Officer. The Hon'ble Supreme court in State of Kerala & another vs. P.V. Mathew (Dead) by LRs, AIR 2012 Supreme Court 1502, has held as under:
"8. ...................In the instant case, neither any property was seized from the car nor had any seizure taken effect as provided under sub-section (1) of section 52. Inasmuch as seizure under Section 52 of the Act has not taken place and no forest offence in respect of "forest produce"
is shown to have been committed or r established in the case, there is absolutely no justification for the seizure and the order of confiscation of the aforesaid car is beyond the jurisdiction of the authorized officer. ......."
Thus, a combined reading of the settled position of law and the facts of the instant case compels this Court to hold that police or forest officials did not effect any recovery from the vehicle of the petitioner, which is mandatory for Section 52 of the Indian Forest Act, so the confiscation of the vehicle of the petitioner, i.e., pickup having registration No. HP12A-8401, by the learned Authorized Officer has no reasonable justification. True it is that the Act empowers the Authorized Officer to proceed in accordance with law and the power to confiscate a vehicle lies with the Authorized Officer.
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8. The record demonstrates that vehicle of the petitioner was only involved when the accused persons stated that the vehicle was earlier engaged by them for transportation of logs. It has come in the investigation that the petitioner got demarcation of the spots from .
where he loaded and where he unloaded the logs. All these are assumptions and suppositions which might have happened do not prove that from the vehicle of the petitioner some forest produce was recovered either by the police or by the forest officials. So, in the absence of any substantial or concrete evidence, just on the basis of assumptions and suppositions, the vehicle of the petitioner was confiscated and its custody is still with the learned Authorized Officer.
The learned Authorized Officer held that the petitioner is habitual offender and he was previously involved in a case FIR No. 95 of 2017, dated 15.05.2017, under Sections 379 read with Section 34 IPC and Sections 32, 33, 41 and 42 of the Indian Forest Act. It is settled law that every criminal offence has very less or no bearing on another criminal offence and it is absolutely wrong that two or more different criminal offences are inseverable. Every criminal offence is different from another and merely on the basis that the petitioner was previously involved in a case under the Indian Forest Act and on the basis that the accused persons named the petitioner, the vehicle of the petitioner was confiscated. In fact, the available material has nothing to demonstrate that any forest produce was recovered from ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP
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the vehicle of the petitioner or the vehicle was actively involved in transporting the forest produce in the alleged offence.
9. The Madhya Pradesh High Court in Shyambabu Kirar vs. State of M.P. & others, AIR 2016 Madhya Pradesh 28, has .
held under:
"8. As noticed, the bone of contention of the petitioner is that section 52 cannot be involved for seizure of tractor unless offence has been committed in respect of any forest produce. Admittedly, the allegation against the petitioner is confined to the fact that he was cultivating the reserved forest land. There is no allegation against him that any forest produce is found in or brought from the forest by the petitioner.
This is not the case of the respondents that any timber, r charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres, standing agricultural crop and roots of sandalwood and rosewood etc. have been found in possession of the petitioner. The only allegation is that he was cultivating the forest land. Section 52 makes it clear that a seized property can be confiscated when forest offence has been committed in respect of any forest produce. The respondents have failed to show that the offence committed by the petitioner is in respect to any forest produce. Thus, respondents have clearly erred in confiscating the tractor. Petitioner, no doubt, is liable for penalty for an offence mentioned in section 33(1)(c) of the Forest Act but for this reason his vehicle cannot be confiscated unless it is established that such forest offence has been committed in respect of any forest produce.
9. In P.V. Methew, (AIR 2012 SC 1502) (supra), the Apex Court opined that in the instant case, neither any property was seized from the car nor any seizure had taken place as ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP
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provided under sub-section (1) of Section 52. The Apex Court, thus held that inasmuch as seizure under Section 52 of Act has not taken place and no forest offence in respect of a "forest produce", is shown to have been committed or established in the case, there is absolutely no .
justification in passing the order of confiscation of the vehicle. It is beyond the jurisdiction of the authorized officer.
10. As analyzed above, I find force in the contention of Shri Vilas Tikhe, learned counsel for the petitioner.
As per the language employed in Section 52 of Forest Act (M.P. Amendment) the confiscation can take place when forest offence has been committed in respect of any forest produce. This provision has escaped notice of the court below.
Resultantly, the orders are required to be interfered with.
11.r In the result, the impugned orders to the extent petitioner's tractor was confiscated are set aside. Liberty is reserved to the respondents to take penal action against the petitioner for violating Section 33(1)(c) of the Act. The tractor of the petitioner be released forthwith."
Again, it is reiterated by the Madhya Pradesh High Court that Section 52 of the Act can only be invoked for seizure of a vehicle when offence has been committed in respect of any forest produce. In the case in hand, the respondents have failed to connect the petitioner and his vehicle, which is confiscated, with forest produce. Therefore, the confiscation of the vehicle of the petitioner is bad in the eyes of law.
10. Our own High Court in Kashmir Singh vs. State of H.P., 2010(2) Shimla LC 75, has held as under:
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"6. A bare reading of the above amended provision insofar as confiscation of a vehicle under Section 52(A) of he Indian Forest Act, makes it clear that the prosecution is required to satisfy two conditions; (i) there must be notice in writing given to the registered owner of the vehicle, if .
practicable; and (ii) the vehicle must be found to have been used for illicit transportation of forest produce with the connivance or knowledge of the owner or his agent. The purpose of issuance of notice to the registered owner is to afford him an opportunity to explain his position regarding the use of the vehicle and to show-cause to the contrary in case he establishes that he has no knowledge or connivance for committing the said offence, the vehicle cannot be confiscated.
7. As already stated above, it is imperative to the Authorized Officer to issue show-cause notice and r mention in it the substance of such allegation against that person, it is in that eventuality, the registered owner is under obligation to plead and prove that he had no knowledge and not connived to commit the forest offence.
8. .... .... .... .... .... ....
9. There is no element of evidence, prima-facie showing that the offence in question was committed with the connivance or knowledge of the petitioner herein, nor there is any reference to this effect in the show-
cause notice aforesaid. Virtually, there was no material/evidence concerning the requisite knowledge and/or the connivance of the owner.
The version of the petitioner given before the Authorized Officer that the offence was not committed with his knowledge or connivance, stands fully proved. Thus conclusion arrived at by the Authorized Officer and also in appeal by the learned Additional Sessions judge, is highly illegal and has caused the failure of justice, therefore, the confiscation ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP
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order is unsustainable and liable to be set-aside."
Thus, there is a plethora of judgments which clearly settle the law that under Section 52 of the Indian Forest Act the vehicle which is .
confiscated or is to be confiscated must be found to have been used for illicit transportation of forest produce, but in the instant case the record nowhere reflects that from the vehicle of the petitioner any forest produce was recovered. The record also nowhere points out that the vehicle of the petitioner was being used for transportation of the forest produce. Only on the basis of allegations of the accused persons, which, at this stage, do not have evidentiary support, the vehicle of the petitioner cannot be kept confiscated.
11. After profoundly discussing the material which has come on record and testing the same on the touchstone of settled position of law, this Court deems it safe to hold that the learned Authorized Officer has wrongly dismissed the release application of the petitioner and in sequel thereto the petitioner (owner of the vehicle) was expected to prefer revision petition before the learned Appellate Court, which he did. So, the petitioner has rightly approached the learned Revision Court against the rejection of his application seeking release of the vehicle by the learned Authorized Officer. Though, the learned Revision Court dismissed the appeal of the petitioner, solely on the ground that it has no jurisdiction to entertain such an appeal. The learned Revision Court based the findings of its order on the decision ::: Downloaded on - 22/10/2019 20:25:06 :::HCHP
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of Co-ordinate Bench of this Court rendered in State of Himachal Pradesh vs. Prakash Chand, Criminal Revision No. 380 of 2015, decided on 17.04.2017, and also extracted the relevant portion of the judgment, which reads as under:
.
"10. ................This court see substantial force in the arguments having been made by Mr. P.M. Negi, Additional Advocate General, that there is no jurisdiction vested in Sessions Judge/Additional sessions Judge to order interim release of vehicle involved in a case, because order, if any, could be passed only by court, which had taken cognizance of the chargesheet filed by the police pursuant to FIR registered. But, in the instance case, since application filed under Section 52A of the Act ibid was rejected by Authorized Officer-cum-Divisional Forest Officer, r remedy, if any, against dismissal of same was to file criminal appeal before Sessions judge, and as such, respondent/owner rightly approached the Sessions judge/Additional Sessions judge, against rejection of his application. But, as has been observed above, application, if any for release of vehicle could have been made by the respondent/owner before in the court, before whom, police had presented challan in the case."
Without delving into this issue deeply, this Court finds no infirmity in the order passed by the learned Revision Court. This Court finds that the learned Revision Court had no jurisdiction to release the vehicle of the petitioner. However, the petitioner resorted to the best available recourse, that is, filing a revision petition before the learned Revision Court.
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12. After examining the matter meticulously and what has been discussed hereinabove, this Court deems it fit and apt, especially in view of settled position of law, that the vehicle of the petitioner, i.e., pickup, having registration No. HP12A-8401, is required to be released .
to the petitioner. So, the petition is allowed and respondent No. 2 (Authorized Officer-cum-Divisional Forest Officer, Nalagarh, Forest Division, Nalagarh, District Solan, H.P.) is directed to release the vehicle of the petitioner on superdari after taking surety bonds to his satisfaction.
13. Needless to say that the observations made hereinabove shall not be construed to have expressed an opinion on the merits of the case. The competent authority shall adjudicate the main case on its own merits and this order shall have no bearing on it.
(Chander Bhusan Barowalia)
21st October, 2019 Judge
(virender)
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