Bahadur Singh vs State of C.G. and Others

Prashant Kumar Mishra, J.�Petitioner has called in question the order passed by the Prescribed Authority-cum-Sub-Divisional Officer (Forest), Sub-Division, Chowki, District Durg. Confiscating the Matador bearing registration No. CG 07 ZB 1135. Petitioner is also aggrieved by the appellate order passed by the Conservator of Forest, Durg on 3-12-2005 and the order passed by Second Additional Sessions Judge, Durg, whereby his appeal and revision has also been dismissed. Facts of the matter, briefly stated, are that at about 4 a.m. on 24-7-2004, petitioner''s vehicle was stopped by Forest Guard Shri Shankar Prasad Tiwari near Village Harratola (Kalartola) on suspicion that the vehicle is involved in illegal transportation of forest produce. The Forest Guard conducted search and seizure operation and prepared seizure memo for affecting seizure of 22 pieces of teakwood measuring 3 cubit meters. POR No. 3376/05 was registered on the same day, inquest was prepared and thereafter, show-cause notice was issued to the petitioner after drawing proceeding for confiscation of the four wheeler, a two wheeler which was also seized and the teakwood.

The Prescribed Authority completed the proceeding and passed an order confiscating the Matador. It was found that the Matador was involved in transportation of teakwood without any lawful authority. Appeal preferred by the petitioner and his revision applications have also been dismissed.

A short question has been raised by learned Counsel for the petitioner that the search and seizure was conducted by the Forest Guard who was not authorised to affect seizure in view of the provision of Section 15(3) of the Chhattisgarh Van Upaj (Vyapar Viniyarnan) Adhiniyam, 1969 (for short "the Adhiniyam"), therefore, the entire proceeding is vitiated.

Learned--State Counsel would submit that the Forest Guard only inspected the vehicle but the search and seizure was carried out by the Range Officer and it is the said Range Officer who sent information to the superior officers as required under Section 15(3) of the Adhiniyam.

The provision contained under Section 15 of the Adhiniyam reads thus:--

"15. Search and seizure of property liable to confiscation and procedure therefore.--(1) Any Forest Officer as may be notified by the State Government or any Police Officer not below the rank of an Assistant Sub-Inspector or any other person authorised by the State Government may, with a view to securing compliance with the provisions of this Act or the rules made thereunder or to satisfying himself that the said provisions have been complied with:--

(i) stop search any person, boat, vehicle or receptacle used or intended to be used for the transport of specified forest produce;

(ii) enter and search any place.

(2) When there is reason to believe that any offence under this Act has been committed in respect of any specified forest produce, (any Forest Officer as may be notified by the State Government or any Police Officer not below the rank of any Assistant Sub-Inspector) or any person authorised by the State Government in this behalf may, seize such specified forest produce along with all tools, boats, vehicles, ropes, chains or any other articles used in committing such offence under the provisions of this Act."

On a reading of the provision contained in Section 15 of the Adhiniyam, as quoted above, it would be manifest that the search and seizure of the vehicle and the specified forest produce is to be conducted by any Forest Officer as may be notified by the State Government. The State Government has issued a notification dated 26-12-1990 authorising all the Forest Officers for the purposes of Section 15 of the Adhiniyam.

In the case in hand, the original record of the case would indicate that the search and seizure was made by Shri Shankar Prasad Tiwari, a Forest Guard. Concededly, a Forest Guard is not a Forest Officer, therefore, the search and seizure conducted by him is not by a Forest Officer authorised to do so under the notification dated 26-12-1990.

In taking the above view, I am forfeited by a judgment passed by Madhya Pradesh High Court in Ramlal Vs. State of Madhya Pradesh, .

It is settled law that if the statute provides for a particular act to be performed by particular officer and the manner of doing such thing is also provided, the act has to be done by the person authorised and in the manner and not otherwise.

In the matter of Meera Sahni Vs. Lt. Governor of Delhi and Others, , the Supreme Court has held thus in Para 35:--

"35. It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection, we may appropriately refer to the decision of this Court in Babu Verghese v. Bar Council of Kerala, wherein it was held as under:

''31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, who stated as under:--

''where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.''

This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law."

For the foregoing, this Court is of the considered opinion that the search and seizure giving rise to initiation of proceeding being by an incompetent person, the entire confiscation proceeding is vitiated. Consequently, the impugned order (Annexure P-1) deserves to be and are hereby quashed.