Baldeo Yadav vs The State of Bihar and Others

S.N. Jha, J.—In this writ petition the Petitioner has questioned the validity of the order of the Divisional Forest Officer, Hazaribagh, in confiscation case No. 3 of 1995 and the appellate order of the District Magistrate, Bokaro, in Case No. 12 of 1995, as contained in Annexures 3 and 4, whereby the vehicle of the Petitioner bearing registration No. BRY 8093 has been confiscated. By the said orders, the forest produce kept on the vehicle has also been confiscated. However, as the Petitioner claims to be owner of only vehicle his grievance is confined to the confiscation of the vehicle alone. The point urged is that the vehicle (and the goods) have been confiscated u/s 52 of the Indian Forest Act, 1927, but in view of the provisions of Section 32 of the Bihar Forest Produce (Regulation of Trade) Act, 1984 (in short ''the Regulation of Trade Act'') the provisions of the Forest Act are not applicable and, therefore, the impugned confiscation proceeding and the order passed therein must be held to be without jurisdiction.

Section 32(1) provides:

Nothing contained in the Indian Forest Act, 1927 (XVI of 1927) shall apply to specified forest produce in respect of matters for which provision are contained in this Act.

It has been pointed out that Shisham (Dalbergai sissoo) is specified timber vide entry 1(vi) of the schedule to the Regulation of Trade Act. The contention of the counsel is that the provisions of the Forest Act are totally inapplicable to all specified forest produce described under various entries in the aforesaid schedule. In support of the contention reliance has been placed on a Bench decision of this Court in the case of Kedar Sao and Anr. v. State of Bihar 1995 (1) ECC 328. It has been brought to my notice by the counsel for the State that the operation of the aforesaid judgment of this Court has been stayed by the Supreme Court in S.L.P (Cr.) Nos. 3651 and 3734 of 1994. He urged that the Petitioner can not take advantage of the aforesaid judgment on account of the interim order of the Supreme Court.

The point for consideration is whether in view of the provisions of Section 32 of the Regulation of Trade Act the provisions relating to confiscation as contained in the Forest Act are inapplicable to specified forest produce mentioned in its schedule.

The argument of the counsel for the Petitioner is that once a forest produce is specified and included in the schedule of the Regulations of Trade Act the provisions of the Forest Act as a whole are inapplicable to it. But from bare perusal of Section 32 it would appear that what is inapplicable is provision(s) in respect of matters for which provisions are contained in the Regulations of Trade Act. The words "in respect of matters" provide the key to Section 32. The emphasis is not on "specified forest produce" but on "the matters for which the provisions are contained in this Act."

The Regulations of Trade Act has been enacted and provides for creation of State monopoly in the trade of forest produce. Section 5 provides that on the issuance of notification under Sub-sections (3) and (4) of Section 1 enforcing the provisions of the Act with respect to any area of the forest produce, no person other than those mentioned in that section shall purchase, transport, import or export the items of forest produce specified there in such area. They also contain penal provisions in cases of contravention of the provisions of the Act. There are also provisions regarding entry, search and seizure. In course of search and seizure, if any contravention is detected the Forest Officer can make a report to the magistrate. There are however no provisions regarding confiscation of the seized produce. The Forest Act, on the other hand, contains provisions regarding confiscation of the seized forest produce together with tools, arms, boards, vehicles etc. as well as prosecution of the offender. In Divisional Forest Officer and Another Vs. G.V. Sudhakar Rao and Others, while dealing with the provisions of the A.P. Forest Act, the Apex Court has held that the penal provisions regarding search, seizure and prosecution are subject to the provisions regarding confiscation and where the proceeding for confiscation has been initiated, the criminal court has no jurisdiction to pass any order of release of the seized goods etc. There can not be any doubt, therefore, that confiscation and prosecution, are two distinct "matters". In the Regulations of Trade Act there are provisions regarding seizure and prosecution. but there is no provision regarding confiscation, unlike the Forest Act. In other words, where an offender is to be prosecuted for having contravened the provisions of Regulation of Trade Act, it is the provisions of that Act which will be applicable as provisions regarding prosecution are contained thereunder, and not the provisions of Forest Act. But if the goods etc. are sought to be confiscated in the absence of any corresponding provisions regarding confiscation in the Regulations of Trade Act, it is provisions as contained in Section 52(4), 52A etc. which will be applicable. This, in my opinion, is the true import and construction of the provisions of Section 32 of the Act. I am fortified in my view by a judgment of this Court in the case of Md. Akhtar and Ors. v. State of Bihar Cr.W.J.C. No. 567 of 1994 (R) and analogous cases, disposed of on 26.5.95 reported in Mohd. Mokhtar Ahmad @ Mohd. Mokhtar Vs. State of Bihar and Others, The point, urged on behalf of the Petitioner, for the reasons stated above, has therefore, no substance.

This application is, accordingly, dismissed.