Devaki Nandan vs State of U.P. and Sri Virendra Kumar Forest Gaurd, Chakar Nagar Range, Forest Division

Shiv Shanker, J.—This writ petition has been filed for quashing the impugned order dated 6.7.07 passed by Additional Sessions Judge Court No. 2 Etawah.

Heard learned Counsel for the petitioner and learned A.G.A. as well as perused the whole record.

Learned Counsel for the petitioner has submitted that the petitioner is owner of truck no. RJ 05/G-3764 in question and it was not involved in any criminal case. He has no knowledge regarding involvement of any criminal case but his truck has been falsely implicated in this case, for which the F.I.R. was lodged on 8.3.05 against the alleged Truck driver Mahesh Chandra and other persons under Sections 52(a) and 26 of Indian Forest Act(U.P. Amendment Act) and u/s 21, 22, 37 of Restraint of Air Polution and Environmental Act and under Rule 3/28 of U.P. Avivahan Niyamavali 1973 and Section 41/42 of Indian Forest Act. It is further contended that he got information on 8.3.05 that his truck has been retained due to loading of forest material. Thereafter he reached at police station and found his truck standing which was confiscated by the police. Thereafter, release application was moved by the petitioner being owner of truck in question, The same was allowed and order was passed to release truck in favour of the petitioner with certain conditions. Tnereaiter, the State Government filed a criminal revision No. 129/05 in the Court of Sessions Judge, Etawah. The same was allowed and impugned order passed by the concerned magistrate to release the vehicle in question was set aside. It was directed to deliver the truck in question to the Forest Officer within two months. It is further contended that jurisdiction of the criminal court has not ousted in the offence committed under the Indian Forest Act etc. Therefore, the concerned magistrate has passed the impugned order having jurisdiction to decide the release application but the revisional court has committed illegality in passing the impugned order and considering that the concerned magistrate has no power to decide the release application of the petitioner. In such circumstances, the writ petition is liable to be allowed.

Learned A.G.A. has urged that the release application was allowed by the concerned magistrate regarding truck in question who was involved in the offence of Indian Forest Act etc. The concerned magistrate was not empowered to consider the release application. Therefore revisionaI court has passed the impugned order according to law.

There is no dispute that truck in question was detained by the Forest Department when the forest articles were loaded in it. The Forest Department has lodged the F.I.R. against the driver of truck in question and others also for the offence under Sections 52 Ka Indian Forest Act.

Section 52 ka & 52 kha Indian Forest Act reads as under:

52-A. Procedure on seizure-(1) Notwithstanding anything contained in the Act or any other law for the time being in force where a forest offence is believed to have been committed in respect of any forest produce, which is the property of the State Government, the officer seizing the property under Sub-section (1) of Section 52 shall, without unreasonable delay, produce it together with all the tools, boats, vehicles, cattle, ropes chains and other articles used in committing the offence, before an officer not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded make an order in writing with regard to custody possession delivery disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them.

(2) The authorised Officer shall, without any undue delay, forward a copy of the order made under Sub-section (1) to his official superior

(3) Where the authorised officer passing an order under Sub-section (1) is of the opinion that the property is subject to speedy and natural decay, he may order the property or any part thereof to be sold by public auction and may deal with the proceeds as he would have dealt with such property if it had not been sold and shall report about every such sale to his official superior.

(4) No order under Sub-section (1) shall be made without giving, 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:

Provided that in an order confiscating a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objection if any will suffice.

(5) No order of confiscation of any tool, boat, vehicle, cattle rope, chain or other article shall be made if any person referred to in Sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, cattle, rope chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence.

52-B. Appeal-Any person aggrieved by an order of confiscation may within thirty days of the date of communication to him of such order prefer an appeal to the State Government and the State Government shall, after giving an opportunity of being heard to the appellant and the authorised officer, pass such order as it may think fit confirming modifying or annulling the order appealed against and the order of the State Government shall be final.

52-C. Order of confiscation not to prevent any other punishment No order of confiscation u/s 52-A or 52-B shall prevent the indiction of any punishment to which the person affected thereby may be liable under this Act.

52-D. Bar of jurisdiction in certain cases-Notwithstanding any thing to the contrary contained in this Act or in the Code of Criminal procedure, 1973 or in any other law for the time being in force, whenever any forest produce belonging to the State Government together with any tool, boat vehicle, cattle, rope, chain or other article is seized under Sub-section (1) of Section 52, the authorised officer u/s 52-A or the State Government u/s 52-B shall have jurisdiction, to the exclusion of every other officer, Court, Tribunal or authority, to make orders with regard to the custody, possession, delivery, disposal or distribution of the property-U.P. Act 1 of 2001 Section 7(w.e.f. 16.4.2001).

According to sections as above, it reveals that t e forest officer u/s 52 ka and the State Governmet u/s 52 kh had jurisdiction to decide the release application regarding truck in question which was seized and confiscated. The concerned magistrate has committed illegality in exercising the jurisdiction in releasing truck in question while he had no jurisdiction to release the truck in question regarding the alleged offence. The revisional court has categorically given findings in its judgment, wherein it has been decided that criminal court had no jurisdiction in allowing the release application of truck in question who was involved for the offence u/s 52 ka Indian Forest Act. Therefore revisional court has not committed any illegality in passing impugned order and the same has been passed according to law.

Learned Counsel for the petitioner has drawn my attention towards decision of Apex Court in case of Sunderbhai Ambalal Desai v. State of Gujarat reportted in 2003 (46) ACC 223. Decision of Apex Court is not applicable in the present case. It is not relating to the offence u/s 52 Ka Indian Forest Act. Second decision has also been produced before this court in case of Arvind Kumar Dube v. State of U.P. through prescribed authority/Special Secretary Forest Department reported in 2005 (52) ACC 342. In the decision of this court, the matter was challenged for releasing vehicle before the competent authority and order of the competent authority was also challenged before the Special Secretary. The appeal was also dismissed regarding the release application of the vehicle, then the owner of the vehicle moved writ petition which was decided by this court. Therefore this decision is also not applicable in this case. It is worthwhile to mention here that he had to apply for release of his vehicle in question before the competent authority u/s 52 kh Indian Forest Act and after rejection of the same, it may be challenged by way of filing appeal. Thereafter, the petition can be filed against the orders of both the authorities. In such circumstances, the decision of this court as cited above is also not applicable in the present petition.

Consequently, this writ petition is hereby dismissed.