Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2942 of 2013 ====================================================== 1. Dhananjay Kumar Son Of Triveni Sah Resident Of Village - Amra Talab, P.O. Karwandia, P.S. Sasaram Muffasil, District - Rohtas At Sasaram .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna 2. The Chief Conservator Of Forest, Bihar, Patna 3. The Principal Secretary, Forest Department, Government Of Bihar, Patna 4. The District Magistrate, Rohtas At Sasaram, District - Rohtas At Sasaram 5. The Divisional Forest Officer, Rohtas At Sasaram, District - Rohtas At Sasaram 6. The District Forest Officer, Rohtas At Sasaram, District - Rohtas At Sasaram 7. The Ranger Officer, Sasaram Forest Area, District - Rohtas At Sasaram 8. The Ranger, Darigaon Forest Area, Sasaram East Range, District - Rohtas At Sasaram .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6399 of 2013 ====================================================== 1. Sanjeet Singh @ Sanjeet Kumar S/O Sheo Shankar Singh R/O Village- Kanchanpur, Police Station- Sasaram (M), District- Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer-Cum-Authorised Officer Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.511 of 2013 ====================================================== 1. Sanjay Kumar @ Sanjay Kumar Singh S/O Sri Keshav Prasad R/O At P.O. + P.S. - Bikramganj, District - Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer, Rohtas At Sasaram 3. The Range Officer, Sasaram Forest Area, Sasaram, Rohtas 4. The Forester, Belgaon, Forest Area, Sasaram, Rohtas .... .... Respondent/s Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 2 ====================================================== with Civil Writ Jurisdiction Case No.6403 of 2013 ====================================================== 1. Umesh Shukla S/O Rajeshwar Prasad Shukla R/O Village- Shuklpuri, Police Station- Barhalganj, State - Uttar Pradesh Versus .... .... Petitioner/s 1. The State Of Bihar 2. The District Magistrate, Rohtas At Sasaram 3. The Divisional Forest Officer-Cum-Authorised Officer Rohtas Forest Division, Rohtas At Sasaram 4. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.8116 of 2013 ====================================================== 1. Kameshwar Singh Son Of Arjun Singh Resident Of Village - Bairahi, Police Station - Jagdishpur, District - Bhojpur Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer - Cum - Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester ( Forest Officer ), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.8819 of 2013 ====================================================== 1. Ram Kumar Son Of Ram Prasad Resident Of Mohalla Killa, Police Station Sasaram, District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer-Cum-Authorised Officer, Rohtas Forest Division , Rohtas At Sasaram 3. The Foreseter (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6258 of 2013 ====================================================== 1. Jitendra Kumar Son Of Late Bal Keshwar Singh Resident Of Village Amra, Police Station Sasaram (M), District - Rohtas Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 3 Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer-Cum-Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.9476 of 2013 ====================================================== 1. Indal Kumar Singh Son Of Sri Bhagwan Singh Resident Of Village Ugarbigha Police Station Sasaram (M), District Rohtas 1. The State Of Bihar Versus .... .... Petitioner/s 2. The Divisional Forest Officer-Cum-Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.9905 of 2013 ====================================================== 1. Shiv Pujan Yadav Son Of Late Harihar Yadav Resident Of Village Tiura Khurd, Police Station Chutiya, District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer-Cum-Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6341 of 2013 ====================================================== 1. Braj Kishore Singh S/O Harbansh Singh Resident Of Village- Bansa, Polilce Station- Sasaram (M), District- Rohtas.
Facts
Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 4 Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Assistant Director Mines Mineral, Patna. 3. The Divisional Forest Officer- Cum- Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram. 4. The Superintendent Of Police, Rohtas. 5. The Forester (Forest Officer), Sasaram, Rohtas. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.5229 of 2013 ====================================================== 1. Sanjay Kumar S/O Lal Bahadur Rai Resident Of Village- Khairahi, Police Station- Nokha (Baghaila), District- Rohtas At Sasaram. Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Chief Conservator Of Forest, Bihar, Patna. 3. The Principal Secretary, Forest Department, Government Of Bihar, Patna. 4. The District Magistrate, Rohtas At Sasaram. 5. The Divisional Forest Officer, Rohtas At Sasaram. 6. The District Forest Officer, Rohtas At Sasaram. 7. The Ranger Officer, Sasaram Forest Area, Rohtas At Sasaram. 8. The Ranger, Darigaon Forest Area, Sasaram, East Range, Rohtas At Sasaram. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6766 of 2013 ====================================================== 1. Rakesh Kumar Son Of Gopal Prasad R/O Village Karwandia, P.S. Sasaram, District Rohtas 2. Mukesh Kumar Son Of Gopal Prasad R/O Village Karwandia, P.S. Sasaram, District Rohtas .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Chief Conservator Of Forest, Bihar, Patna 3. The Principal Secretary, Forest Department, Government Of Bihar, Patna 4. The District Magistrate, Rohtas At Sasaram, District - Rohtas At Sasaram 5. The Divisional Forest Officer, Rohtas At Sasaram, District - Rohtas At Sasaram 6. The District Forest Officer, Rohtas At Sasaram, District - Rohtas At Sasaram 7. The Ranger Officer, Sasaram Forest Area, District - Rohtas At Sasaram 8. The Ranger, Darigaon Forest Area, Sasaram East Range, District - Rohtas Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 5 At Sasaram .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.7061 of 2013 ====================================================== 1. Md. Kalamuddin S/O Md. Gulamgaus R/O Village - Jamuhar, P.S. Dehri, District - Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar Through The Secretary Forest Department 2. The Divsional Forest Offcer Cum Authorised Officer Rohtas, Forest Division Rohtas At Sasaram 3. The Forester Sasaram, Rohtas
Legal Reasoning
common plea has been advanced before this Court in all the cases on behalf of the petitioners. In all the cases, the vehicles of the petitioners have been seized by the forest officials, at times, with aid of the police, allegedly loaded with forest produce, and/or seized allegedly from forest area. Charges in all the cases are that the vehicles were involved in commission of various forest offences; were transporting various forest materials and/or were Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 11 involved in illegal mining and they had no valid challan or permit for the same. Individual facts and nature of the vehicle involved in a particular case may vary, but seizure of the vehicle (at times with trailer) is a common factor in all the cases. Submissions were that the vehicles were not seized from forest area and/or were not involved in commission of any forest offence. Submissions were also that the confiscation proceeding is going on since long and the vehicles are lying in open, unprotected, uncared for, expose to vagaries of weather, as a result of which their conditions are fast deteriorating and, if they are not released soon on any condition, whatsoever, they may get damaged beyond any repair and may become junk. Hence, common prayer made by learned counsels for the petitioners was for a direction to the confiscating authority namely, Divisional Forest Officer ( in short „the DFO‟) to release the vehicles provisionally on any reasonable terms and conditions which he may like to impose and which may be subject to his final orders in the proceeding. Learned counsels for the petitioners relied upon two judgments of the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat [(2002) 10 SCC 283] and General Insurance Council Vs. State of Andhra Pradesh [(2010) 6 SCC Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 12 768]. The respondent DFO, on being granted opportunity, filed a counter affidavit in the first case. The counter affidavit, which he has filed in the case, runs into 81 pages of pleadings and 18 pages of annexures. Learned counsels appearing for the respondents submitted that this counter affidavit may be treated as consolidated counter affidavit for all the cases in which separate affidavits have not been filed on behalf of the respondents. He has also referred to a supplementary counter affidavit, filed by the DFO in CWJC No.3785 of 2013, which also runs into 21 pages of pleadings and 31 pages of annexures, which includes a chart of pending cases before him and copies of some Apex Court judgments, as well as a letter, contained in memo no.2856 dated 10.09.2012, of the Secretary, Department of Environment and Forest, Government of Bihar, addressed to all the Divisional Forest Officers, directing them, in reference to some orders of this Court, to dispose of the confiscation cases, pending before them, preferably within four months from the dates of their institution. This order of the Department notwithstanding, it is an admitted position that almost all the confiscation proceedings are pending with the respondent DFO since last more than four months and in majority of the cases since last more than a year. The DFO has Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 13 taken his defence to the delay in disposal of the confiscation proceedings in his being over-burdened with administrative work and has opposed to interim release of the vehicles on the basis of observations of the Apex Court and other courts in their various orders. In view of the bulk of the counter affidavit and supplementary counter affidavit filed by the DFO, this Court has made an endeavour to prepare a synopsis of his stand point-wise. This Court has found that in paragraph 23 and 32 of the counter affidavit a common stand has been taken by the DFO that, in terms of provisions of Sub-Section 5 of Section 52 of the Indian Forest Act, 1927, it is the owner and/or driver/agent of the vehicle who has to prove that the vehicle was not being used for commission of any forest offence. Onus lies also on the owner to prove that all necessary precautions against such use were taken. In support of this stand, he has placed reliance on the observations of this Court in the case of Manoj Kumar Sharma Vs. State (2000 Cri. L. J. 1158) and of Apex Court in the case of State of West Bengal Vs. Mahua Sarkar (AIR 2008 SC 1591). In paragraph 19 of the counter affidavit his stand is that interim release will prove loss to the State Government in the form of revenue and there are ample chances that the vehicles may be used for commission of fresh Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 14 offences. In paragraph 20 of the counter affidavit his stand is that in the forest area no non-forestry activity can be allowed without prior permission of the Central Government. For this, he refers to the judgment of Apex Court dated 12.12.1996 passed in W.P. (C) No.202/1995 in the case of Godhavarman Thirumalpad Vs. Union of India. In paragraph 20, 22, 29 and 31 of the counter affidavit his stand is that the Indian Forest Act, 1927, does not contain any provision for release of the vehicle on interim custody. Thereafter, in paragraph 31 and 34 of the counter affidavit he says that the confiscation proceeding and power to confiscate are entirely different and independent from criminal proceeding and launching of criminal prosecution is not a condition precedent for holding a confiscation proceeding and confiscation of seized articles. For this, he places reliance on observations of Apex Court in the cases of State of M.P. Vs. S.P. Sales (AIR 2004 SC 2088) and State of West Bengal Vs. Gopal Sarkar (AIR 2002 SC 223) and observations of the Guwahati High Court reported in 2003 Cri. L.J. 2178. In paragraph 31 and 34 of the counter affidavit and paragraph 6 of the supplementary counter affidavit his stand is that the release of vehicle due to likely delay in criminal case is improper and liberal approach should not be taken in the matter and normally the vehicle should not be returned till culmination of Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 15 all the proceedings and in case the release is ordered specific reason should be assigned and, at least, production of bank guarantee must be made a condition. For this, he places reliance on the observations of the Apex Court in the cases of Section Forester Vs. Mansur Ali Khan (AIR 2004 SC 1251) and in the case of State of Karnatka Vs. V.K. Krishnan [(2000) 7 SCC 80]. Then again in paragraph 34 of the counter affidavit, he states that release of vehicle to the owner should not be a matter of routine. For this, he referes to a judgment of the Jharkhand High Court in the case of Hilip Kumar Gorain Vs. State of Jharkhad (2004 Cri. L. J. 3216). In paragraph 31 of counter affidavit and paragraph 6 of the supplementary counter affidavit he has also states that the order of confiscation is different from order of forfeiture as explained by the Apex Court in the State of West Bengal VS.Sujit Kumar Rana [2004 (2) BCCR 141]. In paragraph 31 and 4 of the counter affidavit and paragraph 8 of the supplementary affidavit, he states that general law of disposal of property vis-à-vis special provisions of confiscation under the Forest Act are different for which he places reliance on a judgment of this Court in the case of Enamul Haque Vs.State of Bihar [1995 (2) PLJR 153]. He places reliance on the said judgment, also to say in paragraph 34 that the High Court has no power to stay the confiscation proceeding as Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 16 Section 52-C bars jurisdiction of courts and tribunals. In paragraph 31 of counter affidavit he states that a Forest Officer is not a police officer and the proceeding being a proceeding under the Forest Act a Magistrate cannot exercise powers under Section 457 of the Cr.P.C. For this he places reliance on judgments of the Apex Court in Ramesh Chandra Vs. State of W.B. (AIR 1970 SC 940): Illias Vs. Collector of Customs (AIR 1970 SC 1065): State of U.P. Vs. Durga Prasad (1974 SC 2136) and a Madhya Pradesh High Court judgment reported in 196 Cri.L.J. 1118 (MP). He also talks about powers of Authorized Officer of confiscation with reference to Apex Court judgment in State of W.B. Vs. Gopal Shankar (AIR 2002 SC 221) in paragraphs 31 and 34 of the counter affidavit. Lastly, in paragraph 8 of the supplementary counter affidavit, he states that there should be no release of the seized vehicle as Section 52 shows that Legislature did not intend any release in course of confiscation proceeding. For this, he refers to two orders of this Court dated 26.11.2012 and 23.01.2013 passed in Cr.W.J.C. Nos. 1090 of 2012 and 1210 of 2012. He talks about wildlife, ecology environment, flora and fauna and submits that a precautionary principle (approach-?) is required to be applied to protect them. For this he has quoted the object and reasons and relevant portions of Bihar Minor Mineral Concession Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 17 (Amendment) Rules 2010 in his counter affidavit. However, with the supplementary counter affidavit he has very fairly annexed a copy of the letter no.2856 dated 10.09.2012 of the Department directing all the DFOs to dispose of the confiscation proceedings preferably within four months. There can be no dispute with the principles laid down in the judgments relied upon by the DFO in his affidavits and the observations made therein. It is also correct that, in the interest of the wildlife, ecology, environment, flora and fauna, any act of any person amounting to an offence under the Indian Forest Act must be dealt with strictly and quickly. If it is proved that the petitioners have committed a forest offence they deserve to be punished and their vehicles deserve to be confiscated and auction sold. But till this is not done, the vehicle do not stand confiscated and, therefore, they cannot be auctioned sold and their proceeds cannot be deposited in public exchequer and hence cannot be added to the revenue of the government. It is a common knowledge that, if any vehicle is lying in open for long its metallic parts and structure starts getting rusted. Hence, after a long time, if the vehicle owner, or anybody in possession of the vehicle, decides to start the vehicle and reuse it, he has to get the vehicle thoroughly overhauled at considerable expense. This is also common Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 18 knowledge that even after overhauled the vehicle does not get back to the same condition in which it was prior to being stationed. Forest offences being serious offences effecting the environment and ecology etc. notwithstanding, a confiscation proceeding is a quasi-judicial proceeding. The seizure of the vehicle of an owner interferes with his legitimate rights to carry on any occupation, trade or business affecting his rights guaranteed under Article 19(1(g) of the Constitution of India. Likewise depriving him of using his vehicle in any manner he likes is deprivation of his property and thus violating his rights under Article 300 A of the Constitution of India. There is no dispute that this can be done. But it can be done only on the basis of an order passed by a competent authority in accordance with law under valid provision of law. Seizure of a vehicle, allegedly found in forest area, or indulging into commission of a forest offence, only amounts to taking cognizance of the offences committed by the vehicle owner and driver/agent, subjecting him to proceedings for the offence in terms of the Forest Act, besides criminality of the individual for which a substantive case is instituted leading to a proceeding in a criminal court of law. Law provides for confiscation of vehicle also, used in the commission of the said Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 19 offence. But law also provides that proceeding should be held in the nature of a quasi-judicial proceeding, in which owner and/or driver/agent of the vehicle should be given reasonable opportunity to take his defence and then only final orders should be passed in accordance with law for confiscation of the vehicle. The prolongation of the proceeding deprives the owner of the vehicle from his rights without final order of confiscation in accordance with law. Merely due to enormous delay, for all practical purposes, the vehicle stands confiscated without a valid order in accordance with law. If the proceeding remains pending for long and the vehicle remains standing in open, unprotected and uncared for, the net result may be that, irrespective of the final result, the owner may be at a loss. If the vehicle is confiscated it is a loss to him. But even if the proceeding is dropped and the vehicle is ultimately released to him, he may just get a junk which he may have no other alternative than to sell it as scrap. If in that condition his vehicle is auctioned by the authorities on its confiscation, they also may get only scraped value of the vehicle causing loss to the government revenue also. This aspect of the matter has been considered by the said two judgments of the Apex Court relied upon by learned counsel for the petitioners and referred to above. This aspect has also been noticed by this Court in the three orders Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 20 referred to and reproduced in the said letter of the Department, contained in memo no.2856 dated 10.09.2012. At this stage, the observations of the Apex Court contained in paragraph 14 of the judgment in the case of General Insurance Council Vs. State of Andhra Pradesh (supra) are fit to be reproduced hereinbelow :- “It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only do they occupy substantial space in the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its roadworthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalized so the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct the State Governments/Union that all Territories/Director Generals of Police shall ensure macro the statutory provisions and further direct that the activities of each and every police station, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the division/Commissioner of Police concerned the cities/Superintendent of Police of concerned of the district concerned.” implementation of that This Court is of the considered opinion that overall balance has to be maintained in between the conflicting interest of the State in the form of protecting wildlife, ecology, environment, Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 21 flora and fauna of the forest and the national wealth in the form of forest resources on the one hand and the rights of citizens of the Country guaranteed under the Constitution and the laws on the other. It appears to this Court that, the Department, with a view to strike a fine balance of conflicting interests, has already issued the said letter, contained in memo no.2856 dated 10.09.2012 (which is worth going through, but not being extracted here due to being very detailed one). On the lines of the said letter, this Court is also of the view that the confiscation proceedings, being a proceeding directly interfering with the rights of a citizen under Article 19(1) (g) and 300 A of the Constitution of India, should take precedence over any administrative engagements of the confiscating authority
Arguments
.... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6132 of 2013 ====================================================== 1. Basant Prasad Srivastav Son Of Daya Nand Prasad Resident Of Village Mahdewa, Police Station- Dehri, District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer-Cum-Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.8460 of 2013 ====================================================== 1. Manoj Kumar Upadhayay S/O Sri Paras Nath Upadhyay R/O Village And P.O.- Ahirauli, P.S.- Buxar Industrial, District- Buxar .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna 2. The Chief Conservator Of Forest, Bihar, Patna 3. The Principal Secretary Forest Department, Government Of Bihar, Patna 4. The Divisional Forest Officer, Rohtas At Sasaram District- Rohtas At Sasaram 5. The Forest Range Officer, Sasaram Forest Area, District- Rohtas At Sasaram .... .... Respondent/s Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 6 ====================================================== with Civil Writ Jurisdiction Case No.3269 of 2013 ====================================================== 1. Subhash Singh S/O Shri Vishwanath Singh Resident Of Village - Suara, Po - Pahleja, Ps - Dehri On Sone, District - Rohtas At Sasaram .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Forest, Government Of Bihar, Patna 2. The Principal Secretary, Department Of Forest, Government Of Bihar, Patna 3. The Chief Conservator Of Forests, Bihar , Patna 4. The Divisional Forest Officer, Rohtas At Sasaram 5. The Forester, Tilauthu Forest Area, District Rohtas At Sasaram .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3595 of 2013 ====================================================== 1. Santosh Kumar Singh S/O Sri Harihar Singh Resident Of Village- Gijwahi, P.O- Karwandia, P.S- Sasaram, District- Rohtas At Sasaram. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna. 2. The Principal Secretary, Department Of Forest, Government Of Bihar, Patna. 3. The Principal Chief Consrvator Of Forest, Bihar, Patna. 4. The Conservator Of Forest, Bihar, Patna. 5. The Divisional Forest Officer, Rohtas At Sasaram. 6. The Forester, Forest Area Tilathu, District- Rohtas At Sasaram. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6567 of 2013 ====================================================== 1. Pramod Singh Yadav Son Of Mahendra Singh Resident Of Village- Dewaria, P.S. Akorhi Gola, District- Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer, Cum Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas Null Null .... .... Respondent/s Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 7 ====================================================== with Civil Writ Jurisdiction Case No.6629 of 2013 ====================================================== 1. Shailendra Kumar Chaudhary @ Shailendra Chaudhary Son Of Dharamdas Chaudhary Resident Of Village Badhaiya Bag, P.O. Karwandiya, Police Station Sasaram, District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer (Cum Authorised Officer), Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.6995 of 2013 ====================================================== 1. Vinod Singh @ Vinod Kumar Singh S/O Raj Bansh Singh R/O Village- Madaini, P.S.- Sasaram (M), District-Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Divisional Forest Officer Cum Authorised Officer Rohtas Forest Division, Rohtas At Sasaram 3. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.5219 of 2013 ====================================================== 1. Shashi Ranjan Singh Son Of Sri Lalan Singh Resident Of Village Bheriya P.O. Kharihan P.S. Dehri-On-Sone, District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Chief Conservator Of Forest, Bihar, Patna 3. The Principal Secretary, Department Of Forest, Govt. Of Bihar, Patna 4. The District Magistrate, Rohtas At Sasaram 5. The Authorised Officer Cum Divisional Forest Officer, Rohtas At Sasaram 6. The District Forest Officer, Rohtas At Sasaram 7. The Forest Ranger Officer, Sasaram Forest Area, Sasaram (Rohtas) 8. The Ranger, Darigaon Forest Area, Sasaram Forest Range Rohtas At Sasaram .... .... Respondent/s Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 8 ====================================================== with Civil Writ Jurisdiction Case No.6703 of 2013 ====================================================== 1. Shiv Shankar Singh Son Of Dargahi Singh Resident Of Village Bansa, Police Station Sasaram (M), District Rohtas Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Assistant Director Mines Mineral, Patna 3. The Divisional Forest Officer-Cum Authorised Officer, Rohtas Forest Division, Rohtas At Sasaram 4. The Superintendent Of Police, Rohtas 5. The Forester (Forest Officer), Sasaram, Rohtas .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3789 of 2013 ====================================================== 1. Vinay Kumar Singh S/O Upendra Singh Resident Of Village And P.O- Jamuhar, P.S- Dehri, District- Rohtas At Sasaram,. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna. 2. The Chief Conservator Of Forest, Bihar, Patna. 3. The Principal Secretary, Forest Department, Government Of Bihar, Patna. 4. The District Magistrate, Rohtas At Sasaram, District- Rohtas At Sasaram. 5. The Divisional Forest Officer, Rohtas At Sasaram, District Rohtas At Sasaram. 6. The District Forest Officer, Rohtas At Sasaram, District- Rohtas At Sasaram. 7. The Range Officer, Sasaram Forest Area, District- Rohtas At Sasaram. 8. The Ranger, Darigaon Forest Area, Sasaram East Range, District Rohtas At Sasaram .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3785 of 2013 ====================================================== 1. Ajit Kumar Singh S/O Sukhdeo Prasad Singh Resident Of Village- Mahuli,P.O- Sattar, P.S- Nabinagar, District- Aurangabad. 1. The State Of Bihar 2. The Superintendent Of Police, District- Rohtas At Sasaram. Versus .... .... Petitioner/s Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 9 3. The Sub- Divisional Police Officer, Dehri, District- Rohtas At Sasaram. 4. The Divisional Forest Officer, Rohtas At Sasaram. 5. The Station Head Officer, Indrapuri Police Station, District Rohtas At Sasaram. .... .... Respondent/s ====================================================== Appearance : (In CWJC No.2942 of 2013) For the Petitioner/s : Mr. S.B.K.Mangalam, Adv. For the Respondent/s : Mr. Rajesh Kumar No.2, GP-21. (In CWJC No.6399 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. P.K.Mishra, GP-22. (In CWJC No.511 of 2013) For the Petitioner/s : Mr. Rakesh Narayan, Adv. For the Respondent/s : Mr. R.K.Samrendra, SC-21. (In CWJC No.6403 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. R.K.Singh, GP-2. (In CWJC No.8116 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. Ray Shivaji Nath, AAG-3. (In CWJC No.8819 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. R.K.Samrendra, SC-21. (In CWJC No.6258 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. G.S.Prasad, GP-1. (In CWJC No.9476 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. (In CWJC No.9905 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. Dinbandhu Singh, GP-9. (In CWJC No.6341 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. V.M.K.Sinha, AAG-13. (In CWJC No.5229 of 2013) For the Petitioner/s : Mr. Bindhyachal Singh, Adv. For the Respondent/s : Mr. Lalit Kishore, AAG-1. (In CWJC No.6766 of 2013) For the Petitioner/s : Mr. Kamal Kishore Singh, Adv. For the Respondent/s : Mr. P.Pratap, GP-6. (In CWJC No.7061 of 2013) For the Petitioner/s : Mr. S.M.Shabbir Alam, Adv. For the Respondent/s : Mr. Ajay, SC-11. (In CWJC No.6132 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mrs. Shail Kumari, SC-15. (In CWJC No.8460 of 2013) For the Petitioner/s : Mr. S.B.K.Managalam, Adv. Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 10 For the Respondent/s : Mr. G.K.Agrawal, GA-10. (In CWJC No.3269 of 2013) For the Petitioner/s : Mr. S. B. K. Mangalam, Adv. For the Respondent/s : Mr. S.A. Alam SC-3. (In CWJC No.3595 of 2013) For the Petitioner/s : Mr. S. B. K. Mangalam, Adv. For the Respondent/s : Mr. J.S.Barnwal, SC-1. (In CWJC No.6567 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. Ray Shivaji Nath, AAG-3. (In CWJC No.6629 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. M.Prasad, GP-12. (In CWJC No.6995 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. R.Roy, GP-5. (In CWJC No.5219 of 2013) For the Petitioner/s : Mr. Raghunandan Kumar Singh, Adv. For the Respondent/s : Mrs. Shail Kumari, SC-15. (In CWJC No.6703 of 2013) For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Adv. For the Respondent/s : Mr. A.B.Sinha, SC-19. (In CWJC No.3789 of 2013) For the Petitioner/s : Mr. S. B. K. Mangalam, Adv. For the Respondent/s : Mr. Pawan Kr. Mishra GP-.22 (In CWJC No.3785 of 2013) For the Petitioner/s : Mr. S. B. K. Mangalam, Adv. For the Respondent/s : Mr. Rajesh Kumar GP-21 ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH CAV ORDER 9 11-07-2013 All these cases have been clubbed together as a
Decision
and should be held and disposed of positively within the time limit laid down by the Department in the said letter. Some of the petitioners have raised grievance that, in spite of seizure of the vehicles long back, they have not received any notice of initiation of confiscation proceeding and/or despite their appearance in the proceeding and filing their defence no progress has been made and proceeding remains at a standstill. Some of them have also raised a grievance that, upon verification, their permit and challan have been found as valid and operative during the period, still order for interim release of the vehicle has not been passed. Some of them Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 22 have also raised a grievance that in their defence they have categorically denied that their vehicles were seized from any forest area or while indulging into any activity amounting to any forest offence, still the prosecution is not producing any positive evidence to establish the date, place and time of seizure of the vehicles and they are being forced upon to prove the negative. In the circumstances, taking into account overall aspect of the matter, this Court is of the view that the Divisional Forest Officer should adopt the following procedure, in addition to the procedure laid down in the Act by State Amendment, in cases pending before him or instituted henceforth for some forest offence(s):- (I) After the vehicle is seized with or without incriminating articles from forest area on the suspicion of being used in commission of any forest offence and an FIR is instituted with the local police, the institution of the FIR and the seizure must be reported immediately to the competent authority for registering a forest case. (II) On receipt of the report, the competent authority must register the case on that very day and thereafter get the ownership of the vehicle verified from the concerned Transport Office and Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 23 send a registered notice along with seizure memo to the owner of the vehicle through registered post with acknowledgment due positively within two weeks. In the notice, the owner should be allowed two week time, from the date of receipt of the notice, to appear in the proceeding and file his defence. It is very common that the notices by post are not served or the noticee avoids to receive the same. Hence, simultaneously, with the issue of notice by registered post, the competent authority must get a notice published in the local newspapers with regard to seizure of the vehicle with the registration number, chassis number and engine number and other details as may be available and the date, place and time of seizure of the vehicle with brief of charges and the number of proceeding initiated in the matter. If within 15 days of publication of notice in the newspaper, the owner or any claimant of the vehicle does not appear before the competent authority in the proceeding, the competent authority shall be at liberty to proceed ex parte. If Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 24 the competent authority is able to find out from the papers seized with the vehicle or from any source that the vehicle has been purchased under hire purchase agreement with any insurance company, he shall also send information to the said company, simultaneously, through registered post that the vehicle has been seized for forest offence(s) and is a subject of a confiscation proceeding before him. (III) In case, the owner/claimant appears and files his defence totally denying seizure of his vehicle on the date, time and place alleged, the prosecution shall lead evidence first in support of the factum of seizure of the vehicle from a forest area at the particular time and date and loaded with incriminating article, if any. Once the prosecution produces evidence to this effect, onus will shift, in terms of Section 52(5) of State Amendment, on the owner/claimant of the vehicle to established his defence of innocence. (IV) Evidence in the case must commence within 15 days of the filing of the defence by the Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 25 owner/claimant. Thereafter the proceeding should continue and progress without any unnecessary delay and must conclude within four months from the date of institution of the case before the competent authority. (V) In case the proceeding does not conclude within the said four months, for no fault of the owner/claimant of the vehicle and in spite of his full co-operation, the competent authority shall release the vehicle on provisional basis together with its attachments, if any, to the owner of the vehicle on the following terms :- (i) He shall ascertain the deprecated value of the vehicle as on the date of institution of the case in his court, calculated by Insurance Company where the vehicle is insured or by any competent authority and shall direct the owner to furnish bank guarantee of that amount. (ii) He shall also direct the owner to furnish two sureties in his support out of which one should be a government official. (iii) He shall also direct for deposit of security in the Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 26 form of ownership papers of immovable property, standing in the name of the owner of the vehicle, equal to the depreciated value of the vehicle. (iv) He shall also direct the owner to furnish an undertaking that, on the date of final orders in the confiscation proceeding, he shall produce the vehicle with all its attachment, as released on provisional basis, and in the same condition, for any appropriate orders by the competent authority. (v) On the owner meeting all these conditions the vehicle with all its attachments shall be released to him on provisional basis within one week positively which shall be subject to the final result of the confiscation proceeding. It is made clear that these directions are to be treated as in addition to the procedure laid down in law for conduct of such proceeding by the State Amendment and not in conflict or in ignorance of them. In this batch of cases, there are many cases in which the confiscation proceeding is pending since more than a year and Patna High Court CWJC No.2942 of 2013 (9) dt.11-07-2013 27 definitely since last more than four months, and at different stages. In the circumstances, this Court directs that all the pending proceedings before the respondent Divisional Forest Officer, which are pending since more than four months, and at different stages, must be concluded and final orders must be passed in accordance with law positively within three months from the date of receipt/production of a copy of this order, failing which he shall take steps for release of the respective vehicles on provisional basis in the manner laid down herein above. Lastly, this Court observes that the holding of quasi- judicial proceeding by the Divisional Forest Officer in the matter must take precedence over his administrative works, as it threatens the infringement of Constitutional Right of a Citizen, and must be given priority to ensure time bound conclusion of the same as laid down herein. The writ applications are disposed of. Arvind/- (Jayanandan Singh, J.)