Rizwan Khan v. The State of Bihar

Judgment

6. HDB Financial Services Limited, having its registered office at HDB Financial Services Ltd., Radhika, 2nd Floor, Law Garden Road, Nawrangpura, Ahmadabad-380009. ... ... Respondent/s

====================================================== Appearance : For the Petitioner/s Mr. Vatsal Vishal, Advocates. For the Respondent/s Mr. Alok Kumar Agrawal, : : Mr. Anant Prasad Singh- SC- 15 Mr. Mithilesh Kumar Singh, AC to SC-15. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY ORAL ORDER 9 22-08-2024 Heard Mr. Alok Agrawal, learned counsel for the petitioner and Mr. Mithilesh Kumar Singh, learned AC to SC-

2. The present writ petition has been preferred for the following reliefs:- “(I) For release of the Truck bearing Registration No. HR67A/6625 which has been seized illegally, arbitrarily and malafidely; (II) For quashing the seizure dated 31.05.2022 seized by the Forest Guard as being wholly illegal and arbitrary; (III) For quashing the order of confiscation dated 18.04.2023 issued vide Memo No. 1213 dated 20.05.2023 for alleged violation of Section 41 of Indian Forest Act, 1927 (hereinafter referred to as the 'Act, Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 1927’) punishable under Section 42 of Act 1927 (Bihar Amendment Act, 1990) as being wholly illegal and arbitrary and also in view of the law laid down by this Hon'ble Court as reported in 2001(4) PLJR 411 (Bhartia & Sons Vs. The State of Bihar & Ors.) and also 2002 (3) PLJR 384 (Manir Ahmed Vs. State of Bihar & Ors.); (IV). Alternatively, the aforesaid Truck may be released on payment of fine, as provided under section 42 of Act, 1927 (Bihar Amendment, 1990) as the woods loaded on the said Truck was of meager value compared to the value of the Truck, in question; and for any other relief/reliefs for which petitioner is entitled to in the facts and circumstances of the present case.”

3. The case of the petitioner that he purchased ‘Bhelore wood’ from one Ram Kripal Singh within the jurisdiction of Forest Range Officer, Raxaul and was taking it to his native place Yamuna Nagar (Hariyana) for his personal purposes, when it was intercepted on 31.05.2022 by the Forest Officer which followed its seizure and the case. It is the case of the petitioner that, admittedly, the purchase was made from a private person and as such, no permit was required and in that background, the seizure as also the further proceeding in the matter are to be held illegal. According to him, pursuant to the Case no. 12 of 2022 (State v. Rizwan Khan) on 18.04.2023, after providing opportunity to the petitioner as also Ram Kripal Singh from whom he has purchased the woods and the Mukhiya Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 of Gram Panchayat, Raj Parsauna, Tapsi Block, Raxaul, East Champaran, who acknowledged that he has given certificate to Ramkripal Singh to sell the woods from his land. The Divisional Forest Officer overlooking all these facts on the basis of different sections of Indian Forest Act, 1927 (hereinafter referred to as ‘the Act’,) which, in any case, is not applicable in this case, passed an order for confiscation of the truck bearing Registration No. HR-67A/6625.

4. Learned counsel for the petitioner has taken this Court to Rule-3 of Bihar Timbers and Other Forest Produce (Regulation of Transit) Rules, 1973 (for short ‘Rules’) and Rule- 3 reads as follows: “3- (1) dksbZ Hkh dk’B] tykou dh ydM+h] pkjdksy] lobZ ?kkl] dRFkk] xksan vkSj jky] cht vkSj Qy] tM+ vkSj Nky fdlh LFkku ij rc rd u vk;kr gks ldsxk vkSj ogkWa ls fu;kZr fd;k ;k gVk;k tk ldsxk] tc rd fd bl fufeŸk ,d fyf[kr vuqKk&i= ¼ijfeV½ ou inkf/kdkjh ;k muds }kjk vkf/kd`r inkf/kdkjh ls igys ls izkIr ugha fd;k x;k gks ftlesa fuEufyf[kr ckrsa gksa%& ¼d½ ou mriknu ds Lokeh dk uke rFkk o.kZu; ¼[k½ mRiknu dk o.kZu vkSj ifjek.k ftls vk;kr&fu;kZr fd;k tk jgk gks ;k gVk;k tk jgk gksA ¼x½ ekxZ ;k ekxksZa dk fooj.k ftlls gksdj ou mRiknu dk ifjogu gksxk vkSj muds xUrO; LFkku@LFkkuksa dk uke; ¼?k½ fdl vof/k rd vuqKk&i= tkjh jgsxk; vkSj ¼M-½ dk’B dh n”kk esa ml ij ;g lEifŸk] fpg~u tks ou inkf/kdkjh ds ;gkWa jftLVzhd`Ÿk gks; ¼XXXXXX½ ¼2½ ou n.Mkf/kdkjh “fcgkj xtV” esa vf/klwpuk }kjk mu ekxksZa dks fofufnZ’V dj ldsxk ftuls gksdj mi&fu;e ¼1½ esa mfYyf[kr ou&mRiknu fdlh LFkku esa];k ls gVk;k tk;xkA vr% izkf/kd`Ÿk ekxksaZ ds flok; nwljs ekxksZa ls ou&mRiknu dks jsyos Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 LVs”ku] uxjksa] cktkjksa vkSj vU; LFkkuksa dks] rFkk dk’B ds ekeys esa fu;e 6 }kjk ;Fkksisf{kr lEifŸk&fpg~u ds fcuk ys tkuk fof/kiw.kZ ugh gksxkA”

5. He submits that a perusal of it would show that it limits the permit for movement of the woods in the State of Bihar itself and no further inasmuch as any movement outside the State, the Rules is silent on this. He has placed this case placing reliance on a judgment of the learned Single Judge in the case of Bhartia & Sons Vs. The State of Bihar & Ors. (CWJC No. 9632 of 2001) decided on 18.09.2001 passed by Hon’ble Mr. Justice Aftab Alam (as His Lordship then was) with specific reference to paragraph-10 which reads as follows:- “I am totally unable to accept the submission. On the one hand is the mandate of Article 301 and the question of a fundamental the petitioner guaranteed under Article 19(1)(g) of the Constitution and on the other hand what is offered to restrict the constitutional mandate and to circumscribe the fundamental right under the Constitution is a far fetched authorisation to the executive by implication based on omission of the Rule to cover the field of movement of timber etc. outside the State. The respondent authorities seem to view the omission and the deficiency in the 1973 Rules as a source of their power to prohibit movement of timber etc. outside the State in disregard of Articles 301 and 19(1) (g) of the Constitution. To me this stand appears to be based on inverted logic. The failure of the State Government to frame Rules regulating the transit of timber etc. outside the State does not mean that the Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 movement of timber outside the State is prohibited or that it empowers the executive to issue an order imposing ban against movement of timber outside the State. On the contrary the State Government's failure to frame Rules to regulate the movement of timber outside the State simply means that the field is uncovered and there is no control or regulation over movement of timber etc. outside the State.”

6. He, as such, submits that the State Officials chose to ignore the facts/Rules as also the judgment of Patna High Court while passing the order.

7. Learned AC to SC-15, armed with the counter affidavit filed on behalf of respondent no.3, submits that the authorities were will within their rights in confiscating the vehicle as the petitioner failed to produce any document when it was intercepted to show that whether it has been purchased from a private person or it is the forest woods. He has also taken this Court to another order of learned Single Judge in the case of Arinjay Kumar Sharma v. The State of Bihar & Ors along with its analogous cases (CWJC No. 14556 of 2004) decided on 27.11.2018 with reference to paragraph 8 to 10 where the learned Single Judge, Hon’ble Mr. Justice Ahsanuddin Amanullah (as His Lordship then was) observed in paragraphs 8 to 10 as follows:- Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 “8. From perusal of the aforesaid Rule 3 of the Rules, it is clear that a permit is required for any movement of any forest produce, which obviously includes timber of which shisham wood is a category. Once a permit is required, it is incumbent upon any person, may be the owner or transporter or dealer/user of such timber, to obtain permit from the Competent Authority seeking permit to transport such timber. Admittedly, in the present case, the petitioners do not claim that any permit was either sought or refused by the authorities concerned. It is also an admitted position that no such permit was issued. Thus, once the law requires for a permit, the same is a mandatory condition for any movement of any forest produce. Without there being a permit, the petitioners being the owners of the vehicle could not have even lifted the forest produce for transportation anywhere as they cannot plead ignorance that the shisham wood/any timber is not a forest produce and is an uncontrolled article open to free transportation. In the present case, if what has been submitted by learned counsel for the petitioners is correct that the authorities were not issuing the permit in view of the aforesaid letter of the Department dated 10.07.2001, the only recourse left was to apply for the same and take the plea that in view of the decision of the Court in the case of M/s Bhartia and Sons (supra), such permit could not be refused and if at all the same was not issued, recourse would have been by coming to the Court seeking mandamus for issuance of such permit in their favour, but, going ahead unilaterally and lifting the timber and transporting it is clearly a step which is patently illegal as it is in defiance of the requirement of having permit for such act. The law mandates the issuance of a permit for such lifting and transportation of timber without which the same is open to penal consequences including seizure and confiscation. The Court would also indicate at this juncture that the Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 environmental laws remain on paper and become fruitless, if a person first violates the law and then comes to the Court seeking some relief on some hypertechnical ground. Such law needs to be implemented with full force so as to make them effective for the time has come where any slackness has the potential to jeopardize the very living conditions of future generations on this planet. In the present case, the Court finds that there has been no infraction of any law and rather it is a clear case where on the basis of the admitted position that the petitioners had timber loaded on their vehicles without any permit whatsoever, clearly they are liable for penal consequences, both with regard to confiscation and seizure of their vehicles and the goods, under the Act and the Rules

9. As far as the decisions relied upon by learned counsel for the petitioners in the case of M/s Bhartia and Sons (supra) is concerned, the Court would only indicate here that the same has no relevance in the present facts and circumstances of the case, for the reason that the departmental letter has been found to be beyond the competency of the officer by which blanket ban was imposed on export of timber outside the State. In the present case, the issue is entirely different. The petitioners were required to have a permit and if at all it came to the crunch, the petitioners could have had a case that such permit could not be refused by the officials of the Department based on the aforesaid letter dated 10.07.2001 but without issuance of a permit in their favour, they were not competent in law to remove the wood and transport it, as clearly it would be an offence in the eyes of law which, in the considered opinion of the Court, has been committed based on the admitted factual position.

10. For the reasons aforesaid, the writ petitions stand dismissed. The authorities shall now encash the securities furnished by the petitioners, in accordance with law and take all Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 further and consequential steps, in accordance with law.

8. He submits that the case of Bhartia & Sons (supra) was dealt with in the order of Arinjay Kumar Sharma (supra) and thereafter the order was passed upholding the decision taken by the respondents.

9. The truck has been confiscated since 31.05.2022, the fact remains that at the time of interception, the petitioner failed to provide any document showing the actual purchase from a private person, in that background the truck was seized and the confiscation process initiated. However, the fact remains that subsequently, the ‘Mukhiya’ of said Panchayat and the person, Ram Kripal Singh, from whom the purchase was made appeared as witness which has been recorded by the authority before passing the order.

10. However, at this stage, learned counsel for the State has taken this Court to section 52A of ‘the Act’ to submit that the petitioner had remedy of filing appeal against the order of confiscation before the appellate authority (District Magistrate, East Champaran, Motihari) which he failed to avail in 30 days.

11. It is an admitted fact that the delay has occurred Patna High Court CWJC No.10981 of 2023(9) dt.22-08-2024 but as per the information the truck still remains lying with the respondent-authority and it is not the case of the respondent- authority to hold any auction. In that background, it would be appropriate that the appellate-authority shall take up the matter and decide the case of the petitioner after taking into account all the facts as also the additional facts which he may produce at the time of hearing.

12. In case, the petitioner prefers the appeal along with proper limitation petition in next four weeks, the appellate- authority shall take into account the fact that the writ petition was preferred here and in that background, the limitation petition has to be decided.

13. The entire process has to be completed within a period of three months from the date a proper appeal along with limitation petition is preferred by the petitioner.

14. The writ petition stands disposed of.

15. Till the decision is taken, the status-quo as existing today with regard to the truck shall be maintained. perwez U (Rajiv Roy, J)