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PATNA HIGH COURT
N.Pandey and . JJ.
Sharda Nandan Sharma
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 5573 of 1995 ;
Decided On : NOVEMBER 14, 1995
FOREST ACT - Confiscation of vehicles - Bihar Amendment Act, 1989 - Applicability - Trade Act - Specified forest produce - Confiscation - Jurisdiction of Courts.
Fact of the Case:
The petitioners filed applications for the release of their vehicles seized for alleged offences under the Forest Act and the Bihar Amendment Act, 1989. They also challenged the confiscation proceedings initiated by the authorized forest officer under the Act. The petitioners contended that the provisions of the Forest Act, as amended by the Bihar Amendment Act, were not applicable to Katha and Khair wood in view of the provisions of the Bihar Forest Produce (Regulation of Trade) Act, 1984 (Trade Act).
Finding of the Court:
The Court held that the provisions of the Forest Act, as amended by the Bihar Amendment Act, were applicable to Katha and Khair wood, which were also specified forest produce under the Trade Act. The Court further held that the confiscation proceedings initiated by the authorized forest officer under the Forest Act were maintainable and that the jurisdiction of the criminal courts to release the vehicles during the pendency of the confiscation proceedings was barred under Section 52C of the Forest Act, as amended by the Bihar Amendment Act.
Issues: 1. Whether the provisions of the Forest Act, as amended by the Bihar Amendment Act, 1989, were applicable to Katha and Khair wood, which were also specified forest produce under the Bihar Forest Produce (Regulation of Trade) Act, 1984 (Trade Act). 2. Whether the confiscation proceedings initiated by the authorized forest officer under the Forest Act were maintainable. 3. Whether the criminal courts had jurisdiction to release the vehicles during the pendency of the confiscation proceedings.
Ratio Decidendi: 1. The provisions of the Forest Act, as amended by the Bihar Amendment Act, were applicable to Katha and Khair wood, which were also specified forest produce under the Trade Act, as there was no provision for confiscation of the specified forest produce and the vehicles used in carrying the specified forest produce by the authority under the Trade Act. 2. The confiscation proceedings initiated by the authorized forest officer under the Forest Act were maintainable as the confiscation proceeding was a separate proceeding from the criminal proceeding and had nothing to do with the criminal proceeding either under the Forest Act or under the Trade Act before the Magistrate. 3. The criminal courts had no jurisdiction to release the vehicles during the pendency of the confiscation proceedings under Section 52C of the Forest Act, as amended by the Bihar Amendment Act.
Final Decision: All the applications were dismissed with the direction that the concerned forest officers should dispose of the confiscation proceedings within a period of two months from the date of receipt/production of a copy of the order. In case the confiscation proceedings were not disposed of within a period of two months, it would be open for the petitioners to approach the Court for issuance of necessary directions.
Nagendra Rai, J.
1. The petitioners, who are Assistant public Prosecutors working in different courts of this State, have sought for a writ of mandamus commanding the respondents to take a decision for creation of dif-terent avenues of promotions in the light of necommendation of the 5th Pay Revision committee and keep the Directorate of Prosecution free from the Police Department tor all practical purposes. Their case is that considering the desirability to provide promotional avenues to the Assistant Public prosecutors, the 5th Pay Revision Committee in its report recommended that in each of the districts where Assistant Public prosecutors have been posted, one post in the scale of Rs.1360-2000 should be created for proper supervision and control of the working done by the Assistant Public prosecutors. Secondly there should be at lleast four Regional Public Prosecutors with headquarters at Patna, Ranchi, Muzaffarpur ;and Bhagalpur in the scale of Rs.1575-2300 for supervision of the work in the districts within the original jurisdiction of these old division. Thirdly posts of Additional Director be filled up from either the cadre of Assistant public Prosecutors or from Superior Judicial services. It was also recommended that the prosecuting cadre should not be directly under the Director General of Police.
2. It is alleged that although the recommendation of the 5th Pay Revision committee was accepted by State Government but no promotional avenues has been created except providing selection grades.
3. It is stated that in absence of any promotional avenues, Assistant Public prosecutors have to serve the same post throughout the service career whereas munisfs/judicial Magistrates have avenue of promotions to the rank of District Judge and even elevation as Judge of this Court. Similarly, Deputy Superintendent of Police having lesser qualifications and appointed on the basis of same panel, are getting promotions to the Indian Police Service and utimately also get chance for promotion even to the rank of Director General of Police.
4. Although it would appear from the resolution of the Government bearing no.2/0-1-1042/80 Grih As, 2203 Home (Police department, that having regard to different decisions of this Court as well as statutory requirements provided under section 25 the code of Criminal Procedure, separate directorate of Prosecution completely independent from the Police Department was created but in practice all the higher posts of such Directorate are being filled up by the officials of the Police Department. Therefore, unless higher posts of the Directorate are filled up by the Assistant Public prosecutors, the prosecution wing would not be free from influence and control of the Police Department. It was pointed out that the Supreme Court while examining the case of has held that each State Government is required to constitute a separate cadre of assistant Public Prosecutors, either district-wise or Statewise by creating separate prosecution Department for them and Is head be made directly responsible for such departments work to the State Government. The disciplinary control and conduct of prosecution should also be free from tine administrative and disciplinary control of the police Department.
5. But admittedly in the State of Bihar, the Prosecution Department has been separated from the Department of Police toy creating a separate cadre. Therefore, only grievance of the petitioners relevant for consideration is that all the higher posts of that department should only be filled up by promotion of the Assistant Public Prosecutor and not by any other department.
6. I have already indicated that 5th Pay revision Committee having considered large number of representations of the Assistant public Prosecutors as also after taking note of service condition of different identical services, made a positive recom mendation for creation of different posts with higher scale to enable the Assistant public Prosecutors to
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