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2010 Supreme(Pat) 1116
PATNA HIGH COURT
Samarendra Pratap Singh, J.
M/s.Universals Engineers, Through Its Partner Sri harikirti Singh, Son Of Late Shambhu Prasad Singh
Versus
State Of Bihar Through The Secretary, Department Of Forest And Environment
CWJC No. 5933 of 2004
Decided On : MAY 04, 2010
The main legal point established in the judgment is the need for strict construction in penalty proceedings, the fulfillment of pre-requisite conditions for initiating confiscation proceedings, and the principle of proportionality in penalty proceedings.
Headnote:
Forest Offence - Confiscation of Property - Indian Forest Act, Section 52 - Summary: The court addressed the legality of the confiscation proceeding initiated under Section 52 of the Indian Forest Act. It discussed the pre-conditions for initiating confiscation proceedings, the requirement of gazette notification, and the principle of proportionality. The court found that the notice fulfilled the pre-requisite conditions for initiating confiscation proceedings and that the absence of gazette notification did not render the proceeding void. It also emphasized the need for strict construction in penalty proceedings and held that the petitioner was successful in proving that the alleged offence was committed without their knowledge and connivance. The impugned orders were set aside, and the authorities were directed to release the truck in favor of the petitioner.
Fact of the Case:
The petitioners sought to quash the order for confiscation of their truck and stone metals, which were seized under the Indian Forest Act. They argued that the initiation of the confiscation proceeding was without jurisdiction and that the authorities failed to prove the alleged offence beyond reasonable doubt. They also contended that the confiscation power is discretionary and that the alleged offence was committed without their knowledge or connivance.
Finding of the Court:
The court found that the notice initiating the confiscation proceeding fulfilled the pre-requisite conditions for initiating confiscation proceedings. It held that the absence of gazette notification did not render the proceeding void and emphasized the need for strict construction in penalty proceedings. The court also concluded that the petitioner was successful in proving that the alleged offence was committed without their knowledge and connivance.
Issues: The issues involved the legality of the confiscation proceeding, the requirement of gazette notification, the principle of proportionality, and the burden of proof on the authorities to establish the alleged offence beyond reasonable doubt.
Ratio Decidendi: The court emphasized the need for strict construction in penalty proceedings and held that the absence of gazette notification did not render the confiscation proceeding void. It also emphasized the principle of proportionality and held that the petitioner was successful in proving that the alleged offence was committed without their knowledge and connivance.
Final Decision: The impugned orders were set aside, and the authorities were directed to release the truck in question in favor of the petitioner.
1. The petitioners pray for quashing the order dated 9.8.2003 passed by the Secretary-Respondent no. 2, in Confiscation Revision Case No. 12 of 2002 by which he has affirmed the order dated 29.4.2002, passed by the District Magistrate, Nalanda in Forest Appeal No. 13/01, as well as order dated 12.10.2001, passed by the respondent no. 4 Authorised Officer-cum Divisional Forest Officer, in Confiscation Case No. 12 of 2001.
2. (a) Petitioner no. 1 is a partnership firm consisting of three partners. Petitioner no. 2 is the driver of the truck bearing no. BRD 5657. The case of the petitioners is in narrow campass; On 30.6.2001, the petitioners truck, bearing no. BRD 5657 had gone to Nawadah for lifting metal stones for personal use. The truck after loading 250 Cft of metal chips from leased mine of one Rajeshwar Singh, a permit holder, was returning. On the way, one of the tyres of the truck burst on the main road near Rajgir.
(b) Petitioner no. 2 got down to replace the punctured tyre. In the meanwhile Range Officer, Rajgir seized the truck leveling a false charge that it was found loading stone metals 4 KM inside the protected forest. The petitioner no. 2 was arrested on the spot. A seizure list was prepared and prosecution case was lodged against the petitioner and three others. A confiscation proceeding no. 12 of 2001 was initiated under the signature of Authorised Officer-cum-Divisional Officer, Nalanda.
3. The petitioners state that the truck was seized by the Range Officer on the main road near Rajgir but a seizure list has been prepared showing seizure of the truck in Tola-Sunder Ban within protected forest of Rajgir.
4. On 30.6.2001, the Range Officer (Respondent no. 4) sent a forwarding report to the Chief Judicial Magistrate, Nalanda, Biharsharif stating therein that Truck No. BRD 5657 was found loaded with metal chips drawn from illegal mining.
5. The Authorised Officer-cum-Divisional Forest Officer vide his memo no.1007, dated 4.7.2001 issued notice to petitioners asking to show cause as to why the truck and stone metals in question be not confiscated.
6. One of the partners of the firm filed show cause on 10.7.2001. He stated that the truck was seized on Falgu-Rajgir road, while the driver was repairing the punctured tyre. The mining challan was issued by the lease holder of Plot No.738 of Village Falgu of district Nawadah. It was stated in the show cause that the driver was directed to load the stones only from proper lease hold quarry, after payment of royalty. Thus, the driver was carrying the stones on bonafide belief that challan issued by Rajeshwar Singh, claiming himself to be a permit holder of plot no. 738 of Village Falgu of Nawadah district was in order. The driver (petitioner no. 2) in his evidence stated that his truck was seized while he was replacing the punctured tyre on Falgu-Rajgir road. He was carrying the stone metals on the basis of valid challan issued by lease holder.
7. The Authorised Officer-cum-Divisional Forest Officer, respondent no. 4 confiscated the truck alongwith stone metals vide order dated 12.10.2001, under Section 52 of the Indian Forest Act. Both appeals and revision preferred by petitioners were rejected vide order dated 29.4.2002, passed in Confiscation Forest (Appeal) No. 13 of 2001 by the District Magistrate, Nalanda at Biharsharif and the Secretary, Forest by his order dated 9.8.2003, passed in Revision Case No. 12 of 2002, respectively.
8. The petitioners have challenged the impugned order on the following grounds:
(i) The notice initiating confiscation proceeding dated 4.7.2001 is bad in law, as it does not fulfill the requirement of Section 52(1) of the Forest Act(Bihar Amendment) of recording satisfaction that a forest offence was committed.
(ii) The initiation of confiscation proceeding vide notice dated 10.7.2001 is without jurisdiction for want of notification in official gazette under Section 30C of Forest Act.
(iii) The department has not discharged its prima
