The High Court held that the search and seizure of the timber were not conducted in accordance with the West Bengal Forest Produce Transit Rules, 1959, and that the order of confiscation was passed without giving the respondent an opportunity to be heard, as required by Section 59B of the Indian Forest (West Bengal Amendment) Act, 1988.

JUDGMENT :- The instant appeal is directed against an order dated 15-1-90 passed in C. O. 12330(W) of 1989 by a learned single Judge of this Court allowing the writ application of the respondent-writ-petitioner and directing return of the seized goods to the respondent-writ-petitioner forthwith.

2. In coming to the said conclusion the learned Judge has noticed that the procedures prescribed had not been complied with by the forest authorities in effecting the seizure or confiscation. The learned Judge also held that the search was not conducted in accordance with the rules, inasmuch as, signature of any independent witness was not taken in the seizure memo. The provisions of Rule 8(1) of the West Bengal Forest Produce Transit Rules have also not been complied with insofar as no notice was issued to the owner nor a copy of the seizure list was furnished to him.

3. The more important fact noticed by the learned trial Judge was the discrepancy between the search warrant and other documents whereby the premises were searched and forest produce seized.

4. It may be noticed that the endorsement made on the reverse of the search warrant stated that "timbers are not bearing any government hammer impressions and found illegal". The same bears the date as 21-8-87. Witnesses to the said search are all forest officers and not independent witness. From the seizure list prepared and signed on 22-8-89, it is seen that in Column No. 7 it reads as, "Seizure hammer impression and T. M. N. B. Reference". It has been written opposite thereto as, "COB T. M. N. B. Ref :- SZ/88

Page 8-59/734. This discrepancy was taken serious note of by the learned trial Judge and he was of the view that the search and seizure have not been made in accordance with the Rules, the entire proceeding including the order of confiscation are liable to be set aside. The seizure appears to have been made in terms of the West Bengal Forest Produce Transit Rules, 1959. Rule 8(1) whereof reads thus :-

"8(1) Any Forest Officer who has seized any forest-produce under Rule 7 shall-

(a) immediately issue a written notice to the owner of such forest-produce or if the owner is unknown to the person in charge or possession of such forest-produce at the time of seizure, calling upon him to produce proof of the origin of the forest-produce and his title thereto within thirty days from the date of issue of such written notice, a copy of which shall be pasted on a Notice Board at the nearest forest office, and

(b) submit a seizure report in the prescribed form without delay to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made."

The learned trial Judge has rightly observed that neither requirement of the said Rules nor provisions of Section 100 of the Code of Criminal Procedure had been complied with. In that view of the matter, the seizure of the timber has rightly been held to be illegal. As regard the order of confiscation, it is relevant to reproduce the provisions of Sections 59A and 59B of the Indian Forest (West Bengal Amendment) Act, 1988-

"59A.- 1. Notwithstanding anything contained in the foregoing provisions of this chapter or in any other law for the time being in force, where a forest-offence is believed to have been committed in respect of the timber or other forest produce which is the property of the State Government, the Forest Officer or the Police Officer seizing the timber or other forest produce under sub-section (1) of Section 52 shall, without any unreasonable delay, produce the same together with all tools, ropes, chains, vehicles, and cattle used in committing the offence, before an officer of a rank not inferior to that of an Assistant Conservator of Forests, authorised by the State Government in this behalf by notification in the official Gazette (hereinafter referred to as the authorised officer)."

59B.- (1) No order confiscating any property or tools, ropes, chains, boats, vehicles or cattle shall be made und