Ronita Biswas | National Law University, Orissa |19th December 2019
Pawan Kumar Yadav v. The State of Bihar [Civil Writ Jurisdiction Case No. 24243 of 2019]
Facts of the Case
The truck of the Petitioner was seized with sand loaded in it in the forest area in the district of Gaya. Ultimately, both the vehicle and sand were confiscated. The owner of the truck, who is the Petitioner, had challenged the confiscation proceedings before the Collector. The same had failed. Subsequently, he filed a Revision petition before the Principal Secretary of Forest Department, Government of Bihar. It also did not succeed. Finally, the Petitioner approached the High Court of Patna for the release of his truck.
Appellant’s contention
The Petitioner had challenged the confiscation proceedings both on legal and factual grounds. Firstly, it was submitted that s. 52-D of the Indian Forest Act, 1927 (hereinafter referred as the ‘Act’) prohibits search and seizure by a person who is not a Forest Officer. In the present matter, such seizure was carried out by a Forester which violates the said provision.
Secondly, it was contended that sand being a minor mineral is covered under the Bihar Minor Minerals Rules, 2017. It would not attract s.63 of the Act as sand is not an item covered under the Act.
Thirdly, the Counsel for the Petitioners contended that the sand which was loaded on the truck belonged to Om Enterprises. It was submitted that law requires the owner of the article, in the present case sand, has to be noticed and heard before order is passed. On the contrary, no such notice was issued to Om Enterprises.
Fourthly, the Petitioner submitted a tax invoice to the Court indicating purchase of river sand by Om Enterprises issued by M/s Ganrajya Traders on 07.10.2017.
The Petitioner submitted that initially when he approached the Court, the Court gave a hurried response by which a direction was given to the Forest Officer-cum-Divisional Forest Officer to consider and dispose off the confiscation case, in accordance with law within a period of three months and if the same was not done, then the application for provisional release of the vehicle was to be considered.
Lastly, the Petitioner submitted that s. 55 of the Act deals with articles which are liable for confiscation and the same should be the property of the Government and sand is not covered by it.
Respondent’s Contention
The counsel for the State submitted that the action of the authorities were in accordance with law.
Firstly, the contention that the seizure itself was carried out by an unauthorized person is erroneous as a Forester is also a Forest Officer under the Act, as has been held in Jamuna Prasad Singh v. State of Bihar (1994(1) PLJR 842) and the same was referred by a Full Bench in Bijay Krishna Sahay v. State of Bihar (1998(3) PLJR 429). The Court held that the criminal case and the confiscation proceedings will stand even if the search and seizure was ultimately found to be illegal provided commission of forest offence has been proved on the basis of relevant evidence/material. Moreover s. 52 of the Act provides that any Forest Officer or Police Officer can effect seizure if there is reason to believe that a forest offence has been committed in respect of any forest produce.
Secondly, it was submitted that s. 2(4) of the Act which defines ‘forest produce’ clearly states in sub-clause (b) (iv) that mineral would include all products of mines and quarries. Hence, sand was product covered under the definition of ‘forest produce’ of the Act. Thus, in accordance to the statutory provisions, the Forester was authorised to seize the sand.
Thirdly, the truck was seized from a place where it was found that trees had been cut to make way for illegal mining of sand and, thus, Section 63(c) of the Act, which relates to altering boundary marks of any forest, is fully attracted. Hence, there was ample evidence to indicate that trees were cut to make passage for vehicles for illegal sand lifting and transportation from forest area.
This also attracts s.33 (2) of the
Act dealing with theft of forest produce i.e., sand and also of the trees which
have been removed for making way for plying of vehicles.
Held
The Court held that the objection of the seizure being made by the Forester is devoid of merit in view of the provision of Section 52 of the Act, as has been held in Jamuna Prasad Singh. The Court also held that sand was covered under the definition of ‘forest produce’ under s.2 (4) (b) (iv) of the Act. Consequently s. 33(2), 52, 63(c) of the Act was also attracted.
The Court concluded that the tax invoice issued in favour of Om Enterprise was ex-facie created later and has no connection with the present transaction as in less than three hours, the truck could not have reached the place where it has been held and further, the sale could not have been made at midnight.
The objection of no notice being served to the owner of the sand also does not merit as the ownership has not been proved in favour of Om Enterprises. Finally, the Court found that it is not mere coincidence that the truck has been caught with sand loaded from where two JCBs meant for excavating sand have also been seized and that too, from a forest area which has been found to have been cleared after cutting trees making passage for vehicles for lifting of sand. Hence, the actions taken by the authorities were in consonance with the requirement of law.
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