In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.319 of 2009
Loknath Rajak @ Loknath Rajak Dorba........ Petitioner
VERSUS
State of Jharkhand and others................... Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: Mr.Sidhartha Roy
For the State : Mr. Jalisur Rahman, J.C. to G.P.III
Reserved on 14.12.2009 Pronounced on 16.12.2009
9. 16.12.09
. Through this application seizure of a tractor, bearing engine
no.25352 G and chassis no.3492167 has been sought to be
quashed and consequently, prayer has also been made to direct
the respondents to release the said vehicle.
The facts giving rise this application are that the Forest
Guard while was taking round in the forest, intercepted a tractor in
a forest area, bearing engine no.25352 G and chassis no.3492167,
when it was carrying away boulders taken out from the forest and
hence, the tractor loaded with boulders was seized. This petitioner
and other accused persons, who had indulged themselves in the
aforesaid crime, were seen fleeing away. Accordingly, offence
report was submitted putting allegation that the petitioner and
others have committed offence under Section 33 of the Indian
Forest Act. Subsequently, a confiscation proceeding was initiated
under Section 52 of the Indian Forest Act for confiscating the
tractor. In the said confiscation proceeding, an application, as per
the case of the petitioner, was filed for interim release of the
tractor but no order was passed and as such, the petitioner has
preferred this writ application whereby seizure of the tractor has
been sought to be quashed and at the same time, prayer has also
been made to direct the authorities to release the vehicle.
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Learned counsel appearing for the petitioner submits that
seizure of the tractor carrying stones said to have been taken out
from the forest area was effected by the Forest Guard, who is
below the rank of Range Officer an as such, he, in terms of the
provision as contained in Section 52-D of the Indian Forest Act
(Bihar Amendment), is not competent to make such seizure and
once the seizure is held to be illegal, entire prosecution and even
confiscation proceeding would be vitiated and, therefore, the
tractor be directed to be released as that is the only source of
livelihood of the petitioner.
Learned counsel for the petitioner on the point of release of
the vehicle has referred to a decision rendered in a case of
Satrughan Singhal vs. State of Jharkhand and others [2009
(2) East Cr. C 445 (jhr)]. Further a case of State of Karnataka
vs. K.Krishnan [ 2000 (3) East Cr. C 1053 (SC)] and also a
case of Section Forester and another vs. Mansur Ali Khan
[2004(2) JCR 96 (SC)] were referred to.
The stand of the State, as has been taken in the counter
affidavit, is that the petitioner, as per the allegation prima facie,
seems to have committed offence under Section 33 of the Indian
Forest Act as he was seen taking away the boulders taken out from
the forest area on a tractor which on being intercepted was seized
by the Forest guard under Section 52 of the Indian Forest Act
(Bihar Amendment) and for the purpose of seizure, Forest Guard
has been notified to the ‘Forest Officer’ and as such, seizure cannot
be said to be illegal and moreover, any illegality with respect to
search and seizure of the vehicle or the forest produce will have
no bearing on a confiscation proceeding and also over the criminal
case which proposition of law has been laid down by the Patna
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High Court in a case of Bijay Krishna Sahay vs. State of Bihar
and others [1998(3) PLJR 429 (FB)].
Having head learned counsel appearing for the parties, I do
not find any substance in the submission that search and seizure
being effected by the Forest Guard is illegal, in view of the
provision as contained in Section 52-D of the Indian Forest Act
(Bihar Amendment) as under Section 52-D of the Act any Forest
Officer not below the rank of Range Officer of forest or any Police
Officer not below the rank of Sub-Inspector is not competent to
effect search and seizure.
It be stated that Section 52 of the Indian Forest Act (Bihar
Amendment) speaks about the seizure and its procedure for the
property liable for confiscation whereas Section 52-D speaks about
the power of entry, inspection, search and seizure. Here, it would
be appropriate to refer to those sections 52 and 52-D as inserted
by the Bihar Amendment which reads as follows:
“52. Seizure and its procedure for the property liable
for confiscation – (1) When there is reason to believe
that forest offence has been committed in respect of
any forest produce, such produce together with all
tools, arms, boats, vehicles, chains or any other
article used in committing any such offence, may be
seized by any Forest Officer or Police Officer.”
“52-D. Power of entry, inspection, search and seizure-
Notwithstanding anything contained in any other law
for the time being in force any Forest Officer not
below the rank of Range Officer of Forest or any
Police Officer not below the rank of a Sub-Inspector,
may, if he has reasonable grounds to believe that any
forest offence has been committed in contravention of
this Act, enter upon, inspect and search any place,
premises, appurtenances thereto, land, vehicles or
boat and seize any illegal forest produce and all tools,
arms, boats, vehicles, ropes, chains or any other
article used in committing such offence.”
Thus, Section 52 empowers the Forest Officer or the Police
Officer to seize any forest produce, if there is reason to believe that
a forest offence in respect thereof has been committed. This
Section would cover the case where the Forest Officer finds that
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forest produce has been or is being removed in contravention of
law or where theft of forest produce has been or is being
committed. In such a case, he can seize the forest produce
together with vehicle. But if seizure of forest produce without
inspection and/or search is not possible, power of seizure under
Section 52 cannot be availed of because it does not authorize
inspection and search. On the other hand, Section 52-D deals with
any forest offence under which any Forest Officer not below the
rank of Range Officer or any Police Officer not below the rank of
Sub-Inspector can, if he has reasonable grounds to believe that any
forest offence has been committed, exercise any of the powers
mentioned therein including the power of seizure.
In the instant case, the tractor in question was seized from
the forest area while it was carrying boulders taken out from the
forest and as such, the seizure falls within the purview of Section
52 and not under Section 52-D of the Act.
In that view of the matter any seizure of the vehicle by the
Forest Guard who has been notified as Forest Officer cannot be
said to be illegal.
So far the question relating to release of the vehicle is
concerned, it be stated that the Act itself has made a provision for
interim release of the vehicle on the existence of certain conditions
mentioned therein but that power to release the vehicle involved in
a forest offence, as per the decision of the Hon’ble Supreme Court,
should not be exercised casually.
In this regard, I may refer to a decision in the case of State
of Karnataka vs. K. Krishnan [(2000) 7 SCC 80] wherein the
Hon’ble Supreme Court has spelt out the guidelines to be kept in
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mind while passing the order for release of the vehicle which is as
follows:
” The Courts cannot shut their eyes and ignore their
obligations indicated in the Act enacted for the
purposes of protecting and safeguarding both the
forests and their produce. The forests are not only
the natural wealth of the country but also protector of
human life by providing a clean and unpolluted
atmosphere. We are of the considered view that
when any vehicle is seized on the allegation that it
was used for committing a forest offence, the same
shall not normally be returned to a party till the
culmination of all the proceedings in respect of such
offence, including confiscatory proceedings, if any.
Nonetheless, if for any exceptional reasons a Court is
inclined to release the vehicle during such pendency,
furnishing a bank guarantee should be the minimum
condition. No party shall be under the impression that
release of vehicle would be possible on easier terms,
when such vehicle is alleged to have been involved in
commission of a forest offence. Any such easy release
would tempt the forest offenders to repeat
commission of such offences. Its casualty will be the
forest as the same cannot be replenished for years to
come.”
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From the above dictum, it is clear that when a theft is
involved in a forest offence, the same is not to be released to the
offender or the claimant as a matter of routine. However, in
exceptional cases, one can pass order for interim release on the
existence of certain condition mentioned under Section 53 of the
Act.
In the instant case, the matter relating to interim release of
the vehicle, as per the averment made by the petitioner, is pending
before the confiscating authority, therefore, no order in this respect
warrants to be passed by this Court. However, since the matter is
pending before the confiscating authority, the confiscating
authority, respondent no.2 is hereby directed to dispose of the
matter relating to release of the vehicle in accordance with law
within a period of one month from the date of receipt or production
of a copy of this order.
Thus, this application is disposed of.
ND/ ( R. R. Prasad, J.)