JUDGMENT
Vineet Saran, J.
1. By means of this writ petition the petitioner has challenged the order dated 16.6.2003 whereby the Respondent No. 2, Prescribed Authority/Divisional Forest Officer (Social Forestry), Etawah, has seized the vehicle of the petitioner under Section 52A of the Indian Forest Act, 1927 (hereinafter referred to as the Act) as amended by U.P. Act No. 1 of 2001 with effect from 16.4.2001. The order dated 8.3.2004, whereby the appeal of the petitioner has been rejected by the State of U.P., has also been challenged.
2. Briefly the facts of this case are that on 25.3.2003 a first information report was lodged by “Van Daroga” against four persons, namely, Narendra; Vijai Singh; Rajesh Kumar and Onkar for possessing coal made out from the forest wood which was loaded in truck No. URA 9714. The petitioner was not named in the first information report which was registered as Forest Crime No. 121/02-03 under Sections 26/52 and 55 of Indian Forest Act and Rule 3/28 of the corresponding Rules. Since the truck in question was owned by the petitioner, a notice dated 26.3.2003 was issued to him by the Respondent: No. 2, Prescribed Authority/Divisional Forest Officer (Social Forestry), Etawah, under Section 52A(4) of the Act to show cause why the vehicle No. UAR-9714 owned by the petitioner be not seized. The petitioner submitted his reply on 25.4.2003, in which it was categorically stated that the truck in question was hired by M/s Jai Shree Balaji Transport Commission Agency, Pakka Bagh, Kanpur Road, Ktawah and the original Builty No. 802 dated 25.3.2003 with regard to the same was enclosed along with the reply to the show cause notice. It was also categorically stated that the petitioner had no concern with the goods in question as the same belonged to the hirer, who were the accused persons named in the first information report dated 25.3.2003. The Respondent No. 2 thereafter passed an order on 16.6.2003 under Section 52-A of the Act directing seizure of the vehicle. Challenging the said order the petitioner filed an appeal before the State Government under Section 52B of the Act. By order dated 8.3.2004 the said appeal of the petitioner has been dismissed. Aggrieved by the aforesaid orders the petitioner has filed this writ petition.
3. I have heard M/s O.P. Srivastava and Vaibhav Prakash Srivastava, learned Counsel for the petitioners as well as learned Standing Counsel for the Respondents. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at the admission stage itself.
4. The submission of the petitioner is that while passing the impugned orders the authorities have neither considered the explanation of the petitioner submitted in response to the show cause notice nor have they taken into account the original Builty No. 802 dated 25.3.2003 which was filed by the petitioner along with his reply to the show cause notice to substantiate his stand that the vehicle was hired by M/s Jai Shree Balaji Transport Commission Agency and that the petitioner had no concerned with the goods which were confiscated by “Van Daroga”.
5. Section 52-A of the Act (as amended by the State of U.P.) provides for the procedure on seizure of goods. Sub-section (5) of Section 52-A of the Act, which is relevant for the purposes of the present case, reads as under:-
52-A. Procedure on seizure.-
(1)…
(2)…
(3)…
(4)…
(5) No order of confiscation of any tool, boat, vehicle, cattle, rope, chain or other article shall be made if any person referred to in Sub-section (4) provides to the satisfaction of the authorized officer that any such tool, boat, vehicle, cattle, rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the. objects aforesaid for the commission of the forest offence.
6. The said Sub-section clearly provides that no order of confiscation of any vehicle shall be made if the person proves to the satisfaction of the authorized officer that such vehicle was used without his, or his servant’s or agent’s knowledge or connivance.
7. In the present case the vehicle of the petitioner was no doubt used by the persons accused in Forest Crime No. 121/02-03 registered on 25.3.2003 but the knowledge of the petitioner is only on the basis of presumption. The petitioner had placed before the authorities concerned the relevant original Builty with regard to hiring of the vehicle by the transport agency. The authorities below have not considered the same and by the impugned orders certain photo copies of other Entities of the years 2001 and 2002 have been dealt with and in the absence of the originals of the same having been filed, the said Entities have been held to be forged. The learned Standing counsel could not point out the relevance of the said Entities of the years 2001 and 2002 with the incident of 25.3.2003. When the Entity dated 25.3.2003 itself had been produced in original alongwith the reply of the petitioner dated 25.4.2003 to the show cause notice, and the same has not been denied by the respondents, it is not understood as to why the respondent-authorities have not considered and dealt with the same in the impugned orders.
8. In the present case, the petitioner has, from his side, adduced evidence to show that he had no knowledge of the vehicle being used for such purposes and without considering or dealing with such evidence, the authorities below have arrived at a conclusion that the vehicle was used with the knowledge and connivance of the petitioner. The petitioner has not been named in the first information report dated 25.3.2003. In the criminal case also, no charge sheet has even been filed in the Court, as would be clear from a perusal of Annexure-S.A.1 to the supplementary affidavit. Although in the counter affidavit it has been stated that in pursuance of the first information report dated 25.3.2003 a criminal case is pending trial before the competent court but neither the name of the Court nor the case number has been mentioned. The said averments have been categorically denied by the petitioner in the rejoinder affidavit and now by means of the supplementary affidavit a question-answer issued by the concerned court has also been filed wherein it has been stated that no case has been registered in pursuance of Forest Crime No. 121/02-03 of the relevant police station. In such view of the matter also when the criminal prosecution has not even been initiated by the authorities although nearly three years have passed, there would be no justification to permit the seizure of the vehicle in question. Besides the fact that the involvement of the petitioner has not been proved in the offence in question, the action of the respondents by keeping the vehicle seized and not even initiating criminal prosecution against the accused persons would entitle the petitioner for release of the vehicle.
9. Accordingly, for the foregoing reasons, the orders dated 8.3.2004 and 16.6.2003 passed by Respondent nos. 1 and 2 respectively, deserve to be quashed and are hereby quashed. As suggested by learned Standing Counsel and agreed to by the learned Counsel for the petitioner, the Respondent no. 2 (Prescribed Authority/Divisional Forest Officer [Social Forestry], Etawah) shall release vehicle No. UAR 9714 in favour of the petitioner on his furnishing a security of Rs. Two lacs (which may be other than cash or bank guarantee) and on the undertaking of the petitioner that the vehicle shall be produced before the authority concerned, as and when required for the purposes of the case and that he shall not transfer the vehicle in question till finalisation of the criminal case.
10. The writ petition stands allowed to the extent as indicated above. No order as to cost.
