Allowed

Dharampal v. State of U.P. Thru. Secy. Deptt. of Forest Civil Sectt. Lko and 2 Others

Allahabad HC7 Jul 2023/5904/2023

Case brief

AI extract

What is this about?

High Court allowed an application under Section 482 CrPC to set aside impugned orders from the trial and revisional courts regarding forest vehicle seizure. The Court found the lower courts erred in jurisdiction and procedure, setting aside orders and granting liberty to apply to the competent authority within a strict time limit.

What did the court decide?

Impugned orders of trial and revisional courts set aside; liberty granted to move appropriate application to competent authority within 15 days for disposal within 60 days.

Dharampal Vs State of U.P. Thru. Secy. Deptt. of… — Environment and Pollution | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:44018

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Court No. - 28

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Case :- APPLICATION U/S 482 No. - 5904 of 2023 Applicant :- Dharampal Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Forest Civil Sectt. Lko And 2 Others Counsel for Applicant :- Mahendra Kumar Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Mahendra Kumar Sharma, learned counsel for the applicant, Sri Aniruddh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.

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Instant application has been filed with the prayer to set aside the impugned Judgment and order dated 7.12.2022 passed by the Sessions Judge, Shrawasti in Revision No.25 of 2022, State through Divisional Forest Officer, Shrawasti Vs. Dhrampal. Further prayer is to stay the operation of the impugned Judgment and order dated 7.12.2022 passed by Session Judge, Shrawasti in Revision No.25 of 2022, State through Divisional Forest Officer, Shrawasti Vs. Dhrampal and directed the respondent to release the vehicle Pickup No.UP46T2496 Engine No.TBK1G66332 Caches No.MA1ZN2TBKK1G59438 in pursuance of the order dated 6.5.2022 in Criminal Misc. Case No.666 of 2022, State Vs. Dhrampal passed by the Chief Judicial Magistrate, Shrawasti.

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Learned counsel for the applicant submits that the order dated 7.12.2022 has been passed by the revisional court without considering relevant provisions of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act 1927') in its right perspective. He added as a factual matrix that an application was moved before trial court for release of vehicle wherein the trial court passed the order on 6.5.2023, whereby the vehicle of the applicant was directed to be released and certain amount as a personal bond and bail bond was also fixed for release of the said vehicle. After the aforesaid order, the same was assailed by the Forest Department in Criminal Revision No.25 of 2022, wherein the order was passed by the revisional court on 7.12.2022, thereby the order passed by the Chief Judicial Magistrate concerned on 6.5.2022, in Criminal Case No.666 of 2022, has been set aside and the matter was remitted back to the C.J.M. concerned to decide afresh, after hearing the parties.

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Contention of the learned counsel for the applicant is that there

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is provision with respect to the seizure of the vehicles, which is envisaged under Section 52-A of the Act, 1927. Section 52-A (1), (2), (3), (4) &(5) are quoted as under:-

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"52A. Procedure on seizure.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force where a forest-offence is believed to have been committed in respect of any forest-produce, which is the property of the State Government, the officer seizing the property under sub-section (1) of section 52 shall without unreasonable delay, produce it together with all the tools, bouts, vehicles, cattle, ropes, chains and other articles used in committing the offence before an officer, not below the rank of a Divisional Forest Officer, authorized by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them.

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(2) The authorized officer shall, without any undue delay, forward a copy of the order made under sub-section (1) to his official superior.

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(3) Where the authorized officer passing an order under sub-section (1) is of the opinion that the property is subject to speedy and natural decay he may order the property or any part thereof to be sold by public auction and may deal with the proceeds as he would have dealt with such property if it had not been sold and shall report about every such sale to his official superior.

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(4) No order under sub-section (1) shall be made without giving notice, in writing to the person from whom the property is seized, and to any other person who may appear to the authorized officer to have some interest in such property.

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Provided that in an order confiscating a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objections if any will suffice.

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his

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(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) proves 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."

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Referring the aforesaid, he submits that abovesaid provisions provide that notwithstanding anything contained in this Act or any other law for the time being in force, where forest offence is believed to have been committed with respect to any forest produce, the vehicles, cattle, ropes, chains or other articles used in committing the offence shall be brought before an officer not below the rank on Divisional Forest Officer, authorized by the State Government and after recording reasons, order shall be

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made with respect to custody, possession, delivery, disposal or distribution of such property. Adding his argument, he submits that apart from the aforesaid, there is also provision under Section 52-A (4) that no order under Sub Section (1) shall be made without giving notice to the person from whom property is seized or any other person, who may appear before Forest Officer to have interest in such property.

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Submission is that in fact, after seizure of vehicle of the present applicant, no notice has ever been served by the Forest Officer under Section 52 A (4) of the Act, 1927. He further added that in fact, revisional court while passing the impugned order dated 7.12.2022 has committed patent error as the impugned order dated 6.5.2022 was set aside and it was again remitted back to the Magistrate concerned to decide the matter afresh. He submits that if the order dated 7.12.2022 would have been passed taking into consideration of the provisions envisaged under Section 52A of the Act, 1927, then there was no occasion to remit back the matter to the trial court to pass fresh order and, therefore, the order passed by revisional court is erroneous on its face and the same is liable to be set aside.

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Further submission is that the applicant may be given liberty to move an application before the competent authority appointed with the State Government under Section 52-A of the Act, raising all the objections including the fact that no notice has ever been served upon the applicant as provided 52 A (4) of the Act, 1927. He also added that he will also be given liberty to take plea before the competent authority that seized property is subject to speedy and natural decay and, therefore, the competent authority may be directed to decide the application of release of the vehicle within stipulated period of time as may be fixed by this Court.

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On the other hand, learned counsel for the State has opposed the contention aforesaid but he has no objection if the competent authority is directed to decide the matter afresh within stipulated period of time as may be fixed this Court.

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Considering the submissions of the learned counsel for the parties and after perusal of the record, it transpires that initially, an order was passed by the Chief Judicial Magistrate concerned on 6.5.2022, on an application of the applicant, for release of the vehicle and that was challenged by the Forest Department while instituting the revision, wherein the revisional court has passed the order on 7.12.2022, taking into consideration that there is barring clause under Section 52-D of the Act, 1927 and, thereafter, the matter was remitted back to the trial court concerned to decide the matter afresh after hearing the

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concerned parties. It is not understandable that once the revisional court has taken note of clause 52-D of the Act, 1927 then what was occasion for it to remit back the matter to the Chief Judicial Magistrate concerned to decide the matter afresh as under the provision of Section 52-A of the Act, 1927, the competent authority appointed with the State Government has to decide the application of release of any vehicle and there are certain other provisions apart from that including the provisions of the issuance of notice to the parties concerned.

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This Court has further noticed the fact that in fact, it has categorically been stated by the applicant in para 18 of the pleadings that no notice has ever been served upon the applicant under Section 52-A (4) of the Act, 1927. It prima facie seems that the vehicle in question has also not been produced without unreasonable delay, before the competent authority. This Court has also considered the fact that the order passed by the Magistrate is erroneous and against the provisions of law as the learned Magistrate/trial court had no jurisdiction to entertain an application to release any vehicle, which was seized invoking provisions of the Act, 1927.

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In view of the aforesaid submissions and discussions, the impugned order dated 6.5.2022 passed by the trial court and impugned order dated 7.12.2022 passed by the revisional court, are hereby set aside.

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The applicant is given liberty to move appropriate application before the competent authority as mentioned in Section 52-A of the Act, 1927, within a period of 15 days from the date of this order and if such an application is moved, the same shall be decided by the competent authority within further period of 60 days, in the light of ratio of the Judgment and order rendered in Sunderbhai Ambala Desai Vs. State of Gujarat, reported in AIR 2003 SC 638 after affording opportunity of hearing to all concerned parties. The applicant shall take all objections while filing the application.

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With the aforesaid discussions and observations, instant application is hereby allowed at the admission stage itself.

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Order Date :- 7.7.2023 Ram Murti

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Digitally signed by :- RAM MURTI YADAV High Court of Judicature at Allahabad, Lucknow Bench

Dharampal v. State of U.P. Thru. Secy. Deptt. of Forest Civil Sectt. Lko and 2 Others

Case brief

What is this about?

What did the court decide?

Dharampal v. State of U.P. Thru. Secy. Deptt. of Forest Civil Sectt. Lko and 2 Others

Case brief

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What did the court decide?

What the court decided

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