Allowed

Kamleash Roshan v. State of Hp

Himachal Pradesh HC15 Jul 2013CRMMO/108/2013

Case brief

AI extract

What is this about?

The High Court quashed orders refusing release of two vehicles used to transport medicinal herbs illegally. Finding that the authorized officer did not comply with Section 52A of the Indian Forest Act due to lack of police request for confiscation, the Court granted interim custody of the vehicles to the owners subject to furnishing a bond.

What did the court decide?

Interim custody granted to the petitioners (owners of the vehicles) upon furnishing a bond of ₹5 lacs each and undertaking to produce the vehicles when required.

Kamleash Roshan Vs State of Hp — Writ and Judicial Review | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr.M.M.O. Nos. 107 and 108 of /2013

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Date of decision: 15.07.2013

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1. Cr.MMO No.107 of 2013.

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Vijay Thakur ….Petitioner

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Versus

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The State of HP ……Respondent

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2. Cr.MMO No. 108 of 2013.

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Kamlesh Roshan ….Petitioner Versus The State of HP ……Respondent

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Coram:

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The Hon’ble Mr. Justice Surinder Singh, J.

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Whether approved for reporting ?¹

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For the Petitioner(s): Mr. Tarlok Chauhan, Advocate. For the respondent(s) : Mr. V.K. Verma, Additional Advocate General, with Mr. Ramesh Thakur, Assistant Advocate General.

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Surinder Singh, J. (Oral)

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Both these petitions are arising out of the

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same order passed by the Authorized Officer on 23.1.2012 affirmed in appeal by the learned Sessions Judge on 18.9.2012, hence taken up together for its decision.

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1 Whether the reporters of Local Papers may be allowed to see the judgment ?

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These petitions under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India have been preferred for setting aside the above orders and seeking release of the vehicles impounded by the police, in the aforesaid FIR, by its owners.

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Perused the record and the report filed by the respondent-State.

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It is alleged that on 24.12.2011, SI/SHO police station, Ani was heading patrolling party in the area of Shamshar Jaon . During the intervening night of 24/25.12.2011, at about 2.45 a.m., two vehicles bearing registration Nos.HP-49A-0172 and HP49A-0551 (both pick-up vans) came with load of 50 bags weighing 1590 kg. and 45 bags weighing 1250 kg. respectively containing medicinal herbs locally called “Dori” (plenipotentiary). The Block Forest Officer Khanag was associated in the interrogation.

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(ii) The vehicle bearing registration No.HP49A0551 was being driven by accused Yash Pal whereas Dalip Singh and Kushal Sharma were its other occupants. Another vehicle was being driven by Rakesh Roshan whereas Roshan Lal and Thakur Dass

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were its other accomplices. They could not produce any permit/license.

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(iii) From the recoveries aforesaid, one bag from each of the vehicles were retained as sample and sealed with seal impression “T”. The impression thereof was also taken on a piece of cloth.

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(iv) Both these vehicles were impounded and given on supurdari of B.O. Khanag. Ruka was sent for the registration of the case under Section 379, read with Section 34 Indian Penal Code and Sections 41, 42 of Indian Forest Act.

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Report of seizure was stated to have been forwarded to the DFO Ani at Luhri, an Authorized Officer under Section 52A of the Indian Forest Act for disposal of the vehicles in question along with the other seized property.

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Petitioner Vijay Thakur claimed himself the owner of vehicle No. HP49A-0551 whereas petitioner Kamlesh Roshan that of vehicle No. HP49A-0172. Both of them had filed respective applications Annexure P1 in each of the petitions for the release of the property. Vide separate order Annexure P2 in the petitions, release of vehicle was declined precisely on the ground that no such application under Section 451 of the Code of Criminal Procedure

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is maintainable nor there was any request by the police or any one else for confiscation of the said vehicles but nevertheless copy of FIR No. 356 of 2011 dated 25.12.2011 was received from Police station Ani, informing that the said vehicles were apprehended by the police under the aforesaid Sections. Against this background, the petitioner was directed to approach the appropriate Court of law for release.

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The petitioner did not approach the trial Magistrate but filed an appeal against this order under Section 59 (2) of the Indian Forest Act before the court of Sessions. The learned Sessions Judge dismissed the appeal while upholding the order of the Authorized Officer on the ground that he did not commit any illegality directing the applicant to approach appropriate Court in accordance with law. While parting with the judgment, he observed that Incharge police station, Ani had already made report of seizure of the vehicles in question as per police record to the Authorized Officer, thus he was required to have proceeded with in accordance with Section 52A while complying with the requirements laid down in Section 52B as well as 52B (2) of the Act.

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Now the petitioners herein have preferred the present petitions, for its quashment.

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I have heard the learned counsel for the parties and have carefully examined the record.

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It is submitted that the challan was presented in the Court and the case is pending service of the accused persons in the Court of learned JMIC Ani.

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The perusal of the record reveals that the Divisional Forest Officer, who is an authorized officer clearly indicated that no such request as required under Section 52A of the Indian Forest Act was received from the police in his office. The copy of his order Annexure P-2 was also endorsed to the SHO concerned. When this matter was brought to the notice of the SHO, it was incumbent upon him to have pursued the matter further or in any case, such a request, if any, ever made to the authorized officer should have been reiterated or it should have been looked into where it had gone and there was no impediment to make a fresh request in accordance with Section 52A of the Act, but, he too kept silent.

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Undoubtedly, the material which was apprehended by the police is a forest produce and the accused persons are stated to have not

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produced any permit/license to transport it. The petitioners claim themselves to be the owners of the respective vehicles. According to them, they had never authorized their drivers to transport forest produce, if they did so, it was without their knowledge, whereas they had also taken all precautions against use of the vehicles in question to commit any offence. But when there was no report/ request before the Authorized Officer as per Section 52A, therefore, he was not authorized to deal with the release applications qua the said vehicles.

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Therefore, against the aforesaid background, now no useful purpose shall be served by again remanding the case to the authorized officer to deal with the matter on the earlier request if any or fresh one for its confiscation/ release or as ordered by the learned Sessions Judge. Thus, in view of the afore-stated position, both the petitions are allowed. Since the vehicles in question are alleged to have been apprehended with the forest produce, Section 52A of the Forest Act was required to be complied with, which appears to have not been done, as such, this Court hereby order for interim custody of the vehicles in question to its respective registered owners, i.e., the petitioners along with

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documents and say, as claimed by them, on furnishing the bonds in the sum of `5 lacs each to

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the satisfaction of the learned Judicial Magistrate, Ani each with an undertaking to produce the same before the Court/Authorized Officer as and when required.

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The learned trial Court while disposing of the main case before it, shall make a final order at the conclusion of the trial for the disposal of the vehicles in question alongwith other case i.e. forest produce (plenipotentiary) qua it, not already made

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so far.

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Both the petitions stand disposed of.

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Copy of this order be sent to the learned Judicial Magistrate Ist Class Ani, for information and necessary action at his end.

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Copy dasti to the parties.

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July 15, 2013 (Surinder Singh),J (cm)

Kamleash Roshan v. State of Hp

Case brief

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Kamleash Roshan v. State of Hp

Case brief

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