Dismissed

Shyam Prakash @ Agrawal v. the State of Bihar and Ors.

Patna HC27 Nov 2018CWJC/14641/2004

Case brief

AI extract

What is this about?

In three combined writ petitions, the Patna High Court dismissed applications filed by truck owners challenging the seizure of their vehicles transporting shisham wood. The Court held that despite a settled view regarding a departmental ban on exports, the absence of a mandatory transit permit rendered the transportation illegal, justifying seizure under the Indian Forest Act.

What did the court decide?

The writ petitions were dismissed; the Court directed authorities to encash securities furnished by the petitioners and take further steps in accordance with law.

Shyam Prakash @ Agrawal Vs the State of Bihar and Ors. — Writ and Judicial Review | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14556 of 2004

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======================================================

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Arinjay Kumar Sharma, S/o Shri Brij Narain Singh, Resident of village & P.O., Gariba, P.S. Kalyanpur, District-East Champaran.

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... ... Petitioner/s

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Versus

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The State of Bihar through Commissioner-cum-Secretary, Department of Forest and Environment, Government of Bihar, Patna.

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The Division Forest Officer, Motihari Forest Division, Motihari, DistrictEast Champaran.

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The Forest Range Officer, Motihari, District-East Champaran.

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The Forester-cum-Beat Officer of Forest, Motihari Beat, District-East Champaran.

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The Forester-cum-Beat Officer of Forest, GhoraSahan Beat, District- East Champaran.

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... ... Respondent/s

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======================================================

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with

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Civil Writ Jurisdiction Case No. 14641 of 2004

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======================================================

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Shyam Prakash @ Shyam Prakash Agrawal, S/o Late Pali Ram, resident of village-Teliapatti, P.O. & P.S. Motihari District-East Champaran.

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... ... Petitioner/s

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Versus

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The State of Bihar through Commissioner-cum-Secretary, Department of Forest and Environment, Government of Bihar, Patna.

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The Divisional Forest Officer, Motihari Forest Division, Motihari, District East Champaran.

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The Forest Range Officer, Motihari, District East Champaran.

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The Forest -cum-Beat Officer of Forest, Motihari Beat, District East Champaran.

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The Forester-cum-Beat Officer of Forest, GhoraSahan Beat, District- East Champaran.

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... ... Respondent/s

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======================================================

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with

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Civil Writ Jurisdiction Case No. 14737 of 2004

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======================================================

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Sanjay Kumar son of Sri Surendra Prasad Resident of Ashok Nagar, P.S. Dhansar, Town and District Dhanbad

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... ... Petitioner/s

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Versus

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The State of Bihar through Commissioner-cum-Secretary, Department of Forest and Environment, Government of Bihar, Patna.

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The Divisional Forest Officer, Motihari Forest Division, Motihari, District East Champaran.

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Patna High Court CWJC No.14556 of 2004 dt.27-11-2018 2/19

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The Forest Range Officer, Motihari, District East Champaran.

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The Forest -cum-Beat Officer of Forest, Motihari Beat, District East Champaran.

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The Forester-cum-Beat Officer of Forest, GhoraSahan Beat, District- East Champaran.

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... ... Respondent/s

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======================================================

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Appearance :

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(In Civil Writ Jurisdiction Case No. 14556 of 2004) For the Petitioner/s : For the Respondent/s : (In Civil Writ Jurisdiction Case No. 14641 of 2004) For the Petitioner/s : For the Respondent/s : (In Civil Writ Jurisdiction Case No. 14737 of 2004) For the Petitioner/s : For the Respondent/s : ======================================================

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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

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ORAL JUDGMENT

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Date : 27-11-2018

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Heard learned counsel for the petitioners and State.

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The petitioners have moved the Court against the order by which their trucks were seized by the officials of the Forest Department, Government of Bihar. By interim orders, the said items were released in favour of the petitioners.

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The petitioners are owners of the vehicles/trucks which was transporting shisham wood from Bihar purportedly to destinations in Rajasthan.

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Learned counsel for the petitioners submitted that due to direction contained in letter dated 10.07.2001 issued by the Commissioner-cum-Secretary, Department of Forest and Environment, Government of Bihar prohibiting

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transportation of shisham wood from Bihar to any place outside the State of Bihar, the matter was brought before the Court in the case of M/s Bhartia and Sons v. State of Bihar reported as 2001(4) PLJR 411 in which a coordinate Bench of this Court by judgment and order dated 18.09.2001 had set aside such stipulation holding it to be beyond the competency of the author of the order as it was only the State Government which was empowered to do so. Learned counsel submitted that once the said law has been settled by the High Court which has attained finality and the State Government not coming out with any notification or amendment in the Bihar Timber and other Forest Produce (Regulation of Transit) Rules, 1973 (hereinafter referred to as the ‘Rules’) to include the transportation of shisham for export, such seizure by the officials is totally illegal. Learned counsel submitted that the authorities are competent to seize or confiscate either the vehicle or the shisham wood in view of the aforesaid judgment of the Court and, thus, both are liable to be released without any conditions.

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Learned counsel for the State has filed counter affidavit but the same does not address the issue on merits. Even today, learned counsel has not assisted the Court on

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merits and has only taken the stand that under similar circumstances a Bench of this Court has directed the petitioners to appear before the officer and raise all pleas available to him including reference to the order of the Courts and reported judgments.

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Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court does not find any merit in the writ applications. The matter falls under a very limited compass. The issue is that whether the seizure has been rightly made by the officers in the background of the fact that admittedly there was no permit issued with regard to permission being granted to transport/ take away the shisham wood from Bihar to any other place, may be Rajasthan. The seizure note also discloses that it has been done in purported exercise of Sections 41, 42 and 52 of the Indian Forest Act, 1927 (hereinafter referred to as the ‘Act’). For the sake of convenience, the said Sections are quoted hereinbelow:

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“ 41. Power to make rules to regulate transit of forest produce. —(1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the [State Government], and it may make rules

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to regulate the transit of all timber and other forest-produce.

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(2) In particular and without prejudice to the generality of the foregoing power such rules may—

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(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within [the State];

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(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same, or otherwise than in accordance with the conditions of such pass;

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(c) provide for the issue, production and return of such passes and for the payment of fees therefor;

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(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is payable to the 3[Government] on account of the price thereof, or on account of any duty, fee, royalty or charge due thereon, or, to which it is desirable for the purposes of this Act to affix a mark;

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(e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for examination, or for the payment of such money, or in order that such marks may be affixed to it, and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots;

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(f) prohibit the closing up or obstructing of the channel or banks of any river used for the transit of timber or other forest-

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produce, and the throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;

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(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same;

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(h) prohibit absolutely or subject to conditions, within specified local limits, the establishment of saw-pits, the converting, cutting, burning, concealing or making of timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber;

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(i) regulate the use of property marks for timber, and the registration of such marks; prescribe the time for which such registration shall hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration.

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(3) The State Government may direct that any rule made under this section shall not apply to any specified class of timber or other forest-produce or to any specified local area.”

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“42. Penalty for breach of rules made under section 41. —(1) The State Government may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both.

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(2) Such rules may provide that penalties

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Patna High Court CWJC No.14556 of 2004 dt.27-11-2018

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which are double of those mentioned in subsection (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been previously convicted of a like offence.

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STATE AMENDMENT

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(Bihar Act 9 of 1990)

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For section 42 the following shall be substituted namely:-

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42. Penalty for breach of rules made under section 41.—The State Government may by such rules prescribe as penalties for the contravention thereof imprisonment for a minimum term of six months which may extend to two years or with minimum fine of one thousand rupees which may extend to five thousand rupees or with both. The offence under this section shall be congnizable and non bailable.”

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XXXXXXX

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“ 52. Seizure of property liable to confiscation.— (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest-officer or Police-officer.

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(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on

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account of which the seizure has been made:

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Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

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STATE AMENDMENTS

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(Bihar Act 9 of 1990)

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For section 42 the following shall be substituted namely :—

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52. Seizure and its procedure for the property liable for confiscation. —(1) When there is reason to believe that a forest offence has been committed in respect of any forest- produce, such produce, together with all tools, arms, boats, vehicles, ropes, chains or any other article in committing any such offence may be seized by any Forest Officer or Police Officer.

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(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, either produce the property seized before an officer not below the rank of the Divisional Forest Officer authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the property seized before the authorised officer, or where it is intended to launch criminal proceedings against the offender immediately, make a report of such seizure

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to the magistrate having jurisdiction to try the offence on account of which the seizure has been made: Provided that when the forest-produce with respect to which offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his immediate superior. (3) Subject to sub-section (5), where the authorised officer upon production before him of property seized of upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded confiscate forest produce so seized together with all tools, arms, boats, vehicles, ropes, chains or any other article used in committing such offence. The Magistrate having jurisdiction to try the offence concerned may, on the basis of the reports of the authorised confiscating officer, cancel the registration of a vehicle used in committing the offence the licence of the vehicle driver and the licence of the arms. A copy of order on confiscation shall be forwarded without undue delay to the Conservators of Forests of the forest circle in which the Forest produce as the case may be, has been seized.

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(4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer—

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(a) sends an intimation about initiation of proceedings for confiscation of property to the magistrate having jurisdiction to try the offence on account of which the seizure has been made;

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(b) issues a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property;

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(c) affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation, and

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(d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purposes.

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(5) No order of confiscation under subsection (3) of any tools, arms, boats, vehicles, ropes, chains or any other article (other than the forest produce seized shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such tools, arms, boats, ropes, chains or other articles were used without his knowledge or convenience or as the case may be, without the knowledge or convenience of his servant or agent and that all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission of forest offence.”

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After Section 52 of the said Act the following new sections, shall be inserted, namely-

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52A. Appeal against the order of confiscation.- Any person aggrieved by an order of confiscation may, within thirty days of the order, or if the fact of such order has not been communicated to him within thirty days of date of knowledge of

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such order, prefer an appeal in writing, accompanied by such fee payable in such form as may be prescribed, alongwith the certified copy of order of confiscation to the District Magistrate (hereinafter referred to as Appellate Authority) of the District in which the forest produce has been seized.

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Explanation.- (i) The time required for obtaining certified copy of order of confiscation shall be excluded while computing period of thirty days referred to in this sub-section.

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(2) The appellate Authority referred to in section 52-A, may, where no appeal has been preferred before him, “suo motu” within thirty days of date of receipt of copy of order of confiscation by him, and shall on presentation of memorandum of appeal issue a notice for hearing of appeal or, as the case may be, or “suo motu” action to the officer effecting seizure and to any other person (including appellant, if any) who in the opinion of the Appellate Authority, is likely to be adeversely affected by the order of confiscation, and may send for the record of the case :

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Provided that no formal notice of appeal need be issued to such amongst the appellant, officer effecting seizure and any other person likely to be adversely affected as aforesaid as may waive the notice or as may be informed in any other manner of date of hearing of appeal by the Appellate Authroity. (3) The Appellate Authority shall send intimation in writing of lodging of appeal or about “suo motu” action, to the

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authorized officer.

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(4) The Appellate Authority may pass such order of “Interim” nature for custody, preservation or disposal (if necessary) of the subject matter of confiscation, as may appear to be just or proper in the circumstances of the case. (5) The Appellate Authority, having regard to the nature of the case of the complexities involved, may permit parties to the appeal to be represented by their respective legal practitioners.

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(6) In the date fixed for hearing of the appeal or “suo motu” action, or on such date to which the hearing may be adjourned the Appellate Authority shall persue the record and hear the parties to the appeal if present in person, or through any agent duly authorized in writing or through a legal practitioner, and shall thereafter proceed to pass an order of confirmation, reversal or modification of order of confiscation :

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Provided that before passing any final order the Appellate Authority may if it is considered necessary for proper decision of appeal or for proper disposal of “suo motu” action make further inquiry itself or cause it to be made by the authorized officer, and may also allow parties to file affidavits for asserting or refuting any fact that may arise for consideration and may allow proof of facts by affidavits. (7) The Appellate Authority may also pass such orders of consequential nature, as it may deem necessary.

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(8) Copy of final order or an order of consequnetial nature, shall be sent to the authorized officer for compliance or for

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passing any order appropriate in conformity with the order of Appellate Authority.

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52-B. Petition for revision before Secretary, Forest and Environment Department, Government of Bihar, against the order of the Appellate Authority.- (1) Any party to the appeal, aggrieved by final order or by order of consequential nature passed by the Appellate Authority, may within thirty, days of the order, sought to be impugned, submit a petition for revision to the Secretary, Forest and Environment Department, Government of Bihar. Explanation.- In computing the period of thirty days under this sub-section, the time requisite for obtaining certified copy of order of Appellate Authority shall be excluded.

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(2) The Secretary, Forest and Environment Department, Government of Bihar may confirm, reverse or modify any final order of consequential nature passed by the Appellate Authority.

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(3) Copies of the order passed in revision shall be sent to the Appellate Authority and to the Authorized Officer for compliance or for passing such further order or for taking such, further action as may be directed by such Court.

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(4) For entertaining hearing and deciding a revision under this section, the Secretary Forest and Environment Department, Government of Bihar shall as faras may be, exercise the same powers and follow the same procedure as exercised and followed while entertaining, hearing and deciding a

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revision under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

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(5) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) the order passed under this section shall be final and shall not be called in question before the Court.

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52-C. Bar of jurisdiction of Courts etc. in certain circumstances.- (1) On receipt of intimation under sub-Section (4) of section 52 about intimation of proceeding for confiscation of property by the magistrate having jurisdiction to try the offence on account of which the seizure of property whcih is subject matter of confiscation, has been made, no Court or Tribunal (other than the authorized officer, Appellate Authority and Revisional Authority referred to in section 52, 52A and 52B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation or any other law for the time being in force. Explanation.- Where under any law for the time being in force, two or more courts have jurisdiction to try forest offence, then on receipt of information under sub-section (1) of section 52 by one of the Courts of Magistrate having such jurisdiction shall be construed to be receipt of intimation under that provision by all the Courts and the bar to exercise jurisdiction shall operate on all such Courts.

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(2) Nothing in sub-section (1) shall affect the power saved under section 31.

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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 SubInspector, 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, vehicle 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.”

¶130

Section 41 of the Act gives power to the State Government to make Rules for control to regulate transit of forest produce which includes control of all timbers. In terms of the power conferred, the State Government has made the Rules. Rule 3 of the same being relevant is quoted hereinbelow:

¶131

"3. ( 1 ) dksbZ Hkh dk’B] tykou dh ydM+h] pkjdksy] lobZ ?kkl] dRFkk] xksan vkSj jky] cht vkSj Qy] tM+ vkSj Nky fdlh LFkku ij rc rd u vk;kr gks ldsxk vkSj ogk¡ ls fu;kZr fd;k ;k gVk;k tk ldsxk tc rd fd bl fufeŸk ,d fyf[kr vuqKk&i= ¼ijfeV½ ou inkf/kdkjh ;k muds }kjk vkf/kd`r inkf/kdkjh ls igys ls izkIr ugha fd;k x;k gks ftlesa fuEufyf[kr ckrsa gksa %&

¶132

¼d½ ou mriknu ds Lokeh dk uke rFkk o.kZu ( ¼[k½ mRiknu dk o.kZu vkSj ifjek.k ftls vk;kr&fu;kZr fd;k tk jgk gks ;k gVk;k tk jgk gksA

¶133

¼x½ ekxZ ;k ekxksZa dk fooj.k ftlls gksdj ou mRiknu dk ifjogu gksxk vksj muds xUrO; LFkku@LFkkuksa dk uke(

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¶135

¼?k½ fdl vof/k rd vuqKk&i= tkjh jgsxk ( vkSj

¶136

M+½ dk’B dh n”kk esa ml ij og lEifŸk] fpà tks ou inkf/kdkjh ds ;gk¡ jftLVªhd`r gks (

¶137

¼x x x x x x x½

¶138

¼2½ ou n.Mkf/kdkjh fcgkj xtV esa vf/klwpuk }kjk mu ekxkZas dks fofufnZ’V dj ldsxk ftuls gksdj mi&fu;e ¼1½ esa mfYyf[kr ou & mRiknu fdlh Lfkku esa] ;k ls gVk;k tk;xkA vr% izkf/kd`r ekxksZa ds flok; nwljs ekxksaZ ls ou &mRikn dks jsyos LVs”ku] uxjksa] cktkjksa vkSj vU; LFkkuksa dks] rFkk dk’B ds ekeys esa fu;e 6 }kjk ;Fkksisf{kr lEifŸk&fpà ds fcuk ys tkuk fof/kiw.kZ ugha gksxkA ”

¶139

From perusal of the aforesaid Rule 3 of the Rules, it is clear that a permit is required for any movement of any forest produce, which obviously includes timber of which shisham wood is a category. Once a permit is required, it is incumbent upon any person, may be the owner or transporter or dealer/user of such timber, to obtain permit from the Competent Authority seeking permit to transport such timber. Admittedly, in the present case, the petitioners do not claim that any permit was either sought or refused by the authorities concerned. It is also an admitted position that no such permit was issued. Thus, once the law requires for a permit, the same is a mandatory condition for any movement of any forest produce. Without there being a permit, the petitioners being the owners of the vehicle could not have even lifted the forest produce for transportation anywhere as they cannot plead ignorance that the shisham wood/any timber is not a forest

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produce and is an uncontrolled article open to free transportation. In the present case, if what has been submitted by learned counsel for the petitioners is correct that the authorities were not issuing the permit in view of the aforesaid letter of the Department dated 10.07.2001, the only recourse left was to apply for the same and take the plea that in view of the decision of the Court in the case of M/s Bhartia and Sons (supra), such permit could not be refused and if at all the same was not issued, recourse would have been by coming to the Court seeking mandamus for issuance of such permit in their favour, but, going ahead unilaterally and lifting the timber and transporting it is clearly a step which is patently illegal as it is in defiance of the requirement of having permit for such act. The law mandates the issuance of a permit for such lifting and transportation of timber without which the same is open to penal consequences including seizure and confiscation. The Court would also indicate at this juncture that the environmental laws remain on paper and become fruitless, if a person first violates the law and then comes to the Court seeking some relief on some hypertechnical ground. Such law needs to be implemented with full force so as to make them effective for the time has come where any slackness has the

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potential to jeopardize the very living conditions of future generations on this planet. In the present case, the Court finds that there has been no infraction of any law and rather it is a clear case where on the basis of the admitted position that the petitioners had timber loaded on their vehicles without any permit whatsoever, clearly they are liable for penal consequences, both with regard to confiscation and seizure of their vehicles and the goods, under the Act and the Rules.

¶144

As far as the decisions relied upon by learned counsel for the petitioners in the case of M/s Bhartia and Sons (supra) is concerned, the Court would only indicate here that the same has no relevance in the present facts and circumstances of the case, for the reason that the departmental letter has been found to be beyond the competency of the officer by which blanket ban was imposed on export of timber outside the State. In the present case, the issue is entirely different. The petitioners were required to have a permit and if at all it came to the crunch, the petitioners could have had a case that such permit could not be refused by the officials of the Department based on the aforesaid letter dated 10.07.2001 but without issuance of a permit in their favour, they were not competent in law to remove the wood and transport it, as

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clearly it would be an offence in the eyes of law which, in the considered opinion of the Court, has been committed based on the admitted factual position.

¶147

For the reasons aforesaid, the writ petitions stand dismissed. The authorities shall now encash the securities furnished by the petitioners, in accordance with law and take all further and consequential steps, in accordance with law.

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(Ahsanuddin Amanullah, J)

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Anjani/-

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AFR/NAFR AFR U

Shyam Prakash @ Agrawal v. the State of Bihar and Ors.

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Shyam Prakash @ Agrawal v. the State of Bihar and Ors.

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