IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Revision Petition No.586/2010 Ratan Lal Vs. State of Rajasthan and another Date of order : 17.8.2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Ajay Gupta for the petitioner Mr. Piyush Kumar, Public Prosecutor. ****** Heard learned counsel for the petitioner and the learned Public Prosecutor and gone through the orders impugned in this revision petition. This petition has been preferred by the petitioner challenging the order dated 24.10.2008 passed by the learned Additional Sessions Judge (FT) No.2, Sikar, whereby the learned Judge has dismissed the appeal of the petitioner preferred against the order dated 14.7.2008 passed by the learned Additional Chief Judicial Magistrate by which, while convicting accused Mohan Lal, the Tractor and Trolley seized by the officials of the Forest Department in connection with commission of offence under Sections 41 and 42 of the Rajasthan Forest Act (hereinafter to be referred to as “the Act”) were confiscated. Mr. Ajay Gupta, learned counsel for the petitioner has argued that conviction of accused Mohan Lal was made only because he did not defend himself and pleaded guilt. Thereafter he was let of by imposing fine of Rs. 400/- and confiscated Tractor, Trolley and timber were ordered to be confiscated to the State and after expiry of the period of limitation for appeal/revision, the same be auctioned and the amount received therefrom be deposited in Government treasury. Learned counsel submitted that neither any inquiry was made nor any such attempt was made to find out as to who was the owner of the Tractor and Trolley. In fact, the present petitioner is the owner of the Tractor and Trolley and and he had hired driver Mohan Lal. According to the learned counsel, the appellate Court has also failed to appreciate this aspect of the matter. It is submitted that mere conviction of accused per-se did not determine the issue regarding confiscation. Learned counsel made a reference to Proviso to Section 57 of the Act and argued that from the language used in that Proviso, it is evident that providing an opportunity of hearing to any person who comes forward and claims his right to such confiscated property, is mandatory and that the confiscation, even as per the language of Section 55 of the Act is discretionary and not mandatory. On the other hand, learned Public Prosecutor has opposed the revision petition. However, he was not in a position to show that convict Mohan Lal was owner of the Tractor and Trolley, whether registered or otherwise. In the aforesaid circumstances, I find that accused Mohan Lal was merely a driver hired by the petitioner. As per the provisions contained in Sections 55 and 57 of the Act, although the Court below has discretion to direct confiscation of the Tractor and Trolley used in commission of offence under Sections 41 and 42 of the Act, but at the same time both the provisions postulate opportunity of hearing to be provided to the person claiming right of ownership over such seized property. Admittedly, opportunity of hearing was not afforded to the petitioner by the learned trial Court. Even in appeal, this aspect of the matter has not been accepted by the Additional Sessions Judge, who rejected the same without recording any specific finding. In my considered view, before making any final order as to the confiscation, the learned trial Court ought to have made efforts to call upon the owner to explain as to why the Tractor and Trolley used in commission of offence may not be confiscated to the State. The order of the learned trial court to the extent it relates to confiscation of Tractor and Trolley, which has been affirmed by the appellate Court, deserve to be set aside. Consequently, the orders passed by the Courts below to the extent they relate to confiscation of the Tractor and Trolley are set aside and the matter is remanded back to the learned Additional Chief Judicial Magistrate, Srimadhopur for deciding the question of confiscation after providing an opportunity of hearing to the petitioner and then to pass appropriate order in accordance with law. The revision petition stands disposed of accordingly. (MOHAMMAD RAFIQ), J. Thanvi