IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 192 of 2008 (M/S) Bhairav Datt Joshi son of Sri Bhuwan Chandra Joshi, R/O Village Tanyya Guranditya, Tehsil-Bhanoli, District Almora. …… Petitioner. Versus The Conservator of Forests, South Kumaun Division, Nainital, and another. … Respondents. WITH Writ Petition No. 193 of 2008 (M/S) Gopal Dutt Pandey S/O Sri Krishana Nand Pandey R/O Village Bhanoli Kaseri Manya, District Almora. Presently R/O Haldoo Chaur Bareilly Road, Haldwani, District Nainital. …… Petitioner. Versus The Conservator of Forests, South Kumaun Division, Nainital, and another. … Respondents. Sri M.S.Pal, Senior Advocate, with Sri C.S.Dumka, learned counsel for the petitioners. Sri K.P.Upadhyay, learned Additional C.S.C. for the State-respondents. Date August 07, 2008. Hon’ble B.S.Verma, J. Since the controversy involved in both the writ petitions is similar and the facts being common and the order impugned passed by the Prescribed Authority/Divisional Forest Officer, Nainital Forest Division, Nainital (Bhowali) dated 5-10- 2007 being the same, therefore, for the sake of convenience, both the writ petitions are being decided by this common order. Both these writ petitions are directed against the impugned order dated 5-10-2007 passed by the Prescribed Authority/Divisional Forest Officer, Nainital Forest Division, Nainital (Annexure No. 5) and the judgment and order dated 11-01- 2 2008 passed by the Appellate Authority/Conservator of Forests South Kumaun Circle, Uttarakhand, Nainital. By the order dated 5-10-2007 by the Prescribed Authority/Divisional Forest Officer, Nainital Forest Division, Nainital, the Truck No. U.A.-04 E-1647, Truck No. UA-04D-8822 and Truck No. UA 04B-2022 belonging to the petitioners have been confiscated in exercise of power under Section 52A of the Indian Forests (Uttaranchal Amendment) Act 2001 and the release applications have been rejected. Brief facts, giving rise to the present writ petitions, are that the petitioner of WPMS 192/2008 Bhairab Datt Joshi is the owner of Truck No. UA-04B-2022 and Truck NO. UA-04D-8822 and petitioner Gopal Datt Pandey in WPMS No. 193 of 2008 is the owner of Truck No. UA-04E-1647 and they are engaged in the business of transportation. The aforesaid truck were hired by one Sri Rajesh Bhatt, Proprietor of a firm in the name and style M/s B.V.Varnish Udhyog, Artola, District Almora having registration No. 16/2007 to transport varnish from Artola (Almora) to Haldwani Rudrapur border. In respect of transportation of aforesaid Varnish, a valid gate pass was issued by competent authority of forest department. The petitioners gave their trucks on hire to the said M/s B.V.Varnish Udyog after ascertaining that the firm was having a legal permit dated 11-7-2007 to carry varnish on 13-7-2007 issued by the competent authority of the Forest Department. According to the petitioners, on the basis of valid and legal gate-pass issued by competent authority, 50 drums of varnish were loaded in each of the trucks at Artota (Almora) for being transported to Haldwani on 13-7-2007. The trucks were stopped for checking at Panua Naula (Almora), then at Farkanuali and Lodhia but no illegality was found in carrying the varnish. When 3 the truck reached at Bhowali gate of forest department, the drivers of trucks produced gate-passes issued by the competent authority, but the drivers of the trucks were illegally stopped by Harish Chandra Badhani, Forester of Sanatorium Check Post. The said Forester lodged an F.I.R. against Rajesh Bhatt with Police Station Bhowali on 14-7-2007. In the F.I.R. allegation was levelled against Rajesh Bhatt and some other persons came in a Jeep and forcibly put stamp on the gate pass and made an attempt to assault on the complainant Harish Chandra Badhani. It is stated in para 8 of the writ petition that as per F.I.R., the crime was committed by Rajesh Bhatt and his companions and the petitioners are not involved in the alleged crime and their trucks were wrongly detained by the forest authorities. A complaint under Sections 26, 41, 52-A of the Indian Forests Act was filed by the Forest Range Officer Bhowali against Rajesh Bhatt and others and Case No. 3 of 2007, State Vs. Rajesh Bhatt and others was registered before the Prescribed Authority/Divisional Forest Officer, Nainital Forest Division, Bhowali. In the complaint it was alleged that at Bhowali Check Post, all the three trucks were found transporting illegal Lisa (resin) in place of varnish as per gate pass. It was found by the checking Officer that Lisa mixed with small quantity of varnish which was contained in the drums loaded in the three trucks. Consequently, show cause notices under Sections 52A of the Forest Act and Section 4 of the U.P. Resin and Forest Produce Act 1976 were issued to the petitioners on 20-7-2007 calling upon them to file explanation by 18-8-2007 as to why the vehicles be not confiscated. Copy of notice has been annexed as Annexure No.3. The petitioners filed their objections (copy Annexure No. 4 to the writ petition). In the objection it is stated that Rajesh Bhatt was having a valid gate pass to carry varnish, which was duly 4 checked at Panuanaula, Farkanauli and Lodhia. The F.I.R. was also lodged against Rajesh Bhatt. The trucks were given on hire to Rajesh Bhatt on his showing valid gate pass for carrying varnish. The petitioners are innocent and are not involved in any illegal activities in any manner and they had no concern with the aforesaid offence. Offence, if any, was committed, the same had been committed by Rajesh Bhatt, the owner of the firm. Counter Affidavit has been filed on behalf of the respondents and it has been specifically stated that on thorough checking of the truck, it was found that each drum was containing resin instead of varnish. In paragraph no. 10 it is stated that petitioner Bhairav Dutt Joshi himself was driving one of the truck No. UA –04D-882, while the other truck belonging to him was being driven by its driver and the truck belonging to Gopal Dutt Pandey was being driven by its driver. It was also stated that the show cause notice was validly issued by the Prescribed Authority under Section 52A of the Indian Forest (Uttaranchal Amendment) Act 2001. I have heard learned counsel for the parties and perused the record including the order passed by the Prescribed Authority/Divisional Forest Officer as well as the appellate authority. Learned counsel for the petitioners has contended that the Officer who issued show cause notice was not competent to issue the notice for confiscation of the vehicles. Therefore, the notices issued to the truck owners/petitioners are not sustainable in law. The argument of the learned counsel for the petitioners cannot be accepted for the simple reason that under Section 52-A of the Indian Forest (Uttaranchal Amendment) Act, 2001, power of confiscation has been conferred on the Divisional Forest Officer. Sub-section (1) of Section 52-A reads as under:- 5 “52-A. 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, boats, vehicles, cattle, ropes, chains and others 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.” Thus, the provision of Section 52-A of the said Act clearly provides that the Divisional Forest Officer is fully competent to pass an order of confiscation. It is provided under sub-section (4) of Section 52-A that “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:” The next contention of the learned counsel for the petitioners is that the objection was filed by the petitioners but no opportunity of leading evidence to the fact whether the petitioners were involved in the commission of crime with Rajesh Bhatt, Proprietor of the Firm or not was given to them. Learned Additional Chief Standing Counsel appearing for the State has contended in reply thereto that the burden lay on the petitioners to lead evidence to the effect that they were not involved in the alleged commission of forest offence. This Court has also summoned the record, which was produced before this Court. After perusal thereof, it was found that no opportunity was given to the petitioners to lead evidence regarding these facts. Only on the basis of reply filed by the petitioners and arguments led by the complaint-Forest Range 6 Officer, the Prescribed Authority/D.F.O. passed the for of confiscation of the trucks in question and the appellate authority also confirmed the order in appeal. The appeals preferred by the petitioners separately were dismissed. The vehicles, which are alleged to have been involved in the forest offence, can be confiscated if the truck owners/petitioners were having knowledge of the fact that the vehicles are involved in the alleged offence along with the hirer of the trucks. However, opportunity was not given to lead evidence to this effect. It is expedient in the interest of justice that the petitioners be given opportunity of leading evidence by the Prescribed Authority/Divisional Forest Officer, Forest Division Nainital. In the result, both the orders impugned are liable to be set aside on the ground that opportunity was not given to lead evidence to the petitioners. Both the writ petitions are liable to be allowed. Both the writ petitions are allowed. The judgment and orders passed by the Prescribed Authority/D.F.O. Forest Division Nainital and the appellate authority, under challenge, are set aside. The case is remanded to the Prescribed Authority concerned for decision afresh in the matter after affording reasonable opportunity to lead evidence and hearing to the petitioners. The Divisional Forest Officer Nainital Forest Division shall decide the case expeditiously preferably within a period of eight weeks from the date of production of certified copy of this order by either party and the petitioners shall also co-operate in the early disposal of the case. Till the decision by the D.F.O. concerned, the interim order dated 25-3-2008 passed by this Court in the Writ Petitions shall continue. ( B.S.Verma, J. ) RCP 7 8