IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.125 of 2005 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Department of Forest & Environment, Govt. of Bihar, Patna 3. The Collector, Banka, District Banka 4. The Divisional Foresh Officer, Banka, District Banka …..Respondents/Appellants Versus GANESH RAM DOKANIA son of Late Kali Ram Dokania, resident of Mohalla Aliganj (within Banka Town), PS & District Banka…….Petitioner/Respondent ----------- 05- 24/8/2010 Heard Mr. Satyabir Bharti, learned Assistant Counsel to AAG III, in support of the appeal. The State of Bihar has preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna, and raises a grievance with respect to the order dated 12.10.2004, passed by a learned single Judge in CWJC No. 7284 of 2003, whereby the writ petition was allowed and the search and seizure carried out against the writ petitioner has been quashed. The learned single Judge, however, concluded by stating that the order shall not preclude the Forest Officer duly authorized under the Act to act in accordance with law. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. It appears that the Beat Officer (Forester), of Suiya beat, had seized truck no.BRJ 6620, along with stone metal, 6 iron 2 dhamas, one spade, three sabals (crow-bars) and one hammer on 5.6.1998, in terms of section 52 (Bihar Amendment) of the Indian Forest Act 1927. After the seizure, adequate opportunity of hearing was afforded to the petitioner and ultimately, by order dated 27.11.98, orders confiscating the properties were passed. 2.1) Aggrieved by the order, the petitioner preferred Forest Appeal no.50/98-99, before the learned Collector of the district of Banka , who allowed the appeal and quashed the order dated 27.11.98. The Forest Officer took up the matter in revision before the competent authority, i.e. the Secretary, Environment and Forest Department, Govt. of Bihar. The revision was allowed by order dated 18.5.2002, the appellate order was set aside and that of the Forest Officer was restored. Aggrieved by the order, the owner of the goods preferred the present CWJC No.7284 of 2003, which has been allowed, the order of the learned revisional authority has been set aside, and all the proceedings have been quashed. The writ petition has been allowed on the basis of the judgment of a Division 3 Bench of this Court in Vishnu Sharma vs. State of Bihar [1993 BBCJ 528]. 3. We have perused the materials on record and considered the submission of learned counsel for the appellant. It appears to us that the judgment in Vishnu Sharma vs. State of Bihar (supra) has been over-ruled by a Full Bench of this Court in Bijay Krishna Sahay v.State of Bihar [1998 (3) PLJR 429]. In paragraph 8 of the judgment, the difference in the scope and operation of section 52 and section 52-D of the Act has been indicated. In paragraph 10 of the judgment, the decision in Vishnu Sharma’s case has been over-ruled. Paragraph 10 of the judgment is reproduced hereinbelow for the facility of quick reference :- “10. In Vishnu Sharma vs. The State of Bihar (1993 BBCJ 528) (supra), the seizure of the timber and the vehicle in which it was being carried by the Forester was declared invalid on the ground that section 52 cannot apply to such a case and only section 52-D will be applicable to it. It is not possible to agree with the above view. Under section 52, a Forester can seize the truck and the forest produce if he has reason to believe that a forest offence in respect of forest produce has been committed. Timber is admittedly a forest produce and its seizure along with the truck in which it was being carried by the 4 Forester cannot be held to be invalid in the absence of any finding about the non- existence of the condition precedent laid down in section 52. No such finding was recorded by the Bench. The decision of this Court in Vishnu Sharma vs. The State of Bihar & Ano. (supra) is, therefore, overruled.” 4. The impugned judgment is entirely based on the judgment of the Division Bench in Vishnu Sharma’s case which has since been overruled. Therefore, the very basis of the impugned judgment goes and has to be set aside. 5. In the result, this appeal is allowed. The order dated 27.11.98, passed by the learned first authority is hereby restored. ( S K Katriar ) ( Birendra Prasad Verma ) mrl