IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.W.J.C. No.799 of 1998 BHUSHAN SINGH, son of Ranjit Singh, resident of village Chhotagawan, Buxihat, Dhurbi within the State of Assam. --------------- Petitioner Versus 1. THE STATE OF BIHAR. 2. The Secretary-Cum-Commissioner, Forest and Environment Department of the Government of Bihar, third Secretariat Building, Patna. 3. TheDivisional Forest Officer, Forest Extension Division, Purnia. 4. Range Officer, Prasar Forest Range, Bhahadurganj within the District of Kishanganj. ------------------Respondents. with Cr.W.J.C. No.111 of 1999 MUKUND KUMAR MANTRY son of Shri Balchand Mantry, Proprietor of Om Muk Timber Company, Bahadurganj, Road, Kishanganj, District-Kishanganj. -------------------Petitioner Versus 1. The STATE OF BIHAR. 2.The Secretary-Cum-Commissioner, Forest and Environment Department of Government of Bihar Third Secretariat Building, Patna. 3. The Divisional Forest Officer, Forest Extension Division, Purnia. 4.The Range Officer, Prasar Forest Range, Bahadurganj within the District of Kishanganj. ------------------------Respondents. -------------------------- For the Petitioner:- Mr. Rajesh Kumar Singh, Advocate. Mr. Rana Pratap Singh, Advocate For the State:- Mr. Manoj Kumar Singh, A.C. to AAG.8 Mr. Harendra Prasad Singh, G.A. VI Mr. Rajiv Kumar Singh, A.C. to G.A. VI 6. 23.09.2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. Both Cr. W.J.C. No.799 of 1998 and Cr. W.J.C. No. 111 of 1999 have been taken up together as directed earlier by a Bench of this at the time of admission of the case. The issues involved in 2 both the writ applications are common. One Bhushan Singh who is petitioner in Cr. W.J.C. no. 799 of 1998 claims to be owner of truck. Mukund Kumar Mantri, petitioner in Cr. W.J.C. No. 111 of 1999 is the owner of the wood loaded on the truck. He claims to be proprietor of Om Mukh Timber Company Bahadurganj Road, Kishanganj, which deals in goods at different places, including Karjain Bazar, Supaul. 3. A truck bearing Registration no. AS- 17-0305 coming from Assam was seized by Range Officer, Bahadurganj near Om Mukh Timber Company at Bahadurganj Road, Kishanganj with 221 pieces of sakhua wood measuring 9.969 cubic metres. The Range Officer suspected the wood to be a forest produce and being illegally transported. He reported the matter to the D.F.O., Purnea the authorized officer as well as the Chief Judicial Magistrate, Kishanganj. A copy of seizure has been annexed as Annexure-4 to the writ application. 4. On the basis of aforesaid seizure, the D.F.O. Purnia Division, initiated confiscation proceeding under Section 52(1) of the Bihar Forest Act, for alleged violation of Sections 41, 42 and 52 of the Indian Forest Act, Bihar. It is the case of the 3 respondents that no show-cause was filed and the D.F.O. passed order confiscating both the truck and the goods. 5. The petitioner made an appeal before the learned Collector, the appellate authority who quashed the order of confiscation proceeding and released the truck and the goods in favour of the petitioners. 6. It was now the turn of the State to file revision under Section 52B of the Indian Forest Act, before the Secretary-cum-Commissioner, Forest. The revisional authority vide order dated 25.4.1998 quashed the decision of the appellate authority and upheld the decision of the D.F.O. Purnia. The Secretary while setting aside the order of the appellate authority and upholding the order of D.F.O. took into account two factors. He found that as against permit for 443 logs of goods, only 221 logs were found on the truck. The firm Om Mukh Timber Company, Karjain Bazar at Supaul does not exist, for which permit was issued. 7. Being aggrieved by the order of Secretary Forest dated 25.04.1998, the truck owner Bhusan Singh & the owner of logs Mukund Kumar Mantry have filed these separate writ applications. 4 8. This Court on 1.2.1999 admitted Cr. W.J.C. No. 799 of 1998 and stayed the operation of the order dated 25.4.1998 of Secretary forest passed in Revision No. 9/95. The other writ, Cr. W.J.C. No. 111 of 1999 was also admitted on 5.5.1999 and was directed to be heard with Cr. W.J.C. No. 799/98. This is how both the Cr. W.J.C. NO. 111/99 & Cr. W.J.C. No. 799/98 have been placed for ‘Hearing’ together. 9. The petitioners submit that the facts mentioned in Cr. W.J.C. No. 111 of 1999 will cover the grounds of the other case, namely Cr. W.J.C. No. 799/98. As such Cr. W.J.C. No. 111 of 1999 is taken as the lead case. 10. The petitioner has assailed the impugned confiscation on the ground that the seizure list itself is a doubtful document. He Submits that seizure list does not contain either signature of the driver or the owner of the truck or the place, where it was seized. It does not even specify any reason for seizure. He submits that the notice initiating confiscation proceeding bearing memo No. 1712 dated 10.7.1993 does not disclose any forest offence, as it refers to violation of Sections 41, 42 and 52 of the Indian Forest Act. He contends that 5 Sections 41 and 42 are not penal offences. Section 52 provides for confiscation proceeding. 11. The petitioners by referring to Annexure-2 submit that the woods were purchased from Farid Saw Mill Dhubri, Assam for which a transit pass has been issued. The transit pass would show that the truck in question was already checked at Kishanganj check post and the papers were found to be in order. He submits that while the truck was standing in front of petitioner’s office at Kishanganj, the same was seized. 12. Learned counsel submits that it is wrong to say that no show-cause was filed before D.F.O. Purnia, Division. He states that a show cause was duly filed and submits that copy of show cause filed before D.F.O. has been annexed as Annexure 4A in Cr. W.J.C. No. 111 of 1999. The petitioner has annexed copy of licence of his factory Om Mukh Timber Company dated 23.5.1985 issued under Factory Act to show that the firm is not a fake firm. The firm/factory has also been registered under Sales Tax etc. for carrying out its business throughout State of Bihar, including Karjain Bazar Post, District- Supaul, where it also has one of its outlets. A copy of factory license of 1985, Sales Tax 6 Registration Act of 1982 along with License of Forest department have been annexed as Annexures I, II & III respectively. The main office of the petitioner Mukund Kumar Mantry is at Bahadurganj, Kishanganj and he also deals in wood at Karjain Bazar, Supaul. He submits that the goods were being taken to Karjain Bazar, Supaul. 13. He submits that valid seizure is sine qua non for initiation of confiscation proceeding whether it relates to EC Act or Forest Act. In support of his submissions learned counsel has relied upon decision reported in 1985 PLJR 1077 (Surendra Prasad and Anr. Vs. The State of Bihar & Ors.) The petitioner submits that a Division Bench of this Court in case of Jhabarmal Mukim Vs. The State of Bihar & Anr., reported in 1984 PLJR 568 (DB) held that non mentioning of grounds of seizure in the notice will not be only against the provisions of confiscation proceeding, but would be also against the principles of natural justice. 14. Mr. Harendra Prasad Singh, learned counsel appearing for the State submits that the order of the Secretary Forest is just and proper. He submits that availability of only 221 logs on the truck as against 443 indicated in the transit pass 7 would give legitimate doubt regarding underhand transactions. Learned counsel submits that the petitioner did not file any show cause before the D.F.O. 15. A counter affidavit has also been filed on behalf of the State. Annexure-B to the same would show that the wood in question was seized by Range Officer for violation of Sections 41, 42 and 52 of the Indian Forest Act. He submits that an invalid seizure can not be a ground for quashing the confiscation proceeding. In support of his submissions he relied upon a Full Bench decision of this Court in case of Bijay Krishna Sahay Vs. The State of Bihar & Ors. reported in 1998 PLJR (3) 429, Ranchi Bench (Full Bench). 16. Heard counsel for the parties. The forest produce has been defined in Section 2(4) of the Forest Act and also includes Sakhua wood, which were seized. Forest offence has been defined in Section 2(3) of the Forest Act as an offence punishable under this Act or any rule made there under. 17. The seizure list appended as Annexure-4 to the writ application does not contain any kind of detail nor does it state an offence has 8 been committed. It only specifies the number of logs piece found loaded on truck. Annexure-1 and Annexure-2 series appended to Cr. W.J.C. No. 111 of 1999 would show that a transit pass was duiy issued by competent authority of Assam Government for carrying the woods to Karjain Bazaar, Supaul, Bihar. The Sales Tax permit has also been annexed. The petitioner has filed documents/licence of being owner/proprietor of Om Mukh Timber Company, Bahadurganj, Kishanganj. He has stated that it has various commercial outlets including Karjain Bazar, Supaul. The existence of Om Mukh Timber Company at Bahadurganj Road, Kishanganj is not denied by respondents. 18. The truck was seized from in front of his factory on Bahadurganj Road, Kishanganj. The shortage of number of logs on the truck can give a suspicion regarding missing logs. But then the seizure list prepared by the respondents also do not inspire any confidence in absence of any detail. The shortage of logs, which has been duly purchased in accordance with law cannot be ground for confiscation. One is free to sell or dispose of his own goods in the manner one likes unless prohibited or regulated by law. 9 19. It is true that a seizure cannot be said to be bad on the ground that it was seized by an incompetent authority as laid down by Full Bench in case of Bijay Krishna Sahay vs. The State of Bihar & Ors reported in 1998 (3) PLJR 429 (Ranchi Bench). But nevertheless the seizure list should contain at least some details regarding place of seizure, witness of seizure, ground for believing that a forest offence has been committed u/s 52 (i) of Forest Act. In the instant case the seizure list even does not contain the signature of the Driver, witness or Khalasi nor does it state as to why the same was seized and the place from where it was seized. Herein the seizure list has not been challenged on the ground that person seizing the same does not have competence to do so. It further appears that the prosecution has not made any effort to ascertain whether the timber in question was purchased from Farid Timber Company, Dhubri in Assam. Furthermore the transit permit granted by Assam Government is not in dispute. Commission of Forest offence would be sine qua non for making a confiscation u/s 52 of Forest Act. If a forest produce is purchased from the raiyati owner, lease holder or one who is duly authorized to sell, the same would not constitute a 10 forest offence, merely because the item in question is a forest produce. A forest offence would be made out if forest produce is excavated from a protected, reserved, or a sanctuary or any prohibited area in violation of prescribed procedure or rules. 20. The State has not disputed purchase of wood from Farid Saw Mill, Dhubri, Assam for which valid transit permit was issued by Assam Government. No material has been brought on record to show that Farid Saw Mill was not authorized to sell Sakhua Wood. There is no finding of respondents that wood in question was being carried from a prohibited area or forest area. 21. In the result, the impugned order dated 25.4.1998 passed by the Secretary Forest bearing Revision Petition No. C-9/95 as well as order dated 4.10.1993 passed by the Divisional Forest Officer, Purnia Division is quashed and the order dated 2.6.1995 passed by the Appellate Authority namely, Collector Purnia in appeal Case No. 27/94 & 30/94 is upheld. There will be no order as to cost. AFR Anand Kr. (Samarendra Pratap Singh, J.)