IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.654 of 2008 NASHIM KHAN @ NASIMUDDIN KHAN S/o Md. Suleman Khan, R/O Village & P.O. Nawa Bazar. P.S-Bishrampur, Distt-Palamu (Jharkhand)………Petitioner/Appellant Versus 1. THE STATE OF BIHAR through Principal Secretary, Forest & Environment Department, Govt. of Bihar, Old Secretariat, Patna. 2. Principal Secretary, Forest & Environment Department, Govt. of Bihar, Old Secretariat, Patna. 3. District Magistrate, Kaimur at Bhabhua 4. Divisional Forest Officer, Bhabhua (Kaimur)………Respondents/Respondents ----------- 8. 23-Jul-09 Heard learned counsel for the appellant and learned counsel for the state. 2. A truck bearing Registration No. BR-2A/ 9455 was seized by forest officials along with 58 bags of Kendu leaves on 29.6.2006. It appears that there were no papers relating to owner-ship of the truck available on the vehicle and the Khalasi who could be arrested at the time of seizure also did not disclose details of owner-ship but only named the person who had loaded the Kendu leaves on the truck. After the prosecution report was submitted, in course of confiscation proceeding before the Forest Divisional Officer, Kaimur-cum- Authorized Officer under the Indian Forest Act, 1989 the 2 appellant/writ petitioner appeared after two months and nine days of the seizure to claim the truck as his own. The defence of the appellant against confiscation of the truck was not accepted by the Authorized Officer, who ordered for confiscation of the truck also by his order dated 29th January, 2007. That order was confirmed in Forest Confiscation Appeal No.2-3 of 2006-2007 passed by District Magistrate, Kaimur as well as by the Revisional Authority, the Principal Secretary, Department of Environment and Forest, Government of Bihar through order dated 1.11.2007. 3. The writ Court dismissed the writ petition preferred by the appellant on the ground that there were concurrent findings of fact against the appellant/writ petitioner and hence there was no scope to interfere in the matter in exercise of writ jurisdiction. Learned counsel for the appellant has taken us through the order of the original authority dated 29th January, 2007 3 to show that the only fact considered is delay of two months and nine days in lodging the claim of owner-ship over the seized truck and there is no discussion and findings as to whether the appellant has been successful or not in establishing his claim that the truck was used without his knowledge of connivance and hence no order of confiscation should be passed. It was further pointed out that the appellate order proceeds on an erroneous finding that the appellant is not the owner of the truck and the same error has continued in the revisional order. Hence, it has been submitted that the findings are not sufficient to warrant confiscation of the truck in question and in any case there are no concurrent findings that as owner of the truck the appellant has failed to discharge his onus that he had no knowledge of connivance in the use of the truck in the incident leading to seizure. 4. After going through the orders of 4 the forest authorities, we find that the original authority, Forest Divisional Officer, Kaimur should have looked into the papers of owner-ship produced by the appellant and if, prima facie, it showed that the appellant was the owner then he should have further discussed the defence of the appellant that the occurrence was without his knowledge or connivance and then given a finding whether the appellant has been able to discharge his onus as required under the provisions of Section-52(5) of the Indian Forest Act, 1927. The original authority has devoted considerable time and effort in considering the case of Kendu leaves owner and in that process it appears that he has presumed that the defence of the appellant had no merit. Only on that account, without going into the merits of defence of the appellant, we set aside the impugned orders of the authorities and remand the matter back to the original authority for passing a fresh order in respect of proposed seizure of the truck 5 in question. 5. In order to avail of this opportunity of fresh hearing the appellant must appear before the concerned authority along with a copy of this order within a period of six weeks. It is expected that the original authority shall pass order in accordance with law at an early date preferably within two months from the date of appearance of the appellant before him. 6. The order under appeal is replaced by the aforesaid order. The appeal is allowed to the aforesaid extent. perwez (Shiva Kirti Singh, ACJ.) (Anjana Prakash, J.)