IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 23 of 2004.. Reserved on 5-8-2004. Date of Decision: 12. 08.2008. _______________________________________________________ Tot Ram . Petitioner Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.Yes. For the Petitioner : Mr. Manoj Pathak, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. Surinder Singh, J. The present petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking to quash and set-aside the judgment passed by learned Additional Sessions Judge in Criminal appeal No. 9 of 2003 decided on 13-2-2004 whereby the order dated 3-4-2003 passed by the Authorized Officer under Section 52-A of the Indian Forest Act was affirmed, whereby the vehicle carrying the timber was ordered to be confiscated. In nut-shell, the facts of the case are that on 23.2.2002, the Range Officer Panarsa Range along-with Deputy Ranger and some other forest officials put a special Naka during the night, at the Forest Check Post Barrier Panarsa located at Jawalapur Road. Around 11.30 P.M. during the night, a Maruti Van came from Jawalapur side, it was stopped, checked and found correct, thus it was allowed to go after lifting the forest barrier. While the Whether the reporters of the local newspapers are allowed to see the judgment? Yes. - 2 - van was crossing the barrier, a Swaraj Mazda vehicle bearing registration No. HID-1427 being driven by Sanjay Kumar followed the van to cross the barrier in a speed, which was forced to stop. Sanjay Kumar tried to escape but he was over-powered by the forest officials. His vehicle was checked in his presence. It was found carrying 93 sawn items of deodar, (55 Karries + 20 planks + 18 frames) of different sizes without any trade/hammer mark. Sanjay Kumar failed to show any valid permit or document. Thus, the timber aforesaid was seized and kept in the forest depot Khaliar. The vehicle was also taken into possession. The Forest Range Officer produced the Swaraj Mazda aforesaid along with the timber before the Authorized Officer for its disposal in accordance with Section 52- A of the Indian Forest Act. The Authorised officer issued the show cause notice to the petitioner being registered owner of the vehicle. In reply to it, he admitted himself to be the owner of the said vehicle and according to him, Smt. Kaushalaya Devi, who was licensed to sell and manufacture the wooden furniture by the Forest Department had agreed to repair the boat belonging to “Hanogi Mata Temple”. Thus for transporting the aforesaid timber, the aforesaid vehicle was hired to carry it to the said temple but on the way it developed some mechanical defect just before the barrier. But in para 2 of the reply it is mentioned that as soon as it reached the forest barrier, it was impounded by the forest officials. Since the timber belonged to Kaushalaya Devi and was not a Govt. property, therefore, Section 52-A of the Act did not apply. After taking the evidence of both the parties and on the completion of the inquiry, the authorized officer held that the timber in question could not be proved to be that of Kaushalaya Devi as alleged and because it was a Government property, therefore, vide - 3 - his order dated 3.4.2003 he confiscated the said vehicle along with the timber in question to the State of Himachal Pradesh. The petitioner herein felt dis-satisfied by the impugned order, as such filed an appeal before the Court of Sessions which was also dismissed. The petitioner felt aggrieved by the judgment of ld. Additional Sessions Judge as also the authorized officer, as such filed the instant petition on the ground that the case property was not produced before the Authorized Officer, therefore, he could not have assumed the jurisdiction under Section 52-A of the Indian Forest Act and further that the show cause notice did not disclose the time, place and the person who had seized the property and the cash memos produced before the Authorized Officer showing that the said property was were not properly appreciated, therefore the judgment/order passed by the courts below were wrong and illegal. Shri Manoj Pathak, learned counsel for the petitioner while elaborating the above grounds has submitted that the property which the vehicle of the petitioner was carrying was not the property of the State Government, the show cause notice was defective and the order of confiscation of the vehicle in question was wrong. Contrary, the learned Law Officer has supported the findings of the courts below and contended that the very claim put-forth by the petitioner shows his connivance and knowledge and further the timber aforesaid was being carried against the forest transit rules during the night, it also did not contain any property/trade mark to connect it with the furniture shop Kaushalaya Devi and the bills were fabricated. Therefore, the presumption is that the timber in question is Govt. property as per Section 69 of Indian Forest Act. I have given my thoughtful consideration to the rival contentions of the parties. - 4 - The petitioner is a registered owner of the truck Swaraj Mazda bearing registration No. HID 1427 which according to the prosecution was driven by Sanjay Kumar during the night on 23.2.2002 and was found carrying 93 planks of deodar which was seized in terms of Section 52 (1) of the Indian Forest Act. As a sequel of seizure of this truck and as a prelude to its confiscation under Section 52-A of the Indian Forest Act, 1927 (H.P. State Amendment) as required under Section 52-B of the said Act (H.P. State Amendment), a notice in the following terms was issued to Shri Tot Ram the register owner of the vehicle :- “SHOW CAUSE NOTICE. (Under Section 52A of the Indian Forest Act (II Amendment, 1991) In the Court of Authorized Officer- cum-Divisional Forest Officer, Mandi Forest Division, Mandi. In the matter of case No. 1/2001-2002 dated 25.2.2002 State of H.P.-versus Sh. Tot Ram Sharma s/o Shri Moti Ram (owner of vehicle Mazda No. HID-1427). As it appears from the Report of Range Officer Panarsa dated 25.2.2002 that your vehicle Mazda No. HID-1427 has been invoked in the illegal export/smuggling of the following timber :- Spp. No. Volume in Cum. Deodar Karries. 55. 0.946. Deodar Frames. 18. 0.200. Deodar Planks. 20. 0.416. Total: 93. 1.562. - 5 - To proceed further into the matter you are hereby asked to explain your position on or before 10.4.2002 to this authority that why not your vehicle Mazda No. HID-1427 be confiscated to the Govt. of H.P. failing which action will be taken in the matter as per rules on the subject. To Sh. Tot Ram Sharma s/o Sh. Moti Ram R/O village and Post office Khamardha, Sub Teh Aut, Distt. Mandi Through S.H.O. Aut. Sd/- Authorized Officer-cum- D.F.O. Mandi, H.P. (seal) Dated Mandi the/1/3.2002.” In reply to the aforesaid notice as already stated above, the petitioner did not plead that the timber in question was being carried by the driver of his vehicle without his knowledge or connivance, but in turn, his case has been that it was a legal timber. He stated on oath before the authorized officer that in fact Puran was the Driver of the said vehicle and according to Puran, Sanjay Kumar was with him at the relevant time and he was the cleaner. Puran deposed that bills etc. were handed over by Tot Ram when the timber was loaded in the vehicle at Jawalapur at the instance of Kaushalaya Devi. But when the said vehicle was apprehended by the forest officials at the forest check barrier, Sanjay Kumar was the Driver, Puran was not even the occupant of the truck. According to the prosecution no documents were shown. instance of Kaushalaya Devi. The bills were placed on record by the petitioner during the enquiry before the authorized officer. All - 6 - the bills pertains to “Luxmi Narain Furniture Industries” proprietor of which is Kaushalaya Devi. She was not examined. It is pertinent to note that all the bills are signed by Tot Ram petitioner. Himself. It is not explained in which capacity he issued these bills for the said industry. Smt. Kaushalaya Devi was running a furniture shop at Aut Khamradha and she was registered with the forest department for selling the wood furniture and joinery items vide order No. 275/99 dated 11.1.2000 and “KD” was her property mark which was also registered in her name by the Forest Department. Neither the bills in question nor the timber found in the truck was bearing any property mark. Further, none of the bills reflect the name of purchaser. On the top of it in bill number 056 (four copies) only the date is mentioned on the first bill and no date finds mentioned in the remaining three copies. Neither the identity nor the sizes mentioned in the bill matches with the timber seized. The story of developing a snag in the vehicle as alleged is unsubstantiated. The forest transit rules also prohibit transporting the timber after sun set and before sun rise. The legal source of the timber is not established. The furniture shop register with respect to sale and purchase as required under the Timber Trade Rules has not been produced. Therefore by no stretch of imagination, the timber in question could be connected with the furniture shop of Kaushalaya Devi. That being so, by virtue of Section 69 of the Indian Forest Act, it is presumed to be the property of the Government as the petitioner has failed to prove to the contrary. Once it is held that the timber in question was a Government property, Section 52A aforesaid comes into play. The timber as well as the vehicle in question was produced before the Authorized Officer and he had issued the show cause notice stating all the necessary facts and the show cause notice. The petitioner did not - 7 - plead that the timber was being transported by the driver of his vehicle without his knowledge. Rather the petitioner himself came forward to support the carriage of the timber by his truck which was confiscated by the Forest Department being illegal. Therefore in the circumstances aforesaid, there is no escape from the conclusion that the truck in question was transporting the timber belonging to the State Government. Thus no fault can be found in the orders passed by the authorized Officer and the learned Additional Sessions Jude vide his detailed judgment has correctly appreciated the facts on record and rightly affirmed the order of confiscation. Therefore, I do not find any reason to interfere with the concurrent findings of fact arrived at by the courts below. Accordingly the petition is dismissed. (Surinder Singh) Judge. August 12, 2008. (bm)