# Irfan v. State of U.P. and others

- **Citation:** (2013) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-02
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irfan-v-state-of-u-p-and-others-42602
- **Pages:** 7

## Headnote

Indian Forest Act, 1927- 52(A)-Release
of
vehicle-involved
in
Transporting
Sakhu, Sagon wood-without having valid
authority-vehicle driven by the owner of
vehicle
itself-rightly
confiscated-
no
interference call for-petition dismissed.

Held: Para-16
The above facts leave no room to doubt
that
petitioner
was
indulged
in
transporting the forest produce illegally
by means of a Mahendra Pickup vehicle
having registration no. UP 40 C 8561
which he at the time of seizure was
driving and is also the owner of the
same. Thus the same rightly confiscated.
The petition has no merit and deserves
to be dismissed.

Case Law discussed:
Criminal Revision No. 279 of 1994; 1990 Crl L
J; (2004) 4 SCC

## Text

618 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
petitioner that a person who has been given
'Y' class security must be given an
opportunity of hearing before it was
withdrawn, or that before taking decision to
withdraw the 'Y' class security, the threat
perception should be assessed by the State
Government. Ordinarily every citizen, is
entitled to security, and for that purpose
entire security set up is established. Special
security is given on the threat perception
assessed by a high level committee on the
reports submitted by the concerned police
authorities. The petitioner was not provided
'Y' class security cover, on assessment of any
such threat perception.

13. In the present case, the petitioner
has already been given sufficient security
and his family possesses a number of fire
arm licenses. The 'Y' class security
involves extra-ordinary financial burden
on the State Government. The State funds
collected by imposing taxes from citizens
of
the
State
are
meant
for
the
development and security of all the
citizens and are not the property of any
individual to be claimed as a matter of
right.

14. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.04.2013.

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA,
J.

Writ Petition No. 5777(M/S) Of 2012

Irfan

 ..Petitioner
Versus
State of U.P. and others ...Opp. Parties.

Counsel for the Petitioner:
Sri Vinod Kumar Singh
Counsel for the Respondents:
Govt. Advocate

Indian Forest Act, 1927- 52(A)-Release
of
vehicle-involved
in
Transporting
Sakhu, Sagon wood-without having valid
authority-vehicle driven by the owner of
vehicle
itself-rightly
confiscated-
no
interference call for-petition dismissed.

Held: Para-16
The above facts leave no room to doubt
that
petitioner
was
indulged
in
transporting the forest produce illegally
by means of a Mahendra Pickup vehicle
having registration no. UP 40 C 8561
which he at the time of seizure was
driving and is also the owner of the
same. Thus the same rightly confiscated.
The petition has no merit and deserves
to be dismissed.

Case Law discussed:
Criminal Revision No. 279 of 1994; 1990 Crl L
J; (2004) 4 SCC

(Delivered by Hon'ble Vishnu Chandra
Gupta,J)

1. This writ petition under Article 226
of the Constitution of Indian has been filed
by the petitioner claiming the reliefs to issue
a writ order or direction in the nature of
CERTIORARI to quash the impugned orders
dated 20.07.2012 passed by the opposite
party no. 2 and impugned confiscation order
dated 11.07.2011 passed by the opposite
party no.3. And further to issue, a writ order
or direction in the nature of mandamus
commanding the opposite party no. 3 to
release the vehicle in question.

2. The brief facts for deciding this writ
petition are that a vehicle Mahendra Pickup
having registration no. UP 40-C 8561 was
seized by the Forest Officials on 18.3.2011 .
This vehicle was loaded with cut wood of
'Sagoon' and 'Sakhu'. The Forester of
2 All] Irfan Vs. State of U.P. and others
619
Bahraich range at 6.30 AM intercepted this
vehicle when it was coming from Nanpara
side. When documents of wood were asked
from the driver of the vehicle, he could not
able to show any papers or authority to
transport the wood. The Forest Officials took
the vehicle along with the driver to Range
Office, Bahraich and given in the custody of
staff of the range after preparing a receipt.
The information of this seizure was given to
Divisional Forest Officer , Bahrich Range
and Chief Judicial Magistrate , Bahraich. The
wood loaded on the aforesaid vehicle was
suspected to be of reserve forest. Thereafter,
proceedings for its confiscation along with
confiscation of the vehicle were sought to be
initiated by Divisional Forest Officer,
Bahraich vide its letter dated 18.3.2011 and
requested
to
the
Authorised
Officer/Prescribed Authority for confiscation
of wood and vehicle. Consequently the
confiscation proceedings were started.

3. After making inquiries about the
owner of the vehicle notices were issued
to file the objections till 6.4.2011. The
owner of the vehicle filed his objection on
28.3.2011. The owner of the vehicle is the
present petitioner. After hearing both the
sides, Prescribed Authority found that the
truck
was
involved
in
transporting
illegally the forest produced, the wood of
Sakhu and Sagwan. The defence taken by
owner of vehicle that wood belongs to
saw mill of Nizamudin, the Proprietor of
Nizamudin Timber Merchant, Gujrahana,
Motipur, Bahraich and owned by several
persons named by him was found false.
The alleged transport permit produced by
the owner of vehicle was not found to be
in respect of wood which was seized by
the Forest Officials. The description of
wood mentioned in the transport permit
produced by the owner of vehicle was not
tallying with the wood seized. The forest
officials
further
found
that
fake
documents were prepared in the form of
invoice and reasons for that has also been
assigned in the order of confiscation. It
was also found that the owner and driver
of the vehicle was one and the same
person, who could not produce any
document at the time of seizure and in the
aforesaid circumstances it cannot be said
that he was not aware with the illegal
transportation of wood,which certainly
comes within the definition of forest
produced and the same was seized within
the forest area. In view of Section 52(A)
of Indian Forest Act, 1927, confiscation
order dated 11.07.2011 was passed of
truck and wood. Owner of the vehicle
preferred an appeal before the State
Government.
The
appeal
was
also
dismissed by order dated 20.07.2012.
Aggrieved by the aforesaid orders, this
writ petition has been preferred.

4. It has been contended by the
learned counsel for the petitioner that
order of confiscation could not be passed
unless it is shown that the vehicle was
being used for illegal transportation or for
other
illegal
purpose
or
for
any
contravention of provision of Indian
Forest Act or Rules or Regulation made
thereunder. It was also contended that
recovery
memo
was
prepared
on
21.3.2011 but the property was seized on
18.3.2011. This by itself is sufficient to be
quash the proceeding of confiscation. The
learned counsel for the petitioner also
relied upon a judgment passed by this
court in Criminal Revision No. 279 of
1994 (Abdul Humid Vs. State of U.P.)
decided on 8.12.1994. In this judgment
this court after relying upon the judgment
in State of U.P. And others Vs. Sri Ram
Babu 1990 Crl L J, page 87 has held that
it is open to the Magistrate to pass order
620 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
under section 457 Cr.P.C. for disposal of
property even if the property was seized
by the Forest Officials.

5. The counter affidavit has been
filed on behalf of opposite parties denying
the allegation made in the petition and
supported the orders impugned. Rejoinder
affidavit has also been filed denying the
allegation in the counter affidavit and the
allegation made in the petition were
reiterated.

6. The learned A.G.A. Supported the
order passed by the authorities for
confiscating the vehicle.

7. Chapter IX of Indian Forest Act
deals with penalties and procedure.
Section 52 (A) relates to procedure on
Seizure. Section 52(D) bar the jurisdiction
to be exercised by other authorities in
case of seizure of property under section
52 of the Act. Section 53 deals with the
release of the property seized under
section 52. The provisions of Chapter IX
were
substantially
amended
w.e.f.
16.4.2001 by U.P. Act No. 1 of 2001.

8. Section 52(A), 52(B), 52(C),
52(D), 53, 54, 55 and 56 are relevant for
deciding this petition. Therefore, they are
being reproduced herein below:

"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 office 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 subsection (1) of Section 52 shall, without
unreasonable delay, produce it together
with all the tools, boats vehicles, cattle,
ropes, chains and other articles used in
committing the offence, before an officer,
not below the rank of a Divisional Forest
Officer,
authorised
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.

(2) The authorised officer shall,
without any undue delay, forward a copy
of the order made under sub-section (1)to
his official superior.

(3) Where the authorised officer
passing an order under sub- section (1) if
of the opinion that the property is subject
to speedy and natural decay he may order
the property or any part thereof to be sold
by public auction and may deal with the
proceeds as he would have dealt with
such property if it had not been sold and
shall report about every such sale to his
official superior.

(4) 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 authorised officer
to have some interest in such property:

Provided
that
in
an
order
confiscation a vehicle, when the offender
is not traceable, a notice in writing to the
registered owner thereof and considering
his objections if any will suffice.

(5) No order of confiscation of any
tool, boat, vehicle, cattle rope, chain or
other article shall be made if any person
referred to in sub-section (4) proves to the
satisfaction of the authorised officer that
any such tool, boat, vehicle, cattle rope,
chain or other article was used without his
2 All] Irfan Vs. State of U.P. and others
621
knowledge or connivance or without the
knowledge or connivance of his servant or
agent, as the case may be, and that all
reasonable precautions had been taken
against use of the objects aforesaid for the
commission of the forest offence.

52-B. Appeal.-Any person aggrieved
by an order of confiscation may, within
thirty days of the date of communication
to him of such order, prefer an appeal to
the State Government and the State
Government
shall,
after
giving
an
opportunity of being heard to the
appellant and the authorised officer pass
such order as it may, think fit confirming,
modifying or annulling the order appealed
against and the order of the State
Government shall be final.

52-C. Order of confiscation not to
prevent any other punishment.- No order
of confiscation under Section 52-A or
52.B shall prevent the indication of any
punishment to which the person affected
thereby may be liable under this Act.

52-D. Bar of jurisdiction in certain
cases. - Notwithstanding anything to the
contrary contained in this Act or in the
Code of Criminal Procedure, 1973 or in
any other law for the time being in force,
whenever any forest produce belonging to
the State Government together with any
tool, boat, vehicle, cattle, rope, chain or
other article is seized under sub-section
(1) of Section 52, the authorised officer
under
section
52-A
or
the
State
Government under Section52-B shall
have jurisdiction, to the exclusion of
every other officer, court, Tribunal or
authority, to make orders with regard to
the custody, possession, delivery, disposal
or distribution of the property.

53. Power to release property seized
under section 52.- Any Forest Officer of a
rank not inferior to that of a Ranger who,
or whose subordinate, has seized any
tools, boats, (vehicles, cattle ropes, chains
or other articles) (under section 52, may
subject to Section 61-G release) the same
on the execution by the owner thereof of a
bond for the production of the property so
released, if and when so required, before
the Magistrate having jurisdiction to try
the offence on account of which the
seizure has been made (except in respect
of cases falling under section 52-A for
which the procedure laid down in the
section shall be followed).

54. Procedure thereupon.-Upon the
receipt of any such report, the Magistrate
shall, with all convenient despatch, take
such measures as may be necessary for the
arrest and trial of the offender and the
disposal of the property according to law.

55. Forest-produce, tools, etc., when
liable to confiscation.-(1) All timber or
forest-produce which is not the property of
Government and in respect of which a
forest-offence has been committed, and all
tools, boats, (vehicles, cattle, ropes, chains
and other articles used in committing such
forest-offence), (shall subject to section 61G, be liable) to confiscation.

(2) Such confiscation may be in
addition
to
any
other
punishment
prescribed for such offence.

56. Disposal on conclusion of trial
for forest- offence, of produce in respect
of which it was committed.-When the trial
of any forest- offence is concluded, any
forest-produce in respect of which such
offence has been committed shall, if it is
the property of Government or has been
confiscated, be taken charge of by a
Forest Officer, and, in any other case,
may be disposed of in such manner as the
court may direct."

9. Section 52A provides the
procedure on seizure. The property seized
under section 52 would be subject to
confiscation. Section 55 deals with those
622 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
forest produce which is not the property
of the government and in respect of forest
offence, which has been committed and
all tools, boats, vehicles, cattle, ropes,
chains
and
other
articles
used
in
committing the forest offence shall
subject to section 61G be liable to be
confiscated. The properties confiscated
shall
become
the
property
of
the
government
under
section
55.
The
ownership of that would be vested in the
government free from all encumbrances
subject to result of an appeal preferred
under section 52(B) or in case no appeal,
after expiry of the period of appeal or
revision. In case proceedings under
section 52(A) once started, the power to
release the property seized will not be
governed by section 53 and 61 of the Act.
The Forest Officer, as mentioned in
section 53 or officer empowered by State
Government under section 61 have a right
to release the property seized subject to
such condition and on executing the bond
by the owner thereof for the production of
the property so released before the
Magistrate having jurisdiction to try the
offence. But it clearly provides that this
power of release not to be exercised in
case proceedings under section 52A for
confiscation has been started. The scheme
provided under Chapter IX of the Indian
Forest Act prohibits the exercise of
jurisdiction by regular criminal courts in
the matter of release of the property
seized. In view of the aforesaid provisions
of law this petition has to be disposed of.

10. In this case the order of
confiscation
made
by
the
forest
authorities was confirmed in appeal. The
wood which was seized by the Forest
Officer was kept in a vehicle which was
being driven by its owner. Admittedly the
wood transported by the truck did not
claimed to be his own by the owner of the
truck. He was not having any papers
authorising him to transport the wood
when the seizure was made. However,
during the course of hearing under section
52A he pleaded some papers to show that
the wood transported by him belongs to
sawmill of Nizamudin, but the papers
produced by Nizamudin were not found to
be connected with the wood seized by the
Forest Officer, because the same was not
tallying with measurement given in the
transit permit produced by the petitioner
during the course of hearing of the
confiscation proceedings. It was also
found that the wood recovered was not
separated in pieces by use of mechine but
it was hand made separated wood. That
too was sufficient to establish that it was
not separated wood by use of sawmill of
Nizamudin. It was also found by the
authorities that the documents produced
before them have contained the signature
of Nizamuddin in Hindi but when
Nizamuddin was examined before him he
signed in Urdu. It is also important to
notice that the vouchers which have been
produced
by
the
petitioner
during
proceedings 52-A relate to Ram Karan
,Babu and Farid Ali, who were said to be
the purchaser of the wood seized, but they
have not been examined. The other person
Kishan Kumar, who is shown to be the
owner of the part of the wood was also
not examined. The receipt in favour of
Kishan Kumar showing purchase of wood
by him from Muna Lal Yadav , but he
was also not examined.

11. The findings of fact recorded by
Prescribed Authority were confirmed in
appeal. In these circumstance it is
established beyond doubt that vehicle in
question was being used for illegally
transporting the aforesaid wood, which
2 All] Irfan Vs. State of U.P. and others
623
admittedly, was not belonging to the
petitioner or any person as stated by the
petitioner and as such the truck was
rightly confiscated.

12. The arguments raised from the
side of the petitioner that recovery memo
was prepared on 21.3.2011, but the
property was seized on 18.3.2011 has no
legs to stand, because the recovery memo
was prepared on the basis of receipt no.
060107 dated 18.3.2011 which was
prepared at the time of receipt of seized
goods by staff at Range office and
recovery memo was virtually a formal
document evidencing the recovery.

13. At last, the counsel for the
petitioner
requested
for
conditional
release of truck. The benefit of word
'without
knowledge'
could
not
be
extended to the present petitioner because
he is not only driver of the vehicle but
also the owner of vehicle. The judgment
relied upon by the learned counsel for the
petitioner in Criminal Revision No. 279
of 1994 (Abdul Humid Vs. State of
U.P.), is not of any help because this
deals with the release of vehicle which
was seized under section 52 of the Forest
Act and by that time proceeding of
confiscation
was
not
there.
The
Magistrate released the vehicle in view of
Section 457 of Criminal Procedure Code
as the seizure was also reported to the
Magistrate. However the law relied upon
by the learned Counsel for the petitioner
was prior to amendment by U.P.Act No.1
of 2001, which came into effect with
16.4.2001. Hence the law cited by the
learned Counsel for the petitioner does
not extend any help to the petitioner.

14. In the case in hand the
proceeding of confiscation has been
initiated forthwith and concluded so the
Magistrate or any other authority was not
having any power to release the vehicle. I
fortified my view with the judgments of
Apex Court reported in State of West
Bengal and Ors. Vs. Sujit Kumar Rana
2004 (4) SCC page 129 and Mohd.
Ashique Vs. State of Maharastra, 2009
page 368.

15. Considering all these facts, it
was rightly concluded by the Prescribed
Authoritiy and by Appellate Authority
that the defence taken by the petitioner
was not sustainable and was also rightly
found
to
be
involved
in
illegally
transporting the wood and accordingly the
same being a forest produce belonging to the
government along with vehicle by which it
was being transported as contained in section
69, which reads as under :

"69. Presumption that forest-produce
belongs to Government.- When in any
proceedings taken under this Act, or in
consequence of anything done under this
Act, a question arises as to whether any
forest-produce is the property of the
Government, such produce shall be
presumed to be the property of the
Government untill the contrary is proved."

16. The above facts leave no room
to doubt that petitioner was indulged in
transporting the forest produce illegally
by means of a Mahendra Pickup vehicle
having registration no. UP 40 C 8561
which he at the time of seizure was
driving and is also the owner of the same.
Thus the same rightly confiscated. The
petition has no merit and deserves to be
dismissed.

17. No other point was pressed or
argued by the counsel for the parties
624 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

18. The petition lacks merit and is
accordingly dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2013

BEFORE
THE HON'BLE ANIL KUMAR SHARMA, J.

Criminal Appeal No. 6338 Of 2009

Preetam Singh
 ...Appellant
Versus
State of U.P. Opp. Party

Counsel for the Appellant:
Sri P.S. Pundir
Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 446(3)-
application to refund security amountrejected by trail court-surety bond of
appellant
forfeited
as
the
accused
absconded-appellant
deposited
surety
amount without protest-after being arrest
of accused person-application for refundheld misconceived without challenge of
forfeiture order-appeal dismissed.

Held: Para-9
It is pertinent to note here that the
appellant did not challenge the order
passed by the trial court on 7.3.2008,
whereby their surety bonds were forfeited
by the trial court. The appellant can not
challenge that order in this appeal, because
they have voluntarily deposited the amount
of penalty in the Court on 19.4.2008.

Case Law discussed:
2008(63) ACC 265

(Delivered by Hon'ble Anil Kumar Sharma,J.)

1. Heard learned counsel for the
appellant, learned AGA for the State and
perused the impugned order as also the
papers filed along with the appeal.

2. The appellant challenges the order
dated 2.9.2009, passed by learned Addl.
Sessions
Judge
Court
No.2,
Muzaffarnagar in Criminal Misc. Case
No. 11 of 2008, State Vs. Preetam Singh
under section 446 Cr.P.C. by which his
application for refund of surety amount
had been rejected.

3. It appears that the appellant stood
surety for accused Maisar alias Rameshwar
for a sum of Rs. 30,000/-. The accused
absconded, the surety bond of the appellant
was forfeited and recovery warrant for the
aforesaid amount was issued against him. This
amount was deposited by the appellant before
the trial court on 19.4.2008, through an
application for permission to deposit the
amount. Since the amount was paid by both
the sureties under section 446 Cr.P.C. the
proceedings were closed and the file was
consigned to the record room. On 25.8.2008,
the appellant produced the accused in the
Court in S.T. No. 875 of 2008 and
accordingly he was sent to jail. The same day
the appellant filed an application stating that
since he has produced the accused the amount
of penalty deposited by him be refunded, but
the same was rejected by the trial court
through the impugned order dated 2.9.2009.

4. Learned AGA has argued that the
instant appeal is not maintainable as the
impugned order is not an order passed by
the trial court under section 446 Cr.P.C.

5. Per contra, learned counsel for the
appellant
has
submitted
that
the
application of the appellant is under
section 446 (3) Cr.P.C., so the appeal is
maintainable.

6. Perusal of papers filed by the
appellant shows that it is not disputed that the
appellant stood surety for a sum of Rs.
30,000/- for accused Maisar alias Rameshwar