# Smt. Sabira Begum v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-07
- **Case number:** Writ-C No. 3034 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sabira-begum-v-state-of-u-p-ors-49653
- **Pages:** 8

## Headnote

A. Civil Law - Indian Forest Act, 1927 -
Sections 52, 52-A & 52-B - Confiscation of
vehicle - Power to seize property, when
can be exercised - No order is there
indicating that the vehicle, in question,
was being used in committing of forest
offence - Effect - Held, the officer seizing
the property under the provisions of the
Act 1927, more particularly Section 52(1)
of the Act read with Section 52A of the Act
1927 can seize such forest produce
alongwith the tools including the vehicles
that have been used in committing of a
forest offence. Thus, at the time of
seizure, it would have to be recorded that
the vehicle and other tools which have
been
seized,
were
being
used
in
committing the forest offence - High
Court held seizure of vehicle was against
the provisions of the Act, 1927. (Para 23
and 24)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

2 All. Smt. Sabira Begum Vs. State of U.P. & Ors.
275

22.

Learned
trial-court
rightly
appreciated the evidence on record. The
evidence produced by prosecution does not
inspire confidence as held by learned trial
Judge and sifting oral testimony, we have
come to the conclusion that the case against
accused under Section 34 of I.P.C. made
out.

23. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting
ocular
versions,
arguments
advanced by learned counsel for the parties.
We have been taken through the record. We
are unable to accept the submissions of the
State counsel for the following reasons and
the judgments of the Apex Court which lay
down the criteria for consideration of appeals
against acquittal. The chain has been found to
be incomplete. While going through the
judgment it is very clear that the court below
has given a categorical finding that the
evidence is so scanty that the accused cannot
be punished and or convicted for the offences
for which they are charged. The factual
scenario in the present case will not permit us
to take a different view then that taken by the
court below. In that view of the matter we are
unable to satisfy ourselves. Thus we concur
the findings of the court below.

24. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on record
and on the contours laid down by the
judgment of the Apex Court, we have no
other option but to concur with the reasoning
of acquittal recorded by the learned Sessions
Judge for the aforesaid reasons.

25. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below. The bail and
bail bonds are cancelled.
----------
(2023) 2 ILRA 275
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 3034 of 2022

Smt. Sabira Begum ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhay Pratap Yadav, Shiv Kumar Yadav

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Forest Act, 1927 -
Sections 52, 52-A & 52-B - Confiscation of
vehicle - Power to seize property, when
can be exercised - No order is there
indicating that the vehicle, in question,
was being used in committing of forest
offence - Effect - Held, the officer seizing
the property under the provisions of the
Act 1927, more particularly Section 52(1)
of the Act read with Section 52A of the Act
1927 can seize such forest produce
alongwith the tools including the vehicles
that have been used in committing of a
forest offence. Thus, at the time of
seizure, it would have to be recorded that
the vehicle and other tools which have
been
seized,
were
being
used
in
committing the forest offence - High
Court held seizure of vehicle was against
the provisions of the Act, 1927. (Para 23
and 24)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Assistant Forest Conservator & ors. Vs Sharad
Ramchandra Kale; (1998) 1 SCC 48
(Delivered by Hon'ble Abdul Moin, J.)
276 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the
petitioner and Dr. Uday Veer Singh,
learned Additional Chief Standing Counsel
for the State-respondents.

2. In pursuance to the order dated
24.01.2023 original records have been
produced by learned Additional Chief
Standing Counsel and who has himself
gone through the records.

3. After perusal of the record learned
Additional Chief Standing Counsel states
that there is no order or document on
record per which the authority has recorded
that the motorcycle recovered from the spot
was used in committing the forest offence.

4. The aforesaid statement is
recorded.

5. Instant petition has been filed
praying for the following main reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari to setaside the order dated 02.12.2021 in Appeal
No.03/81-2-2021-13G/2021
and
order
dated
04.03.2020
in
Range
Case
No.22/2019-2020 read with Confiscation
Case No.05/2019-2020 passed by opposite
party no.2 & 3 respectively which is
annexed as Annexure No.1 & 2 to this writ
petition.

(ii) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to release
the Motorcycle Royal Enfield UP-46-H2760, Chasis No. ME3U3S5C1HLC216071
and
Engine
No.U3S5C1HL216071
in
favour of the petitioner."

6. The case set forth by the learned
counsel for the petitioner is that the
petitioner is the registered owner of
Motorcycle Royal Enfield No. UP-46-H2760 (hereinafter referred to as the
'vehicle'). On 26.12.2019, a relative of the
petitioner namely Saddam had requested
the petitioner to lend him the vehicle for a
day for his personal urgent work. The
petitioner being the resident of the village
and it being a usual practice of helping the
neighbours/relatives in their hour of need,
the vehicle was given by the petitioner to
Saddam.

7. It is contended that on 27.12.2019
at about 04:00 PM the petitioner received
information from a villager that at about
05:00 AM on 27.12.2019 Saddam has been
arrested by the police from the forest area
on the ground of being involved in an
illegal felling of trees from the reserved
forest area and that the petitioner's vehicle
has also been recovered by the authorities
from the spot in question.

8. It is contended that the Regional
Forest Officer vide his order dated
27.12.2019, a copy of which has been filed
as Annexure CA-3 to the counter affidavit,
recommended for confiscation of the
vehicle. In pursuance thereto, a notice
dated 18.01.2020 was issued to the
petitioner under Section 52-A of the Indian
Forest Act, 1927 (hereinafter referred to as
the 'Act, 1927') asking her as to why the
vehicle be not confiscated. The petitioner
claims to have submitted her reply on
19.02.2020, a copy of which is Annexure
CA-4 to the counter affidavit indicating
that (a) her relative Saddam had taken the
vehicle on 26.12.2019, and (b) the
petitioner has never indulged in any
criminal activities or has violated any of the
provisions of the Act, 1927.

9. Placing reliance on both the
grounds as taken by the petitioner in her
2 All. Smt. Sabira Begum Vs. State of U.P. & Ors.
277
reply it was prayed that the vehicle be
released.

10. The competent authority vide
order dated 04.03.2020, a copy of which is
Annexure-2 to the petition, did not agree
with the reply submitted by the petitioner
and thus passed an order under Section 52A(1) of the Act, 1927 confiscating the
vehicle.

11. Being aggrieved, the petitioner
filed an appeal under Section 52-B of the
Act, 1927 which has been rejected vide
order dated 02.12.2021, a copy of which is
Annexure-1 to the petition, primarily
reiterating the grounds which had been
taken by the authority while passing the
impugned order dated 04.03.2020.

12. Being aggrieved against both the
orders instant petition has been filed.

13. The argument of learned counsel
for the petitioner is that Section 52(1) of
the Act, 1927 read with Section 52A(1) and
(2) of the Act 1927 categorically give the
power of seizure of the property, which is
believed to have been used in committing
of any forest offence but that the officer
concerned has to record that the property
being sought to be seized has been used in
committing the forest offence. It is
contended that the authorities have failed to
record in their orders that the vehicle in
question was being used or had been used
in committing of any forest offence and as
such
the
seizure
and
subsequent
confiscation of the vehicle is against the
provisions of the Act, 1927.

14. It is further contended that the
order impugned dated 04.03.2020 would
indicate that despite the petitioner in her
reply
dated
19.02.2020
having
categorically
stated
that
her
relative
Saddam had taken away the vehicle for
some urgent personal work and that the
petitioner has never been involved in any
criminal activities as such the natural
corollary to it is that the vehicle was used
in illegal activities by Saddam without her
knowledge yet the competent authority in
his order impugned dated 04.03.2020 has
failed to hold that as the vehicle was used
with the knowledge of the petitioner for a
forest offence as such the vehicle is liable
for confiscation.

15. Elaborating the same, the
argument of learned counsel for the
petitioner is that when a duty is cast upon
the authority concerned in terms of subsection (5) of Section 52-A of the Act,
1927 of giving a finding with regard to the
provisions of sub-section (5) of Section 52A of the Act, 1927 then without any such
finding of the vehicle having been used
with the active connivance or knowledge of
the vehicle owner for committing a forest
offence, the order of confiscation dated
04.03.2020 will not be legally valid in the
eyes of law. It is also contended that even
the appellate authority has failed to
consider this aspect of the matter and as
such both the orders impugned merit to be
quashed.

16. On the other hand, learned
Standing Counsel on the basis of averments
contained in the counter affidavit argues
that in the counter affidavit the criminal
cases which have been lodged against
Saddam have been brought on record by
means of Annexure CA-2, a perusal of
which would indicate that there are 12
cases lodged against Saddam under the
provisions of the Act, 1927. Placing
reliance on the criminal history of Saddam,
it is argued that when the relative of the
278 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner namely Saddam was a known
violator of the provisions of the Act, 1927
as such the petitioner, while giving her
vehicle to Saddam for use, should have
been more careful about the same. It is also
contended that this aspect of the matter has
been
considered
threadbare
by
the
competent authority while passing the order
impugned dated 04.03.2020 and the said
order has been affirmed with the dismissal
of the appeal vide order dated 02.12.2021
and as such there is no infirmity or
illegality in the said orders and the writ
petition deserves to be dismissed.

17. Heard learned counsel for the
parties and perused the record.

18. As already indicated above the
records had been summoned by the Court
which have been produced by learned
Additional Chief Standing Counsel. The
learned Additional Chief Standing Counsel
has also perused the records for the purpose
to ascertain as to whether there is any order
regarding recording of reasons as provided
under Section 52(1) of the Act 1927 that
the vehicle seized was being used for
committing a forest offence and has
indicated that there is no order on record
either recording or stating that the vehicle
recovered from the spot was being used in
forest offence.

19. From a perusal of the records, it
emerges that the petitioner is the owner of
the vehicle in dispute. She is resident of a
village. Her relative namely Saddam had
requested the petitioner for use of the
vehicle on 26.12.2019 for some urgent
personal work and the petitioner had lent
him the vehicle. On 27.12.2019, the
petitioner claims to have come to know
about Saddam having been caught with
another person in illegal felling of trees in a
reserved forest area and the petitioner's
vehicle was also recovered from the spot. A
notice was issued to the petitioner by the
competent authority for the purpose of
confiscation of the vehicle to which the
petitioner
submitted
her
reply
on
19.02.2020 categorically taking the pleas
that (a) her relative Saddam had taken the
vehicle on 26.12.2019, and (b) the
petitioner has never indulged in any
criminal activities or has violated any of the
provisions of the Act, 1927. Her reply did
not find favour with the authority and the
order impugned dated 04.03.2020 was
passed
whereby
the
vehicle
of
the
petitioner has been confiscated. The appeal
filed against the said order has also been
rejected by the appellate authority vide
order dated 02.12.2021. Being aggrieved
against both the orders, instant petition has
been filed.

20. The main argument of learned
counsel for the petitioner is that in terms of
Section 52(1) and Section 52A(1) of the
Act 1927, for the purpose of seizure of a
vehicle, the authorities have to record that
the vehicle was being used in committing
forest offence.

21. In order to consider the argument,
the provisions of Section 52 and 52A
(amendment for Uttar Pradesh) of the Act
1927 are to be considered, which, for the
sake of convenience, are reproduced below:

" 52. Seizure of property liable
to confiscation.--

(1) When there is reason to
believe that a forest-offence has been
committed in respect of any forest-produce,
such produce, together with all tools, boats,
carts or cattle used in committing any such
offence, may be seized by any Forestofficer or Police- officer.
2 All. Smt. Sabira Begum Vs. State of U.P. & Ors.
279

(2) Every officer seizing any
property under this section shall place on
such property a mark indicating that the
same has been so seized, and shall, as soon
as may be, make a report of such seizure to
the Magistrate having jurisdiction to try the
offence on account of which the seizure has
been made:

Provided that, when the forestproduce with respect to which such offence
is believed to have been committed is the
property of Government, and the offender
is unknown, it shall be sufficient if the
officer makes, as soon as may be, a report
of the circumstances to his official
superior.

Uttar Pradesh

(i) Same as in Gujarat (1) and (2)

(Vide Uttar Pradesh Act 21 of
1960, sec. 7 (w.e.f. 2-11-1960)

Gujarat.-

(1)
for
the
word
"carts",
substitute the word "vehicles".

(Vide Gujarat Act 15 of 1960,
secs. 3 and 4(2) (w.e.f 8-12-1960)

(2) after sub-section (1), insert
the following sub-section, namely:--

"(1A)
Any
Forest-officer
or
Police Officer may, if he has reason to
believe that a vehicle has been or is being
used for the transport of forest produce in
respect of which there is reason to believe
that a forest offence has been or is being
committed, require the driver or other
person in charge of such vehicle to stop the
vehicle and cause it to remain stationary as
long as may reasonably be necessary for
examination of the contents in the vehicle
and inspection of all records relating to the
forest produce and in possession of such
driver or other person in charge of the
vehicle or any other person in the vehicle."

[Vide Gujarat Act 19 of 1983,
sec. 2 (w.e.f. 24-5-1983).

Uttar Pradesh

(i) in sub-section (1), for the
words "vehicles or cattle", substitute the
words "vehicles, cattle, ropes, chains or
other articles":

(ii) for sub-section (2), substitute
the following sub-section, namely:-

(2) Any Forest Officer or Police
Officer may, if he has reason to believe that
a boat or vehicle has been, or is being,
used for the transport of any forest produce
in respect of which a forest offence has
been, or is being, committed, require the
driver or other person in charge of such
boat or vehicle to stop it, and he may
detain such boat or vehicle for such
reasonable time as is necessary to examine
the contents in such boat or vehicle and to
inspect the records relating to the goods
transported so as to ascertain the claims, if
any, of the driver or other person in charge
of such boat or vehicle regarding the
ownership and legal origin of the forest
produce in question.

(3) Every officer seizing any
property under this section shall place on
such property a mark indicating that the
same has been so seized and shall, as soon
as may be, make a report of such seizure to
the Magistrate having jurisdiction to try the
offence on account of which the seizure has
been made, and if the seizure is in respect
of forest produce which is the property of
the State Government, shall also make a
report to the authorised officer.

(Vide Uttar Pradesh Act 1 of
2001, sec. 6)

"52A. Procedure on seizure. (1)
Notwithstanding anything contained in this
Act or any other law for the time being in
force where a forest-offence 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 sub-section (1) of section
52 shall without unreasonable delay,
280 INDIAN LAW REPORTS ALLAHABAD SERIES
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, authorized 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 authorized officer shall,
without any undue delay, forward a copy of
the order made under sub-section (1) to his
official superior.

(3) Where the authorized officer
passing an order under sub-section (1) is 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 authorized officer to
have some interest in such property:
Provided that in an order confiscating 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 authorized officer that
any such tool, boat, vehicle, cattle, rope,
chain or other article was used without his
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."

22. From a perusal of Section 52(1) of
the Act, 1927 it emerges that where there is
a reason to believe that forest offence has
been committed in respect of any forest
produce, such produce together with all
tools, boats, vehicles, cattle, ropes, chains
or other articles used in committing any
such offence, may be seized by any Forestofficer or Police-officer. As per the State
amendment, the forest officer or police
officer if he has reason to believe that a
vehicle has been or is being used for
transport of forest produce in respect of
which there is reason to believe that a
forest offence has been or is being
committed then such vehicle can be
stopped for the purpose of examination of
contents. Likewise Section 52A(1) of the
Act 1927 provides that where a forest
offence is believed to have been committed
in respect of forest produce, the officer
seizing the property under Section 52(1) of
the Act, 1927 shall produce it together with
the tools boats, vehicles and other articles
used in committing the offence before an
officer not below the rank of District Forest
Officer 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 respect
of tools, boats vehicles etc, may also
confiscate them.

23. From the aforesaid it is apparent
that the officer seizing the property under
the provisions of the Act 1927, more
particularly Section 52(1) of the Act read
with Section 52A of the Act 1927 can seize
2 All. Smt. Sabira Begum Vs. State of U.P. & Ors.
281
such forest produce alongwith the tools
including the vehicles that have been used
in committing of a forest offence. Thus, at
the time of seizure, it would have to be
recorded that the vehicle and other tools
which have been seized, were being used in
committing the forest offence.

24. In the instant case, from a perusal
of records, it clearly emerge that there is no
order on record of the respondents to
indicate that the vehicle in question had
been recorded as a vehicle which was being
used in committing of forest offence.
Incidentally,
in
the
notice
dated
27.12.2019, a copy of which is annexure
CA 3 to the counter affidavit, the authority
has only recorded about the vehicle being
recovered from the spot in question but has
failed to record that the vehicle was being
used for the purpose of committing of
forest offence. Accordingly, considering
the mandatory provisions of Section 52
read with Section 52A of the Act, 1927 it is
apparent that the seizure of the vehicle of
the petitioner is against the provisions of
the Act, 1927.

25. Another argument of learned
counsel for the petitioner that under subsection (5) of Section 52-A of the Act,
1927, the onus is cast on the authority that
the vehicle has been used without the
knowledge or connivance of the vehicle
owner also has merit as in the impugned
order, the authority has failed to discharge
the onus while passing the order impugned
and this aspect of the matter has also not
been considered by the appellate authority
while rejecting the appeal and as such the
orders impugned merit to be set-aside on
this ground also. From a perusal of Section
52-A of the Act, 1927, it emerges that the
said section pertains to the procedure to be
adopted by the authorities for the purpose
of seizure. The said provision requires a
notice to be issued to the vehicle owner
prior to any confiscation and sub-section
(5) of Section 52-A of the Act, 1927
provides that no order of confiscation of
any vehicle shall be made if any person
proves to the satisfaction of the authorized
officer that such vehicle was used without
the knowledge or connivance of the vehicle
owner.

26. A perusal of the reply as given by
the petitioner dated 19.02.2020 would
indicate that the vehicle of the petitioner
had been given to her relative for some
urgent personal work. The petitioner has
also specifically indicated in her reply that
at no stretch of time has she ever been
involved in any criminal activities under
the Act, 1927. Thus, the crux of the reply
of the petitioner was that the vehicle had
been used by Saddam who had been caught
in the illegal felling of trees from the
reserved forest along with the vehicle
without the knowledge of the petitioner that
the vehicle would be used for any alleged
criminal activities. Thus, the competent
authority, while passing an order under
sub-section (5) of Section 52-A of the Act,
1927, was required to record a finding that
the vehicle had been used with the
knowledge and connivance of the petitioner
for commission of the forest offence prior
to passing an order for confiscation of the
vehicle of the petitioner but a perusal of the
order would indicate that said finding has
not been given by the authority concerned
while passing the order dated 04.03.2020
and thus on this ground the order impugned
dated 04.03.2020 merits to be quashed
being against the mandatory provisions of
sub-section (5) of Section 52 of the Act,
1927. As this aspect of the matter has also
not been considered by the appellate
authority while passing the order dated
282 INDIAN LAW REPORTS ALLAHABAD SERIES
02.12.2021 as such the said order also
merits to be quashed.

27. This aspect of the matter has also
been considered by the Apex Court in the
case of Assistant Forest Conservator and
Ors Vs. Sharad Ramchandra Kale
reported in (1998) 1 SCC 48 wherein the
Apex Court has held as under:-

"The truck of the respondent was
ordered to be confiscated by the Assistant
Conservator of Forest, as it was found
involved in commission of a forest offence.
The
order
was
confirmed
by
the
Conservator of Forest. Against this order,
the respondent preferred an appeal to the
Session Court but it was dismissed.
Therefore, he approached the High Court
with a petition under Article 227 of the
Constitution. The High Court set aside the
order of confiscation on the ground that
the authorities had failed to establish that
the owner of the truck had any knowledge
that his truck was likely to be used for
carrying forest produce in contravention
of the provision of the Forest Act. This
finding was based upon the evidence on
the record. Therefore, we do not consider
it proper interfere with such finding."

28. Accordingly, keeping in view
the
aforesaid
discussion,
the
Writ
Petition is allowed. The impugned
orders dated 02.12.2021 and 04.03.2020,
copies of which are annexures 1 & 2
respectively to the petition, are quashed.
The authority is directed to release the
vehicle of the petitioner in accordance
with law within a period of six weeks
from the date of receipt of certified copy
of this order provided there is no legal
impediment.
----------
(2023) 2 ILRA 282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 5636 of 2022

M/S Alpine Recourses L.L.P., M.P.
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Rahul Srivastava

Counsel for the Respondents:
C.S.C.

A.
Civil
Law
-
UP
Minor
Minerals
(Concession) Rules, 1963 - Ch. IV - Grant
of mining lease - Auction finalized -
Certain mining activities was found to be
taken place on the allocated area -
Reassessment of estimated quantity of
minerals claimed - However, security
amount forfeited on refusal of executing
lease deed - Legality challenged - Held,
the area, as was allotted to the petitioner,
was found overlapping with the area of
another person to whom a lease deed had
already been executed approximately two
months
prior.
Considering
this
the
petitioner requested for reassessment of
the estimated minerals which was not
acceded to by the authorities rather the
insistence was for execution of the lease
deed which the petitioner refused to
execute - Held further, Insistence on the
part of the respondents for execution of
the lease deed by the petitioner and upon
refusal of the petitioner, the forfeiture of
the security deposit and the royalty
amount, cannot be said to be legally
sustainable in the eyes of law. (Para 24)
Writ petition allowed. (E-1)
List of Cases cited :-