# Tajammul Hussain v. State of U.P. & Ors

- **Citation:** (2013) 2 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Case number:** Civil Misc. Writ Petition No. 36788 of 2008
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tajammul-hussain-v-state-of-u-p-ors-42635
- **Pages:** 4

## Headnote

Act
1927-Section-68(2)-
compounding
of
offence-Petitioner's
tractor loaded with bolder carrying two
cubic meters-confiscated on failure of
showing Patta and other valid papersboth authorities failed to consider the
question of compounding of offence-one
Lacs Rs. already deposited with Court-be
return back to petitioner after adjusting
the amount of companding Rs. 50,000/-
petition disposed of accordingly.

Held: Para-15
However,
the
authorities
below
committed patent error of law in not
considering
the
question
of
compounding in accordance with Section
68(2) of the Act. No useful purpose will
be served by remanding the matter.
Prima
facie
under
the
facts
and
circumstances of the case Rs.50,000/-
would be appropriate amount to be
directed to be paid by the petitioner
under Section 68(2) of the Act.

Case Law discussed:
1993 (2) Callt. Law Times 252; 2006 (3) AWC
2339

## Text

2 All] Tajammul Hussain Vs. State of U.P. & Ors.
873
authority treated him guilty of criminal
charges levelled against him of which trial
was undergone. This approach of the
disciplinary authority is against the
principles as laid down by the Apex Court
in case of Jaswant Singh Vs. State of
Punjab and others (1991) 1 SCC 362 and
therefore, order passed by the disciplinary
authority cannot be sustained.

14. Before concluding the matter it
may be relevant to state that criminal case
filed against the petitioner was decided by
the Sessions Judge by judgment and order
dated 20.7.2007,the petitioner and other
accused were honourably acquitted. As
the
petitioner
was
acquitted
after
consideration of prosecution evidences
and prosecution had miserably failed to
prove the charges levelled against him.
Even complaint, which was alleged to
have been made by his son, had clearly
stated that he had never lodged any
complaint. The sessions court in its
judgment and order dated 20.7.2007
recorded the finding that language of the
complaint clearly shows that it could not
have been written by son of the petitioner,
who was 17 years old at the relevant point
of time, it appears that it was written on
the dictation of some policeman. All other
prosecution
witnesses were
declared
hostile as they refused to accept the
prosecution case that recovery of dead
body and other materials were recovered
in their presence and hence no reliance on
the prosecution story of recovery can be
placed.
There
was
no
independent
witness. The case set up by the police that
petitioner had admitted the offence was
found not proved. The trial court recorded
finding that no disclosure statement was
recorded by the police and from their own
records, it is apparent that there were
various discrepancies in the case set up by
the prosecution. After considering all the
oral and documentary evidences petitioner
was acquitted which will be termed as
honourable acquittal. Surprisingly the
appellate authority in its order dated
27.3.2008 did not consider the acquittal
order dated 20.7.2007 rather rejected the
plea taken by the petitioner on the ground
that there was report of Circle Officer,
Pilibhit dated 22.1.2007 against the
petitioner and charge sheet has been filed.
The said approach of the appellate
authority is illegal.

15. Moreover in view of the above
discussion it is clear that power exercised
by the Superintendent of Police, Pilibhit
under Rule 8(2) (b) of the Rules is
contrary to the requirement as laid down
in the said Rules. The order of dismissal
does not fulfil the requirement of the
aforesaid Rule and, therefore, cannot be
sustained. The appellate order also cannot
survive. Both the orders dated 26.6.2007
and 27.3.2008 are hereby quashed.

16. As suspension order dated
3.9.2006 merged in the order of dismissal
order dated 26.6.2007, the dismissal order is
set aside. The petitioner shall be reinstated in
the service forthwith with all consequential
benefits. It is, however, open to the
respondent to hold disciplinary enquiry
against the petitioner in accordance with law.

17. The writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 36788 of 2008
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Tajammul Hussain

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Mohd. Naushad Siddiqui

Counsel for the Respondents:
C.S.C.

Forest
Act
1927-Section-68(2)-
compounding
of
offence-Petitioner's
tractor loaded with bolder carrying two
cubic meters-confiscated on failure of
showing Patta and other valid papersboth authorities failed to consider the
question of compounding of offence-one
Lacs Rs. already deposited with Court-be
return back to petitioner after adjusting
the amount of companding Rs. 50,000/-
petition disposed of accordingly.

Held: Para-15
However,
the
authorities
below
committed patent error of law in not
considering
the
question
of
compounding in accordance with Section
68(2) of the Act. No useful purpose will
be served by remanding the matter.
Prima
facie
under
the
facts
and
circumstances of the case Rs.50,000/-
would be appropriate amount to be
directed to be paid by the petitioner
under Section 68(2) of the Act.

Case Law discussed:
1993 (2) Callt. Law Times 252; 2006 (3) AWC
2339

(Delivered by Hon'ble Sibghat Ullah Khan,J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for respondents.

2. This writ petition is directed against
order dated 08.05.2007 passed by Authorised
Officer/ Regional Forest Officer, Kashi,
Vanya Jeev Prbhag, Ramnagar, Varanasi.
Through the said order, it was directed that
petitioner's tractor and bolders (forest
produce) loaded thereupon which had been
seized and confiscated would be kept in
custody in Chakiya premises and after expiry
of period of appeal proceedings for disposal
of the tractor and said forest produce would
be taken. The said order was passed in Case
No.35 of 2005, State of U.P. Vs. Tajammul
Hussain and Sri Bihari under Section 26 (g),
41, 42, 52 and 52-A of Forest Act, 1927 as
amended by U.P. in 1965 by U.P. Act No.23
of 1965 and in 2000 by U.P. Act No.1 of
2001. Against the said order, petitioner filed
Appeal No.23 of 2007 under Section 52-B of
the Act. The Prescribed Authority/ Special
Secretary to Government of U.P. dismissed
the appeal and approved the order dated
08.05.2007, hence this writ petition.

3. The allegation against the
petitioner was that in the intervening night
of 17/18th April 2005 at about 2.30 A.M.,
petitioner's tractor was checked and it was
found that it was carrying two cubic
meters bolder (patra). Bihari was driving
the tractor. No permission to take out the
bolder was shown by the driver. The
tractor was stopped at Sultanpur Marg
near Samal Canal and the tractor was
coming from Chanuari Pahari Chhitampur
Block K.N.-2. Bihari and another person
sitting in the tractor, who were sent to the
jail, stated that the tractor belonged to the
petitioner. Tractor and bolder were seized/
taken
in
custody.
Appellant
filed
application for release of the tractor and
bolder, on which the impugned orders
were passed.

4. The authorities below held that it
was a case of illegal mining from reserved
forest. Petitioner, the owner of the tractor
was found to be involved in the case and
it was held that his acquiescence was
there.
2 All] Tajammul Hussain Vs. State of U.P. & Ors.
875

5. In this writ petition on 01.09.2008
following order was passed on the order
sheet:

"Standing Counsel is granted three
weeks' further time to file a counter
affidavit.

The tractor and trolley of the
petitioner was seized along with the goods
by the authorities. The petitioner filed an
appeal,
which
was
also
rejected.
Consequently, the present writ petition.

From a perusal of the record, I find
that the tractor and the trolley was seized
on 18th of April, 2005, and in these three
years, the condition of the tractor and
trolley
must
have
deteriorated.
Consequently, no useful purpose shall be
served if the tractor remains in the
custody of the authorities.

Consequently, I direct the authorities
to release the tractor and the trolley
within 24 hours from the date of receipt of
certified copy of this order subject to the
petitioner furnishing a sum of Rs. One
lakh by way of security. The District
Forest Officer (respondent no.3) will
deposit this amount in an interest bearing
Account and such deposit would be
subject to further orders of the Court.

Certified copy of this order shall be
made available to the learned counsel for
the petitioner on payment of usual
charges within 48 hours."

6. After the above order, the amount
of Rs.1 lac was deposited and it was
subsequently
renewed.
Tractor
and
Trolley were released. The case of the
petitioner was that bolders belonged to
another person and without his consent or
knowledge, his driver was carrying them.

7. As per Section 2(2)(4) of the Act,
rock, minerals including limestone and all
products of mines or quarries are forest
products.

8. Learned counsel for the petitioner
has argued that firstly no offence was
committed as it is not proved that the
bolder was taken out from any reserved
forest area. Secondly, petitioner was not
aware and even if it is assumed that
bolder was being brought from reserved
forest area, it was the action of his driver
and petitioner was neither aware nor in
connivance with the driver. Thirdly,
confiscation is optional as the word used
in Section 52 A is ''may' and not ''shall'.
Lastly, learned counsel for the petitioner
has
argued
that
the
seizer
was
compoundable in view of Section 68(2)
which is quoted below:

"On the payment of such sum of
money, or such value, or both, as the case
may, to such officer, the suspected person,
if in custody, shall be discharged, the
property, if any, seized shall be released,
no further proceedings shall be taken
against such person or property."

9. Learned counsel for the petitioner
has cited the following authorities:

10. The first authority is of P.K.
Mondal Vs. State of West Bengal, 1993
(2) Callt. Law Times 252 interpreting
Section 59-A of the Forest Act as added
by West Bengal and holding that the word
used is ''may' hence it is the discretion of
the authorised officer to pass or not to
pass order of confiscation depending upon
the facts of the case. Similar is the
provision of Section 52-A as added by
U.P.
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

11. The second authority is of
Baddu Vs. State of Madhya Pradesh
given in Writ Petition No.9266 of 2008,
decided on 22.03.2011.

12. The third authority is reported in
Bhagwandeen Vs. State of U.P., 2006
(3) AWC 2339. In the said case it was
held that knowledge of the vehicle owner
had
been
held
on
the
basis
of
presumption, which was not correct.

13. In my opinion, under the facts
and circumstances of the case, the
authorities below should have considered
as to whether it was a fit case for
confiscation
or
not
and
whether
compounding under Section 68 was
warranted or not.

14. Learned counsel for the petitioner
has most vehemently argued that question of
compounding should have been considered in
accordance with Section 68(2) of the Act. In
my opinion, the other findings regarding
knowledge of the petitioner and bolder having
been taken from the reserved forest are
findings of fact suffering from no such error
which may warrant interference in exercise of
writ jurisdiction.

15. However, the authorities below
committed patent error of law in not
considering the question of compounding
in accordance with Section 68(2) of the
Act. No useful purpose will be served by
remanding the matter. Prima facie under
the facts and circumstances of the case
Rs.50,000/- would be appropriate amount
to be directed to be paid by the petitioner
under Section 68(2) of the Act.

16. Accordingly, impugned orders are
set aside and substituted by a direction to pay
Rs.50,000/-. The amount of Rs.1 lac has
already been deposited under order of this
court. Accordingly, impugned orders of
confiscation of tractor and trolley are set aside.
Matter is compounded on payment of
Rs.50,000/- by the petitioner. The amount of
Rs.1 lac has been kept in interest bearing
account. Accordingly, it is directed that out of
the total amount i.e. the principal amount of
Rs.1 lac and the interest which has actually
accrued, an amount of Rs.50,000/- shall be
adjusted as amount payable by the petitioner
under Section 68(2) of the Act as aforesaid
and rest of the amount, i.e. Rs.50,000/- of the
principal and the total interest accrued
thereupon shall at once be returned to the
petitioner in no case beyond two months from
the date of filing of certified copy of this
judgment before the authority where the
amount was deposited.

17. Writ Petition is disposed of as
above.
---------