SHIV DUTT Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The Petitioner has moved this petition under Article 227 of the Constitution of India read with Sections 397 and 482 of the Code of Criminal Procedure for setting-aside the order of confiscation of his truck No. HIS 1869.

(2.) The police, police station Dhalli, registered the case vide First Information Report No. 339/91, under Sections 41 and 42 of the Indian Forest Act and Sections 410, 467, 20/34 of the Indian Penal Code against Madan Lal, Sunder Singh and Kamal Chand Sharma on 19-10 1991. His truck bearing registration No. HIS 1869 was also seized by the police on 19-10-1991. When the matter came before the Judicial Magistrate 1st Class (3), Shimla, on 26-10-1991 for the release of the truck, the Assistant Public Prosecutor appearing in the case, pointed out to the Court the latest amendment to the Indian Forest Act as per Act No. 17 of 1991, published in the official Gazette on 9-7-1991. Section 52(B) whereof provided that the case property, including the truck in question, could not be released by the said Court since the matter as to the release of the truck could be decided only by the Authorised Forest Officer appointed under Section 52-A of the Indian Forest (Himachal Pradesh Second Amendment) Act, 1991. Consequently, the application was dismissed on 26-10-1991.

(3.) Thereafter, the Investigating Officer preferred an application before the Authorised Forest Officer (Divisional Forest Officer), Shimla, on 2-11-1991. It was pointed out therein that on 19-10-1991 at about 6.10 a.m. the truck in question was coming from Old Junga side towards Shimla carrying timber Sunder Lal, driver of the vehicle, produced permit No. 5 dated 20-10-1991 and that in the bill 168 items, measuring 99 24 cft. timber, were shown though on checking, 165 items were found. Out of them, 124 items were bearing mark 'MSTCJ' while the remaining items did not bear any mark. The owner of this timber, who is also the sale-depot holder, namely, Madan Lal, was also following this truck in taxi No. HP-02-0969. The police pointed out that Madan Lal forged the bill in question as of 20-10-1991 in order to take undue advantage inasmuch as that instead of showing the sale of old timber out of his stock, he had shown this date wrongly. The Investigating Officer had requested that until and unless Madan Lal gave the correct details of the timber in question, the truck in question may be allowed to be kept in the custody of the police and should not be released on sapurdari. The Authorised Forest Officer issued notice to the Petitioner (Annexure P-1) for showing cause why the said truck should not be confiscated since it had been used in committing a forest offence and was liable to be confiscated under Section 52(a) of the Indian Forest (Himachal Pradesh Second Amendment) Act, 1991. The reply was sought on or before 6-11-1991 and the case was also fixed on this day. The Petitioner filed his reply on 6-11-1991 (Annexure P-2). In it, he claims that the case is false and frivolous and that he was innocent. He has also said that the truck should be released to him since he was likely to suffer loss in the sum of Rs. 1,000 per day. He also expressed his willingness to abide by all the conditions those would be imposed for releasing the truck in his favour. It is also stated in this reply that at the relevant time, he was not driving the truck. Moreover, the timber in question had been loaded from a sale depot recognised by the State and having hammer mark. The Petitioner was present on 6-11-5991 with his counsel Shri S.C. Sharma The matter was examined and in the penultimate paragraph of this order, the Authorised Forest Officer held that: