- (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 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. 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.
(3.) 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 under section 457 Cr.P.C. for disposal of property even if the property was seized by the Forest Officials.;