K.N.Misra, J. - (1.) A joint application was moved by the revisionists Ravi shankar and Smt. Inderjeet Kaur for the release: of truck No. UTE 7959 on the ground that there is no provision for seizure of the truck and fire-wood loaded hereon, under the Forest Act. This application has been rejected by the Judicial Magistrate 1st, Bahraich, vide order dated 25-2-1983. Aggrieved by this order he revisionists preferred this revision.
(2.) BRIEFLY stated the facts of the case are that a report dated 7-2-83 was submitted to the Court by one Ram Daras Singh, Forestor, Chandra Range, P. S. Nawabganj, district Bahraich. It was stated that on 5-2-83 at about 4 A. M. truck No. UTE 7959 was seized by him while it was carrying wood said to have been illegally felled and removed from the reserve forest. There were no valid papers for the transportation of the wood which was loaded on the aforesaid truck at the time it was apprehended, and stopped. It is alleged that two persons, viz. Kripa Ram and Sabit Ram scaped after jumping from the said truck but two other persons could not escape. They were apprehended. One of the apprehended persons namely Ravi Shankar applicant, claimed to be Driver of the truck while the other person, namely, Jeet Bahadur Singh claimed to be Cleaner of the truck. They were arrested at the spot and were handed over at police station Nawabganj where the first information report was lodged. In this application for release of truck Ravi Shankar claimed release of the truck being Driver of the truck, and Smt. Inderjeet Kaur claimed to be owner of the same. Ravi Shankar claimed to be engaged in transporting the fuel wood at the instance of the Contractor Kripa Ram from Nanpara to Nawabganj and there was proper transit pass for transporting the wood. The affidavit accompanying said application was, however, not verified as has been observed in the impugned order. The applicant also filed photo-stat copy of the alleged transit pass and the bill form. The application was contested on behalf of the Forest Department and it was alleged that the said truck loaded with fuel wood was caught on 5-2-83 at about 4 a. m. in Nimnihara Forest outpost. The truck was coming from inside the forest area. It was further alleged that movement of truks to and from the reserve forest area could not be made before sun rise and after sunset. It was further alleged that the alleged transit pass is a forged paper. The transit passes are issued only for the period from sun rise to sunset and can be used during that period for transporting wood from the reserve forest area. The name of the Contractor Kripa Ram was also not mentioned in the transit pass and besides that the name of other Contractor Abdul Shami was mentioned. It was further alleged that the alleged pass is only for persons who take auction in lots and there is no property mark on the wood in question. It was further stated that the release application for the truck has not been given by its owner. Apprehension was also shown that if the truck is released, which is liable for disposal at the time of final decision of the case. Learned counsel for the applicants contended that the seized truck cannot be confiscated as there is nothing on the record to indicate that it was used in committing a forest offence, in respect of any forest produce. He referred to section 52 of the Indian Forest Art and contended that when there is reason to believe that a forest offence has been committed in respect of any forest produce then in that event such produce together with the vehicle used for committing such offence may be seized by any Forest Officer or police officer. Learned counsel contended that in the present case seizure of the truck was itself illegal because it is not established that any forest offence was committed in respect of any "forest produce". This argument is not available to the revisionists at this stage because evidence has yet to be recorded in the case and during trial it has to be established whether the wood, which was loaded on the truck in question, was of the reserve forest or not. It is not disputed that the truck was loaded with the firewood and that it was coining from inside the reserve forest area during odd hour at 4 a. m. when acconiing to rule, trucks cannot ply before sunrise and after sunset to and from the reserve forest area. The fire wood, which was loaded on the truck, was claimed by the driver to be belonging to the Forest Contractor Kripa Ram, who has not come forward as yet to claim the property and so it cannot be said at this stage that the wood in question was legally felled and was legally transported under valid permit. In these circumstances, there could be a reason to believe that a forest offence has been committed in respect of the forest produce in question and the forestor Ram Daras Singh, therefore, cannot be said to have acted illegally in seizing the truck and the fire-wood loaded thereon.
(3.) THE next question to be considered is whether the property seized will be liable to confiscation or not. Section 55 of the Forest Act provides that all timber or forest produce which is not the property of the Government and in respect of which a forest offence has been committed, and all tools, boats, carts and cattle in committing any forest offence shall be liable to confiscation. Subsection (2) of section 55 further provides that such confiscation may be in addition to any other punishment prescribed for such offence. THE word "carts" used in section 55 was substituted by the word "vehicles" by U. P. Act 21 of 1960 with effect from 2nd Nov. 1960. THEre thus remains no doubt that the vehicle in question will be liable to confiscation. Learned counsel, however, contended that under section 55 of the Act only the property belonging to the accused is liable to confiscation in addition to any other punishment prescribed for the offence. His argument was that since it is not the case of the prosecution that the truck in question belongs to the persons who were arrested at the spot and who are being prosecuted for the forest offence committing under the Act and as such it is liable to be released to its owner and will not be liable to confiscation all because owner of the truck is not being prosecuted in the present case. I am unable to agree with this contention. This question came up for consideration in a decision of Nagpur High Court in Emperor v. Mohamad Khan, 39 CrLJ 1938 page 700) wherein it was held; "Almost all forest offence are committed by servants, grazing offences by the graziers of large cattle owners or graziens hired by a community of small owners, and thefts of timber by forest contractors or by Malguzars are ordinarily committed not by the contractor or Malguzars with their own hands but by their servants and it is because the servants are caught and masters escape that the salutary provision has been introduced that not only all produce in respect of which the offence is committed may be seized and confiscated but also tools, boats, carts or cattle used in the commission of any such offence. These tools, boats, carts or cattle will ordinarily belong to the master and not to the servant, and although it is the servant and not the master who is convicted of the crime, it is on the master, if the appeal which he has the right to make under section 59 of the Forest Act fails, on whom some punishment rightly falls. While tools, boats, carts and cattle may be instrumental in cases of theft of forest produce, it cannot be disputed that cattle are also instrumental in the theft of grass which ate and in the damage to grass and young trees which they cause in grazing ; and an offence under section 26 (d) is as much an offence: as the illicit removal of timber, and cattle used in committing such an offence are as much liable to confiscation as cattle drawing a cart containing illicitly felled timber." It was further observed that:- " The word used in " confiscation " :and not, as in the Penal Code, " forfeiture ". Forfeiture can only relate to the property owned by the person concerned, but property may be confiscated from the possession of anyone, whether he is the owner thereof or not.. The owner of the property confiscated, be he an offender under the Forest Act or not, has a right to appeal against the order of confiscation, and it is in the discretion of the Court to which the appeal is made whether the order of confiscation shall or shall not be set aside." ;