IMPACT OF FOREST LAWS ON THE FOREST DEPARTMENT AND AUTHORITIES

Intro

 Power of confiscation Clarified. Settled the law by authorised officer appointed by

executive has the power to confiscate.
 Clarified on conflict of jurisdiction between quasi judicial officer or a judicial officer
section 52(3) and 55 (1)
 Clarified position of central law in relation to state law where state law has certain
gaps section 22 (1) of 1969 act bars the jurisdiction of the magistrate
 Talks about discretionary power of quasi judicial officer i.e. Forest officer as
confiscation is only a quasi-judicial act that doesn’t lead to imprisonment.
 Standard of proof they drew distinction between nature of proceeding by an officer
and magistrate; for officer based on the satisfaction and for magistrate proof beyond
reasonable doubt
 Coz of this is relevant even now.

Impact

1. Ramkumar Sahu vs. State of Madhya Pradesh and Ors. (15.02.2018 - MPHC) :
MANU/MP/0193/2018

1. Writ petition against notification by State govt in exercise of powers Section 15(1) of
Mines and Minerals (Development and Regulation) Act, 1957 substituting Rule 53 of
Madhya Pradesh Minor Mineral Rules, 1996 published on 18.05.2017 in Madhya Pradesh
Gazette. By such amendment, in case of unauthorized extraction and transportation of minor
minerals, the penalty is contemplated to be imposed in a graded manner as well as the seizure
and confiscation of tools, machines and vehicles used

5. Respondents contended that none of the grounds as mentioned above are available to
challenge the constitutional validity of the provisions of the Rule 53 of the Rules as
substituted on 18.05.2017. It is also stated that Section 15 of the Act empowers the State
Government to make rules in respect of regulating the grant of minor mineral and the purpose
connected therewith whereas Section 23C of the Act empowers the State Government to
make rules for preventing illegal mining, transportation and storage of minerals. It is the
combination of these rules the State has formulated Madhya Pradesh Minor Minerals Rules,
1996 for the purposes of regulating the grant of quarry lease, trade quarry, quarry permit etc.
But, with the passage of time it was noticed that there has been rampant increase in the
instances of illegal mining and transportation of minor minerals and therefore, necessity was
thought to bring out legislation by suitably amending the existing rules so that strict check on
the illegal mining and transportation of minerals can be made.

It is also pointed out that similar provisions inserted vide the State amendment by M.P.
Amending Act, 1983 in the Indian Forest Act, 1927 conferring the power of confiscation of
the vehicles on the authorised officer has been upheld by a Division Bench of this Court in a
judgment reported as AIR 1995 MP 1 (Kailash Chand and another v. State of Madhya
Pradesh and others). In view of the said judgment, it is asserted that the argument that by way
of the impugned amendment, the judicial powers are sought to be conferred on administrative
Authorities. Authorised officer has power to confiscate 1st, 2nd issue

2. The aforesaid Rule 53 is challenged inter alia on the ground that it is the Parliament which
has power to legislate, which has enacted Mines and Minerals (Development and Regulation)
Act, 1957 (for short "the Act"). Such Act provides for offences and penalties for the
violations of the provisions of the Act or the Rules framed there under but the State
Government has conferred power of seizure and confiscation on the officers of the State
instead of judicial courts established and governed by the Code of Criminal Procedure. It is
contended by the learned counsel for the petitioners that the law contemplates separation of
judicial and executive functions. The powers of confiscation vest with the Court in terms of
Section 21 of the Act whereas by virtue of the substituted Rule 53, the power of confiscation
has been conferred upon the Collector or any other officer authorized by the Collector not
below the rank of Deputy Collector. The petitioner relies upon a Full Bench judgment of this
Court reported as (Hanumantsing Kubersing v. State of M.P. and another, 1995).

2.Santra Bai Lodha vs. State of M.P. and Ors. (28.09.2016 - MPHC) :
MANU/MP/0762/2016

1. Petitioner has preferred this petition under section 482 of the Code of Criminal Procedure,
1973 against the order dated 18.8.2015 passed by the Special and Additional Sessions Judge,
Shivpuri in Criminal Revision No. 74/2011 whereby the order passed by the appellate
authority Forest Circle, Shivpuri has been affirmed which in turn has confirmed the order
passed by the competent authority cum Sub-Divisional Officer, Forest Beenaganj. The matter
pertains to confiscation of the vehicle under the Indian Forest Act, 1927 and its provisions.
As per submission of the petitioner, she is vehicle owner of tractor Mahindra having
registration No. RJ17/RA-2037. On the input received by the forest office regarding
transportation of some contraband teak wood at Chachoda Rajgarh Road on 18.4.2010, the
forest authority stopped the vehicle in question and caught hold of the vehicle and the goods
whereas the persons driving the vehicle fled away. Thereafter, teak wood was seized and
confiscation proceedings have started in respect of vehicle in question. The confiscation
proceedings were undertaken by the competent authority, Sub-Divisional Officer, Forest
Circle Beenaganj and passed the order dated 27.12.2010 for confiscation of the vehicle.
Petitioner preferred appeal under section 52(d) of the Act before the Chief Conservator of
Forest-cum-appellate authority. Petitioner suffered in appeal, therefore, had an occasion to
file revision before the Special and Additional Sessions Judge, Shivpuri but met the same
result because of passing of the order dated 18.8.2015 in criminal revision preferred by her

The Division Bench of this Court in the matter of Kailash Chand and another v. State of
Madhya Pradesh and others [MANU/MP/0001/1995 : AIR 1995 M.P. 1], has held that the
scheme of the Act providing for a separate confiscation procedure has a substantial public
purpose to serve and is in tune with Articles 48A[ protection & improvement of environment]
and 51A(g) [duty of citizens to protect natural environment] of the Constitution of India.
According to the Division Bench no repugnancy exists between section 52(3) and 53C of the
Act as amended. Therefore, from perusal of section 52(3) and 52(5) as well as section 55 of
the Act makes the case clear in favour of the petitioner because confiscation can be made
upon the conviction of the offender in such forest offence committed by him for which his
vehicle has been seized.

13. Accordingly, this petition is allowed. Impugned order dated 18.8.2015 (Annexure P-1)
passed by the revisional Court, the order dated 12.5.2011 (Annexure P-2) passed by the
appellate authority and the order of confiscation dated 27.12.2010 (Annexure P-3) passed by
respondent No. 2 are hereby quashed and the vehicle in question is directed to be returned
back to the petitioner and liberty is granted to the State Government to proceed with the
matter in accordance with law after criminal case is finalized. As the vehicle in question is in
custody of the State Government and as the possibility of the vehicle being destroyed cannot
be ruled out, interest of justice requires that the custody of the vehicle should be given to the
petitioner on certain conditions. In view of the above, it is directed that the vehicle in
question (tractor Mahindra having registration No. RJ17/RA-2037) shall be returned to the
petitioner on the petitioner's furnishing a bank guarantee to the tune of Rs. 2.00 lacs to be
kept alive during the pendency of the criminal case and petitioner shall further give an
undertaking that she shall not alienate the vehicle till decision of the criminal case and shall
produce it before the Court as and when required. With the aforesaid, the petition stands
disposed of

3. Rafeeque Kha vs. State of M.P. (15.02.2017 - MPHC) : MANU/MP/0183/2017

7. The question arise whether in the facts as stated above, such confiscation was necessary.
Apparently, the present applicant was transporting the wood after obtaining the transit pass
from Gram Panchayat which he believed was authorized to issue such pass, however, such
pass was found to be not a valid pass, and therefore, there appears to be no mens rea on part
of the, present applicant. Further, the wood was from a private land, and therefore, the
Government was not the owner of the property. The tractor was not used repeatedly for
committing the forest Offence.

8. To answer this question, the order passed by the Division Bench of this Court in case of
Kailash Chand and another v. State of M.P.; MANU/MP/0001/1995 : AIR 1995 MP 1, may
be referred to with some benefit. This was a writ petition filed by the petitioner in which the
constitutional validity of provision of Section 52 as amended by State Amendment in the year
1983 was challenged. The following question arose before the Division Bench for
consideration:--

"(iii) Section 52(3) of the said Act which provides for confiscation of the vehicle, is arbitrary,
unjust and unfair. It leaves no discretion to the Forest Officer to impose any penalty less than
that of confiscation."

9. While answering this question, the Division Bench in paras 22 to 28 observed as under:--

10. The Division Bench of this Court observed that in para 27 that order of confiscation is not
mandatory in all cases where the Forest Officer is satisfied about commission of the forest
offence and use of the vehicle in commission of the offence. There may be circumstances
which do not justify the order of confiscation.

11. In considered opinion of this Court, the circumstances which were enumerated above that
exists in the present case calls for reconsideration by the Authorized Officer whether such
confiscation was necessary or not. In this view of the matter and taking the view by the
Division Bench of this Court in case of Kailash Chand (supra) into consideration, this
application is allowed. The orders passed by all the three courts below are set aside. The
matter is remanded back to the Authorized Officer with direction to consider the special
circumstances that exists in the present case and before proceeding for confiscation the
vehicle and forest produce, a detail reasoned order should be passed showing that the reasons
why in his opinion confiscation was necessary. With direction and observation as above, the
matter stands disposed of.

4. M.P. All India Tourist Permit Owners vs. State of M.P. and Ors. (09.08.2000 -
MPHC) : MANU/MP/0412/2000

64. As already stated, the provision for confiscation of the vehicle in M.P. Motoryan
Karadhan Adhiniyam, 1991 is not introduced to punish the offender or its operator or the
registered owner or hirer, etc. but to ensure strict compliance of the Karadhan Adhiniyam
whereas Section 192A of the Motor Vehicles Act is to punish the offender for using the
vehicle without permit which amounts to violation of the provisions of the said Act. Once
confiscation proceedings are initiated the confiscation officer has a legal custody over the
property concerned. In the case of Kailash Chand v. State of M.P., MANU/MP/0001/1995 :
AIR 1995 MP 1, while considering the validity of a similar provision under the Forest Act
where prosecution for the offence before the Court and confiscation before the authorised
officer are provided, this Court has upheld the constitutional validity of the provision. 6th
issue repugnancy in Sec 52(3) and Sec 55(1)

5.Firoz vs. State of M.P. (05.02.2015 - MPHC) : MANU/MP/0536/2015

1. This application is filed under section 482 of Cr.P.C. for setting aside the order passed by
learned First Additional Judge, to the Court of First Additional Sessions Judge, Mandleshwar
(West Nimar) in Criminal Revision No. 105/2014 dated 12.8.2014 by which, learned
Additional Sessions Judge confirmed the order passed by learned J.M.F.C., Kasrawad in
Crime No. 177/2014 Police Station--Megaon District--Mandleshwar dated 2.6.2014 whereby,
learned Magistrate dismissed the application filed by the present applicant under sections 451
of Cr.P.C. for ad interim custody of Earth Excavating Machine, commonly known as J.C.B.
Machine. The factual background of the case is that, on 20.5.2014 at about 8:30 p.m. the
machine was found being used for excavation of soil in reserve forest. The case was made out
under the Indian Forest Act and while the machine and another vehicle tractor were being
taken to Megaon, it is alleged that some people attacked the forest officials and, therefore,
along with the Forest Act, a case under sections 353, 332 and 506/34 of I.P.C. was also
registered. Subsequent to this, tractor and trolly seized in the matter were given on ad interim
custody by learned 2nd Additional Sessions Judge, Mandleshwar, however, when the
application is filed for taking in custody of the present machine, the same was dismissed on
the ground that Superintendent of Police wrote a letter to the District magistrate, Khargone in
which, superintendent of Police requested the District Magistrate to confiscate the above said
machine. On the presumption that confiscation proceedings of the machine has been started,
the application was dismissed and subsequently, the revision is filed against this Order. The
First Additional Sessions Judge was disposed of the revision starting therein that under
section 52(c) of the Indian Forest Act, once confiscation proceedings were started, the Court
has no jurisdiction to grant ad interim custody etc. used in commission of the offence.

So far as the legal provisions are concerned, the vehicle tools boats etc. can be seized by
Forest Officer or Police Officer when he has reason to believe that the same is used for
commission of an offence under Indian Forest Act. The proviso appended to section 54 as
amended in Madhya Pradesh provides that before passing any order for disposal of the
property, the Magistrate shall satisfy himself that no intimation under sub-section (4) of
section 52 has been received by his Court or by any other Court having jurisdiction to try the
offence on account of which the seizure of property has been made. ISSUE 5

4. Section 52(4)(a) of Indian Forest Act provides that intimation in prescribed form should be
sent to the concerning Magistrate about initiation of proceedings of confiscation of the
property. The proceedings should be started by a Forest Officer, who is authorized by the
State Government on this behalf.

6.Shrish Agrawal vs. State of M.P. and Anr. (10.03.2003 - MPHC) :

MANU/MP/0028/2003

Section 46 (1) of the Act has been recast to provide for confiscation of certain articles and
conveyance etc. Section 47 (1) further provides that where in any case tried by him the
Magistrate, decides that anything is liable to confiscation under Section 46, he shall order
confiscation of the same: Provided that where any intimation under Clause (a) of Sub-section
(3) of Section 47-A has been received by the Magistrate, he shall not pass any order in regard
to confiscation as aforesaid until the proceedings pending before the Collector under Section
47-A in respect of thing as aforesaid have been disposed of, and if the Collector has ordered
confiscation of the same under Sub-section (2) of Section 47-A, the Magistrate shall not pass
any order in this regard.

Dipak Mishra, J., in his separate order concurred with the view that the provisions in Sections
47-A and 47-D are intra vires and do not offend Articles 14 and 19(1) (g) of the Constitution
of India. But he disagreed with the conclusion that the proviso to Sub-section (2) of Section
47-C of the Act is ultra vires being arbitrary and unreasonable thereby inviting the wrath of
Article 14 of the Constitution ISSUE 2

The learned Counsel for both the sides have been heard at length. As stated above Sections
47-A and 47-D have been held to be valid by both the learned Judges constituting the
Division Bench. As a matter of fact this is sequel to the pronouncement of law by a Division
Bench of this Court in Kailash Chand v. State of M.P., MANU/MP/0001/1995 : AIR 1995
MP 1. In that case the parallel provisions in the Indian Forest Act, 1927, as amended by the
Indian Forest (M.P. Amendment) Act, 1983 were challenged. The scheme of the amended
provisions partially separated the process of confiscation from the process of prosecution.
The power of the Court regarding disposal of property was made subject to the jurisdiction of
the authorised officer with regard to that aspect. ISSUE 6 After scanning the amended
provisions the Division Bench held that criminal prosecution is not an alternative to
confiscation proceedings. The two proceedings are parallel proceedings, each having a
distinct purpose and object. The object of confiscation proceeding is to enable speedy and
effective adjudication with regard to confiscation of the produce and the means used for
committing the offence. The object of the prosecution is to punish the offender. Thus, the
plea that two procedures are prescribed for the same purpose and to cover the same area
would not be tenable. The plea that the procedure for confiscation is more drastic than the
procedure for prosecution is equally untenable. In one case, confiscation may result if the
authorised officer is satisfied that a forest offence has been committed. In the other, the
Magistrate must be satisfied that the charge has been established beyond reasonable doubt. It
cannot be said that there is no safeguard for the persons subjected to confiscation procedure.
The Magistrate is informed about the confiscation proceeding. Show-cause notice is given
inviting representation. Hearing is given. The expression "hearing" is one of broad import. It
includes opportunity to adduce evidence also. Appeal lies to a Superior Officer, namely,
Conservator of Forests. Revision lies to the Sessions Court whose decision is final. The
existence of these substantial safeguards negatives any possibility of denial of justice. The
provision in Section 52 (3) cannot therefore be said to be arbitrary. It has been further
observed that the authorised officer while discharging his statutory function in regard to
confiscation cannot be regarded as a Judge in his own cause. The doctrine of bias can have no
application in relation to the procedure. There cannot be any apprehension or real likelihood
of bias or whittling down of purity of administration of justice. The decision of the
Authorised Officer is subject to appeal before the Conservator of Forests and to revision
before the Court of Session. The appellate and revisional authorities have ample power to
correct order of confiscation. Therefore it cannot be said that the provision of confiscation
violates principles of a natural justice. There is nothing in the said provision which even
remotely can be regarded as violative of Articles 19(1)(g) or Article 21. ISSUE 2 and 3

Confiscation proceeding is quasi judicial proceeding and not a criminal proceeding. Proof
beyond reasonable doubt and proof of mens rea are foreign to the scope of the confiscation
proceeding. Confiscation proceedings are on the basis of the 'satisfaction' of the Authorised
Officer in regard to the commission of forest offence. The authorised officer has incidental or
ancillary power of passing an order of temporary custody or possession of the property.
Similarly, the appellate authority and revisional authority also must be taken to have such
"incidental and ancillary" power. The alternative scheme of confiscation proceedings has
been provided partly to overcome the adverse consequences resulting from delay in disposal
of criminal prosecutions involving confiscation. Though the provisions do not prescribe time
limit for termination of confiscation proceedings, yet it would be reasonable to expect that the
Authorised Officers who have to deal with confiscation proceedings whose number is small
compared to the number of criminal prosecutions pending in the State would be in a position
to dispose of the proceedings within a reasonable time. ISSUE 3 AND 5
As the revisional power was being conferred on a Court of Session qua the Court it was
unnecessary to provide in the proviso to Sub-section (2) of Section 47-C that the Court of
Session would have the power to pass an order of interim nature of the kind specified in the
proviso to Sub-section (3) of Section 47-B of the Act. There is no prohibition in the proviso
to Sub-section (2) of Section 47-C to pass an order of interim custody or disposal of the
confiscated property and the Court of Session can legitimately direct interim custody or
disposal in exercise of its incidental and ancillary power. In case of Kailash Chand v. State of
M.P., MANU/MP/0001/1995 : AIR 1995 MP 1, referred above it has been clarified that the
revisional authority can pass orders regarding temporary custody or disposal of the property.
That is an incidental and ancillary power of the Court of Session while exercising the
revisional power. 1st , 2nd , 3rd and 5th Issue