GOPAL SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Petitioner has moved this Application under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure for quashing of the proceeding and the Order dated 11.2.2000 passed by the Authorised Officer, Jalpaiguri District and Divisional Forest Officer, Jalpaiguri Division vide Memo No.657/15-153 dated 11.2.2000. The Memo issued by the Authorised Officer which is being impugned in this application directed confiscation of seized timber along with cutting tools (implements) to the State of West Bengal under section 59A(3) of the Indian Forest Act, 1927, (West Bengal Amendment) 1988.

(2.) Shri Himangshu Kumar De duly assisted by Shri Tapan Dutta Gupta, Shri A. Jana, Shri S. Banerjee and Shri S. Kundu appearing on behalf of the Petitioner submitted that the Memo issued by the Authorised Officer is liable to be set aside by this Court on the premises that since the subject matter of confiscation for which the Petitioner has moved this Court, is not a forest produce and not the property of the State Govenment. As much, the same cannot be confiscated. The Farm of the Petitioner has been running its business having valid licence. Shri De relied on a Bench Decision of this Court as (Subash Roy v. State of W.B.,1997 1 CalHN 415) where the Hon'ble Mr. Justice Satyabrata Sinha held confiscation proceeding as regards the machineries and/or saw Mill cannot be held to be valid in terms of section 59A(3) of the Forest Act as amended by the State of West Bengal.

(3.) The learned Additional Public Prosecutor appearing with Shri Swapan Mallick took the preliminary objection as to the maintainability of this Application since the grievance ventilated by the Petitioners was subject to appeal. He has relied on a decision of the Apex Court in the case of Divisional Forest Officer and another v. G.V. Sudhakar Rao, 1986 AIR(SC) 328 and has further submitted that the Appeal will lie before the learned District Judge. The learned Additional Public Prosecutor also submitted that the Petitioner is not the sole owner. The learned Additional Public Prosecutor relied on Clause (17) of section 3 of the General Clauses Act, 1897 and stated that the District Judge shall mean the Judge of a principal Civil Court of original jurisdiction. As such an Appeal should have been filed before the learned District Judge.