STATE OF BIHAR Vs. VIJAY KUMAR

JUDGEMENT

(1.) State of Bihar through Department of Environment and Forest has challenged order dated 25.05.2010 passed by First Additional Sessions Judge, Hilsa in Criminal Revision No.27 of 2010 filed on behalf of respondent, Vijay Kumar, owner of truck bearing Registration No.1109 BR 1GA 2215 whereby and where under the learned Revisional Court ordered for release of the vehicle which was seized in accordance with Indian Forest Act (Bihar Amendment). Factual matrix of case whatever been gathered from Annexure-2, the prosecution report, is to the effect that on 21.01.2010 truck bearing Registration No.1109 BR 1GA 2215 was intercepted laden with forest produce, accordingly seizure was made followed with launching of prosecution. Owner of the vehicle had filed petition for release of the vehicle whereupon report was called for which discloses initiation of confiscation proceeding and on account thereof, vide order dated 15.03.2010 prayer was rejected. However, the owner filed Criminal Revision No.27 of 2010 which was heard by learned Additional Sessions Judge, Hilsa who vide order dated 25.05.2010 allowed the revision setting aside the order of the learned lower court holding that a commercial vehicle cannot be detained and no confiscation proceeding can be initiated against a commercial vehicle. It is this order which is under challenge. Contention on behalf of petitioner is that the order impugned clearly suggests that the learned Revisional Court had misconstrued the existing law because of the fact that no such provision is available contrary to it Section 52 of Forest Act (BIHAR AMENDMENT) which prescribes confiscation includes apart from other conveyance. Then submitted that by State amendment, the jurisdiction of criminal court has been ousted as is evident from Section 52C of Indian Forest Act (Bihar Amendment). In the aforesaid background the finding of the learned lower court that no confiscation proceeding could be initiated with regard to commercial vehicle is not tenable.

(2.) At the other hand, the learned counsel for respondent submitted that keeping the vehicle idol is against the principle laid down by the Hon'ble Apex Court as has been held in Sundar Bhai Ambalal Desai. Apart from this also submitted that even during course of confiscation proceeding, the seized vehicle can be released on proper undertaking. To support his plea also relied upon . In order to appreciate rival contention, it looks better to incorporate Section 52C of the Indian Forest Act (Bihar Amendment).

(3.) Therefore, by inception of aforesaid Section, the jurisdiction of criminal court has been ousted with regard to entertaining and considering the matter of release once a confiscation proceeding has been initiated. In a leading decision (State of West Bengal & Ors. Versus Sujit Kumar Rana, 2004 2 PLJR(SC) 96) the Hon'ble Apex Court dealt with relevant provisions of different states amendment over confiscation as well as jurisdiction of criminal court for release during pendency of confiscation proceeding and after noticing the same along with relevant case laws under para-46 it has been observed "the upshot of our aforementioned discussion is that once a confiscation proceeding is initiated the jurisdiction of the criminal court in terms of Section 59-G (Bengal Amendment) of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High court can exercise such a power only in exercise of its power of judicial review".