The State of Bihar & Anr Vs. Kedar Sao
& Anr [2003] Insc 402 (25 August 2003)
D. Raju, J.
Appeal (crl.) 232 of 1996 Appeal (civil) 6643-44
of 2003 The State of Bihar & Ors. Niraj Kumar Singh & Anr. Srikant
Prasad Pradhan & Anr. The State of Bihar & Ors. Doraiswamy Raju & H. K. Sema.
Special leave granted in S.L.P. (C)
Nos.1140-1141 of 1998.
Common and identical questions of law are
involved in these appeals and, therefore, they are dealt with together.
CRIMINAL APPEAL NO.231 OF 1996:
On receipt of secret information, the Range
Officer of Forests, Simariya Range, Chatra South Forest Division, along with a team of forest
officials chased a truck bearing Registration No. UPF 7233 and seized about 445
Kgs. of illicit Katha together with the truck in exercise of powers under
Section 52 of the Indian Forest (Bihar Amendment) Act, 1990 (hereinafter
referred to as "Bihar Amendment Act, 1990") near Danapur, on
5.2.1991. The seizure list was said to have been sent to the Additional Chief
Judicial Magistrate, Chatra, by his letter dated 6.2.1991. On 11.3.1991, the
Divisional Forest Officer, Chatra South Division, the Authorised officer, as
per notification dated 2.1.1991 under Section 5 of the Bihar Amendment Act,
1990, informed the Additional Chief Judicial Magistrate regarding initiation of
action. The Range Officer was said to have submitted prosecution report against
the respondents M/s Kedar Sao and Prem Kumar that the investigation in the
matter revealed that the katha seized was illegally manufactured after illegal
cutting of Khair trees from Delho, Jarhi, Kori, Chardram and Sima protected
forest within the Chatra South Forest Division and sought for the confiscation
of the seized truck. After hearing the respondents, the Authorised Officer by
his order dated 19.1.1992 ordered confiscation of the truck seized, as above,
in exercise of the powers under Section 52 of the said Act. The respondents
filed an appeal before the Appellate Authority constituted under Section 52A of
the said Act, viz., The Deputy Commissioner, Chatra.
The respondents seem to have also filed Crl.
Writ jurisdiction case No.201 of 1993 (R) seeking to quash the order dated
19.1.92 and also for the release of the truck in the meantime. A Division Bench
of the Patna High Court (Ranchi Bench) by an order dated 3.9.94 allowed the
writ petition on the ground that the order dated 19.1.92 was totally without
jurisdiction and the power to order for confiscation or forfeiture of the
vehicle involved in the offence was with the court and not the Divisional
Forest Officer. The High Court while accepting the stand of the private party
held that the provisions of Bihar Forest Produce (Regulation of Trade) Act,
1984 (hereinafter referred to as "Trade Act"), alone applied to the
case by virtue of Section 32 of the said Act and the provisions of the Indian
Forest Act, 1927 stood excluded and consequently the Authorities under the
central enactment had no powers to confiscate the vehicle and the order passed
was wholly without jurisdiction. The matter was left for the decision of the
competent court as to whether the respondents have committed any offence and
observing further that it was for that Court to pass any such orders. Hence,
this appeal by the State of Bihar and the Divisional Forest Officer.
CRIMINAL APPEAL NO.232 of 1996:
The seizure effected on 27.3.1993, which is the
subject matter of this appeal, by the Forest Officials at Hunterganj was of the
truck bearing Registration No. BRM-9615 while it was found carrying illicit
forest produce like Harra, Gond, and Katha and the seizure list prepared therefor
appears to have been sent forthwith to the Chief Judicial Magistrate concerned.
The Range Officer of forest was said to have moved on 29.3.1993 the Authorised
Officer to confiscate the seized forest produce and the truck and the said
Authority appears to have initiated action as in the other case, and informed
the Chief Judicial Magistrate, Chatra, of the said move. Notice of such
proceedings was said to have been issued to the owner of the vehicle Mohan Lal Vaidya
to show cause against the proposals and on the said person informing that the
vehicle was under an agreement with the respondent Sri Kant Prasad Pradhan, he
was also issued with a notice to show cause. After hearing the respondent, by
an order dated 3.5.1993, the request for release of the truck came to be
rejected since the respondent could not prove his ownership of the same. While
so, the respondent filed Criminal W.J.C. No.227 of 1993 (R) seeking to quash
the confiscation proceedings and for the release of the truck. The Division
Bench of the Patna High Court (Ranchi Bench) by an order dated 3.9.94 allowed
the writ petition of the respondent on similar grounds as in the other writ
petition, passing a similar nature of order. Hence, this appeal.
Civil Appeals arising out of SLP (C)
Nos.1140-1141 of 1998:
On 26.1.1995, the District Forest Officer, Gaya, Bihar, along with a team of
forest officials seized eight trucks including those of the two of the
appellants at Upwan Hotel near Mohaniya within Bhabhna District loaded with Khair
wood (Acacia catechu). The report of the said seizure was said to have been
also sent to the Chief Judicial Magistrate, Bhabhna. The District Forest
Officer seems to have also moved on 27.1.1995 the Divisional Forest Officer, Shahbad
at Sasaram, Bihar, for initiation of
confiscation proceedings in respect of all those trucks and the illegal Khair
wood, which they were found to carry. On 28.1.1995, the Divisional Forest
Officer, who is the Authorised Officer for the purpose, initiated proceedings
to show cause against the confiscation and forfeiture of the seized trucks and
goods. After hearing the respondents and others, by an order dated 25.9.1995,
the Authorised Officer ordered confiscation of the illegal Khair wood as well
as the trucks used for its transportation. The appeal filed before the
Appellate Authority viz., The District Magistrate-cum-Collector, Kaimur, Bhabhna,
was also dismissed on 24.1.1996. Further Revision filed thereon also came to be
rejected on 21.6.1997. At this stage, the respondents filed CWJC Nos.6542 and
6543 of 1997 seeking to quash the above orders and for release of their trucks.
A learned Single Judge of the Patna High Court by an order dated 28.8.1997
dismissed the Writ Petitions. Thereupon, L.P.A. Nos. 1206 and 1207 of 1997 came
to be filed and a Division Bench of the High Court dismissed the appeals on
20.10.1997. The Division Bench held that having regard to the magnitude of the
offence, in appropriate cases confiscation has to be resorted to as is provided
in law. Hence, these appeals, taking advantage of the other appeals already
pending before this Court.
Heard Shri Amarendra Sharan, learned Senior
Counsel for the State, and Shri S.K. Sinha for private respondent in Crl.
Appeal No.231 of 1996 and the appellants in two appeals filed by the private
parties and other counsel. The stand taken on behalf of the State in these
appeals, as before the High Court, was that the Bihar Forest Produce
(Regulation of Trade) Act, 1984 was enacted only to provide for regulation in
public interest the Trade and related matters of certain forest produce
notified thereunder by creation of the State Monopoly in such trade in the
State of Bihar and it is the Indian Forest Act, 1927, as amended by the State by
the Indian Forest (Bihar Amendment) Act (Bihar Act 9 of 1990) which was enacted
for the overall protection and management of forests and forest produce and
regulate the transit of such forest produce and the rules made and
notifications issued thereunder that applied to the cases on hand and
consequently the impugned orders of confiscation are quite legal and well
within the competency of the Authorised Officer. In support of such stand
reliance was placed upon the relevant provisions of the Indian Forest Act,
1927, the Bihar Timber and other Forest Produce Regulation of Transit Rules,
1973, the provisions of the Bihar Amendment Act (Act 9 of 1990) and the Trade
Act. It is further urged that cutting, felling, girdling, lopping and tapping,
etc. of forest trees and forest produce and/or manufacture of forest produce,
as notified therein, are squarely covered under the Indian Forest Act, 1927 as
amended by Bihar Act 9 of 1990 and by virtue of Section 52 (3), as amended by
the Bihar Amendment Act (Act 9 of 1990), power to confiscate inhere in the
forest officials notified for the purpose and, therefore, no exception could be
taken to the orders passed in all these cases. Section 15 of the Trade Act,
according to the stand of the State, stood repealed by necessary implication by
Bihar Amendment Act 9 of 1990 and, in any event, Section 15 cannot be claimed
to exclude the Indian Forest Act even in respect of matters not dealt with or
provided for under the Trade Act. The forest produce seized in all these cases,
viz., Katha, Gond, Harra, was said to have been illegally collected from the
trees unlawfully felled and by unlawful tapping and collection of such produce
and, therefore, the provisions of the Indian Forest Act, as amended by the
Bihar Amendment Act and the Rules made there under, alone are attracted to
these cases and rightly applied, too. The decision of the High Court, taking a
contra view, would, according to the State, defeat the very object of the
Indian Forest Act, as amended by Bihar Act 9 of 1990, to conserve and protect
the forest wealth and arrest and curb large scale of illegal falling and
exploitation of forest wealth, said to be rampant of late, in the State.
Per contra, the learned counsel for the private
parties, while drawing inspiration from and adopting the reasoning of the High
Court, contended that Section 32 of the Trade Act excluded the applicability of
the Indian Forest Act, 1927 to forest produce specified in the Trade Act, that
therefore it is only Section 15 etc. of the Trade Act which would be attracted
and any action could be taken under the said Act only. Reliance has also been
placed on yet another decision Ors. (1992 Bihar Bar Council Journal 13) taking
an identical view as in these cases under what is claimed to be a similar situation
arising with reference to the Indian Forest Act and the Bihar Kendu Leaves
(Control of Trade) Act, 1973.
So far as Criminal Appeal No.231 of 1996 is
concerned, the vehicle in question was found unlawfully carrying 445 Kg.
Illegal Katha biscuits, which were concealed in a specially designed secret
chamber built inside the truck behind the driving seat and the seizure could be
effected after a long chase of the fleeing vehicle for contravention of
Sections 33(1), 41(1) and 42(1) of Indian Forest (Bihar Amendment) Act and
Section 20 of the Trade Act. Our attention was drawn to show from the Schedule
of the Trade Act that Khair (Acacia Catechu) alone is notified and a
manufactured product from the said Khair like Katha biscuits seized and
confiscated are not covered by the Trade Act. Katha biscuits are said to be
prepared from the heartwood of Khair by boiling and once again after reboiling,
the thick liquid and by pouring it into moulds to suit the needs of the
manufacturer. On the other hand, the notification issued by the State
Government on 19.10.1959, under Section 30 of the Indian Forest Act, 1927, not only
declared the species of trees enumerated therein as reserved in the protected
forest of Chatra Forest Division for purposes of Section 29 (2) but also
prohibited the doing or commission of certain kind of activities including the
collection or subjection to any manufacturing process and removal of any forest
produce. This would, as claimed for the State, go to show, at any rate, by the
very nature of the commodity itself, the inapplicability of Trade Act.
In order to appreciate the claims on behalf of
the parties on either side as to whether recourse to provisions of the Indian
Forest Act, 1927 as amended in Bihar Act 9 of 1900 was permissible in these
cases or that it is only the Trade Act that applied as claimed for private
parties, a reference to some of the provisions in both of the two enactments
would become necessary. The Indian Forest Act, 1927 is a central enactment, to
consolidate the law relating to forests, the transit of forest produce and the
duty leviable on timber and other forest produce.
Section 2(3) defines forest offence to mean an
offence punishable under the Act or under any Rule made thereunder. The
inclusive definition of `forest produce' in Section 2(4) encompass within its
fold `catechu' as well as the trees and leaves, flowers and fruits and all
other parts or produce not mentioned in the earlier part. Section 41 provides
for the State Governments making their own rules to regulate the transit of all
timber and other forest produce. Section 42 provides for penalty for breach of
rules made under Section 41. Section 52 provided for seizure of property liable
to confiscation and while the subsequently following provisions deal with
further course of action to be followed, Section 55 enables the Court to even
confiscate the forest produce as well as the vehicle etc. used in the
commission of the forest offence, in addition to any other punishment
prescribed for such offence.
Finding that not only the commission of forest
offences are on the increase but rampant involving large scale pilferage and
depletion of forest wealth not only causing serious onslaught on the nature and
environment causing ecological imbalance and irreparable loss and damage to
public property - the State Government has chosen to introduce certain drastic
legislative measures to arrest, control and strongly put down their recurrence
as well, by enacting the Indian Forest (Bihar Amendment) Act – No.9 of 1990,
which came into force on 10.9.1990 after obtaining the required assent of the
President of India, for the same. Section 52, which was inserted by Section 5
of the Amendment Act, reads as follows:- "52. Seizure and its Procedure
for the property liable for confiscation. –
(1) When there is reason to believe that a
forest offence has been committed in respect of any forest produce, such
produce, together with all tools, arms, boats, vehicles, ropes, chains or any
other article used in committing any such offence may be seized by any Forest
Officer or Police Officer.
(2) Every officer seizing any property under
this Section shall place on such property a mark indicating that the same has
been so seized and shall, as soon as may be, either produce the property seized
before an officer not below the rank of the Divisional Forest Officer
authorized by the State Government in this behalf by notification (hereinafter
referred to as the authorized officer) or where it is, having regard to
quantity of bulk or other genuine difficulty, not practicable to produce the
property seized before the authorized officer, or where it is intended to
launch criminal proceedings against the offender immediately, make a report of
such seizure to the Magistrate having jurisdiction to try the offence on
account of which the seizure has been made :
Provided that when the forest produce with
respect to which such offence is believed to have been committed is the
property of Government and the offender is unknown, it shall be sufficient if
the Officer makes, as soon as may be, a report of the circumstances to his
immediate superior.
(3) Subject to sub-section (5), where the
authorized officer upon production before him of property seized or upon
receipt of report about seizure, as the case may be, is satisfied that a forest
offence has been committed in respect thereof, he may by order in writing and
for reasons to be recorded confiscate forest produce so seized together with
all tools, arms, boats, vehicles, ropes, chains or any other article used in
committing such offence. The Magistrate having jurisdiction to try the offence
concerned may, on the basis of the report of the authorized confiscating
officer, cancel the registration of a vehicle used in committing the offence,
the licence of the vehicle driver and the licence of the arms. A copy of order
on confiscation shall be forwarded without undue delay to the Conservators of
Forests of the forest-circle in which the Forest produce as the case may be, has been seized.
(4) No order confiscating any property shall be
made under sub-section (3) unless the authorized officer –
(a) sends an intimation about initiation of
proceedings for confiscation of property to the Magistrate having jurisdiction
to try the offence on account of which the seizure has been made;
(b) issues a notice in writing to the person
from whom the property is seized, and to any other person who may appear to the
authorized officer to have some interest in such property;
(c) affords an opportunity to the persons referred
to in clause (b) of making a representation within such reasonable time as may
be specified in the notice against the proposed confiscation, and (d) gives to
the officer effecting the seizure and the person or persons to whom notice has
been issued under clause (b), a hearing on date to be fixed for such purposes.
(5) No order of confiscation under sub-section
(3) of any tools, arms, boats, vehicles, ropes, chains or any other article
(other than the forest produce seized shall be made if any person referred to
in clause (b) of sub-section (4) proves to the satisfaction of authorized
officer that any such tools, arms, boats, ropes, chains or other articles were
used without his knowledge or convenience or as the case may be, without the
knowledge or convenience of his servant or agent and that all reasonable and
necessary precautions had been taken against use of the objects aforesaid for
commission of forest offence." Section 6 of the Amendment Act inserted
Section 52A, which provided for an appeal against the order of confiscation,
while Section 52-B provided for revision by the person aggrieved. Section 52-C
also inserted by Section 6 of the Bihar Amendment Act reads as hereunder:-
"52-C Bar of Jurisdiction of Courts etc. in certain circumstances.---
(1) On receipt of intimation under sub-section
(4) of section 52 about initiation of proceedings for confiscation of property
by the magistrate having jurisdiction to try the offence on account of which
the seizure of property which is subject matter of confiscation, has been made,
no Court, Tribunal or Authority (other than the authorized officer, Appellate
Authority and Revision Authority referred to in sections 52, 52A and 52B) shall
have jurisdiction to make orders with regard to possession, delivery, disposal
or distribution of the property in regard to which proceedings for confiscation
are initiated in this Act, or any other law for the time being in force.
Explanation.--- Where under any law for the time
being in force, two or more courts have jurisdiction to try forest offence,
then on receipt of intimation under sub-section (4) of section 52 by one of the
Courts of Magistrates having such jurisdiction shall be construed to be receipt
of intimation under that provision by all the Courts and the bar to exercise
jurisdiction shall operate on all such Courts.
(2) Nothing in sub-section (1) shall affect the
power saved under section 61.
Section 52-D, inserted by Section 6 of the
Amendment Act, empowers the Officers enumerated therein to enter, inspect,
search and seize in the following terms:- "52-D. Power of entry,
inspection, search and seizure.--- Notwithstanding anything contained in any
other law for the time being in force any Forest Officer not below the rank of
a Range Officer of Forests or any Police Officer not below the rank of a
Sub-Inspector, may, if he has reasonable grounds to believe that any forest
offence has been committed in contravention of this Act enter upon, inspect and
search any place, premises, appurtenances thereto, land, vehicle or boat and
seize any illegal forest produce and all tools, arms, boats, vehicles, ropes,
chains or any other article used in committing such offence".
So far as the Bihar Forest Produce (Regulation
of Trade) Act, 1984 – (Bihar Act 12 of 1984) is concerned, the same was enacted
to provide for regulating in public interest the trade and other related matter
of certain produce by creation of a State Monopoly in such trade in the State
of Bihar and made applicable to such forest produce and on such date(s) as the
Government may by notification specify in this behalf. Forest produce has been
defined in Section 2(4) to mean any forest product as specified in the Schedule
and thereby called to be specified forest produce. Section 5 provides that on
the issue of a notification under Section 1(3) & (4), no person other than
the Government, an Officer of Government authorized in writing in this behalf
and an Agent in respect of the unit in which the specified forest produce is
grown or found, shall purchase or transport or import or export such specified
produce in and from such area.
What constituted a purchase not in contravention
of the Act or what other shall be deemed to have been purchased in
contravention of the provisions of the Act has also been explained therein,
with exceptions indicated relating thereto.
Consequently, the bar or restrictions and
regulations envisaged in respect of any area or unit, in respect of the
specified forest produce, comes into play only when it is shown that a
notification under Section 1(4) has been issued and published.
Equally so would be the point of time when the
enforcement of penal provisions provided under this Act would arise. This Act
also contains provisions enabling the Government to fix prices for purchase, opening
of depots and display of pricelist, registration of manufacturers, traders and
industrialists, disposal of forest produce, retail sale of specified produce
etc. Section 14 provides that every Forest Officer and Police Officer shall
prevent and may interfere for the purposes of preventing commission of any
offence under this Act. Section 15, on which reliance is sought to be placed
for the private parties – reads as follows:- "15. Power to entry, search,
seizure, etc.—(1) Any Forest Officer not below the rank of a Range Officer of
Forest or Police Officer not below the rank of a Sub-Inspector, or any other
person authorized by the Government in this behalf may with a view to securing
compliance with the provision of this Act or the rule made thereunder, or to
satisfying himself that the said provisions have been complied with—
(i) stop and search any person, boat, vehicle or
receptacle used or intended to be used for the transport of specified forest
produce;
(ii) enter and search any place;
(iii) seize the specified forest produce in
respect of which he suspects that any provision of this Act or the rules made thereunder
has been, is being or is about to be contravened along with the receptacles
containing such produce and all tools, ropes, chains, boats or/and vehicles
used in committing any such offence.
(2) The provisions of sections 102 and 103 of
Code of Criminal Procedure, 1973 (II of 1974) relating to search and seizure
shall so far as may be, apply to searches and seizure under this section.
(3) Every Officer seizing specified forest
produce and other property under clause (iii) of sub-section (1) above shall
place on such produce, if physically possible, a property mark indicating that
the same has been seized and shall, except when the offender agrees in writing
forthwith to get the offence compounded in the manner prescribed, make a report
of such seizure to the Magistrate.
(4) Any Forest Officer not below the rank of a
Range Officer of Forest, who or whose subordinate has seized any property other
than the specified forest produce under clause (iii) of sub-section (1) may
release the same on the execution by the owner thereof of a bond for the
production of the property so released, if and when so required before the
Magistrate." Sections 20 and 21 of this Act read as hereunder:-
"20. Penalty.-- If any person contravenes
any of the provisions of this Act or rules made thereunder—
(1) he shall be punished with imprisonment which
may extend to one year or fine which may extend to two thousand rupees, or both
:
Provided that penalties which are double of
those mentioned above may be inflicted in case where the offence is committed
after preparation for resistance to lawful authority or where the offender has
been previously convicted of a like offence;
(2) the specified forest produce in respect of
which such contravention has been made or such part thereof as the Court may
deem fit, and any boat, tools, vehicle, animal, vessel, or other conveyance or
any other articles used in committing such offence shall be forfeited to
Government and shall vest in Government free from all encumbrances :
Provided that if the Court is of the opinion
that it is not necessary to direct confiscation in respect of whole, or as the
case may be, any part of the specified forest produce or other property, it
may, for the reasons to be recorded refrain from doing so.
(3) such forfeiture may be in addition to any
other punishment prescribed for such offence.
21. Disposal of produce and other seized
property on conclusion of trial. – On the conclusion of the trial of the
offence any specified forest produce in respect of which such offence has been
committed, if it is the property of Government or has been confiscated and
other forfeited property shall be taken charge of by a Forest Officer, and in
any other case, may be disposed of in such manner as the Court may
direct." Section 28 provides that when in any proceeding taken under this
Act, a question arises as to whether any specified forest produce is the property
of the Government such produce shall be presumed to be the property of the
Government until the contrary is proved.
Section 32, on which strong reliance has been
placed and which seems to have weighed with the High Court, in countenancing
the claim of the private parties, reads as follows:- "32. Limitation of
applicability of Indian Forest Act, 1927and any other law or order.—(1) Nothing
contained in the Indian Forest Act, 1927 (XVI of 1927) shall apply to specified
forest produce in respect of matters for which provisions are contained in this
Act.
(2) Nothing contained in any other thing having
force of law in any region of the State shall apply to the specified forests
produce in respect of matters for which provisions have been made in this
Act." The High Court seems to have very much relied upon Section 32 of the
Trade Act to arrive at the conclusion that the Indian Forest Act, 1927 which in
its opinion was a general provision has no application with regard to trade and
other related matters concerning forest produce notified to be specified forest
produce under the Trade Act and that for dealing with any contravention in
respect of any transaction in specified forest produce one has to refer to only
the Trade Act and if any violation is actually found then the offence will be
under the Trade Act and not under the Indian Forest Act, 1927. The High Court
on that premise appears to have held that if there is any provision for
confiscation of vehicle in the Trade Act, that would only apply for the reason that
any violation in respect of transaction of specified forest produce can amount
to offence only under the Trade Act and in respect of specified forest produce
there cannot be a forest offence within the meaning of the Forest Act, 1927 so
as to confer jurisdiction on an Officer authorized under the said Act to
confiscate either specified forest produce or the vehicle connected therewith.
It may be pointed out at this stage that the High Court in the course of its
judgment noticed specifically that on the admitted position of fact proceedings
in question have been initiated under the relevant provisions of the Indian
Forest Act, 1927.
The High Court appears to have not only
misdirected itself as to the nature of offence but also misconstrued the
relevant provisions of the Trade Act and ignored as well certain vitally
important provisions contained in the Bihar Amendment Act 9 of 1990. A proper
comparison, scrutiny and consideration of the relevant provisions of the
respective enactments Central Act and the state amendment by Bihar Act 9 of
1990 on the one side and the Trade Act on the other would go to show that the
object underlying them are not only distinct and separate but the essence,
import, content and character as well as nature of offence and the essential
ingredients to constitute such offences under the respective enactments are
wholly different and the offences under these two laws not only can co-exist
but one cannot also be held to be destructive of the 442], while dealing with
the Prevention of Food Adulteration Act, 1954 and Fruit Products Order 1955 and
the case of a prosecution under the former enactment of a licencee selling an
adulterated goods while dealing with such goods under a licence granted under
order issued under the Essential Commodities Act, 1955, this Court held that
despite the patent differences in their main objects of these laws merely
because it may in certain respects or aspects cover the same field also one can
be said to be inconsistent or repugnant with the other.
As to how a non obstante clause has to be
construed and considered in cases of alleged inconsistency or repugnancy
between the two legislations, a [(1979) 3 SCC 431] observed as follows:-
"35. On a careful consideration, therefore, of the authorities referred to
above, the following propositions emerge :
1. That in order to decide the question of
repugnancy it must be shown that the two enactments contain inconsistent and
irreconcilable provisions, so that they cannot stand together or operate in the
same field.
2. That there can be no repeal by implication
unless the inconsistency appears on the face of the two statues.
3. That where the two statutes occupy a
particular field, but there is room or possibility of both the statutes
operating in the same field without coming into collision with each other, no
repugnancy results.
4. That where there is no inconsistency but a
statute occupying the same field seeks to create distinct and separate
offences, no question of repugnancy arises and both the statutes continue to
operate in the same field." Reference has also been made therein to a
passage from Craies in his Statute Law – 6th Edition, Page 369, which reads as
hereunder:- "Many earlier statutes contain clauses similar in effect to
the general rule, but without the confusing words as to contrary intention.
These statutes, of some of which a list is given below, seem not to be affected
by the above rule, save so far as it enables the revisers of the statute book
to excise the particular clauses. In accordance with this rule, penalties
imposed by statute for offence already punishable under a prior statute are
regarded as cumulative or alternative and not as replacing the penalty to which
the offender was previously liable." The provisions contained in Section
32 of the Trade Act are merely exclusionary in nature rendering the provisions
contained in the Indian Forest Act, 1927 inapplicable to only such of the
specified forest produce as defined under the Trade Act, and that too only in
respect of matters for which the provisions are contained in the Trade Act.
Likewise the application of any other thing having force of law in any region
of the State is excluded in respect of such produce and such matters as are
provided for in the Trade Act. Though the Indian Forest Act, 1927 is a central
enactment being a legislation pertaining to an entry in the concurrent list,
the State of Bihar has chosen to amend the said law in its application to the
State of Bihar by the Bihar Amendment Act 9 of 1990, by introducing its own sentence
by way of punishment and scheme of provisions providing for powers of entry,
inspection, search and seizure as well as for confiscation of produce or other
properties seized and the procedure therefor in its entirety. As noticed supra,
the Bihar State Legislature has chosen to enact by the Amendment Act, 1990 more
comprehensive and stringent provisions by providing for enhanced and deterrent
punishments to deal with the forest offences found to be rampant and on steep
rise within the State providing its own class of officers to deal with such
situations, the manner and procedure to be adopted in dealing with such
offences and the nature, content and width of powers, they should be armed with
to make it onerous and impossible for violators by dealing them with an iron
hand by visiting upon such offenders with a drastic and severe punishment for
anyone guilty of such forest offences. The Trade Act, apart from being a
legislation of the year 1984 and strictly confined to the nature, class and
category of offences pertaining to violation of the provisions in the said Act
more in the nature of Regulation of Trade in the context of monopoly created in
favour of the State and that too with reference to particular notified and
enumerated forest produce defined for the purpose of the said Act to be
'specified forest produce', cannot be said to be destructive of the powers
conferred upon the Authorised officer, the Appellate and Revisional
Authorities.
Section 32 of the Trade Act, thus, has no effect
of effacing the Central Act as amended by Bihar Amendment Act, 1990 completely
so as to disarm the concerned Authorities totally from having recourse to those
provisions even in respect of offences which pertain, arise and relating to the
provisions contained therein. The assumption on the part of the High Court that
once by virtue of a notification under Section 1(3) and (4) of the Trade Act, a
produce become specified forest produce, any and every offence in respect of
such produce, could be dealt with only under the Trade Act only renders
meaningless the specific words, "in respect of matters for which
provisions have been made in this Act".
Section 32 cannot be viewed merely from the
angle of offences and punishments and procedure in respect of offences. The
Regulatory measures in the Central Act and the rules made thereunder on the one
hand and those under the Trade Act and the rules made thereunder on the other
differ and consequently, the main object of Section 32 of the Trade Act seems
to be to do away with the need to comply with and/or adhere to the rigor of the
restrictions in the Central Act, in addition to satisfying the requirements of
the stipulations contained in the Trade Act and the rules made thereunder.
There is nothing as a matter of any general principle for denying the very same
legislature - the legislature of the Bihar State, the power to enact different
provisions in either separate Acts or in one and the same Act conferring
distinct and separate powers upon more than one authority to deal with a
particular situation arising, as it may deem fit, or as the exigencies of the
situation may warrant. All the more so, in our view, in this case, having
regard to Section 53-C inserted by the Bihar Amendment Act 9 of 1990 in the Indian
Forest Act, 1927, which in unmistakable language of a mandatory nature,
ordaining that on receipt of intimation under sub-section (4) of Section 52
about initiation of proceedings for confiscation of property, by the Magistrate
having jurisdiction to try the offence on account of which the seizure of
property, which is subject matter of confiscation, has been made, no Court,
Tribunal or Authority (other than the Authorized Officer, Appellate Authority
and Revision Authority referred to in Sections 52, 52A and 52B) shall have jurisdiction
under the said Act or any other law for the time being in force to make orders
with regard to possession, delivery, disposal or distribution of the property
in regard to which proceedings for confiscation are initiated. That apart, it
must also be kept in consideration unlike the position under the Central Act in
view of Section 17 of the Trade Act, no court shall take cognizance of any
offence punishable under the said Act except on report in writing from the
authority specified therein.
Further, being a latter law, which has also
obtained the assent of the President of India on 5.3.1990, the same will apply
notwithstanding the Trade Act of the year 1984 and notwithstanding the fact
that the said law had also obtained the assent of the President. The assent of
the President to the 1984 Trade Act may help for its survival notwithstanding
the Central Enactment / Indian Forest Act, 1927 in relation to matters provided
for under the Trade Act by virtue of Section 32 contained therein, but in view
of the subsequent State Enactment the Bihar Amendment Act 9 of 1990, which had
also obtained the assent of the President, the special procedure introduced
under the Bihar Amendment Act 1990 empowering the designated authorities with
more comprehensive and stringent powers to order for the confiscation of the
property to the exclusion of the Court, Tribunal or any Authority cannot be
curtailed, whittled down or circumscribed, in any manner, by any of the
provisions contained in the Trade Act of the year 1984. Section 52-C, which
seems to have been completely overlooked by the High Court, clinches the issue
and dissuade any such construction. There is also nothing wrong in more than
one enactments conferring the same powers to be exercised in the same or different
circumstances upon two different and distinct class of authorities and merely
because they may have some overlapping features alone, conflict or
inconsistency cannot be attributed to the legislature deny thereby such powers
to the category of officers upon whom the legislature has chosen to
specifically confer powers with the object of ensuring a deterrent exercise of
the same keeping in view the growing attempts to deplete forest wealth. Any
such construction which tends to defeat the very purpose of conferring such
powers upon the authorities of the Department and frustrates completely the
object of the legislative amendment itself, is to be meticulously avoided by
courts, particularly in the context of overriding effect engrafted in Section
52-C, stipulating that on receipt of a communication by the Magistrate
concerned from the specified officer of the Forest Department of the intention
of the specified authority to invoke powers under Section 52 to confiscate or
forfeit the property, which is subject matter of the offence, no Court,
Tribunal or authority other than the Authorized Officer, Appellate Authority
and Revision Authority shall have jurisdiction over the said matter.
Consequently, we are unable to agree with the decision of the High Court or approve
of the reasoning given in the judgment in support of its conclusion. The
decision reported in Smt. Chandrawati Devi (supra) said to have been rendered
by a Division Bench of the Patna High Court in the context of similar claims
vis-ŕ-vis Bihar Kendu Leaves (Control of Trade) Act, 1973 and the Indian Forest
Act, 1927 cannot also be considered to lay down the correct position of law, in
the light of what has been held by us in this judgment.
For all the reasons stated above, Criminal
Appeal Nos.231 and 232 of 1996 shall stand allowed and the other two Civil
Appeals shall stand dismissed.
No costs.
The concerned and competent authorities shall be
at liberty to pursue further course of action as a consequence of our decision
and to this extent, the interim orders already passed shall no longer stand in
their way.
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