@JUDGMENTTAG-ORDER
S.P. Singh, J.@mdashHoard the learned counsel for the parties. In this writ application the petitioner prays for setting aside the order dated 4.8.2006 passed by the D.F.O.-cum-Authorized Officer, Aurangabad, whereby he has passed order of confiscation in respect of the Tractor bearing Engine No. PY-3029-D-1339334 (Chassis No. PY-5103A 001182) as well as for setting aside the order dated 6.9.2007 passed by the Secretary, Department of Environment and Forest in Forest Revision Case No. 6 of 2007 by which he has set aside the order dated 9.1.21007 passed by the District Magistrate-cum-Collector, Aurangabad in Confiscation Appeal No. 113/06 with respect to the release of the vehicle in question in favour of the petitioner.
2. The case of the petitioner is that his tractor bearing Registration No. PY-3029-D-1339334 and Chassis No. PY-5103A001182 was seized on 9.11.2005.
3. The prosecution case, in short, is that at the time of seizure of the tractor 100 Cft. of metal stone which is a forest produce u/s 2(4)(b)(iv) of the Forest Act. The aforesaid seizure gave rise to a case being registered u/s 33(1) & (2) read with Sections 41 & 42 of the Indian Forest Act (Bihar Amended Act, 1990) against one Jitendra Yadav and two others, namely, Ramesh Kumar Singh and Md. Firoj, as contained in Annexure-1.
4. On the basis of the aforesaid prosecution report the learned Magistrate took cognizance whereby confiscation proceeding was also initiated bearing Confiscation Case No. 23 of 2005-06 before the D.F.O., Aurangabad. The D.F.O., Aurangabad, passed the order of confiscation of the aforesaid vehicle on 4.8.2006. Being aggrieved by the order of confiscation dated 4.8.2006, the petitioner preferred an appeal under Section. 52 of t,.e Indian Forest Act, being Appeal No. 113/06 before the District Magistrate, Aurangabad. After hearing the petitioner the Collector, Aurangabad, passed the order releasing the tractor in question in his favour as he found that the petitioner had no knowledge at all that his tractor was being used for transporting forest produce.
5. A revision case being Revision Case No. 6 of 2007 was filed against the order dated 9.1.2007 before the Secretary, Environment and Forest, who vide order dated 6.9.2007 set aside the order of the Collector, Aurangabad observing that the same was passed without hearing the Forest Department, and, as such not sustainable. Under the aforesaid grounds the revision application was allowed.
6. In counter affidavit it is submitted that the driver, Jitendra Kumar Yadav, was carrying the stones with the consent of petitioner''s son. It is their further case that it cannot be said that the petitioner was unaware of such activities or the same did not have his tacit consent or knowledge.
7. Section 52(5) of the Indian Forest Act (Amendment Act 9 of 1990) mandates that no confiscation shall be made, if any person proves to the satisfaction of the authorized officer that any such vehicle was being used without knowledge or connivance of the owner of the vehicle in question. This Court in case of Smt. Renu Kumari vs. State of Bihar and Ors. reported in 2001(1) BBCJ 298 [: 2001(1) PLJR 804] relying upon a decision of Apex Court in 1993(1) PLJR 81; Assistant Conservator vs. Ram Chandra has held that a vehicle cannot be confiscated, if there is no material on record to show that the same was being illegally used with the knowledge of the owner.
8. The respondents have not been able to produce any material, or statement to show that the vehicle was being illegally used so, with the knowledge or consent of petitioner. The petitioner asserts that vehicle standing is in his name and not in name of his son, Ramesh Kumar Singh. In view of aforesaid circumstances, the order dated 6.9.2007 passed by the Principal Secretary, Department of Environment and Forest is set aside and the order of the Collector, Aurangabad, dated 9.1.2007 is upheld. In the result, the vehicle is directed to be released in favour of the petitioner. However, release of the vehicle will be subject to the result of the criminal proceeding. The petitioner would file undertaking that he will produce the aforesaid tractor as and when required by the court in seisin of the criminal case.
