ORDER
S.J. Mukhopadhaya, J.
1. In both the cases, as common question of law involved, they were heard together and are being disposed of by this common order.
2. Petitioner, Sanjay Lodha of WP (C) No. 514 of 2002 has challenged the seizure made on 2nd January, 2002 and Confiscation Proceeding No. 3 of 2002 Initiated against him, 362 bags of chiraunji containing 27,150 Kilograms having seized from the godown of said petitioner.
The other petitioner, namely, Raj Kumar Mishra of WP (C) No. 532 of 2002 has challenged the seizure made on 31st December, 2001, as also the confiscation proceeding No. 2 of 2002 initiated against him in which notice issued on 2nd January, 2002 on the ground of seizure of 1,145 bags of chiraunji containing 80,150 Kilograms and 70 bags of gond containing 4,900 Kilograms.
3. The main plea taken by the petitioners is that chiraunji or the gond are not forest produce within the meaning of Section 2(4) of the Bihar Forest Produce (Regulation of Trade) Act, 1984 (Bihar Act 12 of 1984).
4. It is also contended that there being no evidence to suggest that the chiraunjt or gond have been brought from the forest and admittedly having seizedfrom the Godown of the petitioner, the Bihar Forest Produce Act, 1884 cannot be made applicable for initiation of confiscation proceeding.
5. The respondents in their affidavit in WP (C) No. 514 of 2002 have accepted that the chiraunji seized from the Godown of petitioner Sanjay Lodha on 2nd January, 2002. Though, it is stated that they were brought from the forest, therefore, the confiscation proceeding was initiated but nothing has been brought on the record to suggest that the chiraunji, in question, was brought by the petitioner Sanjay Lodha from the forest.
Similarly in WP (C) No. 532 of 2002, the respondents have accepted that the chiraunji and gond seized from the premises of petitioner Raj Kumar Mishra on 31st December, 2001. In the said case also, though it is stated that the chiraunji and gond were brought from the forest area, therefore, the confiscation proceeding started but no evidence has been brought on the record to suggest that the petitioner brought chiraunji and gond from the forest.
6. The forest produce has been defined under Section 2(4) of the Bihar Forest Produce Act, 1984, means any forest produce as specified in the Schedule.
As per Sub-section (4) of Section 1, the Bihar Forest Produce Act, 1984 (for short 1984 Act) shall apply to such forest produce and on such date or dates as the Government by notification, may specify in their behalf. Under Section 34, the State Government have power to amend the Schedule, from time to time. By notification, it may add to or omit from the schedule any forest produce after considering the necessity in the public interest, of regulating trade of any specific forest produce and on any such notification being issued the schedule shall be deemed to be amended accordingly.
7. In the schedule attached to the 1984 Act, chiraunji has been shown at Item II(viii). There is nothing specific made therein in respect to gond.
The petitioners have brought on record different notifications issued by the State Government in exercise of power conferred by Sub-section (3) of Section 1 of 1984 Act. Vide SO No. 178 dated 8thFebruary, 1985, in exercise of power conferred by Clause (d) to Section 1 of the 1984 Act, the Governor of Bihar was pleased to specify the date of publication of the said Act i.e. the 17th May, 1984 as the date on which the said Act was to apply in respect to certain forest produces. It neither includes chiraunji nor include gond within the meaning of forest produce. It was followed by subsequent SO No. 109 dated 27th January, 1989 issued by the Governor of Bihar in exercise of power conferred by Sub-section (3) of Section 1 of the 1984 Act, whereby the Act was given effect to whole of the State of Bihar from the date of issuance of Notification. Subsequent notifications though issued by the State under the orders of the Governor of Bihar, such as SO No. 628 dated 10th September, 1990 under Section 34 of the 1984 Act; SO No. 2628 dated 30th June. 1995 issued under Sub- section (d) to Section 1 of 1984 Act. But there is no such notification brought on the record to suggest that the State under the orders of the Governor issued any notificatipn under Sub-section (d) of Section 1 of 1984 Act bringing chiraunji or gond within the meaning of 'Forest Produce' for the purpose of 1984 Act.
8. On the, other hand, the petitioners have brought on record a letter No. 583 dated 16th May, 1995 issued by the Divisional Manager, Minor Forest Produce Project, Dhalbhum Division, Jamshedpur, Bihar State Forest Development Corporation Ltd. which shows that the chiraunji does not fall within the purview of 1984 Act. The contents of the letter are reproduced below :
Bihar State Forest Development Corporation Ltd. (A GOVT. OFBIHAR UNDERTAKING) Regd. Office 13 PATLIPUTRA PATNA-800 013 Office of the Divisional Manager, Minor Forest Produce Project, Dhalbhum Division, Jamshedpur.
Letter No. 583/Jamshedpur, Date 16/5/1995.
To,
The Ome Traders, Chakulia, East Singhbhum.
Sub :--Bihar Forest Produce (Trade Regulation) Act, 1984.
Ref :--Your Letter No. Nil dated 11.5.1995.
Sir,
With reference to the above, this is to inform you that in exercise of the powers conferred by Clause (d) to Section 1 of the BIHAR ACT 12, 1984 and order passed by Governor of Bihar under SO 178, CHAR (CHIRAUNJI) does not come under BIHAR FOREST PRODUCE ACT. As such there is NO NEED of any transit permit for transportation of CHIRAUNJI, out side the State of Bihar,
Yours faithfully,
Sd/-
Illegible 16/6/1995
Division Manager
Minor Forest Produce Project,
Dhalbhum Division, Jamshedpur.
9. The respondents have referred to Sub-section (4) to Section 2 of the Indian Forest Act, 1927 which reads, as follows :
'2(4). Forest Produce 'includes'.--(a) The following when found in, or brought from, a forest or not i.e. to say :--
Timber, Charcoal, Cauthuc, Catechu, Wood Oil, Natural Varnish, Resin, Bark, Lac, Mahua Flowers, Mahua seeds, Kuth and Mynabolams; and
(b) The following, when found in, or brought from a forest i.e. to say :--
(c) Trees and leaves, flowers, fruits and all other parts or produce not herein before mentioned, of trees.'
10. Though reference has been given but nothing specific has been stated related to violation of the Indian Forest Act, 1927. On the other hand, on bare perusal of Clauses (b) and (c) of Sub-section (4) to Section 2, it will be evident that if the trees, leaves, flowers, fruits and all other parts or produce, when found in or brought from a forest then only it is included within the definition of 'forest produce'.
As mentioned above, there being nothing on the record to suggest that the Chiraunji or Gond, in question, seized from the premises of petitioners were found in or brought from a forest, even as per Clause (b) and (c) of Sub-section (4) to Section 2 of the Indian Forest Act, 1927, seizedmaterials cannot be held to be 'forest produce'.
11. For the reasons aforesaid, I hold the seizure of chiraunji or gond as made in both the cases, as illegal, both the confiscation proceedings are uncalled for being not maintainable and thereby set aside the respective seizures and confiscation proceedings, as referred above.
12. Both the writ petitions are allowed.