BASHIR AHMAD Versus THE STATE

1. This revision application is directed against the order of Captain Abdul Qayyum Khan, District Magistrate Hazara, which was passed under the following circumstances:

2. Upon a complaint of the C. I. A. Police, Hazara, a case was registered against the petitioner under sections 9 and 26 of Hazara Forest Act VI of 1937 (hereinafter called the Act) and Noti fication No. 13938‑T. D. for having been found in possession of 12 beams of blue pine, which at the relevant time he was carrying in his wagon No. 316/LEB without permit. It is alleged that after he was arrested, the petitioner made a confessional statement. But during his trial he retracted his confession and stated that he had been falsely involved by the police and in order to prove his innocence he would produce defence witnesses. The petitioner did produce two defence witnesses, but the learned trial Magistrate, relying upon the prosecution evidence' convicted the petitioner and sentenced him to two months. R. I. and a fine of Rs. 200, or in default further S. I. for two months. The learned Magistrate also confiscated his wagon in view of the above Notification because the offence was committed by him during the hours of sunset and sunrise. The 12 beams of blue pine were also confiscated in favour of the State and the learned Magistrate ordered that the timber and wagon both should be auctioned, out of which Rs. 100 should be paid as reward to Shad Ali, Inspector and Moazzam Shah, A. S. I. of the C. I. A. staff in equal shares for the good work which they had done in this case.

2. This application was admitted to hearing only to consider the adequacy of sentence of the petitioner. In fact the learned counsel for the petitioner confined his attack only against that part of the sentence by which the petitioner's wagon was con fiscated, but did not question his conviction and other sentences.

3. The judgment of the trial Magistrate reveals that the petitioner's wagon was confiscated under rule 11 read with rule 3 of Notification No. 13938‑T. D., which was published under section 29 (b) of the Act. This section and the relevant parts of the Notification in question under which the impugned action was taken respectively read:

4. "29. The Local Government may make rules to regulate:

(a) The import of timber or of any of forest‑produce into the Hazara District;

(b) the transport of timber or of any forest‑produce by land or by rivers and streams within the district, the custody thereof during transit, and the levy of fees in respect of timber or of any forest‑produce transported;

(c) the collection and disposal of Waif and un-owned timber or of any forest‑produce; and

(d) the use of property marks for timber and the registration of such marks; and may prescribe as penalty for the infringe ment of such rules imprisonment which may extend to six months, or fine which may extend to five hundred rupees, or both, and by these rules make provision for the appearance of the women offender on the lines of the proviso to sub-clause (1) of section 9."

5. Notification. "No. 13938‑T. D.‑In Supersession of Noti fication No. 1142‑T. D.‑18/77, dated the 15th January 1934, and No. 1143‑T. D., dated 15th January 1934 and in exercise of the powers conferred by section 29 (b) of the Hazara Forest Act, 1936 (Act VI of 1937) the Governor, North‑West Frontier Province, is pleased to make the following rules for regulating the transport of timber, fire‑wood and other forest‑produce by land within the limits of Hazara District and to direct that these rules shall come into force from the date of their publication.

(1) . . . . . . .

(2) . . . . . . .

(3) No timber, firewood or other forest‑produce shall be transported within the limits of the Hazara District by land between the hours of sunset and sunrise.

(5) . . . . . . . .

(6) . . . . . . . .

(9) . . . . . . . .

(10) . . . . . . .

(11) Any person who infringes any of the provisions of these rules shall without prejudice to any liability incurred under the provisions of section 39 of the Hazara Forest Act, 1936, relating to seizure and confiscation, be liable to imprisonment of either description for a term which may extend to 6 months or to a fine which may extend to five hundred rupees or to both. The timber, fire‑wood or other forest produce so seized being transported within Hazara District in contravention of the provisions of these rules shall always be treated as the property of the Forest Department and so shall be any con veyance used in the transport of such timber, fire‑wood or other forest produce."

6. By reading the first part of the Notification it is clear that it was published under section 29 (b) of the Act. But the question arises whether rules 3 and 11 thereof can be said to be intra vires of the power of the Provincial Government? So far as rule 3 is, concerned, it appears to be unexceptional as to prohibit the transportation of timber by land within the limits of Hazara District, between the hours of sunset and sunrise, is within the ambit of expression "regulate" used in section 29 of the Act. But this would not mean that the contravention of this rule by an accused could be automatically visited by the confiscation of his conveyance under rule 11 of the Notification. The rationale of this conclusion need not be supported by any authorities, because it is well established that when the Legislature empowers an outside agency to frame rules under the warrant of a statute, the agent must remain within the confines of its power and should not arrogate to itself the functions of the principal. In other words if the agent is found to have transgressed the specified limits of its rule‑making power, or else the rules framed by it are beyond the scope of the statute, then the rules in question would be clearly ultra vices and would b z, ineffective.

7. Applying this principle to the facts of the instant case, it is clear that rule 11 of the Notification, in so far as it provides that in the event of contravention of rule 3 an accused would automatically forfeit his conveyance, is ultra vires of the power of the Provincial Government, as by subsection (d) of section 29 of the Act the only power given to it by the Legislature was to frame rules to regulate the import of timber into the Hazara District and to prescribe penalties for the infringement of such rules imprisonment which may extend to six months, or fine which may extend to five hundred rupees, or both. By specifying these limits within which the Provincial Government could impose penalties upon an offender, the intention of the Legislature is clear that whatever rule‑making power it wished to confer upon the Provincial Government, was conferred on it under subsection (d) of section 29 of the Act and consequently it had no authority to provide in rule 11 that the offenders would automatically lose their conveyances.

3. At a glance this conclusion might appear to be in conflict with racy views in the Full Bench judgment Zaihtun Textile Mills Ltd. v. Central Board of Revenue (P L D 1970 Kar. 333). But by reading that judgment carefully this impression would be dispelled. In that case what was impugned before the Bench was the reasonableness of the Production Capacity (Cotton Yarn and Cotton Fabrics) Rules framed under section 37 of the Central Excise and Salt Act, 1944 and the view that I had taken was that the attack must fail as the rules in question had been placed before and received the approval of the Central Legislature, in line with the requirements of section 33 of the said Act. It is true that by relying upon a judgment of the Bombay, High Court in A I R 1952 Bom. 296 1 had generally observed that statutory rules cannot be struck down on the ground of unreasonableness. But in order to correctly appreciate that view, the observations contained in the Bombay judgment that "if a rule is within the ambit of the statute, then it cannot be successfully challenged on the ground that it is an unreasonable rule" should be kept in mind. Unlike the rules in the above Full Bench judgment which had received the approval of the Central Legislature, the rules published in Notification No. 13938‑T. D. in the present case have no such merit. Similarly the objectionable part of rule 11 cannot be said to be even remotely within the ambit of section 29 of the Act and consequently to that extent it would be devoid of force, notwithstanding section 54 of the Act that once published in the official Gazette the rules In question shall have effect as if enacted in the Act itself.

8. After having examined the various provisions of the Act it seems to me that the offending part of rule 11 was the result of inapt drafting, because otherwise the Legislature has made ample provision for the confiscation of wagons in appropriate cases subject of course to the discretion of the adjudicating Magistrate. This power is contained in sections 10 and 39 of the Act, which respectively read

9. "(10) The penalty provided in section 9, may, in the discretion of the adjudicating Magistrate, and in the case of habitual offenders only, be accompanied by the forfeiture of all imple ments, or conveyances used in the commission or furtherance of the offence adjudicated; and all forest‑produce illicitly obtained shall be restored to the Government Forest Depart ment.

10. 39 (1) Any Revenue, Police, or Forest Officer may seize‑‑

(a) any forest‑produce which he has reason to believe has been obtained or is being transported contrary to any provision of this Act, or of any rules or orders made thereunder; and

(b) any tools or carriage, wagon, cart, truck or other vehicle used in the commission of any offence against such Act, rules or orders.

(2) Such seizure shall be reported forthwith to the nearest Magistrate having jurisdiction in respect of such offence.

(3) All forest‑produce in respect of which an offence under this Act or any rule made thereunder has been committed, and any tools or carriage, wagon, cart or other vehicle used in committing any such offence, shall be liable to confiscation.

(4) When the offender is not known or cannot be found, the Magistrate may, if he finds that an offence has been committed, direct that anything seized under subsection (1) shall be confiscated."

11. It might be argued, by relying upon the words "or carriage, wagon, cart or other vehicle used in committing any such offence, shall be liable to confiscation" appearing in subsection (3) of section 39 of the Act that once convicted the conveyance of accused would automatically stand confiscated and conse quently the offending part of rule 11, which does no more than to reproduce these words, would be wholly unexceptionable. But by examining the scheme of the Act as a whole any such contention would be found to be devoid of force. Section 10 of the Act, with which subsection (3) of section 39 is seemingly inconsistent, reveals the unmistakable intention of the Legislature that if an offender is convicted, then in addition to the penalties provided in section 9, the adjudicating Magistrate may in his discretion and in the case of habitual offenders only, order the forfeiture of his conveyance in which tire contraband goods were detected. In other words the Legislature has not only made a distinction between the case of habitual and other offenders but has also directed that the forfeiture of conveyances could only be effected by the order of a Magistrate in the exercise of his proper discretion. Seen in this context, subsection (3) of section 39 of the Act, the language of which is not as precise as that of section 10, cannot be construed to mean that once an offender is convicted under the provisions of the Act, he would automatically forfeit his conveyance without the order of a Magistrate. In m5 view this is the only way in which sections 10 and 39 should be construed with a view to reconciling their seemingly inconsistent provision as otherwise the two sections cannot stand side by side on the statute book. In other words subsection (3) of section 39, the object and purport of which is substantially the same as section 10, would only mean that in the event of his conviction for an offence under the Act the conveyance of the offender, in which the objectionable goods were detected, would be liable to con fiscation, but the necessary order for that purpose shall have to be passed by the trial Magistrate in line with the provision of section 10. It is true that according to subsection (3) of section 39 the offender would be liable to forfeit his conveyance even for the contravention of rules made under the Act but it is hardly necessary to say that the rules in question must be infra vires the statute. I have already come to the conclusion that the offending part of rule 11 is ultra vires of the rule‑making power of the Provincial Government and consequently its validity cannot be endorsed under subsection (3) of section 39 of the Act as the words used therein were obviously meant to refer only to those rules which were validly framed under section 29 of the Act.

12. In view of this discussion my finding is that the offending part of rule 11 of the above notification under which the two Courts below confiscated the wagon of the petitioner, is ultra vires and of no legal effect. This petition is accordingly allowed and the two impugned orders are set aside to this extent that wagon No. 316/IEB shall be returned to the petitioner.

13. K. B. A. Petition accepted.