Criminal Writ Petition No.888 of 1990

14th August, 1997

Petitioner Counsel: Shri I. S. THAKUR

JUDGMENT

JUDGMENT :- This petition is filed by the State against the order of the learned Additional Sessions judge Nasik passed in Criminal Appeal No.20 of 1990 on 30-6-1990. The appeal was filed against the order of confiscation passed by the Assistant Conservator of Forest, (East) Forest Division, Nasik confiscating Maruti Van No.MZV 5795.

2. The aforesaid Maruti Van was found carrying Tiger's skin worth Rs.45,000/- illegally and under the provisions of Indian Forest Act vehicle was intercepted on 10-7-1989 by the Police Officer on Napur Bombay highway near Wadar Bhoi. 4 Persons were found occupying the van. They were arrested and latter on released on bail by the learned Magistrate when they were produced before the Magistrate. The Police Officers intimated the Forest Officers about the same and thereafter during the interrogation of the accused it was revealed that van belongs to the Respondent and therefore a show cause notice was issued under Section 61(B) to the Respondent. After considering the reply given by the Respondent that said van was given by him on 10-7-1989 to his friend and that he was unaware that it was carrying tiger's skin, the Assistant Conversator of Forest confiscated the van under Section 61A of the Indian Forrest Act. This order was challenged in appeal before the learned Additional Sessions Judge, Nasik. The learned Sessions Judge directed the return of said vehicle to the Respondent on furnishing solvent surity of Rs.75,000/- to the satisfaction of the Magistrate and also on giving an undertaking that he will produce the said vehicle and when directed by the Court during the course of trial.

In this Court the Respondent did not appear even though he was served. I have heard the argument of the learned Additional Public Prosecutor Shri Thakur. Shri Thakur brought to my notice the provisions of Section 61A to 61G of the Indian Forest Act, and contended that although appeal is provided for under Section 61D against the order of confiscation passed under Section 61A or 61C, the learned Additional Sessions Judge did not properly appreciate the provisions of Section 55 of Indian Forest Act as amended. Section 55 sub section 1 is as follows.

55 Forest produce, tools, etc. while liable to forfeiture - (1) All timber of forest produce which is not the property of Government and in respect of which a forest offence has been committed, and all tools, boats, vehicles and cattle used in committing any forest offence shall, subject to Section 61G be liable by order of the convicting Court to forfeiture.

Thus any vehicle used for committing of forest offence is liable to forfeiture. However, this is subject to Section 61G. Section 61G is as follows:-

61G - Whenever any timber, sandalwood, fire wood, charoal or any other notified forest produce which is the property of the State Government, together with any tool, boat, vehicle or cattle used in committing any offence is seized under sub section (1) of Section 52, the authorised officer under Section 61A, or the officer specially empowered under Section 61C or the Sessions Judge hearing an appeal under Section 61D shall have, and notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, any other officer, court, tribunal or authority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property and any tool, boat, vehicle or cattle.

A simple reading of Section 61G would show that the jurisdiction of the Court trying the offence or any other Court is barred as regards forest produce or vehicle seized under sub section 1 of Section 52 or Section 61A or 61C. Thus the question of returning the vehicle pending the trial was not before the Sessions Judge. The proceedings of confiscation are independent and against that order appeal is provided to the Sessions Judge. The order passed in confiscation proceedings is not subject to the provisions of powers of the Magistrate trying the case under Criminal Procedure Code. A reading of Section 61G would go to show that provisions therein are having effect notwithstanding anything to the contrary contained in the Act or in the Code of Criminal Procedure 1973, or in any other law for the time being in force.

According to Section 61A the Forest Officer is required to produce the property including the vehicle before the officer authorised by the Government and such officer is empowered to confiscate the property under Section 61A. Sub sections (3) and (4) of Section 61(A) clearly show that the property or vehicle can be confiscated irrespective of the institution of any proceedings. Proviso to Section 61B specifically lays down that no order of confiscation of the motor vehicle shall be made except after giving notice in writing to the registered owner thereof if in the opinion of the authorised officer it is practicable to do so, and after considering his objections, if any.

In this Court as record of the petition did not show whether a notice was given to the registered owner, I called upon the Addl.P.P. to produce the record and the record was therefore produced by the forest officer and xerox copies of the relevant documents are retained. It is clear from the record produced that notice was given to the person in whose name the vehicle was registered. The said person viz. Pravin Bhimrao Sakarde informed the officer in writing that he has sold the vehicle to the present Respondent. He has also sent an affidavit and the present Respondent also filed an affidavit that he has purchased the said vehicle. When the present Respondent who filed the appeal to the Sessions Court against the order of confiscation was called upon to show cause why the vehicle should not be confiscated, he stated that the vehicle was given by him to one of his friend but did not disclose the name of the friend. He also could not disclose the name of the other 2 persons, who were in the car and in fact this should have put the learned Sessions Judge on guard to view the matter with more circumspection but the learned Sessions Judge has observed that merely because the Respondent who is simply owner of the van did not give the names of his friend or the names of persons who were in the car, it cannot be said that the Respondent had connived at or had knowledge that particular contraband articles were being carried or transported from the vehicle. In my view the respondent may not have any knowledge but his connivance is obvious otherwise, he ought to have disclosed at least the name of the friend to whom he had handed over the said Maruti van. Maruti van is not such a thing that one would not remember the name of friend to whom it was handed over for a specific purpose and period and this conduct of the Respondent was sufficient to create suspicion in the mind of the officer who had specifically given notice to the Respondent to show cause why the vehicle i.e. Maruti van should not be confiscated. Taking a contrary view would mean that anybody can allow his vehicle to be used for such illegal purpose and can later on get it back from the authority under Forest Act or in appeal from the Court of Sessions by showing ignorance regarding the name of person to whom he had given it and in this manner the vehicle owners can afford to allow the vehicle to be used for such illegal transport of forest goods which is an offence under the Indian Forest Act. Moreover, as already pointed out there was no question of returning the property on bond inasmuch as in the criminal case, the learned Magistrate before whom the case was to be tried could not have passed any order in respect of the goods i.e. forest goods or the vehicle. The proceedings of confiscation are independent and it is against the order of confiscation that the appeal is provided to the Sessions Court. When the Deputy Conservator of Forest was justified in confiscating the articles inasmuch as the Respondent had failed to disclose even the name of person to whom he handed over the vehicle, the learned Sessions Judge was clearly in error in passing the impugned order.

Therefore the petition succeeds and is allowed. The order passed by the learned Sessions Judge, Nasik in Criminal Appeal No.20 of 1990 on 30-6-1990 is set aside and the order passed by the Assistant Conservator of Forest Nasik is restored. The Assistant Conservator of Forest. Nasik is at liberty to take further steps for confiscation of the van or recovery of the amount of bond executed by the Respondent. Rule is made absolute.

Petition allowed.