Criminal Writ Petition No.432 of 2002

20th April, 2006

Petitioner Counsel: Shri. A. S. MARDIKAR
Respondent Counsel: Shri. M. P. BADAR

Cases Cited:
State of West Bengal Vs. Sujit Kumar Rana, AIR 2004 S.C. 1851 [Para 5]
State (Represented by Range Forest Officer) Vs. Rajesh Gaonkar, 2000(8) LJ Soft 108 = 2000(5) Bom.C.R. 581 [Para 6]
M/s. Ashok Leyland Finance Ltd. Vs. Govt. of A. P., AIR 2001 A. P. 270 [Para 7]
Basha Vs. State of Karnataka, 2003 Cri.L.J. 988 [Para 8]
Divisional Forest Officer Vs. G. V. Sudhakar, AIR 1986 SC 328 : 1986 Cri.L.J. 357 [Para 8]

JUDGMENT

B. P. DHARMADHIKAR, J.:- By this writ petition under Articles 226 and 227 of Constitution of India the petitioner, owner of motor vehicle - a truck having registration Number MH-30-B-2897 confiscated by Assistant Conservator of Forest (Authorized Officer) under Section 61-A of Indian Forest Act, 1927, has prayed for its release by quashing and setting aside orders. The truck has been found involved in forest offence on 7-1-1999 in which illicitly felled Nimb wood, Katsawar wood was transported. The order of confiscation under Section 61-A is dated 17-6-2002 while appeal preferred against it under Section 61-D by present petitioner has been dismissed by Sessions Judge, Akola, on 14-10-2002. This court on 17-3-2003 while admitting the writ petition stayed both these orders and directed release of truck in favour of petitioner subject to execution of personal bond in the sum of Rs. One lakh in addition to the bank guarantee of any of the Nationalised banks in the sum of Rs. One lakh to be kept alive till disposal of this writ petition. Necessary facts in this respect are as under.

2. Petitioner states that above truck belongs to him and he had engaged one Mohd. Shabbir resident of Medshi for transportation of timber on 7-1-1999. That timber was transported accordingly to Geeta Saw Mill belonging to Gangaram Manaji Patel of Kolhapur as per transit pass and as per law. Petitioner thereafter learnt that on or about 8-1-1999 the officers of the Forest Department seized said timber including Katsawar (Bombax) from Geeta Saw Mill. Thereafter without any reason said officers took away the truck of petitioner which was standing on Mankarna plot near his residence. When petitioner could not find his truck, he reported the matter to local police and thereafter he learnt that his truck has been carried away by Forest Department. The contention of petitioner is that seizure of truck on the basis of statement given by owner of Saw Mill is illegal. He therefore moved application before Chief Judicial Magistrate, Akola for its release. He also received show cause notice dated 4-10-2001 from Assistant Conservator of Forest about the seizure of truck. He contends that even as per said show cause notice there was transit pass for the wood in question and information given by one R. A. Chavan was also suppressed in said notice. He states that there were 3 passes having number 667308 dated 8-5-1998 and 736977 dated 29-10-1998 and 001805 dated 7-1-1999. Petitioner states that all these 3 passes need to be looked together and the entire timber transported is covered by it. He states that perusal of first two passes reveal that timber therein belongs to Sahebrao Ghuge of Malegaon and Ramchandra A. Chavan of Bodkha. Therefore the allegations made in show cause notice were incorrect and false. He appeared before the authority issuing show cause notice and requested to supply all documents but respondent avoided to supply these documents and did not even permit him to take inspection of records. Ultimately on the basis of information and documents which he could gather, he filed his reply pointing out his innocence. He states that he also pointed out report dated 17-3-1999 submitted by Range Forest Officer Shri. Bansod communicating that the report of illegal transportation was doubtful. He also relied upon statement of guard Shri. Chavan and others to point out that their statements also did not support facts in show cause notice. He contended that show cause notice issued was without any inspection of the concerned owner & forest rangers. In spite of this on 17-6-2002 authority passed the order and confiscated the truck. Hence he preferred Appeal No.42/2002 under Section 61-D but the same came to be dismissed on 14-10-2002.

3. We have heard Advocate Anil Mardikar for the petitioner and Shri. Badar, Special counsel for the respondent.

Inviting attention to the fact that the truck was not interrupted while allegedly transporting illicitly felled timber but was seized more than a month thereafter and that too from his residence, petitioner contended that the identity of timber seized from Saw Mill at Kolhapur with the timber transported through his truck has not been established. Learned counsel argues that Saw Mill may be having other timber and that timber cannot be fastened upon or co-related with truck of petitioner. He states that entire timber was transported as per valid transit pass issued on 7-1-1999 and the wood of Katsawar was very much included in it. He further argues that case of department is that said transit pass is forged but the officer of department, prima facie found responsible by respondents for issuing it, could not be prosecuted and the department has accordingly filed report in the court of J.M.F.C. He argues that no excess quantity of timber was transported by petitioner. He has taken the court through the material on record and also through the impugned orders. As against this Shri. Badar, learned counsel for Department has contended that even if all 3 transit passes are read together, the fact of illegal transportation is established. 1.388 cubic meters have been transported illegally and 20 logs without any hammer marks have been seized from Geeta Saw Mill. He argues that burden to explain transportation of illegal timber was upon petitioner and he has failed to discharge it. He further invites attention to relevant provisions of Indian Forest Act to point out the scheme and to state that impugned orders are perfectly legal & valid. He further states that against the officers of Forest Department, who conspired with the petitioner, departmental inquiry has already been initiated.

4. We find that the examination of the transit passes involved in this matter is essential to understand the controversy. As per transit pass 001805 dated 7-1-1999 produced by the petitioner, timber i.e. 60 logs of Nimb, Behada & Katsawar, quantity 9.735 cubic meters were to be transported. The Forest Department seized at Kolhapur 60 logs of Nimb, Behada & Katsawar, quantity 11.123 cubic meters. Thus 1.388 cubic meters have been transported extra through truck of the petitioner. This transit pass No.001805 has been issued in lieu of earlier transit pass No.667308 dated 8-5-1998 and No.736977 dated 21-10-1998. The show cause notice annexed with the petition by petitioner does not mention this position correctly and the later transit pass dated 21-10-1998 is omitted from it. However perusal of original show cause notice reveals the correct position. Quantity to be transported against transit pass No.667308 dated 8-5-1998 is 10.163 cubic meters and the timber mentioned is Nimb, Behada, Gorad, Kahu, Peri. Transit pass No.736977 dated 21-10-1998 is in relation to 25. cubic meters wood of Adjat Peri, small pieces and firewood. Thus both of them do not pertain to any quantity of Katsawar. Thus timber of Katsawar which was not there in both of earlier transit passes could not have been included in third transit pass No.001805 dated 7-1-1999 issued in lieu thereof. Present petitioner has not disputed transporting Katsawar logs on 7-1-1999 to Geeta Saw Mill, Kolhapur. It is therefore apparent that said timber has been illegally transported by making alterations in said transit pass. Though Petitioner has in petition described himself as transporter engaged in business of transportation, in reply to show cause notice, he had stated that he is timber merchant having 10 years' experience. Not only this he has also mentioned that because of his timber business, he is constantly in touch with Forest Department. Nowhere he has disclosed that he was involved only as transporter. In view of this position, it is apparent that truck of petitioner has illegally transported the excess timber to Geeta Saw Mill at Kolhapur.

5. Relevant provisions in this respect are contained in Section 61-B as amended by Maharashtra Amendment to Indian Forest Act. Sections 61-A to Section 61-G are added by this amendment. Section 61-A prescribes for confiscation by Forest Officers of forest produce where Forest offence is believed to have been committed. Section 61-B prescribes for procedure thereof while section 61-C prescribes for Revision by higher departmental officers against the orders of confiscation. Section 61-D prescribes remedy of Appeal against the original order passed under section 61-A and also revisional order passed under section 61-C. Section 61-E provides that confiscation under earlier provisions does not save the offender from any other punishment which can be imposed upon him under Indian Forest Act or any other law. Section 61-F stipulates that after the order of confiscation becomes final, the property confiscated vests in government. Section 61-G bars jurisdiction of any other officer, Court or Tribunal authority with regard to custody, possession, delivery disposal or distribution of property seized under above-mentioned provisions. Section 69 makes a provision for presumption that forest produce is the property of Government until the contrary is proved. Section 61-B(2) is important for present purposes. It reads:-

"S.61-B(2) - Without prejudice to the provisions of sub-section (1), no order confiscating any tool, boat, vehicle or cattle shall be made under section 61-A if the owner of the tool, boat, vehicle or cattle proves to the satisfaction of the authorized officer that it was used in carrying the timber, sandalwood, firewood, charcoal or any other notified forest produce without the knowledge or connivance of the owner himself, his agent, if any and the person in charge of the tool, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precaution against such use."

While considering present controversy, the purpose behind enacting the Forest Act cannot be ignored or allowed to be defeated. In AIR 2004 S.C. 1851 - State of West Bengal Vs. Sujit Kumar Rana, Hon'ble Apex Court has made following observations in paragraphs 19 and 20.

"19. The provisions of law referred to hereinbefore leave no manner of doubt that upon seizure of forest produce, timber or vehicles etc. the concerned authority has an option to report the factum of such seizure both to the concerned Magistrate as also the authorized officer, save and except in the cases which would fall within the purview of the proviso appended to sub-section (2) of Section 52 of the Act, as amended by the State of West Bengal. The report in relation to such seizure is required to be made either for : (1) confiscation of the seized property; (2) prosecution of the offender; or (3) for both.

20. The Legislature has inserted the aforementioned provisions with a laudable object. Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of the forests and forest produce. Depletion of forests would lead to ecological imbalance. It is now well-settled that the State is enjoined with a duty to preserve the forests so as to maintain ecological balance and, thus, with a view to achieve the said object forest must be given due protection. Statutes which provide for protection of forest to maintain ecological balance should receive liberal construction at the hands of the superior Courts. Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the Legislature: keeping the principles contained in Article 48-A and 51-A(g) of the Constitution of India in mind. The provisions for confiscation have been made as a deterrent object so that felling of trees and deforestation is not made."

6. Here the Forest Department has found standing stumps of Nimb and Katsawar at Bodkha-I and Bodkha-II. The stumps were of trees illegally cut and stolen. 20 logs without any hammer mark were seized at Geeta Saw Mill, Kolhapur. The petitioner has accepted transportation of timber as per transit pass No.001805 dated 7-1-1999 and therefore the fact that truck was seized more than one month after the illegal transport, does not make any difference. The contention that material seized at Saw Mill has not been identified with timber carried through the truck of petitioner is also irrelevant because petitioner has accepted transportation of Katsawar which is not included in earlier transit passes. Petitioner, therefore, also accepts transportation of logs without any hammer mark. The Saw Mill owner disclosed that excess timber was also brought to his saw mill in same truck. Petitioner has not led any evidence and did not produce any material to show that it was not so. In 2000(8) LJ Soft 108 = 2000(5) Bom.C.R. 581 State (Represented by Range Forest Officer) Vs. Rajesh Gaonkar, this Court observed- "I have already stated that admittedly no material was placed by the respondent before the J.M.F.C. to suggest that the produce, in question, was from the private property and that the same did not belong to the Government. In the absence of such material, as well as the presumption under section 69 of the said Act coupled with the circumstances in which the forest produce in question was attached, there is prima facie sufficient indication that the produce in question can be said to be prima facie of the property of the Government". Similar presumption will also apply here. This is more so when Katsawar timber was not included in earlier two transit passes and hence could not have been included in third transit pass. It was for petitioner to explain how Katsawar timber came in his possession or truck. Even if it is presumed that Petitioner was only a transporter, he should have taken precaution to see that logs without hammer mark as required by Rules are not loaded in his truck. Rule 3 of the Bombay Transit of Forest-Produce (Vidarbha Region, Saurashtra and Kutcha Areas) Rules, 1960, which are applicable to the district in question provides for regulation of transit of forest-produce by means of passes. Accordingly, no forest produce should be transported into, from or within the said district without a pass from an officer or person duly authorized by or under the said rules to issue such pass or otherwise than in accordance with the conditions thereof or by any route or to any destination other than the route or destination specified in such pass, except such forest produce as may be exempted by the State Government from the operation of these rules by notification in the Official Gazette. Interpolation in substitute pass by adding "Katsawar timber" therein is therefore definitely a forest offence. Not only this, absence of hammer mark on wooden logs also shows that the logs were not cleared by Forest Department and the same were procured from illicitly felled trees. Petitioner therefore has failed to establish taking of precaution as required of him by S.61-B(2).

7. Section 61-B(2) of Forest Act permits owner of vehicle to prove to the satisfaction of Authorized Officer that his vehicle was used for transporting such timber without his connivance or knowledge and he had taken all reasonable and necessary precaution against such user. As already observed above, petitioner did not lead any evidence in this respect before Authorized Officer. Not only this, there he accepted that he was also a timber merchant with 10 years experience. He has not approached this Court in that capacity but as transporter. The contents of his reply to show cause notice falsify his stand that he is merely a transporter. Thus his stand is not only mutually contradictory but also destructive. In AIR 2001 A. P. 270 - Ashok Leyland Finance Ltd., M/s. Vs. Govt. of A. P. the Division Bench of Andhra Pradesh High Court has made following observations in this respect in paragraph 9 and 10:-

"9.-- If it is so kept in mind the financier cannot be considered to be the owner of the vehicle for the purpose of Section 44(2-C) of the Act. Therefore, the financier, solely on the ground that the vehicle was used for transporting the contraband forest produce without his knowledge or connivance, cannot seek the release of the vehicle irrespective of the fact whether the forest offence was committed with the knowledge or connivance of the hirer. Further, the provisions of sub-section (2-C) makes it abundantly clear that the burden to prove to the satisfaction of the Authorised Officer that the vehicle was used in carrying the contraband forest produce without his knowledge or connivance is on the owner of the vehicle and not on the Authorised Officer. Therefore, we do not find any merit in the contention of the learned counsel for the appellant that there is absolutely no legal evidence produced by the Authorized Officer to show that the vehicle was used for carrying the contraband forest produce with the knowledge and connivance of the hirer or the financier.

10. Thirdly, it is relevant to note that the hirer C. Venkateswarlu who should be treated as the owner of the vehicle for the purpose of sub-section (2-C) of Section 44 of the Act did not adduce any evidence to the satisfaction of the Authorized Officer that the vehicle was used without his knowledge in the commission of the forest offence. Although the appellant company chose to prefer appeal under sub-section (2-E) of the Act to the learned District Court, quite curiously, the legal representatives of the hirer who died during the pendency of the proceedings before the 2nd respondent were not impleaded as parties to the appeal. They are also not impleaded as parties to the writ petition or to this writ appeal. In the absence of total failure to discharge the burden envisaged under sub-section (2-C) of the Act that the contraband forest produce was transported in the vehicle without the knowledge and/or connivance of the hirer, no exception can be taken either to the confiscation order passed by the 2nd respondent or the orders made by the learned District Judge and learned single Judge of this Court."

8. Inability of department to prosecute guilty Forest Officer also does not in any way help present Petitioner. Reference in this respect can be made to Division Bench judgment between Basha Vs. State of Karnataka, reported at 2003 Cri.L.J. 988 of Karnataka High Court. The officers of Excise Department seized Liquor (contraband) from a car. The accused was acquitted in Criminal prosecution and in proceedings for confiscation of car he took defence that departmental proceedings were subservient to judicial proceedings. Department did not accept this and matter came before High Court. The learned single Judge referred the controversy to Division Bench. Division Bench noticed Apex Court ruling Divisional Forest Officer Vs. G. V. Sudhakar, AIR 1986 SC 328 : 1986 Cri.L.J. 357 & observations of Division Bench in following paragraphs are important:-

"10. Before proceeding further, what we wish to point out is that even though the incident giving rise to the two sets of proceedings is common, that the nature of the two proceedings is different. We shall illustrate from the present two cases as to how this position cannot be overlooked. The issue before the criminal Court was as to whether the accused could be said to be in conscious possession of the contraband or in other words, if the material was found in the vehicle and as not on the person of the accused and if no nexus could be established between the accused and the contraband and criminal Court would on the basis of the law acquit the accused as the offence cannot be said to have been established. Again, if any of the vital ingredients in the chain of facts or circumstances was weak, was lacking or was absent or on the other hand if parts of the record contradict each other or again, if a vital ingredient was missing, the accused would still be acquitted possibly even by default. When it comes to the Departmental adjudication, what is required to be established is whether the contraband was found in the vehicle and having regard to the various presumptions under the statute an order of confiscation would be almost automatic. The nature of the charges, mode of proof and the degree of proof differ and consequently, it would be improper to equate the two proceedings or to even contend that the decision in the criminal proceedings must bind the Departmental adjudication.

11. Digressing here very slightly, we need to illustrate the most familier example that arises before the Courts repeatedly in relation to disciplinary proceedings. In cases where an employee is prosecuted for an offence of misappropriation and the like and for a variety of reasons which we prefer not to recount, everyone of these cases ends in an acquittal, often times because the case is dragged on for so long by which time the witnesses have died, the I.O. has retired and the documents are untraceable. It would be a travesty of justice to hold that the acquittal order even if confirmed by the High Court, for want of adequate material to sustain a conviction would have to bind the Department in holding that the delinquent employee must be cleared of the disciplinary charges. It is open to the department to independently establish these charges and if they succeed in doing so, the consequences would follow regardless of the outcome of the criminal case. We need to therefore lay down very clearly that there is no principle of law which can justify the position that the decision in the criminal proceedings binds the Department. The most important reason for this is that even in the illustrations set out by us the sections and the charges in the departmental adjudication are entirely different to the ones levelled before the Court.

12. More importantly, what we need to emphasise is that merely because the decision of the criminal Court does not bind the departmental authorities, it does not mean to say that the decision is wholly and totally irrelevant. Reference are possible and permissible and in a given instance, it is certainly open to either of the parties be it the Department or the accused to refer to and rely on the decision of the Court but beyond having persuasive value, it can never be argued that the decision of the Court is binding on the department. In our considered view, the ratio of the decision in 1997 Cri.L.J. 4695 (Kant) is rather an extreme view which we do not approve of. The references are answered as above."

In present case, the Department has filed "A" summary and as such the guilty Forest Officer has not been prosecuted and acquitted. Hence, the arguments of learned counsel Shri. Mardikar do not hold any water.

9. In the present case it is established that third pass issued on 7-1-1999 could not have included Katsawar timber and therefore obviously it is tampered one. The moment this is established, burden shifts to Petitioner to explain how he transported said timber. The affidavits on record also disclose illicit tree felling at Bodkha range-I and II. It can not be forgotten that he did not come to this Court with clean hands. In this background, no fault can be found with the impugned orders. The order passed by Authorized Officer and maintained by Sessions Judge in Appeal is neither perverse nor without jurisdiction. No case has been made out warranting interference at our hands. As such, present writ petition is dismissed. By interim orders of this Court the truck is already released in favour of petitioner. Said order is operating since last more than three years. Hence, it is obvious that truck is being used by petitioner since then. In the circumstances we permit respondent either to confiscate the truck or to invoke personal bond and bank guarantee so as to recover amount of Rs. Two lakhs from Petitioner in lieu of truck.

10. Writ petition is accordingly dismissed. Rule discharged. Liberty to respondent either to proceed to take custody of truck & to confiscate it or in the alternative, to proceed to recover amount of Rs. Two lakhs from the Petitioner by invoking personal bond and bank guarantee as mentioned above.

At this stage, the learned counsel for the petitioner submits that time may be granted to prefer S.L.P. in the Supreme Court, by staying the effect and operation of the order passed by this Court.

Shri. Badar, learned counsel for the respondent makes a statement that the Forest department would not implement the order for a period of four weeks from today. Statement is accepted.

Petition dismissed.