2009 ALL MR (Cri) 1734
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.S. SHINDE, J.
Sau. Alkabai W/O. Chunilal Dusane & Anr.Vs.State Of Maharashtra & Ors.
Criminal Writ Petition No.190 of 1996,Criminal Application No.1442 of 2003
14th May, 2009
Petitioner Counsel: Shri. C. R. DESHPANDE
Respondent Counsel: Smt. R. R. MANE
Forest Act (1927), Ss.61-A, 61-B(2) - Confiscation of vehicle - Driver of tractor-trolley agreeing to transport forest wood illegally cut without any permit from Forest Department, for Rs.200/- - Driver was authorised person who was given control of tractor for carrying debris - Owner did not take any action against driver for his illegal activity though owner came to know about it on the very next day - Owner of tractor was wife of overseer working in PWD - She cannot escape from responsibility for acts done by driver in view of provisions of S.61-B of the Act - Confiscation of vehicle was justified. 1989(1) Bom.C.R. 287 - Distinguished. 1999 ALL MR (Cri) 6 - Not followed in view of Division Bench judgment in W.P. No.63 of 1990. (Paras 21, 24, 25)
JUDGMENT :- This writ petition is filed praying for quashing and setting aside the order passed by the Sub-Divisional Forest Officer, Shahada, Dhule district dated 29th June, 1995 and the order passed by the Conservator of Forest dated 16th September, 1995 confiscating the Tractor and Trolley, as well as to quash and set aside the order passed by the Additional Sessions Judge at Nandurbar dated 4.4.1996 in Criminal Appeal No.52 of 1995.
The petitioner no.1 is the owner of one Tractor bearing No.MH-18-A-9887 and trolley no.MH18-A-8702. The petitioner had purchased the said tractor after obtaining loan from Shri. Annasaheb P. K. Patil Sahakari Patpedhi Maryadit Lonkheda Tq.-Shahada, Dist.-Dhule. The said amount of loan was to the tune of Rs.1,90,000/-, after the purchase of the tractor the petitioner no.1 started the business of letting the tractor and to give it on hire basis. Her husband, who is petitioner no.2 was looking after and supervising the work done by the driver of the tractor and also he was to look after the maintenance of the tractor.
3. It is the case of the petitioners that prior to 28th March, 1995 and on 28th March, 1995 also the tractor and trolley were hired by the Pravin Majoor Society Ltd., Anjanbhir, Tq.-Shindkheda for the purpose of carrying the drums containing water and material, etc. in the trolley for the construction of the road between village Genda to Bilgaon, Tq.-Dhadgaon. It is the case of the petitioners that both of them are residing at Dhadgaon. On 28th March, 1995 both the petitioners were at Dhadgaon and the driver of the tractor along with tractor was working at the site of the road. The said tractor and the trolley have been seized by the Forest Officer on 28th March, 1995. It is alleged that in the said tractor 39 wooden logs were being taken. It is also alleged that the said wood was illegally cut from the forest. The tractor, trolley and the wooden logs were seized. It was further alleged that the driver, employed by the petitioners, namely, Raghunath Mali was driving the tractor at the relevant time. The said tractor along with wooden logs was brought to Dhadgaon and the panchanama was drawn at Dhadgaon on 29th March, 1995.
4. It is the case of the petitioners that the driver of the tractor was called upon to submit his say by the authorities by issuing notice dated 16.5.1995. Accordingly, in pursuant to the said notice, driver, namely, Raghunath Mali submitted his reply to the Authorised Officer, Dhule stating therein that he was threatened by 15 to 20 persons at Bilgaon and asked to accompany with the tractor to Dedanpada as Abala Pundya Pawara was to bring the wooden longs from Dedanpada to Bilgaon. The said Abala Pawara and 15 others had threatened the driver Raghunath Mali that they will assault him and kill him and under the coercion he took the tractor and trolley to Dedanpada and thereafter while returning back the tractor was seized. In reply filed before the authority, Raghunath further stated that, for one week he was at village Bilgaon. He had come to know about illegal activities (Gundgiri) of Abala Pawara. It is specifically contended in the reply that the owner of the tractor was not aware of the incident nor he could inform the owner about the incident. The copy of the said reply is relied by the petitioners in support of their contention.
5. It is further case of the petitioners that, the Forest Officer has recorded the statement of Abala Pawara on 7.4.1995. The said Abala Pawara has stated that he had a talk with the driver of the tractor about the logs and from the said statement of Abala Pawara also no knowledge of the alleged commission of the offence can be attributed to the petitioners. The petitioners have placed on record the statement of said Abala Pawara dated 7.4.1995.
6. It is further case of the petitioners that the Authorised Officer and Sub-Divisional Forest Officer, Shahada were pleased to pass an order on 29th June, 1995. By said order, the tractor and trolley have been confiscated. The petitioners have annexed the copy of the order to the petition.
7. It is further case of the petitioners that they filed revision petition under section 61-C of the Indian Forest Act before the Conservator of Forest, Dhule Circle Dhule challenging the order passed by the Authorised Forest Officer and Sub-Divisional Forest Officer, North Dhule at Shahada dated 16.9.1995. The said revision petition filed by the petitioners came to be dismissed by the final judgment and order dated 16.9.1995. The petitioners have placed copy of the said judgment and order on record.
8. It is further case of the petitioners that the order passed by the Conservator of Forest and also order passed by the Authorised Officer were challenged before the Court of Sessions at Nandurbar by way of filing Criminal Appeal No.52/1995. The learned Additional Sessions Judge, Nandurbar was pleased to dismiss the appeal by the judgment and order dated 4.4.1996. The petitioners have annexed the said order to the petition.
9. It is the case of the petitioners that the tractor and trolley has been purchased by the petitioner no.1 by obtaining loan of Rs.1,90,000/-. The said loan amount has been obtained on 15th September, 1994. The petitioners have received the notice from the financier. The copy of the said notice is also placed on record by the petitioners.
11. The learned counsel appearing for the petitioners submitted that the orders of confiscation of the tractor and trolley passed by the Authorised Officer and Sub-Divisional Officer, Shahada dated 29th June, 1995 and the order of Conservator of Forest dated 16.9.1995 and order passed by the Additional Sessions Judge dismissing the Criminal Appeal No.52/1995 filed by the petitioners are contrary to the facts on record and same deserve to be set aside. It is further argued that as per the provisions of Section 61-B of the Indian Forest Act, the confiscation of a motor vehicle cannot be ordered, if the owner of the tool, boat, vehicle, etc. proves to the satisfaction of the Authorised Officer that it was used in carrying the timber, etc. without the knowledge or connivance of the owner himself, his agent, if any, and the person in-charge of the tool, vehicle, etc. and each of them had taken all reasonable and necessary precautions against such use. The Authorised Officer has not taken into consideration the material aspect and spirit of section 61-B of the Indian Forest Act and has erred in ordering confiscation of the property though there was no knowledge or connivance of the petitioners for the alleged commission of the offence.
The learned counsel further submitted that the entire evidence as collected by the Officers of the Forest Department goes to show that, both the petitioners were at Dhadgaon and subsequently on the next day and thereafter they came to know about seizure of the tractor and trolley. Prior to the date of seizure for about 7 days the tractor, trolley and the driver were at village Bilgaon and there was no communication between the tractor driver and the petitioners. Under such circumstances, no knowledge can be attributed to the petitioners. It is further submitted by the learned counsel for the petitioners that the driver Raghunath has stated that he was threatened by the persons who were 15 to 20 in numbers and were armed with weapons. He was forced to take the tractor towards Dedanpada and to carry the same again after loading of the wooden logs in the tractor. Therefore, taking into consideration the statement of Raghunath there appears no concern of the petitioners with the commission of alleged forest offence. The learned counsel further submitted that the respondent nos.2 and 3 have violated the principles of natural justice by not giving proper opportunity to the petitioners for cross-examination of Abala Chundya Pawara who is the real culprit and who himself has admitted in statement before the respondent nos.2 and 3 that, he is responsible for the commission of the forest offence and has committed the same with the help of 50 persons armed with the weapons. According to learned counsel, therefore, it is clear from the statement of Abala Pawara that the petitioners had no knowledge or connivance for the misuse of the said vehicle nor the driver of the tractor had agreed to load and convey the wooden logs in the trolley and the tractor.
It is further submitted that there is no reference in the proceedings before the respondent nos.2 and 3 about any prosecution against Abala Pawara by Raghunath Mali. If there could have been any case of forest offence, the seizure of property liable for confiscation and forfeiture will be under section 52 of the Forest Act. The term 'forfeiture' refers to the cases wherein there is the criminal prosecution. In the instant case, there is no criminal prosecution but the confiscation is ordered on presumption that forest offence has been committed.
The learned counsel in support of his contention, placed reliance on the judgment of this Court in case of State of Maharashtra Vs. Rajendra Hiralal Patil reported in 1989(1) Bom.C.R. 287 in which this Court held that truck is used for committing the forest offence and if the offence is committed by the driver of the truck without knowledge to the master, the order of the forfeiture of the truck cannot be passed. According to learned counsel, the view taken by this Court is that the forfeiture is a sort of penalty. If the person committing the offence is not the owner then the vehicle cannot be forfeited for the reasons that there will not be penalty to the accused and it would be a penalty to the real owner who had no hand in commission of the offence. Therefore, according to learned counsel, in view of the aforementioned judgment of this Court, the courts below should have returned the tractor to the present petitioner no.1 who is registered owner, instead of passing the order of confiscation.
12. The learned A.P.P. appearing for the State supported the reasons given in order by the Authorised Officer and Sub-Divisional Officer dated 29.6.1995, the reasons given in judgment and order passed by the Conservator of Forest and findings recorded by the Additional Sessions Judge, Nandurbar in his judgment and order dated 4.4.1996. The learned A.P.P. invited my attention to the findings recorded by the Additional Sessions Judge and submitted that since the authorities have appreciated the facts and Additional Sessions Judge has confirmed the orders passed by the authorities this Court may not interfere in writ jurisdiction.
13. After hearing counsel appearing for the petitioners and A.P.P. for the State, I feel it appropriate to refer to the evidence collected by the Authorised Officer and Sub-Divisional Officer before they came to the conclusion to pass the order on 29.6.1995.
On 29.5.1995 statement of the driver, namely, Raghunath Bajirao Mali came to be recorded in pursuance to the notice dated 28th March, 1995 issued by the authority. In his statement, he stated that the said tractor is owned by Smt. Alkabai Chunilal Dusane. It is admitted by him that at the time of incident in question, he was working as a Driver on the said tractor. In his statement, he has stated that under coercion of Abla Pawara he carried out the wooden logs from Dedanpada to Bilgaon. It is stated that on his refusal to carry out the wooden logs there was threat of assault by Abala Pawara and his 15 to 20 persons. It is further stated that due to threat of assault and to save his life he had agreed to carry the wooden logs from Dedanpada to Bilgaon. It is also stated in his statement that in his presence the Forest Officers have seized the wooden logs carried by him in tractor and on the direction of the Forest Officers he had deposited the tractor at Dhadgaon Depot. It is further stated that the owner of the tractor is residing at Dhadgaon which is 30 Kms. away from Bilgaon where tractor was engaged for some work. According to him, he could not get time to inform his owner about said incident of carrying out wooden logs under threats of Abala Pawara and only on the second day of the incident he told this fact to the tractor owner.
14. There is also statement dated 7.4.1995 of Abala Chondya Pawara. In his statement he has stated that on 29th March, 1995 while carrying the wooden logs i.e., Sagwan No.39 roughly 1.8 cubic metre, same was confiscated by the Forest Officer. He has stated that he is residing at Bilgaon. He further stated that the owner of the tractor Shri. Dusane who is Overseer in PWD Dhadgaon, one month prior to incident told him that, the department wants to take out debris from his field and for that department is ready to pay sixty rupees per trip to him. Accordingly, he was involved in process of collection of debris.
On 27th March, 1995 he told the tractor driver that he has concealed some 39 pieces of wooden logs and same are to be carried to another place. On 28th March, 1995 driver Raghunath completed his work to collect the debris from the field of Abala Pawara. At about 10 p.m. on the said day, three labourers, said Raghunath Driver of the tractor went along with him to collect 39 wooden logs and accordingly said wooden logs were loaded in the trolley of the tractor. The said tractor with trolley after loading the wooden logs taken out by Raghunath Mali and after travelling some distance, the said tractor was intercepted by the employees of the Forest Department, namely, Balu Maharaj, Vanpal and Shri. Borde and Pinjari, Vanrakshaks. At that time Abala Pawara ran away from that place. He has admitted in his statement that the said wooden logs is Government property and after cutting some wooden trees he got those wooden logs shifted to some other place. In short, he has admitted that the forest wood was cut by him and same was stored to some other place with an intention to take it out for the purpose of enlarging his house. He has admitted his guilt and further he has admitted in his statement that without authority and permission said wood trees were cut and he has committed offence. He has further stated that the statement is given on his own and there is no any pressure to give the statement.
15. On perusal of proceedings before Shri. Prakash Natthu Patil, Assistant Conservator of Forest (Regional), North, Dhule, Department of Forest, Shahada it transpires that, when the wood was carried out by the tractor, the driver of the tractor, namely, Raghunath Bajirao Mali was not having any document or passes and said forest wood was being carried without any permit or pass of the said authorities. It is further mentioned that in all 39 teak wood logs were carried illegally. Said Shri. Abala Chondya Pawara had shown the place where the wooden logs were concealed.
There is further reference to the statement of Shri. Abala Chondya Pawara dated 29th March, 1995 in which he has stated that, the forest wood was cut and same was being carried without any permit. The authority has also referred number of documents which are collected by the authority. The authority has referred in details about the facts of the case. The authority while assigning reasons in support of order of confiscation of the tractor with wooden logs has referred to number of statements recorded during the course of hearing given to the driver as well as owner of the tractor and other concerned persons including Abala Chondya Pawara.
16. It is not necessary to narrate the details, however, it is necessary to briefly state reasons recorded by the authority while passing the order of confiscation of the tractor with forest wood. The concerned authority after detailed enquiry and after giving full opportunity to the concerned persons have recorded the findings that, the teak wood was illegally carried through the tractor no.MH-18-A-9887 with trolley no.MH-18-A-8702 on 28th March, 1995 during night time. The said authority further recorded the findings that the wood which was carried through the tractor was teak wood from the State forest. It is further recorded that the teak wood is carried through the tractor by driver with connivance of owner and the driver had knowledge that the forest wood is illegally cut by Abala Pawara and he is carrying the said forest wood without any permit illegally. It is further recorded that the owner/driver under whose control the tractor was given by the owner has not taken all possible and sufficient care to see that the forest wood which is carried by the tractor is illegally cut forest wood and is being carried without any valid permit from the forest department.
The authority has recorded the statements of Abala Chondya Pawara on 16.6.1995 who has stated whatever he has stated in his statement on 7.4.1995 before the authority i.e., Conservator of Forest Mr. Akrani. Abala Pawara further stated that the forest wood was illegally cut and transported with the consent of driver and the driver has accepted Rs.200/- for carrying the said forest wood. In his statement Shri. Abala Pawara has further stated that he never threatened tractor driver Shri. Raghunath Mali or there were no 15 to 20 persons with an axe and sticks to threaten tractor driver Shri. Raghunath Mali. He has further stated in his statement that the tractor owner Shri. Dusane himself came to him and requested for collecting debris from his field and he agreed to pay Rs.60/- per tractor for debris. He has further stated that till date in his field the debris which was collected to sell it to Shri. Dusane owner of the tractor is in existence. He further states that it is at the instance of Shri. Dusane who is the tractor owner and working as Overseer in the PWD department said agreement to supply debris from his field was entered into and, therefore, there is no question of exerting any pressure on the driver of the said tractor for carrying illegally cut forest wood. Said driver accepted Rs.200/- and with his consent, wood was carried through his tractor.
The authority after recording statement of Abala Pawara, cross-examined the driver of the tractor Raghunath Mali in presence of tractor owner Shri. Chunilal Dusane and Smt. Alkabai Chunilal Dusane. During cross-examination the driver disclosed that, two days before carrying the forest wood Shri. Abala Pawara was insisting to carry the teak wood. Shri. Abala Pawara had agreed to give 200 rupees to Shri. Mali, driver of the tractor. Shri. Abala Pawara told the driver Shri. Mali two days before actually carrying the teak wood through the tractor that he wants to transport the illegally cut forest wood by tractor, however, said fact was not disclosed by driver to his owner. He did not inform either to the Forest Officer or Police Officer about the fact that Shri. Abala Pawara has requested him for carrying illegally cut forest wood by his tractor. The driver also knew that Shri. Abala Pawara has concealed large quantity of teak wood. The driver was also aware that in case the forest wood is carried without permit then it is an offence. He further stated that what he has stated in his statement during preliminary enquiry before Conservator Mr. Akrani (Regional) that Abala Pawara has threatened him in case he refused to carry illegally cut forest wood is not true. Said Abala Pawara has never threatened him. He has further stated that whatever he had stated before Mr. Akrani is not correct and he further stated that there was no threat either by Abala Pawara or there were no 15 to 20 persons who were armed with axe to assault him in case if he is not agreeing to carry the forest wood.
17. The concerned authority has further recorded the detailed reasons in support of passing the order of confiscation of tractor along with illegally cut forest teak wood which is loaded in the trolley. It is not necessary to go into the details of the said reasons recorded by the authority.
18. Aggrieved by the order of the confiscation by Shri. Prakash Natthu Patil, Assistant Conservator of Forest (Regional) North Dhule, Forest Department, Shahada, the petitioners herein filed revision under section 61-C of Indian Forest Act before the Conservator of Forest, Dhule Circle, Dhule. The Conservator of Forest has confirmed the order passed by the Assistant Conservator of Forest. The reasons are also recorded by the revisional authority. Thereafter the Criminal Appeal No.52/1995 filed by the present petitioners came to be rejected on 4.4.1996 by well reasoned judgment and order passed by the Additional Sessions Judge, Nandurbar. The Additional Sessions Judge, Nandurbar has recorded the detailed reasons while confirming the orders passed by the Forest Authorities. The Additional Sessions Judge formulated two points. The Additional Sessions Judge elaborately discussed the scope of sections 61-A and 61-B and other relevant sections and came to the conclusion that, for the criminal act committed by the driver the owner cannot escape from his responsibility.
19. Against the final judgment and order dated 4.4.1996 passed by the Additional Sessions Judge, Nandurbar confirming the orders passed by the Conservator of Forest and Additional Conservator of Forest this writ petition is filed.
20. On careful perusal of the entire compilation and record available and affidavit filed by the State Government, I am of the considered view that the writ petition filed by the petitioners deserves to be rejected.
If the statement of the driver, namely, Raghunath Mali, given before the authority who has passed the order of confiscation of the tractor, is perused carefully, and more particularly his cross-examination, would reveal that he has accepted Rs.200/- to carry the forest wood illegally cut by said Abala Pawara without any valid permit from the Forest Department. It is also clear that, two days before actually carrying the forest wood by tractor the driver, namely, Raghunath was fully aware that said Abala Pawara requested him to carry illegally cut forest wood by the tractor which is under his control. The driver of the tractor also knew that Abala Pawara has concealed the illegally cut teak wood. It is also admitted position that the driver Shri. Raghunath was authorised person under whose control tractor was given for carrying debris from the field of Abala Pawara. The owner of the tractor, who is the wife of Shri. Chunilal Dusane, who was working as Overseer in PWD department, cannot escape from the responsibility of the acts done by the driver in view of provisions of section 61-B of the Indian Forest Act. The provisions of Sections 61-A and 61-B of the Forest Act reads thus :
"61-A. Confiscation by Forest Officers of forest-produce is believed to have been committed.- (1) Notwithstanding anything contained in the foregoing provisions of this Chapter or any other law, where a forest-offence is believed to have been committed in respect of timber, sandalwood, firewood, charcoal or any other notified forest-produce which is the property of the State Government, the officer seizing the property under sub-section (1) of section 52 shall, without any unreasonable delay, produce it, together with all tools, boats, vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf by notification in the Official Gazette, not being an officer below the rank of an Assistant conservator of Forests (hereinafter referred to as "the authorised officer").
(2) the State Government may authorise one or more officers for any local area under sub-section (1).
(3) Where an Authorised Officer seizes under sub-section (1) of section 52 any timber, sandalwood, firewood, charcoal or any other notified forest-produce which is the property of the State Government or any such property is produced before an authorised officer under sub-section (1) and he is satisfied that a forest-offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest-offence, order confiscation of the property so seized together with all tools, boats, vehicles and cattle used in committing such offence.
(4)(a) Where the authorised officer, after passing an order of confiscation under sub-section (3), is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof and the tools, boats, vehicles and cattle to be sold by public auction.
(b) Where any confiscated property or the tools, boats, vehicles and cattle are sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto shall, where the order of confiscation made under this section is set aside or annulled by an order under section 61-C or 61-D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.
61-B. Issue of show cause notice before confiscation under section 61-A.- (1) No order confiscating any timber, sandalwood, firewood, charcoal or any other notified forest-produce, tools, boats, vehicles or cattle shall be made under section 61-A except after notice in writing to the person from whom it is seized and considering his objections, if any :
Provided that no order confiscating a 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 considering his objections, if any.
(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 authorised 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 responsible and necessary precautions against such use."
21. On careful perusal of language of section 61-B (2) of the Indian Forest Act, it is clear that the liability of the owner has been made absolute under the Act subject to the exceptions stated hereinafter (i) that the vehicle was used in commission of forest offence without knowledge and connivance of (a) owner, (b) his agent, if any, (c) person in-charge; (ii) that each of them have taken all reasonable precautions against such use.
In the instant case the driver was the sole person in-charge of the vehicle and said vehicle was used in the commission of forest offence with his full knowledge and connivance. The driver Shri. Raghunath Mali was in-charge of the vehicle. The driver has stated that his wooden logs were carried over by him on the say of Abala Pawara and Abala Pawara requested him on 27th March, 1995 that he has to carry wooden logs by his tractor. The illegally cut wooden logs were carried by his tractor on 28th March, 1995 at about 8 p.m. The cross-examination of the driver before the authority clearly discloses that he was not forced to carry the wooden logs under threat but consideration of Rs.200/- was agreed for carrying illegally cut wooden logs. Even if it is presumed that the owner of the tractor and her husband came to know about carrying of illegally cut wooden logs by their tractor (on the next day - Ed), they cannot escape from the responsibility in view of the provisions of section 61-B(2) of the Indian Forest Act as applicable for the State of Maharashtra.
The Government of Maharashtra has amended the provisions of Sections 52 and 61 of the Indian Forest Act, 1927 by Maharashtra Act No.7 of 1985. After Section 61 of the Principal Act, sub-section has been inserted and in view of the new amendment, when the Forest Officer is satisfied that the forest offence has been committed in respect of forest property of the State, the Authorised Officer may, whether or not a prosecution is instituted for the commission of forest-offence, order confiscation of the property so seized together with all tools, boats, vehicles and cattle used in the commission of forest-offence. It is noticed by the Sessions Court that the prosecution has been instituted against the offender in the Court of J.M.F.C., Taloda. Though the launching prosecution is nothing to do with the confiscation of the wooden logs. In the instant case it is noticed by the Sessions Court that the prosecution has been instituted against the offender in the Court of J.M.F.C., Taloda.
22. On careful perusal of the reasons recorded in support of passing the order of confiscation by the authority, the reasons recorded by the revisional authority and the findings given by the Additional Sessions Judge, Nandurbar it is clear that no case is made out by the petitioners to upset the findings of the facts recorded by the Courts. The provisions of Section 61-B(2) of the Indian Forest Act as applicable to the Maharashtra State are very clear.
This Court had an occasion to interpret and consider the provisions of section 61-B in case of State of Maharashtra and another Vs. Smt. Taranjeet Kaur wd/o. Balwantsingh Sethi in Criminal Writ Petition No.63 of 1990 and the Division Bench of this Court in para 5 has recorded that the liability of the owner has been made absolute under the Act subject to the exceptions stated in the said para.
"8. It is true that such an interpretation can yield really harsh result for an owner of a vehicle, but if such result is intended and such a measure is considered necessary in public interest, there is no justification for departing from the first and elementary rule of construction of giving plain and literal meaning to the words used. There is a definite objective behind introducing section 61-A to section 61-G in the Act by the Maharashtra Act No.7 of 1985 and that objective is to plug all possible loopholes in enforcement of the provisions of the Act relating to preventing the ever increasing menace of illegal and ruthless exploitation of the Government forest. For variety of reasons - theoretical as well as practical - it become difficult to prevent forest offences and hence such stringent and deterrent measures were introduced. Experience showed that it was so easy even for a guilty owner of a vehicle to throw blame on his employee or agent, make him a scapegoat, wash his hands off by feigning ignorance, avoid consequences of being a party to the commission of forest offence and continue to receive benefits out of the transaction. That experience being the inspiration behind introducing this measure, there is no reason for the Courts to come in the way of achieving the intended result. Normal concepts of vicarious tortious or criminal liability have no place in the provisions."
24. For all the aforesaid reasons, it is difficult to accept the contentions of the learned counsel appearing for the petitioners. What appears from perusal of the pleadings and original record in the case that, the tractor was actually used for illegal transport of the Government forest produce which is undisputed. The tractor was then in the charge of a regular driver in the employment of the owner. The owner learnt about involvement of the vehicle in the forest-offence on the very next day. It has not been her case that she had taken any action against the driver despite her stand that the driver had indulged in the illegal activities without her knowledge and connivance. It is also pertinent to mention that the driver was cross-examined in presence of the petitioners in which he has specifically stated that he had agreed to carry the forest wood with free will and there was no force or any pressure from Abala Pawara as stated in his first statement before the Government authority. He has also stated that, it was agreed that he will accept Rs.200/- for carrying wooden logs. It is also stated by him that, he had information well in advance about carrying the wooden logs by his tractor.
25. The learned counsel for the petitioners placed reliance on two reported judgments of this Court in case of The State of Maharashtra Vs. Rajendra Hiralal Patil and another, reported in 1989(1) Bom.C.R. 287 and in case of Laxman Kisan Mundhe Vs. The Conservator of Forest, Thane and others reported in 1999 ALL MR (Cri) 6. So far first reported judgment is concerned, said judgment has no relevance in the instant case. This Court, after considering facts of that case, has interpreted word "confiscation" and "forfeiture".
In case of Laxman Kisan Mundhe, cited supra, the learned single Judge of this Court has taken a view that, since the owner had no knowledge, the forest authority was not justified in confiscating the truck. It appears from careful reading of this reported judgment of this Court that, the judgment delivered by the Division Bench in case of The State of Maharashtra, through its Secretary, Forest and Revenue Department, Mantralaya Bombay and one another Vs. Smt. Taranjeet Kaur wd/o. Balwantsingh Sethi in Criminal Writ Petition No.63 of 1990 has not been noticed by the learned single Judge. The above mentioned judgment of the Division Bench is directly on the point of interpreting scope of Section 61 of the Indian Forest Act. The facts of that case are also similar to the case in hand. Therefore, the judgment and order passed by the Division Bench in aforementioned judgment is binding on me.
26. In view of the reasons stated hereinabove, the judgment and order passed by the Additional Sessions Judge, Nandurbar confirming the orders passed by the Government Authorities need no interference. The two Government Authorities and Sessions Court have recorded the consistent findings of facts against the present petitioners. Those findings of facts are not perverse. There is no scope for interference, hence Writ Petition is dismissed. Rule is discharged. Interim relief stands vacated. In view of disposal of main petition, Criminal Application No.1442 of 2003 is disposed of.