Mohd. Ashique vs State Of Maharashtra

Mohd. Ashique ...Appellant

Versus

State of Maharashtra ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court, Nagpur Bench, dismissing the writ petition filed under

Articles 226 and 227 of the Constitution of India, 1950 (in short the

`Constitution'). The appellant, the owner of motor vehicle i.e. a truck

bearing registration No.MH-30-B-2897 challenged the order of

confiscation passed by the Assistant Conservator of Forest (Authorised Officer) under section 61-A of the Indian Forest Act, 1927 (in short the

`Act'). The truck was found involved in forest offence on 7.1.1999. It was

found that illicitly felled Nimb Wood and Katsawar wood were being

transported. The order of confiscation under Section 61-A of the Act was

challenged in appeal under Section 61-D of the Act which was dismissed by

learned Sessions Judge, Akola. While admitting the writ petition, the High

Court stayed both the orders and directed release of the truck in favour of

the appellant subject to certain conditions.

2. Factual background as stated by the appellant is as follows:

According to him truck belongs to him and he had engaged one

Mohd. Shabbir, resident of Medshi for transportation of timber on

07.01.1999. That timber was transported accordingly to Geeta Saw Mill

belonging to Gangaram Manaji Patel of Kolhapur as per transit pass and as

per law. Appellant thereafter learnt that on or about 08.01.1999 the officers

of the Forest Department seized said timber including Katsawar from Geeta

Saw Mill. Thereafter without any reason said officers took away the truck of

appellant which was standing on Mankarna plot near his residence. When

appellant 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 appellant is that seizure of truck on the basis

2 of statement given by owner of Saw Mill is illegal. He, therefore, moved

application before Chief Judicial Magistrate, Akola, for release of the truck.

He also received show-cause notice dated 4.10.2002 from Assistant

Conservator of Forest about the seizure of truck. 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. There were

three passes having number 667308 dated 08.05.1998, 736977 dated

29.10.1998 and 001805 dated 07.01.1999. All these three passes need to be

looked together and the entire timber transported is covered by it. Perusal of

first two passes reveals 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 also pointed out report dated 17.03.1999 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 the

statements in show-cause notice. He contended that show-cause notice

issued was without any verification from the concerned owners & forest

3 rangers. In spite of this, on 17.06.2002, 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.

The High Court found that on examination of the transit passes

involved it was clear that the transit passes do not pertain to any quantity of

Katsawar. Thus the timber of Katsawar which was not there in the earlier

transit passes, could not have been included in the third transit pass

No.001805 dated 7.1.1998 issued in lieu thereof. It was therefore apparent

that alterations were made in the transit passes. Accordingly, the High Court

dismissed the writ petition. The High Court permitted the respondent to

either take the custody of the truck or to confiscate it and in the alternative

to proceed to recover the amount of rupees two lakhs by invoking personal

bond and the bank guarantee. It appears that the custody of the vehicle has

been taken.

3. Learned counsel for the appellant submitted that the factual position

has not been appreciated properly. It has not been shown that the appellant

had taken any personal interest in the alleged changes or any alterations as

alleged.

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4. Learned counsel for the respondent on the other hand supported the

judgment.

5. Relevant provisions in this respect are contained in Section 61-B as

amended by Maharashtra Amendment to the Act. Section 61-A to Section

61-G are added by this amendment. Section 61-prescribes for confiscation

by Forest Officer 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 department 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 provision. 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 purposes. It reads:

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"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 them had taken all reasonable and necessary precaution against such use".

6. While considering present controversy, the purpose behind erecting

the Forest Act cannot be ignored or allowed to be defeated. In State of West

Bengal v. Sujit Kumar Rana (AIR 2004 SC 1851) this Court has made the

following observations in paras 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

6 enjoined with a duty to preserve the forest 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 Articles 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."

7. Above being the position, there is no merit in this appeal which is

accordingly dismissed. However, we make it clear that we have not

expressed any opinion on the merits of the case which is stated to be

pending. However, the truck which has been taken by the respondent

pursuant to the High Court's order shall be sold in public auction and the

money shall be deposited by the concerned Forest Officer in fixed deposit

account. Whether the money is to be confiscated or to be returned to the

appellant shall be decided in the proceedings.

............................................J. (Dr. ARIJIT PASAYAT) ...........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 18, 2008

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