Mohd. Ashique Vs.
State of Maharashtra [2008] INSC 1969 (18 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1834 OF 2008
(Arising out of SLP (Crl.) No. 3003 of 2006) Mohd. Ashique ...Appellant Versus
State of Maharashtra ...Respondent
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 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 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.
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:
5 "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
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