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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.210 OF 2010.
PETITIONERS: 1. Shri P.S.Chandre,
Forest Officer, Motala Range,
Tq.Motala, Distt.Buldana.
2. Range Forest Officer, Motala,
Distt.Buldana.
3. State of Maharashtra,
through Deputy Conservator of
Forest, Buldana.
: VERSUS :
RESPONDENT: Narayan s/o Vithoba Gore,
aged 30 years, Occu: cowherd,
R/o Nimkhed, Tq.Motala, Distt.
Buldana.
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Mr.K.R.Lule, APP for the petitioners.
None for the respondent.
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CORAM: P.N.DESHMUKH, J.
DATED: 5th JULY, 2017. ORAL JUDGMENT: 1. Rule. Rule is made returnable forthwith. Heard finally by ::: Uploaded on - 07/07/2017 ::: Downloaded on - 08/07/2017 00:54:14 ::: 2 consent of learned counsel of both the parties.
2. Challenge in this petition is to impugned judgment and order dated 9th December, 2009 passed by learned Ad hoc Additional Sessions Judge-2, Khamgaon, vide which appeal preferred by respondent came to be allowed directing petitioner to return cattle of respondent, if impounded, back to him on payment of requisite fine if imposed. Learned Additional Public Prosecutor Shri K.R.Lule, on instructions, makes a statement that though cattle (horses) involved in the present petition were impounded, no fine was collected from the respondent. This Court by order dated 17th March, 2011, while issuing Rule had granted interim relief in terms of prayer Clause (2) of the petition in effect, stay to effect and operation of impugned judgment dated 9 th December, 2009.
3. Facts in brief involved in the petition can be stated as under :-
While petitioner no.1 was patrolling in forest area at Pimpalgaon Nath in Motala Range, Distt.Buldhana, he found two horses and two mares, grazing in the forest area and were unattended and as it ::: Uploaded on - 07/07/2017 ::: Downloaded on - 08/07/2017 00:54:14 ::: 3 was noted that the cattle had damaged forest produce worth Rs.25000/-, they were seized and confiscation proceedings were initiated under the provisions of Forest Act after registering the forest offence. On due enquiry, award came to be passed by the competent authority on 7th November, 1997 against which appeal was preferred which came to be decided under the impugned order dated 9 th December, 2009. Facts of cattle including two horses and two mares belonging to respondent were seized by the petitioner/department, are not disputed as they were found unattended, grazing in the forest area and had caused damage to forest produce. From the impugned order it is noted that at the time of hearing of appeal before the said Forum, seizure panchanama in respect of seizure of cattle, FIR in respect of forest offence lodged by petitioner no.1 and statements of eye witnesses were not forming part of record as said documents were not traceable. The Court below, in the absence of any documents, particularly statements of witnesses alleged to be recorded during the course of investigation by the petitioner's officers, establishing fact of respondent's cattle grazing in the forest land and thus causing damages to forest produce, had rightly held that there was no document to arrive to the conclusion that respondent's cattle had entered forest area and while ::: Uploaded on - 07/07/2017 ::: Downloaded on - 08/07/2017 00:54:14 ::: 4 grazing on forest land had caused damage to the forest produce. On observing as aforesaid, learned Ad hoc Additional Sessions Judge, in the absence of evidence on record, had noted that the findings of the Forest Officer as such, cannot sustain and thereby allowed the appeal.
4. Perusal of record and proceedings reveals that there is no spot panchanama in respect of damages to forest produce is on record, though some cursory reference is made to that effect in seizure panchanama of cattle wherein it is mentioned that cattle are seized as they have caused damages to 100 to 150 plantations in the forest area. In any event it is material to note that no spot panchanama is on record. Similarly, though the fact finding report refers to statement of two eyewitnesses, no such statements are also on record. Apart from above documents, even there is no copy of notice on record issued to respondent under the provisions of Section 61B of the Indian Forest Act, 1927. It is reiterated that above stated documents were not on record even when appeal was considered by the lower Court as were not traceable and thus, for want of such documents, it was rightly held that there was nothing on record to arrive to the conclusion that the respondent's cattle were found grazing in the forest land or had caused ::: Uploaded on - 07/07/2017 ::: Downloaded on - 08/07/2017 00:54:14 ::: 5 damage to the forest produce. In the result, there is no substance in the petition. Same is dismissed. Rule discharged.
JUDGE chute ::: Uploaded on - 07/07/2017 ::: Downloaded on - 08/07/2017 00:54:14 :::