Gujarat High Court
Farooqsha Shabbirsha Fakir vs State Of Gujarat on 8 April, 2025
NEUTRAL CITATION
R/SCR.A/1331/2017 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1331 of 2017
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FAROOQSHA SHABBIRSHA FAKIR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/04/2025
ORAL ORDER
1. By way of this petition, the petitioner has prayed to quash and set aside order dated 12.1.2017 passed by the learned Addl. Sessions Judge, Navsari at Ahwa in Criminal Appeal No.4 of 2016.
2. At the outset, I may refer the order dated 21.3.2017 passed by the Coordinate Bench of this Court which reads as under:-
"1. The learned counsel appearing for the applicant herein has placed strong reliance on a decision of this Court in the case of 'Manubhai Babubhai Patel Vs. Deputy Conservator of Forests, Valsad' reported in 1985 (2) GLR 836, wherein, the learned Single Judge after considering the Provisions of Section 61(A) of the Indian Forest Act observed as under:-
"When the word "used" is used in the aforesaid section it would require that the factual and actual user thereof Page 1 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:06:26 IST 2025 NEUTRAL CITATION R/SCR.A/1331/2017 ORDER DATED: 08/04/2025 undefined was made and not that it was about to be used or likely to be used. It would not include the intended use or preparation for the use. It also would not include within the scop of "used" even an attempt to use if at no point of time even the slightest use thereof is made. Therefore, the authorised officer will have the authority to seize alongwith the produce only tools, ropes, chains, boats, vehicle and cattles which are factually used in committing the offence. Unless some factual user of the vehicle is made, at least by placing some material in the tempo, it cannot be seized and consequently it cannot be confiscated. Sub-sec.(2) of the aforesaid sec.61A makes the intention of the legislature very clear as the same word "used" is used for the purpose of passing the order of confiscation of the property so seized together with the tools, ropes, chains, boats, vehicles and cattles used in committing such offence."
2. Reliance is also placed on one another decision of this Court in the case of 'Navinchandra K. Chavda Vs. Range Forest Officer & Another' reported in 1993 (1) GLR 948, wherein, the learned Single Judge observed as under:-
"5. On a plain reading of the proviso to Sec.61B(1), it clearly appears that registered owner of a motor vehicle has been conferred with a right of being heard before confiscation of his motor vehicle. Conferment of such right cannot be in futility for, sub-sec. (2) immediately says that no order of confiscation of a vehicle is to be made, if it is proved to the satisfaction of the Forest Officer that the vehicle was used in carrying forest produce withot the knowledge or connivance of the owner himself, his agent if any, and the person in- charge of the vehicle and that each of them has taken all necessary and reasonable precautions against such use. The protection so conferred upon the owner of the vehicle, both under the proviso as well as sub- sec. (2) quoted above read together would have to be read referable to the owner or to his agent including person in-charge of the vehicle acting within authority. Now when a motor vehicle is used for a regular and lawful transport of goods, the driver who might be the agent or the person in-charge of such vehicle might divert the Page 2 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:06:26 IST 2025 NEUTRAL CITATION R/SCR.A/1331/2017 ORDER DATED: 08/04/2025 undefined vehicle for its unlawful use for carrying forest produce without the knowledge or connivance of the owner and the owner could not be said to have foreseen such an unlawful use. Can in such a case the provision be construed so as to attribute knowledge and connivance of driver to an innocent unwary owner of the vehicle? The answer would be in the negative, since if an innocent unwary owner is to be attributed driver's knowledge or connivance in carrying forest produce, (in which case he obviously acts beyond his authority) the very provision would be rendered nugatory and perhaps void. The rule of construction, therefore, in such cases should be such as would make the provision effective or operative......"
3. It appears from the materials on record that when the three vehicles were seized by the Forest Officer, they were empty. In case at hand, there has not been seizure of the forest produce, but in the case of the Forest Department is that three vehicles were likely to be used in the commission of an offence. The Conservator of Forest in exercise of his powers under the Indian Forest Act ordered confiscation of all the three vehicles.
4. The applicant herein being dissatisfied, preferred a Criminal Appeal under Section-61(d) of the Forest Act before the learned Sessions Court, Navsari at Aahwa. The Criminal Appeal came to be dismissed.
5. Being dissatisfied, the applicant has come up with this application.
6. Ms. Thakore, the learned APP upon instructions from the Officer, who is present in the Court informs that the three vehicles in question have been found to have been used in three undetected offences.
7. The matter requires consideration. Let Rule be issued to the respondents returnable on 28/07/2017. Ms. Thakore, the learned APP waives service of notice of rule for and on behalf of the respondents.
By way of interim order, it is directed that the three Page 3 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:06:26 IST 2025 NEUTRAL CITATION R/SCR.A/1331/2017 ORDER DATED: 08/04/2025 undefined vehicles be released and the possession shall be handed over to the applicant herein on the following terms and conditions:-
(i) The applicant shall execute a bond of the approximately value of of the three vehicles which the authority concerned shall determine, for the production of the three vehicles if and when require before the officer authorized by the Act having jurisdiction to adjudicate the proceedings;
(ii) The applicant shall not sell, transfer or alienate the vehicles in any manner, pending the final disposal of this application.
(iii) The applicant shall not use the vehicles for any illegal or unlawful activity and if found to have been used, the same shall be liable to be seized by the authority concerned at the earliest.
(iv) The applicant is directed to file an undertaking on oath on the above terms, and on filing such undertaking before the authorized officer or the authority concerned, the officer shall immediately release the vehicles and hand over the same to the applicant.
Direct service is permitted."
3. What could be noticed that the learned Session Judge while dismissing the criminal appeal confirmed the order of confiscation of three vehicles namely; (1) Bolero Jeep No.MH 19 Y 5683 (2) Indica Car No.GJ 19 M 119 and (3) Tempo No.MH 03 1649. This Court while passing the interim order, referred to the judgment in case of Manubhai Babubhai Patel Vs. Deputy Conservator of Forests, Valsad reported in 1985(2) GLR 836. The Coordinate Bench of this Court has also observed that three vehicles, which were likely to be used in the commission of the offence were found empty and no forest products were seized Page 4 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:06:26 IST 2025 NEUTRAL CITATION R/SCR.A/1331/2017 ORDER DATED: 08/04/2025 undefined from the said vehicles. It was an apprehension of the forest department that the vehicles are likely to be used in the commission of the offence. The Conservator of Forest therefore, exercised the powers and confiscated the vehicles in question. However, since there is no material found, which could say that the vehicles were carrying forest products, the order passed by the learned Sessions Court confiscating the vehicles is bad in law and requires to be set aside.
4. In the result, present petition is allowed and impugned order dated 12.1.2017 passed by the learned Addl. Sessions Judge, Navsari at Ahwa in Criminal Appeal No.4 of 2016 qua confiscation of vehicles namely; (1) Bolero Jeep No.MH 19 Y 5683 (2) Indica Car No.GJ 19 M 119 and (3) Tempo No.MH 03 1649 is hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.
5. However, the undertaking filed by the petitioner pursuant to the order dated 21.3.2017 that the vehicles in question would not be used for any illegal purpose shall continue to operate.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 5 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:06:26 IST 2025