Ismail Abdulganikhan Pathan vs The State Of Maharshtra And Others
2017 Latest Caselaw 10041 Bom

                                         (1)                       Cri.WP 708 of 2016



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                                   
                CRIMINAL WRIT PETITION NO.708 OF 2016 

Ismail Abdulganikhan Pathan
Age: 36 years, Occu.: Business,
R/o.Jadhavwadi, Cidco,
Aurangabad, Taluka and 
District Aurangabad.                                      ..Petitioner

      VERUS

1)    The State of Maharashtra

2)    Forest Ranger, Ahmednagar,
      320, Bhingar Ropwatika,
      Nagar-Aurangabad Road,
      Ahmednagar, Dist.Ahmednagar.

3)    Designated Officer &
      Assistant Forest Ranger,
      (EGS & Compa), Ahmednagar.
      Dist.Ahmednagar.                                    ..Respondents


                               ...
           Advocate for Petitioner : Mr.Zafar M.Pathan
              APP for respondents : Mr.G.O.Wattamwar
                               ...


                                           CORAM : PRAKASH D.NAIK, J.

RESERVED ON : 20th NOVEMBER, 2017 PRONOUNCED ON : 22nd DECEMBER, 2017

(2) Cri.WP 708 of 2016

JUDGMENT:-

1) The petitioner is aggrieved by the order dated

4.11.2015 passed by the learned District Judge-1 and

Additional Sessions Judge, Newasa, in Criminal Appeal

No.1 of 2015 below Exh.11. The petitioner has also

assailed the order passed by Assistant Conservator of

Forest, Ahmednagar dated 1.12.2014, u/s 61-A of the

Indian Forest Act and the order dated 25.8.2014 passed by

the Tree Officer-cum-Range Forest Officer.

2) The petitioner is the owner of the vehicle

viz.Mahindra Scorpio Jeep MH-23 E-5746. The said vehicle

was involved in an accident, which has allegedly occurred

on 16.3.2014 on Nagar-Aurangabad road. It is alleged

that three gunny bags of Sandalwood were found in the

vehicle and therefore the Sandalwood and vehicle were

seized. Crime No.I-90 of 2014 was registered for the

offence u/s 379 of the Indian Penal Code and under the

provisions of Indian Forest Act. Crime No.91 of 2014 was

registered for offence u/s 304-A, 279, 337, 328, 427 of

(3) Cri.WP 708 of 2016

the Indian Penal Code and Section 184 of Motor Vehicles

Act.

3) The petitioner preferred an application for return

of vehicle before the Court of Judicial Magistrate First

Class, Newasa on 4.6.2014, which was numbered as Criminal

Miscellaneous Application No.240 of 2014. The learned

Magistrate by order dated 24.6.2014 allowed the said

application and Newasa Police Station was directed to

deliver custody of the vehicle to the petitioner on his

executing bond in the sum of Rs.6,00,000/-. It was

further directed that the petitioner shall not alter,

sale, alienate, transfer, convey the custody of the said

vehicle.

4) The petitioner preferred another application for

return of the said vehicle in connection with Crime No.I-

90 of 2014 before the Trial Court, which was numbered as

Miscellaneous Application 241 of 2014. The said

application was rejected by the Court vide order dated

(4) Cri.WP 708 of 2016

24.6.2014. The petitioner preferred Revision Application

No.90 of 2014 challenging the said order. The Sessions

Court vide order dated 26.8.2014, allowed the revision

application by setting aside the order dated 24.6.2014

passed by the learned Judicial Magistrate First Class,

Newasa in Miscellaneous Application No.241 of 2014. The

vehicle was directed to be released to the petitioner on

executing bond of Rs.5,00,000/-. The Crime No.I-90 of

2014, which was registered in Newasa Police Station also

included the charges u/s 41(b)(2) of the Indian Forest

Act and Sections 3, 4 and 5 of the Maharashtra Felling of

Trees Regulation Act, 1964, alongwith Section 379 of the

Indian Penal Code.

5) The Range Forest Officer passed order of seizure of

Mahindra Scorpio Jeep by order dated 25.8.2014. In the

said order, it was stated that the order passed in

accordance with Section 3, 4 and 5 of the Maharashtra

Felling of Trees Regulation Act, 1964. The vehicle was

confiscated with the Government alongwith the Sandalwood.

                                     (5)                      Cri.WP 708 of 2016




6)    In   pursuant   to   the   order   dated   25.8.2014,   the 

Assistant Conservator of Forest passed an order of

confiscation vide Section 61-A of the Indian Forest Act

on 1.12.2014.

7) The petitioner preferred an Criminal Appeal before

the District and Sessions Judge, Newasa bearing No.1 of

2015 and challenged the order dated 1.12.2014, passed by

the Assistant Conservator of Forest u/s 61-A of the

Forest Act. The said appeal was dismissed on 4.11.2015.

Hence, the petitioner has approached this Court

challenging the aforesaid order.

8) The learned counsel for the Petitioner submitted

that the vehicle was ordered to be returned to the

petitioner by the Court vide order dated 24.6.2014 and

26.8.2014. The order dated 25.8.2014 was passed

confiscating the vehicle under the provisions of the

Maharashtra Felling of Trees Regulation Act, 1964, which

(6) Cri.WP 708 of 2016

was followed by another order dated 1.12.2014 passed by

the Assistant Conservator of Forest confiscating the

vehicle u/s 61-A of the Forest Act.

9) The learned counsel for the petitioner submits that

while passing the aforesaid orders, no notice was issued

to the petitioner and without giving him opportunity, the

said orders were passed. It is submitted that the

Sessions court while dismissing the appeal preferred by

the petitioner has observed in the order dated 4.11.2015

that the order dated 1.12.2014 is non-est as the said

authority ought not to have proceeded with confiscation

in view of the earlier order dated 25.8.2014. It is

submitted that the appeal preferred by the petitioner was

maintainable before the said authority and the Court

ought not to have dismissed the same on the ground of

maintainability. The vehicles were already ordered to be

released on executing bond to the petitioner and earlier

order was frustrated by the subsequent confiscating

order. The order dated 1.12.2014 was passed without

(7) Cri.WP 708 of 2016

giving notice of hearing as contemplated u/s 61-B of the

Indian Forest Act. The Sessions Court ought to have

passed order releasing vehicle.

10) Learned APP submitted that there is no error in the

orders passed by the authorities. The vehicle is

involved in serious crime. It is therefore prayed that

the petition may be dismissed.

11) On perusal of the documents, it appears that the

vehicle was concerned with Crime No.I-90 of 2014 and I-91

of 2014. The first Crime No.I-90 of 2014 relates to the

offence under the Indian Forest Act and Crime No. I-91

of 2014 involved the offence under Section of the Indian

Penal Code. The learned Judicial Magistrate First Class

has allowed the application for return of vehicle in

connection with Crime No.I-91 of 2014. The Sessions

Court has allowed the revision application directing

release of vehicle in connection with Crime No.90 of

2014. The confiscation order was passed on 25.8.2014 by

(8) Cri.WP 708 of 2016

Tree Officer-cum-Range Forest Officer by exercising

powers u/s 3, 4 and 5 of the Maharashtra Felling of Trees

Regulation Act. The Assistant Conservator of Forest

passed order of confiscation u/s 61-A of the Forest Act

on 1.12.2014. While passing the said orders, apparently

no notice was given to the petitioner.

12) In case of Mangal s/o Balasaheb Deshmane vs. State

of Maharashtra & Anr. [2008 All M.R. (Cri) 3436], it has

been observed by this Court that the order confiscating

the motor vehicle u/s 61-B of the Indian Forest Act,

cannot be made without giving notice in writing to the

registered owner thereof. In the said decision,

reference was also made to another decision in the case

of Inderjit Sing Vs. State of Maharashtra [1990 (3)

(Cri.) 779] wherein it was observed that there was no

show cause notice prior to confiscation order order to

the owner of vehicle, therefore, the order requires to be

set aside.

(9) Cri.WP 708 of 2016

13) It is pertinent to note that the petitioner had

preferred an appeal before the Sessions Court, which was

dismissed on the ground that it is not maintainable. The

petitioner has challenged the order dated 1.12.2014. The

Court observed in the order dated 4.11.2015 that once the

seizure proceedings were hold under the Maharashtra

Felling of Trees Regulation Act, no fresh proceedings

could have been initiated under the provisions of the

Indian Forest Act. Thus, the subsequent order of

confiscation u/s 61 of the Indian Forest Act passed by

the Assistant Conservator of Forest on 1.12.2014 is non-

est. It was therefore observed that no appeal can be

preferred against that order. The order of Sessions

Court thus makes it clear that the order dated 1.12.2014

is not in existence, however, the Court did not set aside

the said order. Surprisingly, the Sessions Court held

that appeal is not maintainable against the order of the

Forest Officer before the said Court. The Sessions Court

then could have set aside the order dated 1.12.2014.

However, from the order dated 4.11.2015, it can be

( 10 ) Cri.WP 708 of 2016

inferred that the Sessions Court has held that the order

dated 1.12.2014 is non-est in view of the earlier order

dated 25.8.2014. The petitioner was not heard before

passing the order dated 1.12.2014. Since the order

becomes non-est for reasons stated by the Court and also

considering the fact that it was passed without hearing

the petitioner, the said order is bad in law. In the

circumstances, the confiscation order dated 1.12.2014 is

required to be set aside.

14) In the appeal preferred before the Sessions Court

viz. Appeal No.1 of 2015, which is referred to herein

above, the petitioner has stated that the petitioner had

preferred an appeal against the order dated 25.8.2014,

before the Collector, Ahmednagar. Since the said

authority has no power to entertain the same, the appeal

has been preferred before Deputy Conservator of Forest,

which is pending and during the pendency of the said

appeal, the order dated 1.12.2014 has been passed. It is

therefore, apparent that the appeal preferred by the

( 11 ) Cri.WP 708 of 2016

petitioner is pending before the said authority against

the order dated 25.8.2014. The said authority can be

directed to decide the appeal preferred by the petitioner

challenging the order dated 25.8.2014 and there would be

no embargo upon the authority to consider the same since

the order dated 1.12.2014 is being set aside. In the

aforesaid circumstances, I pass the following order:-

ORDER

(I) Criminal Writ Petition No.708 of 2016 is partly allowed.

(II) The order dated 1.12.2014 passed by the Assistant Conservator of Forest, Ahmednagar u/s 61-A of the Indian Forest Act, is set aside.

                 (III)           The   appeal   preferred   by   the 
                 petitioner              before           the         Deputy 

Conservator of Forest challenging the order dated 25.8.2014 passed by Tree Officer-cum-Range Forest Officer, Ahmednagar, be decided in accordance with law.

[PRAKASH D.NAIK, J.] SPT/Cri.WP 708 of 2016