Bhagwandas S/O Kasturchand ... vs State Of Maharashtra, Through The ...
2017 Latest Caselaw 7339 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH : NAGPUR


                  CRIMINAL WRIT PETITION NO.733 OF 2015


Bhagwandas s/o Kasturchand Agrawal,
aged about major, occupation : nil, 
r/o At Post Risama, Tahsil Amgaon,
District Gondia.                                           ...            Petitioner
                 - Versus -
1)      State of Maharashtra, through
the Conservator of Forest, Gondia 
Forest Division, Gondia. 


2)      The Assistant Conservator of
Forest, Authorised Officer (Tendu 
Leaves), Forest Division, Gondia.                          ...            Respondents
                                   -----------------
Shri Rohit P.  Masurkar, Advocate for petitioner. 
Smt. G. Tiwari, Additional Public Prosecutor for respondents. 
                                   ----------------

                                          CORAM :   P.N. DESHMUKH, J.

DATED : SEPTEMBER 20, 2017

ORAL JUDGMENT :

Heard Shri Masurkar, learned Counsel for petitioner, and

Smt. Tiwari, learned Additional Public Prosecutor for respondents.

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2)               Challenge in this petition is to judgment dated 14/8/2015

passed by learned Sessions Judge, Gondia in Criminal Appeal No.

2/2015 whereby petitioner's appeal under Section 61-D of Indian

Forest Act, 1927 (hereinafter referred to as "Act of 1927") came to

be dismissed.

3) Before proceeding, it is noted that in the earlier round of

litigation, vide Writ Petition No. 103/1998, petitioner had

challenged confiscation of his saw mill as well as order passed in the

appeal preferred under Section 61-D of the Act of 1927 vide

Criminal Appeal No. 9/1997, which came to be dismissed by learned

Additional Sessions Judge, Gondia on 7/3/1998. Said appeal was

preferred against order of confiscation dated 1/2/1997 passed by

respondent no.2 Authorised Officer under the Act of 1927

confiscating teak wood logs and two saw bands. The said petition

was disposed of by order dated 12/6/2014 by quashing order of

confiscation dated 1/2/1997 and consequential judgment in

Criminal Appeal No.9/1997 and remanding matter back to

respondent no.2 to consider confiscation order afresh by giving

necessary opportunity to the petitioner to defend his case, within six

weeks. Accordingly by order dated 9/1/2015, after giving

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opportunity to petitioner, respondent no.2 reconsidered order of

confiscation of saw bands and teak wood logs and confiscated the

same, which order was challenged by petitioner by preferring

Criminal Appeal No. 2/2015, judgment of which is impugned in this

petition.

4) It is the case of petitioner that he is owner of saw mill

situated at Amgaon, District Gondia having two saw bands - licence

of one saw band was under process for issuance while another saw

band was in use under valid licence. On 14/8/1996 petitioner was

required to go to Bhilai to attend some family function and his

saw mill was thus in custody and control of his Watchman, namely,

Premsingh Thakur. On that day, some persons visited the saw mill

premises as they wanted to store some teak wood logs in one of the

rooms in occupation of one Bharat Chute situated adjacent to saw

mill premises, which was rented out to said Bharat Chute. In the

circumstances, Watchman had no reason to obstruct said persons not

to keep the wooden logs in that room having no concern with the

saw mill premises.

5)               On   petitioner's   returning   from   Bhilai,   Watchman





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informed aforesaid facts to him for which he visited the office of

respondent no.2. However, he did not find any responsible Officer

present there to whom he could report the matter and, therefore, he

is alleged to have sent communication by post, which, however, is

not on record. It is the further case of petitioner that on 17/8/1996

at about 3.45 p.m. Officers from respondent Department raided the

saw mill premises and recovered eight wooden logs from room

rented to and in occupation of Bharat Chute, which was situated

outside the saw mill premises. However, for the above reason,

petitioner's saw mill came to be seized and sealed even when no

event took place in it or storage of teak wood logs in a room

adjoining to saw mill was beyond the control of petitioner. Apart

from seizure of saw mill under Section 52 of the Act of 1927, forest

offence came to be registered against petitioner and during the

course, saw mill came to be confiscated, which order was challenged

in appeal, which was dismissed as aforesaid.

6) Shri Masurkar, learned Counsel for petitioner, in the

background of above facts, has submitted that action on the part of

Officers of the respondent Department to visit saw mill premises of

petitioner for the purpose of recovery of teak wood logs was an

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outcome of the incident, which was noticed by them on 16/8/1996

in Navatola forest area in Gondia when the forest officials were

doing routine check up. They noticed illegal felling of some teak

trees and thus after taking note of said fact, drew panchanama and

registered forest offence against unknown persons and during the

course of investigation, happened to visit petitioner's saw mill. Thus,

it is submitted that the case of respondent Department is that eight

teak wood logs, which were found in the room situated adjoining to

petitioner's saw mill are the same teak wood logs, which were

illegally cut on 16/8/1996 in Navatola forest division. Learned

Counsel for petitioner has further contended that in fact from the

record, there is nothing to establish that the teak wood logs, which

came to be recovered admittedly from the room, over which

petitioner had no control of any sort, are the same logs, which were

found illegally cut in Navatola Forest Range. It is further contended

that in view of above background, seizure and confiscation of

petitioner's saw mill is totally uncalled for. It is, therefore, prayed

that the impugned orders are liable to be quashed and set aside.

7) Shri Masurkar, learned Counsel for petitioner, has further

contended that petitioner along with other co-accused has been

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acquitted in criminal case, which was registered against them with

reference to same incident and appeal being Criminal Appeal

No.23/1999 preferred by State before this Court against acquittal of

petitioner came to be dismissed mainly on the ground that

respondent Department had failed to establish that the storage of

eight wooden logs found in the room adjacent to saw mill of

petitioner was in any way related to any functioning of saw mill or

was to the knowledge of petitioner when same came to be stored. It

is, therefore, contended that even on this count, petition is liable to

be allowed and impugned orders are liable to be quashed and set

aside.

8) Smt. Tiwari, learned Additional Public Prosecutor for

respondents, on the other hand, has supported the impugned orders

contending that order passed by the Authorised Officer confiscating

eight teak wood logs found in the room of the saw mill is just and

proper as when same came to be seized, they were not having

hammer marks nor petitioner could produce any transit pass for

transporting the same to the saw mill. It is thus submitted that

action initiated by respondent Department under Section 52 of the

Act of 1927 seizing and confiscating saw mill as well as truck bearing

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Registration No. MWY 5459 is just and proper. This petition is only

with regards to seizure and confiscation of saw mill.

9) In view of facts involved in the petition and submissions

advanced, question that arises for determination and which is

subject matter of controversy as raised by learned Counsel for parties

is whether saw mill, which is not actually being used for the purpose

of committing any forest offence, is liable for seizure and

confiscation under the provisions of Chapter IX of the Act of 1927.

10) For that purpose, it may be convenient to reproduce

Section 52 of the Act of 1927 as under :

"Section 52 - Seizure of property liable to confiscation - (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, vehicles or cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer.

(1-A) Any Forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest-produce in respect of which there is reason to believe that a forest-offence has been or is being committed, require the driver or other person in

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charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.

(2) Every Officer seizing any property under this section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :

Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

Provided further that, where the offence on account of which the seizure has been made is in respect of timber, sandalwood, firewood, charcoal or such other forest- produce as may be notified by the State Government from time to time (hereinafter referred to as the "notified forest -produce") and which is the property of the State Government, such Officer shall make a report of such seizure also to the concerned authorised officer under

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Section 61-A.

Explanation - For the purposes of this Chapter, the expressions "property of Government" and "property of the State Government" include the property belonging to the Forest Department Corporation of Maharashtra Limited".

11) The aforesaid provision makes it clear that the power of

any Forest Officer or Police Officer to seize any vehicle can arise only

when there is reason to believe that forest offence has been

committed. The aforesaid provision does not allow the Forest

Officer to seize a vehicle when it is likely to be used for commission

of forest offence. This could be clear from the wording of sub-

section (1-A) of Section 52 of the Act of 1927. Under said sub-

section, concerned Officer is authorised if he has reason to believe

that the vehicle has been or is being used for transport of forest

produce or in respect of which there is reason to believe that forest

offence has been or is being committed, to require the Driver or

person in-charge of said vehicle to stop the same, to cause it to

remain stationary for the purpose of examining contents of the

vehicle and to inspect the records.

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12)              In view of the aforesaid provisions of Section 52(1-A) of

the Act of 1927, what is important is that the Forest Officer or Police

Officer must have reason to believe that in the offence committed

under the Forest Act, there is involvement of a vehicle or tools,

boats or cattle, which insofar as present petition is concerned, is saw

mill, which can be said to be saw mill of the petitioner having two

saw bands used therein at the time of incident. Hence, even though

under sub-section (1-A), Forest Officer is authorised to seize such

property, no such act can be done unless he has reason to believe

that such property is involved in the forest offence or is being used

for commission of forest offence. Only in that event, power of

seizure is conferred upon him and this can be said so because the

phrase "or is being used" contained in sub-section (1-A) is

conspicuously absent in sub-section (1) of Section 52 of the Act of

1927.

13) In the light of above said requirement of seizure and

confiscation as can be seen from Section 52 of the Act of 1927, when

case of prosecution is considered as aforesaid, it is that on

16/8/1996 since some forest officials while patrolling noticed illegal

felling of trees in Navatola region of forest, they registered offence

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against unknown persons and during its investigation happened to

reach to petitioner's saw mill and from one of the rooms, which were

in occupation of tenant Bharat Chute recovered eight logs of teak

wood.

14) Perusal of spot panchanama dated 17/8/1996 drawn by

the Officers of the Forest Department reveals that eight teak wood

logs came to be recovered from one of three rooms, which were

situated adjoining to the saw mill premises of petitioner, of which

petitioner since is found in no way concerned with, could not

satisfactorily reply as to how they were found stored in a room nor

could produce any transit pass as admittedly said room at the time of

seizure was in occupation of and rented to one Bharat Chute. This

Court has considered fact of conscious possession of petitioner of

eight teak wood logs and on considering evidence of witnesses on

record has held that prosecution has failed to establish conscious

possession of petitioner over eight teak wood logs found in the

rooms adjacent to petitioner's saw mill. While reaching to this

conclusion, evidence of three witnesses is considered, out of which

P.W.1 was complainant and in his evidence, he has admitted that at

the time of incident, petitioner had rented out the room wherefrom

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logs were recovered to some one else. P.W.2, who was Ranger in

the Forest Department, admitted in his cross-examination that

petitioner was continuously informing that room wherefrom logs

came to be recovered was in occupation of tenant and key thereof

was with tenant. He further admitted that truck, which is seized in

the present offence as found to be used for transporting teak wood

logs was not occupied by petitioner at the time of its interception.

15) While considering evidence of another witness

Nilamchand examined by prosecution, it is noted that one Forest

Guard noted some wooden logs in room no.3 and accordingly raid

was carried out at that room. He has further stated that petitioner

informed the raiding party that the key of the said room was with

the tenant, which was directed by the Officials to be produced and

was accordingly handed over to one Bais and further deposed that

the lock was opened by the key produced by petitioner. This Court

in view of evidence as aforesaid, therefore, observed that since

inception petitioner put forth his case that room no.3 was in

possession of tenant and P.W. 3 Nilamchand categorically stated that

key was brought from the tenant and with that key, lock was

opened, it clearly demonstrates that prosecution has failed to

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establish conscious possession of accused over eight wooden logs

found in the room and in the light of above discussed evidence,

dismissed the appeal of the respondents.

16) It is material to note that when the impugned judgment

came to be passed by learned Sessions Judge, Gondia in Criminal

Appeal No. 2/2015 on 14/8/2015, judgment of this Court in

Criminal Appeal No.23/1999 discussed above was very much

available as it is dated 25/7/2011. However, same does not appear

to have been referred at the time of hearing of appeal though

impugned judgment refers to order passed by this Court in Criminal

Writ Petition No.103/1998 directing respondent no.2 to give

opportunity to petitioner and decide matter afresh within six weeks

as stated in the earlier paragraph.

17) Learned appellate Court while considering evidence of

witnesses, who were examined by respondent Department after writ

petition was disposed of with directions to give hearing to petitioner,

however, found from the evidence of the witnesses examined by the

respondent Department that nothing could be elicited in their cross-

examination. It is material to note that Atmaram Rahangdale, who

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is examined as retired Forest Guard, has stated in his evidence that

on 16/8/1996 while he along with Bankar, Forest labourer and

Jaipal Choudhari was patrolling, they noted felling of five teak trees

of which they prepared spot panchanama. It is further stated that

Forest Officer Bais was informed of above stated felling of trees and

then they reached the petitioner's saw mill, which was found

running at the material time having room situated adjacent to it

and, therefore, has involved petitioner in the present case. It is

noted that there is no evidence establishing any ground suspecting

petitioner's saw mill in this case except for vague evidence of one

Forest official as referred above that he on peeping inside the

window of room no.3 found teak wood logs lying there. If this is the

only reason for raiding saw mill premises of petitioner, then again

respondent Department's case does not establish that teak wood

logs, which were eight in number and recovered from the room are

out of same Navatola area as according to the evidence of Atmaram

Rahangale, he along with other forest staff on 16/8/1996 during

patrolling found felling of five trees. There is no case put forth by

respondent Department as to how in that case total number of eight

teak wood logs were found in the room. Moreover, there is also

nothing to establish that teak wood logs, which were found cut at

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that place are the same logs, which were found in the room adjacent

to petitioner's sawmill, which even otherwise was found to be in

possession of its tenant.

18) Learned appellate Court appears to have given much

weight to the fact that petitioner was not present as stated by him on

the date of raid at his saw-mill, i.e. on 17/8/1996. However,

nothing depends upon said fact as according to petitioner, he was

out of town as he was required to go to Bhilai on 14/8/1996 while

Officers of Forest Department revealed felling of trees on 16/8/1996

and in that background, visited petitioner's saw mill on 17/8/1996.

In that view of the matter, presence of petitioner at the time of

seizure is not of much relevance.

19) Having considered above facts together with provisions of

Section 52 of the Act of 1927, it is found that there does not appear

reason to believe that petitioner's saw mill was involved in any

manner in cutting teak wood illegally and in spite of same, it is

found seized and confiscated.

20)              Aforesaid finding is found further substantiated from the





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case    of   respondent    Department  itself   when   it  is   contended   that

felling of trees was in the forest area. Admittedly, saw mill cannot

be taken to forest for cutting of trees as only cut wood can be

brought to saw mill for cutting purpose. In that view of the

matter, petition is liable to be allowed.

21) In the result, the criminal writ petition is allowed. The

impugned judgment dated 14/8/2015 passed by learned Sessions

Judge, Gondia in Criminal Appeal No. 2/2015 and impugned order

dated 9/1/2015 passed by respondent no.2 are quashed and set

aside.

22) Rule is made absolute in the above terms. No order as to

costs.

JUDGE

khj