Bombay High Court
Nadeem S/O Ikramoddin Quazi vs Asst. Consevator Of Forest, ... on 26 September, 2017
Bench: P.N. Deshmukh
1 wp613.2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.613 OF 2008
Nadeem Ahmed s/o Ikramoddin Quazi,
aged about 38 years, occupation :
business, r/o Jalgaon Jamod, Taluq :
Jalgaon Jamod, District Buldhana. ... Petitioner
- Versus -
1) State of Maharashtra, through
Principal Secretary, Forest Department,
Mantralaya, Mumbai.
2) Assistant Conservator of Forest,
Jalgaon Jamod, District Buldhana. ... Respondents
-----------------
Ms. Zeba Khanam, Advocate h/f Shri F.T. Mirza, Advocate for
petitioner.
Shri S. Sirpurkar, Additional Public Prosecutor for respondents.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : SEPTEMBER 26, 2017
ORAL JUDGMENT :
Heard Ms. Khanam, learned Counsel holding for Shri
Mirza, learned Counsel for petitioner, and Shri Sirpurkar, learned
Additional Public Prosecutor for respondents.
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2) At the outset, Shri Sirpurkar, learned Additional Public
Prosecutor for respondents, makes a statement that vehicle bearing
Registration No. MH 28/9643 is lying with respondent no.2.
3) This petition challenges the judgment dated 9/7/2008
passed by learned Additional Sessions Judge, Khamgaon in Criminal
Appeal No. 27/2000 dismissing the same, by which challenge was
made to the order dated 9/3/2000 passed by respondent no.2
confiscating vehicle bearing Registration No. MH 28/9643 owned by
petitioner alleging to be involved in commission of forest offence.
4) It appears to be the case of respondent Department that
aforesaid vehicle was found transporting timber from village
Sungaon to Jalgaon Jamod without valid transit pass on 18/1/1998
and on interception of such vehicle, on report lodged to Police
Station, Jalgaon Jamod, Crime No.40/1998 came to be registered
for the offences punishable under Section 406 read with Section 34
of Indian Penal Code and Sections 26, 42 and 61 of Indian Forest
Act. Vehicle of petitioner bearing Registration No. MH 28/9643
as aforesaid came to be seized, which was empty as no timber was
found in it when seizure came to be effected. The Authorised Officer
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under the Indian Forest Act on holding enquiry found that the
vehicle was involved in commission of forest offence and ordered its
confiscation. The said order passed by respondent no.2 was assailed
by petitioner by way of appeal under Section 61-D of the Indian
Forest Act, which came to be dismissed. Hence, this petition.
5) Ms. Khanam, learned Counsel for petitioner, at the outset
has submitted that petitioner came to be falsely involved in the
above case as relations between petitioner and respondent no.2 were
not cordial as respondent no.2 was tenant of petitioner and
petitioner had filed Regular Civil Suit No. 63/1998 against
respondent no.2, which came to be decreed in favour of petitioner by
competent Court at Jalgaon Jamod and since then respondent no.2
had a grudge against petitioner.
6) In the background of above submissions, it is further
contended by learned Counsel for petitioner that one forest labourer,
namely, Bansi Watchu Rathod lodged a false report against one V.D.
Mandekar, Forest Guard that on 18/3/1998 he had transported
some forest wood from his own official quarter to some other place
in petitioner's vehicle and as such, involved petitioner as well as said
4 wp613.2008
V.D. Mandekar, Forest Guard and on his report, offences as aforesaid
came to be registered against them and they were tried vide Criminal
Case No.119/1998 before learned Judicial Magistrate, First Class,
Jalgaon Jamod.
7) It is submitted by learned Counsel for petitioner that
according to respondent no.2, Bansi Rathod was an illiterate person
and forest labourer and in spite of that, he could mention vehicle
number in his report, which fact itself establishes that he was acting
upon instructions by some other person. It is contended that just to
involve petitioner in a false case, respondent no.2 through Bansi
Rathod filed a false report by inserting petitioner's vehicle number
therein. It is also contended that at the time of seizure of vehicle,
same was found empty and, therefore, no offence could be said to
be established against petitioner and since after trial, petitioner and
other co-accused are acquitted in Criminal Case No.119/1998, there
is nothing to establish that petitioner's vehicle was found in forest
offence nor it can be said that said vehicle is liable for confiscation
under Section 61-B of the Indian Forest Act. It is further submitted
that V.D. Mandekar, Forest Guard, who was also subjected to
departmental enquiry, has been exonerated by Enquiry Officer by
5 wp613.2008
order dated 31/3/2008.
8) Shri Sirpurkar, learned Additional Public Prosecutor for
respondents, has supported the impugned orders contending that as
the said vehicle of petitioner was found involved in commission of
forest offence, it was rightly confiscated by respondent no.2. It is,
therefore, submitted that no interference with the impugned orders
is called for.
9) Submissions advanced by Ms. Khanam, learned Counsel
for petitioner, are found duly substantiated from the documents filed
in support of the petition, which establish fact of exoneration of V.D.
Mandekar in departmental enquiry by order dated 31/3/2008 placed
on record at Annexure "C" while petitioner is found acquitted in
Criminal Case No. 119/1998 where he is shown as accused no.6
by learned Magistrate by his judgment dated 4/4/2008.
10) The appellate Court does not appear to have considered
evidence on record in its correct perspective in view of the fact that
though Bansi Rathod has not supported the prosecution case, it is
held that his evidence concludes that vehicle owned by petitioner
6 wp613.2008
was involved in transporting forest produce illegally and observing
as aforesaid, has found that there was no necessity to interfere with
the order of confiscation. The finding of learned appellate Court
does not stand for any reason as from the evidence, which has been
discussed in the judgment by learned Magistrate, it has specifically
come on record that from the witnesses, who are examined as P.W.1,
P.W. 2 and P.W.3, no ingredients of Section 406 of Indian Penal
Code can be said to be established. All other witnesses, i.e. P.W.4 to
P.W.9 did not support the case of prosecution. From the evidence of
P.W.1 to P.W.3 it is found that though according to their evidence,
petitioner's involvement is found to the extent of loading teak wood
in the matador, which was parked near bungalow of forest official at
Sungaon, in the midnight hour on the date of incident, there is no
evidence to establish as to under what circumstances, said forest
produce was entrusted to petitioner or by which forest Authority nor
there is any evidence to establish as to how petitioner disposed of
such forest produce and has thus committed offence of breach of
trust.
11) Involvement of petitioner thus for the offence punishable
under Section 406 read with Section 34 of Indian Penal Code is not
7 wp613.2008
found to be established beyond reasonable doubt. Similarly, with
regards to commission of offence under Indian Forest Act, from the
evidence on record, it is noted that complainant, who for the present
offence could be the best evidence, since did not support the case of
prosecution, there is nothing to establish that petitioner in
contravention of provisions of Section 26(f), 61 and 42 of the Indian
Forest Act has committed any forest offence involving forest
property, i.e. teak wood by illegally transporting it from the spot
near bungalow of the Forest Department situated at Sungaon to
some other place. It is further material to note that even otherwise
at the time of seizure of aforesaid vehicle, same was found empty.
It is, therefore, found that learned appellate Court without
considering evidence as aforesaid dismissed the appeal. In that view
of the matter, petition is liable to succeed.
12) In the result, the petition is allowed. The impugned
judgment dated 9/7/2008 passed by learned Additional Sessions
Judge, Khamgaon in Criminal Appeal No.27/2000 and the impugned
order dated 9/3/2000 passed by respondent no.2 Assistant
Conservator of Forest are quashed and set aside.
8 wp613.2008
13) Rule is made absolute in the above terms. No order as to
costs.
JUDGE
khj
