Forest Development Corporation ... vs Prakash Mallesh Cheraku And ...
2018 Latest Caselaw 184 Bom

Cri.W.P. No.738/2017                         1

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

               CRIMINAL WRIT PETITION NO.738 OF 2017

Petitioner               :        Forest Development Corporation of
                                  Maharashtra Limited, Forest Division,
                                  Bramhapuri, through Assistant Manager-2,
                                  FDCM Limited, Bramhapuri,
                                  Tahsil Bramhapuri, District Chandrapur.

                                  -- Versus --

Respondents              : 1] Prakash Mallesh Cheraku,
                              Aged about 40 years, Occu : Cultivation,
                              R/o. Sindewahi, Tahsil Sindewahi,
                              District Chandrapur.

                                2] The State of Maharashtra,
                                   through its Secretary,
                                   Department of Revenue & Forest,
                                   Mantralaya, Mumbai.

               =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
               Shri M.M. Sudame, Advocate for the Petitioner.
                Shri R.R. Vyas, Advoate for Respondent No.1.
                Shri H.D. Dubey, A.P.P. for Respondent No.2.
               =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM : S.B. SHUKRE, J.

                         DATE         : 9th JANUARY, 2018.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

02] This petition challenges the legality and correctness of

the order dated 01/08/2017 passed by the learned Additional

Sessions Judge, Chandrapur thereby setting aside the order dated

22/03/2016 passed by the Authorised Officer and Assistant

Manager, Forest Development Corporation of Maharashtra Limited,

Brahmapuri (hereinafter referred to as 'FDCM Limited' for short)

directing confiscation of the seized vehicles, i.e. one tractor and

one trolley bearing Registration Nos.MH-34/L/926 and MH-34//2309

respectively, on the ground that these two vehicles, belonging to

respondent no.1, were used for illegal transportation of teak wood

and other cut wood illegally obtained through illegal felling of teak

and other trees in the forest of FDCM Limited, Bramhapuri.

03] There is an objection taken to the maintainability of this

writ petition by the learned Counsel for respondent no.1. He has

invited my attention to Section 61G of the Indian Forest Act, 1927

(hereinafter referred to as 'the Forest Act' for short), which lays

down that any order passed by the Additional Sessions Judge

hearing an appeal under Section 61D of the Forest Act shall be final

and that no other Court, notwithstanding anything contained

contrary in any law, shall have jurisdiction to make order with

regard to the custody, possession, delivery, disposal or distribution

of seized property including the seized vehicle. The learned

Counsel for the petitioner, however, submits that the bar of

jurisdiction under Section 61G is not applicable to the writ

jurisdiction of this Court under Article 227 of the Constitution of

India, which is extraordinary in it's nature and which is required to

be exercised when a patent illegality is committed in passing the

order by a judicial or quasi judicial authority. According to him,

patent illegality as well as perversity both have been committed in

the present case while passing the impugned order.

04] The objection as to the maintainability of this writ

petition for its adjudication, in turn, depends on the answer that we

would get on the issue as to whether or not any patent illegality or

perversity has been committed by the learned Additional Sessions

Judge while passing the impugned order. If this aspect of the case

can be addressed and resolved properly, we would also have an

answer ready made before us for deciding the question of

maintainability or otherwise of the present writ petition.

05] It is well settled law that in order to exercise power of

confiscation under Section 61A (Maharashtra amendment) of the

Forest Act, it is necessary that there is a seizure of the vehicle used

for commission of forest offence properly made and that the

authorised officer is satisfied that there is a reason for him to

believe that such an offence has been committed in respect of

timber, sandalwood or any other notified forest-produce. It is also

well settled law that the confiscation proceedings are separate and

independent from the prosecution that may be instituted against

the offender and that even if no prosecution has been initiated

against the owner of the seized vehicle, the seized vehicle would

be liable to confiscation if the two conditions just mentioned are

fulfilled. It is equally well settled that if the owner is not to lose the

vehicle by way of confiscation to the State, it would be essential for

him to prove that the seized vehicle was used without his

knowledge for committing the forest offence and that the standard

of proof, required to be tendered by the owner, will not be the same

as is required for proving a criminal offence. The law is that in

order to discharge such a burden, which is placed upon the

shoulder of the owner of the seized vehicle, the owner has to bring

on record a reasonable probability of his not possessing the

requisite knowledge. A useful reference in order to ascertain the

settled position of law, as has been discussed now, could be had to

the cases of :

1. State of West Bengal and others vs. Sujit Kumar Rana - [(2004) 4 SCC 129].

2. State of W.B. vs. Mahua Sarkar - AIR 2008 SC 1591, Ghatge Patil Transport Limited vs. The State of Maharashtra - [2008(2) Mh.L.J.(Cri.)69].

3. Shyamrao s/o Kewalram Kapgate vs. State of Maharashtra and others - [2003 (4) Mh.L.J. 181].

4. Mrs. Kavita Sandip Tandel vs. State of Maharashtra & another in Criminal Writ Petition No.3678/2013.

06] In the present case, it is not in dispute that the

allegation of commission of main forest offence has been made

only against two forest officers viz. Shri G.U. Rathod and Shri G.U.

Dhage, both Forest Guards. The main forest offence has been

registered against the said forest guards together with driver of the

seized vehicles, one Tractor and one Trolley belonging to

respondent no.1. It is also an admitted fact that, it is not registered

against respondent no.1, the owner of the seized vehicles. The

main forest offence alleged against these persons is of illegal felling

of 9 teak trees and 7 other trees growing in the forest belonging to

FDCM Limited, Brahmapuri, punishable under Section 26(1)(f) of

the Forest Act. It is also alleged that after felling of these 16 trees

was over, the cut trees were reduced into logs and transported out

of the forest area by the seized vehicles and unloaded at an illegal

place without having any transit pass, in contravention of Section

41 of the Forest Act and Rule 66 of the Maharashtra Forest Rules,

2014 (for short, Rules 2014"). It is this allegation which has given

rise to controversy involved in this case as it is directed against

respondent no.1.

07] Now, on the back drop of the admitted facts, let us

examine the order of confiscation passed by the authorised officer.

It discloses that the authorised officer was aware that respondent

no.1, the owner of the seized vehicles, was not involved in any

manner in commission of the main forest offence but at the same

time had reason to believe that he was involved in commission of

another illegal act, the act of transportation of the cut teak and

other trees or the forest-produce from a declared forest area, like

Brahmapuri forest range, without any transit pass, the obtaining of

which was the requirement of law in terms of Section 41 of the

Forest Act read with Rule 66 of the Rules, 2014.

08] The learned Counsel for respondent no.1 submits that

the order passed by the authorised officer is perverse for the

reason that it records a finding to begin with that the respondent

no.1 was not involved in commission of the forest offence and then

it goes on to contradict it by holding that the seized vehicles were

indeed involved in illegal transportation of forest produce.

However, I do not find any such dichotomy in the order of the

authorised officer. What he has found is that respondent no.1, as

an owner of the seized vehicles, had nothing to do with illegal

felling of the trees, thereby indicating that he was not involved in

the commission of main offence of illegal tree felling but has further

noted that respondent no.1 was presumed to know that he could

not have allowed his vehicles to be used for the carriage of forest-

produce without any transit pass and that he did not take care to

ensure that before the carriage was allowed, a transit pass was

issued by the competent authority. These observations clearly

implied that complicity of respondent no.1 was very much there in

the transportation of forest produce without obtaining any transit

pass, an act prohibited under the Forest Act as well as Rules, 2014.

So, these findings distinct as they are, cannot be viewed as

characteristically contradictory.

09] The learned Counsel for respondent no.1 further submits

that the authorised officer did not take into consideration all the

facts placed before him particularly the fact that respondent no.1

did possess transit pass for carriage of other forest-produce, that

there was no evidence to show that the forest-produce which was

transported in the night between 23/12/2015 and 24/12/2015 was

the property of the FDCM Limited, and that it was illegally obtained

from the forest of FDCM Limited, Brahmapuri. I find no merit in this

argument, as the statement of respondent no.1 recorded by the

authorised officer and produced before me during the course of the

argument by the learned Counsel for the petitioner, shows that

respondent no.1 never took any such defence before the

authorised officer. It shows that respondent no.1 did not plead

before the authorised officer that he was in possession of transit

pass in respect of the other forest-produce and that there was no

evidence available on record establishing nexus of the forest-

produce carried by the seized vehicles with the trees in the

Bramhapuri Range of the FDCM Limited. On the contrary, the

statement of respondent no.1 given by him before the authorised

officer discloses that he admits that seized vehicles were indeed

used for transportation of the very same timber, which was

obtained through illegal felling of teak and other trees standing in

the forest range of FDCM Limited at Bramhapuri. Therefore, there

was no occasion for the authorised officer to consider any such

defence. In fact, the admissions of respondent no.1 expose

hallowness of the defence now taken by him and reasonably

establish the facts that his vehicles were used for transportation of

forest produce and that he had not obtained any transit pass for

their carriage despite his having knowledge about the need for

obtaining it. As such, the order passed by the authorised officer,

could not be said to be perverse.

10] The order of the authorised officer, a careful reading of

which, in my view, does disclose proper application of mind to the

facts so established on record. In the present case, as stated

earlier, the main forest offence was of illegal felling of teak and

other trees in the forest area belonging to FDCM Limited. This

offence was in terms of Section 26(1)(f) of the Forest Act.

Admittedly, in this offence, respondent no.1 was not involved. But

the matter does not end here. After commission of the main forest

offence, yet another prohibited act, which can also be said to be

constituting a distinct forest offence has been committed in the

present case and it is of illegal transportation of the forest-produce

without having any transit pass to carry the same. However, the

learned Counsel for respondent no.1 submits that the authorised

officer did not pin-point as to exactly which forest offence was

committed by respondent no.1 and that there is no prosecution

launched for any forest offence against respondent no.1. About the

second limb of this argument, I may only say that the settled

position of law discussed earlier deals with it and denotes that non-

prosecution for any forest offence does not adversely impact the

confiscation proceedings. The first part of this argument, of course,

needs consideration, which I would do now.

11] Section 41 of the Forest Act prescribes that the control

of all timber and other forest-produce in transit by land or water, is

entirely vested in the State Government. It also empowers the

State Government to make rules to regulate transit of all timber

and other forest-produce. In exercise of the powers under Section

41 of the Forest Act, the State of Maharashtra has framed the

Rules, 2014. Rule 31 of the Rules, 2014 prescribes that no forest-

produce shall be moved into or from or within any District of the

State without a pass issued for such transportation by the

competent officer. So, Section 41 of the Forest Act has been given

complete effect by Rule 31 of the Rules, 2014. There is one more

Section, which calls for our attention. It is Section 42 of the Forest

Act. It empowers the State Government to prescribe penalty by

framing appropriate rules for contravention of any of the provisions

of the rules framed by it in exercise of the powers given to it under

different sections including Section 41 of the Forest Act.

Accordingly, Rule 82 has been inserted in the Rules 2014

prescribing for penalty for contravention of Rule 31. The penalty

prescribed is of an imprisonment for a term which may extend to

one year or fine which may extend to Rs.2,000/- or both. Again,

one has to say that mandate of Section 42 of the Forest Act has

seen it's implementation in Rule 82 of the Rules, 2014. So, it is now

clear that transportation of forest produce in contravention of

Rule31 is an offence, punishable under Rule 82. Now, let us

examine the issue, if contravention of Rule 31 is a forest offence or

not. This is necessary as satisfaction of the authorised officer that

the owner of the vehicle has committed forest offence before

confiscation is ordered by him is one of the pre-requisites of Section

61A of the Forest Act.

12] Section 2(3) of the Forest Act defines forest offence as

under :

"Forest offence" means an offence punishable under

this Act or under any rule made thereunder;

It is clear that forest offence is an offence punishable

under the Forest Act or under any rule made under the Forest Act.

The contravention of Rule 31 regarding transportation of forest-

produce, without transit pass, we have just seen, has been made

an offence punishable with maximum imprisonment of one year

and/or fine of Rs.2,000/- under Rule 82 of the Rules, 2014.

Therefore, the transportation of the forest-produce, which has been

done in the present case sans transit pass by the seized vehicles,

also constituted yet another forest offence. For this forest offence,

the driver of the seized vehicles is already being prosecuted, but

respondent no.1, the owner of the seized vehicles, has been kept

out of the prosecution. The reasons are not known. At the same

time, the law being what it is, as discussed earlier, non-prosecution

of respondent no.1, the owner of the seized vehicles, would have

no adverse impact on the confiscation proceedings initiated in

respect of the seized vehicles by the authorised officer. Then, the

question would arise as to whether the authorised officer could

have directed confiscation of the seized vehicles or not.

13] In the present case, sufficient opportunity was granted

by the authorised officer to the respondent no.1 to make out his

defence. But as seen from the statement given by the respondent

no.1 before the authorised officer, the respondent no.1 admitted

use of the seized vehicles in transportation of the forest-produce

involved in the present case on the one hand and did not adduce

any evidence or bring on record any circumstances, which could

have probabilized his case that he had no knowledge about the use

of the seized vehicles by his driver for transportation of the forest-

produce without getting issued any transit pass for the same. The

respondent no.1 could have produced his driver before the

authorised officer and got him say that he used the vehicles for

transportation of the forest-produce without obtaining any

permission for the same from his owner. The respondent no.1

could have also submitted his driver's written say before the

authorised officer that he did not even inform the owner i.e. the

respondent no.1, about the use of his vehicles for transportation of

the forest-produce. So, one has to say that the burden to prove the

fact that the vehicles were used without knowledge of the owner,

which was there on the shoulders of the respondent no.1, was not

discharged by him even as a reasonable probability. This fact has

been appropriately considered by the authorised officer when he

recorded a finding that if respondent no.1 possessed the knowledge

that his vehicles could not be used for transportation of the forest-

produce without having any transit pass, respondent no.1 ought not

to have allowed his vehicles to be so used and, the fact that he did

allow that user only showed contravention of the relevant rule,

resulting in commission of forest offence and rightly so. This only

showed that as an owner of the seized vehicles, he failed to take

reasonable care in spite of knowing the degree of care that he was

under law, obliged to take, and thus he too committed a forest

offence, though distinct and separate from the main forest offence.

However, the learned Additional Sessions Judge did not consider

this basic aspect of the case and the settled position of law and,

therefore, committed a manifest illegality in returning a finding that

the order passed by the authorised officer was illegal and,

therefore, liable to be quashed and set aside.

14] The illegality committed by the learned Additional

Sessions Judge is ex-facie present on the record of the case. There

is also a perversity, perversity in ignoring admitted facts, which has

gone into the impugned order passed by the learned Additional

Sessions Judge. This would make this petition as maintainable and

holding so, I reject the objection taken in this regard by the learned

Counsel for respondent no.1.

15] In the circumstances, I find that the impugned order

passed by the learned Additional Sessions Judge cannot be

sustained in law while the order passed by the authorised officer

would have to be confirmed.

16] In the result, following order is passed :

i. The writ petition is allowed.

ii. The impugned order passed by the learned Additional

Sessions Judge is quashed and set aside and the order

of the authorised officer is confirmed.

iii. Rule is made absolute in these terms.

(S.B. SHUKRE, J.) *sdw