Forest Development Corporation ... vs Smt. Ratnamala Narayan Bharadkar ...
2018 Latest Caselaw 195 Bom

Cri.W.P. No.737/2017                         1

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

               CRIMINAL WRIT PETITION NO.737 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] Smt. Ratnamala Narayan Bharadkar,
                              Aged about 47 years,
                              Occu : Cultivation & Business, ,
                              R/o. Heti Ward No.6, 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.
                         None 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 in terms of order

passed by this Court on 3rd November, 2017 indicating that

endeavour shall be made to dispose of the petition finally at the

stage of admission. Accordingly, I have heard the learned Counsel

for the petitioner and the learned A.P.P. for respondent no.2-State.

Nobody appears on behalf of respondent no.1.

02] This writ petition challenges the order dated 01/08/2017

passed by the learned Additional Sessions Judge, Chandrapur

upsetting the order of the Authorised Officer and Assistant

Manager, Forest Development Corporation of Maharashtra Limited,

Brahmapuri, dated 22/03/2016 passed under Section 61A of the

Indian Forest Act, 1927 ('Forest Act' for short).

03] The effect of the order passed by the learned Additional

Sessions Judge, Chandrapur is that confiscation of the tractor and

trolley seized in the present case, bearing Registration No.MH-

34/L/5054 and MH-34/L/5420, owned by respondent no.1, ordered

by the Authorised Officer, has been reversed and these seized

vehicles have been directed to be handed over to the custody of

respondent no.1 on executing an Indemnity Bond of Rs.10,00,000/-

within stipulated period of time.

04] The learned Counsel for the petitioner submits that the

impugned order is manifestly illegal as it ignores the well settled

position of law, in particularly, the principle that it is for the owner

of the seized vehicles used for commission of a forest offence to

prove that the seized vehicles were not used for commission of any

forest offence or were used for commission of such an offence but

without his knowledge. This burden of proof, which is there on the

shoulders of the owner of the seized vehicles, has not been

discharged by the owner of the seized vehicles in the present case

i.e. respondent no.1, even as a reasonable probability, so submits

the learned Counsel for the petitioner.

05] The learned A.P.P. for the State-respondent no.2

supports the order of the Authorised Officer.

06] The undisputed facts of the present case are as follows :

The main forest offence registered in the present case is

about illegal felling of 9 teak trees and 7 other trees growing in the

forest belonging to F.D.C.M. Limited, Brahmapuri (petitioner)

punishable under Section 26(1)(f) of the Forest Act. This offence

has been registered against two forest officers viz. Shri G.U. Rathod

and Shri G.U. Dhage, both Forest Guards and some labourers and

drivers of the seized vehicles. The other allegation is 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 ('Rules 2014' for short).

07] In Writ Petition No.738/2017, FDCM Limited vs. Prakash

Mallesh Cheraku and another, decided just now i.e. 9 th January,

2018, I have already taken a view that contravention of Rule 66 of

the Rules, 2014 having been made punishable under Rule 82 of the

Rules, 2014 is also a forest offence within the meaning of Section

2(3) of the Forest Act. So, illegal transportation of the cut teak

trees and other trees by the seized vehicles, which has occurred in

the present case, also constitutes a forest offence.

08] For transportation of the cut trees, which constituted a

forest produce, two sets of tractors and trolleys were used. One set

of tractor and trolley belonged to one Prakash Mallesh Cheraku, the

respondent no.1 in Writ Petition No.738/2017 and the other set of

tractor and trolley bearing Registration No.MH-34/L/5054 and MH-

34/L/5420 respectively, involved in the present case, belonged to

respondent no.1 herein.

09] In the aforestated background of facts, let us now

examine the impugned order passed by the learned Additional

Sessions Judge as well as the order passed by the Authorised

Officer.

10] While the main offence has not been registered against

the owner of the seized vehicles i.e. respondent no.1 in the present

case, the second allegation regarding illegal transportation of the

cut trees without having any transit pass despite possessing

knowledge about the same has been made against respondent

no.1. The learned Additional Session Judge has held that no forest

offence for illegal felling of the trees has been registered against

respondent no.1 and the allegation was that the seized vehicles

were used for transportation of the forest produce not for the driver

himself or for the owner, but were used on the directions of the

employees of the forest department for the purposes of the

department and, therefore, respondent no.1, the owner of the

vehicles could not be said to be having any knowledge that his

vehicles were being used for illegal transportation of the forest

produce. The reasoning given by the learned Additional Sessions

Judge for upsetting the order of the Authorised Officer is, however,

not consistent with the settled principles of law.

11] When there is an allegation of commission of forest

offence pertaining to illegal transportation of the forest produce

made against the owner, it has to be examined in the light of well

settled principles of law. The well settled law tells us that it is not

necessary that any prosecution must be launched for the forest

offence alleged against the owner of the seized vehicles and that

confiscation proceedings and prosecution are two separate and

distinct issues having no connection, whatsoever, with each other.

These settled principles of law have already been discussed by me

in detail in the order passed today i.e. 9 th January, 2018 in Writ

Petition No.738/2017. The law requires an Authorised Officer to

examine the material available before him and form an opinion as

to whether or not there is a ground for him to entertain a

reasonable belief that forest offence has been committed and if he

is of the opinion that such forest offence has been committed, he

would be under a duty in terms of Section 61A of the Forest Act to

order confiscation of the seized vehicles used for illegal

transportation of forest produce to the State. These principles also

indicate that it is for the owner of the seized vehicles facing such

an allegation to show that he had no knowledge that his vehicle

would be used for such a purpose and the standard of proof to be

given by him is that of preponderance of probabilities.

12] These principles of law, as stated earlier, have been

ignored completely by the learned Additional Sessions Judge in this

case. This can be guaged if one goes through the order of

Authorised Officer. It's perusal discloses that he was conscience of

the settled principles of law and applied his mind to the facts of the

case. It is further seen that then he considered as to whether or

not these principles of law could be applied to the facts of the case

established on record and examining the whole case accordingly,

the Authorised Officer reached a conclusion that he had reason to

believe that the seized vehicles were used for commission of forest

offence and, therefore, he directed confiscation of the seized

vehicles belonging to respondent no.1. I do not find any perversity

or illegality in the order so passed by the Authorised Officer.

13] It is significant to note here that sufficient opportunity

was afforded to respondent no.1 by the Authorised Officer to

discharge the burden that was upon her shoulders, but same was

not availed of by her. She failed to appear before the Authorised

Officer, in spite of giving sufficient opportunity to her. She did not

submit any written say either before the Authorised Officer. In this

situation, the Authorised Officer considered the statements given

by Kishor Nayaran Bharadkar, son of respondent no.1 and

Digamber Ramdas Bharadkar, the labourer, who was engaged in

loading and unloading operation. Their statements disclosed that

their only defence was that the transportation of the forest produce

by the seized vehicles was allowed by them because they thought

that it was to be made for the purposes of the forest department

and, therefore, they had no reason to doubt the request made for

transportation by the Forest Officers. Their statements also disclose

that they were aware of the fact that no transportation of forest

produce can be allowed to be made by their vehicles unless a

transit pass was obtained before hand. Even if, these persons were

under the belief, albeit erroneously, that the forest produce was to

be transported for the purposes of the Officers or the Forest

Department, still, they ought not to have allowed the use of the

seized vehicles unless the concerned Authorised Officer issued a

transit pass for carriage of the forest produce. The requirement of

law to have a transit pass issued before the transportation of the

forest produce is mandatory, of which these persons and so the

owner were well aware. This requirement of law has been viewed

by this Court in several cases as stringent calling for no relaxation

or liberalization. In order to get over such requirement of law, the

respondent no.1 could have made her driver Sudhir Dhurve say

before the Authorised Officer that he used the seized vehicles for

transportation of forest produce without intimating or taking prior

permission of the owner, but she did not. This was also not the

defence taken by respondent no.1 before the Authorised Officer.

Therefore, one has to say that absence of requisite knowledge on

the part of respondent no.1 has not been brought on record even

as a reasonable probability by respondent no.1.

14] All the aforestated aspects of the case having been

completely ignored by the learned Additional Sessions Judge, I find

that the order of the learned Additional Sessions Judge cannot be

sustained in the eye of law.

15] 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