Gujarat High Court
State Of Gujarat vs Ashokbhai Jasubhai Patel on 5 January, 2024
NEUTRAL CITATION
R/SCR.A/10119/2017 ORDER DATED: 05/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 10119 of 2017
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STATE OF GUJARAT & 2 other(s)
Versus
ASHOKBHAI JASUBHAI PATEL
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Appearance:
MR DHAWAN JAYSWAL, APP for the Applicant(s) No. 1
MR JV JAPEE(358) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/01/2024
ORAL ORDER
1. This is an application by the State for confiscation of
the muddamal - JCB Machine bearing registration No.GJ-09-AF-
139, which is released by the learned Sessions Court,
Himmatnagar vide order dated 30.08.2017 in Criminal Appeal
No.18 of 2009, which was seized and ordered of confiscation by
the Authority vide order dated 30.04.2009.
2. Heard learned APP Mr.Dhawan Jaiswal for the
applicant - State and Mr.J.V. Japee, learned advocate for the
respondent.
3. Mr.Jaiswal, learned APP has submitted that the
learned District Court has committed an error of law by not
considering the provisions of Sections 52, 53, 55 and 61 of the
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Indian Forest Act. He has further submitted that the learned trial
Court ought to have considered the seriousness of the damage
caused with the help of the confiscating the JCB Machine. The
two acres is the huge land which was levelled and destroyed with
the help of the JCB machine which is owned by the respondent.
He has submitted that the learned trial Court has committed
gross error in not properly considering the the material available
on the record, more particularly, the statements of about eleven
witnesses who supported the case that the respondent is carrying
out illegal activities with the help of JCB machine. He has
submitted that this application may be allowed by quashing the
impugned order.
4. Mr. Japee, learned advocate for the respondent has
drawn my attention to the fact that on earlier round of litigation,
the order of confiscation is challenged before the learned District
Court, Himmatnagar, the District Court has allowed the matter
and it was challenged before this Court, this Court has remanded
the matter back to the District Court and the learned District
Court has allowed the appeal of the respondent and assigned
detailed reasons. He has also drawn my attention towards the
paragraphs 15 to 19 of the impugned judgment which are
reproduced as under :
"15. Considering rival contentions of both the
sides, in the light of impugned order of the
confiscation of JCB Machine passed by the
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competent authority and record and proceedings
as well as the statement recorded by the Police
Sub Inspector, Vijaynagar in connection of
complaint filed by the employee of appellant, it
can certainly be said that the alleged offence
under the Forest Act had not been witnessed by
anybody. The competent authority has relied on
the statement of one alleged independent witness,
Shankarbhai Jeshabhai Khokhariya, resident of
Tandaliya, Tal.Khedbrahmma dated 09.03.2009
(Exh.319), statement of K.S. Thakore, Vanpal,
Antarsumba (Exh.323), Valjibhai Jagaji Damor,
Vanrakshak (Exh.325), B.R. Pandav, R.F.O.
(Exh.329), R.M. Desai, Assistant Conservator of
Forest (Exh.335), Khant Babubhai Nathabhai,
resident of Chikhala, employee of the Appellant,
Ashokbhai (Exh.249), Chauhan Pravinsinh
Ramsinh, resident of Umari, Tal.Satalasana,
operator/driver of JCB Machine an employee of
appellant (Exh.255), Ashokbhai Jashubhai Patel,
the appellant, owner of JCB Machine (Exh.267),
Krunalbhai Kaushikbhai Patel, Principal
Investigator, Research Wing, Gandhinagar
(Exh.279), Somaji Viraji Makwana (Exh.287) and
Kadvaji Udaraji Bhagora, resident of Antari
(Exh.289). So, the competent authority has relied
on so-called statement of the aforesaid witnesses
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and appellant as well as his employees. Out of
them most of the witnesses are employees of
Forest and only one independent witness is
Shankarbhai Jeshabhai Khokhariya.
16. While going through the said statements, it
can be said that the said statements are mostly
based on the hearsay evidence and as per the
contention of the appellant most of the statements
are extracted by the Forest Officials by coercive
method and by criminal force. On the basis of
the complaint made by the employee of the
appellant, their statements have been extracted by
the Forest Officials by keeping them in wrongful
confinement for 02 days and after using criminal
force and beating them, due to their criminal
force, they have signed the statements.
17. The Police Sub Inspector has also recorded
statement of the somany witnesses, on the basis
of the complaint sent to him for investigation by
the order of the Judicial Magistrate, Idar. The
said witnesses have made statement before the
Police Sub Inspector, supporting to the case of
the appellant. In said statements there are also
statements of some Forest Officials, including B.R.
Pandav, Kanaji Thakore and Valaji Bhagaji
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Damor. Therefore, it can be said that the
statements recorded by the competent authority
and other Forest Officials, and the statements
recorded by the Police Sub Inspector, Vijaynagar
are contradictory. Therefore, the statement
recorded by the Forest Officials as well as
competent authority cannot be said as reliable,
trustworthy and legal evidence, when the fact is
that the alleged offence of Forest has been
committed in presence of nobody and after 08 to
15 days of so-called offence, the Forest Officials
have noticed about the alleged offence and
thereafter they have made some inquiry and tried
to implicate the appellant and his employees as
well as his JCB Machine in the alleged crime.
The competent authority has also mentioned in
his order in para-1 on page-2 that the JCB
Machine of the appellant was brought near the
forest area by using tactics and thereafter it was
seized by Forest Officials and the driver and
employee/helper of the said JCB Machine were
arrested.
18. The Police Sub Inspector of Vijaynagar, who
has investigated the complaint of employee of the
appellant has also reported to the Judicial
Magistrate, Idar that the employees of the
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appellant were wrongfully confined by the Forest
Officials and they have extracted their statement
by using criminal force. Therefore, the learned
Judicial Magistrate, Idar has also issued process
against Forest Officials, who have committed the
alleged offence as complained by the employee of
the appellant.
19. So, considering the papers of investigation
made by the Police Sub Inspector, Vijaynagar as
well as the so-called statements recorded by the
Forest Officials and competent authority, it can be
said that there is no sufficient, trustworthy and
reliable as well as cogent evidence to hold that
the alleged offence of Forest was committed by
the appellant through his JCB Machine with the
help of his driver and helper of JCB Machine
and it is doubtful because it is totally dependent
on so-called statement of one independent witness
and when the said witness has not been cross-
examined on behalf of the appellant, it cannot be
said that the statement of the said witness is
fully trustworthy and reliable, but it can be said
that, that statement might have been recorded by
the Forest Officials only to implicate the JCB
Machine of appellant in the alleged offence of
Forest. Therefore, in such type of cases, the
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learned Competent Authority ought not to have
taken decision of confiscation of the JCB Machine
of appellant, but considering his order of
confiscation, it appears prima-facie that the order
of the Competent Authority is arbitrary as well
as capricious and he has tried to favour the
Forest Officials. He has not acted independently.
Therefore, the impugned order of the learned
Competent Authority cannot be said as legal and
proper. So, the contentions raised by the
appellant against the said order has sufficient
force and that can be accepted. So, the impugned
order of the learned Competent Authority is liable
to be set aside, as per the provision of Section
61-D of the Forest Act."
4.2 He has submitted that in view of this, the learned
District Court has given cogent and convincing reasons and no
error of law has been committed by the learned District Court. He
has submitted that this application may be dismissed.
5.1 I have considered the rival submissions made by the
learned advocates. I have perused the documents available on
record. I have also considered the impugned order passed by the
learned District Court, Himmatnagar. I have also considered the
provisions of Sections 52, 53, 55, 61A, 61B and 61D of the Indian
Forest Act, which are reproduced as under :
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"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, carts or cattle used in committing
any such offence, may be seized by any Forest
Officer or Police Officer.
(2) In the Indian Forest Act, 1927 (XVI of 1927),
in its application to the State of Gujarat
hereinafter referred to as (the principal Act), in
Sec.52 -
(1) After sub-section (1), the following sub-section
shall be inserted, namely :-
(1-A) Any Forest Officer or Police Office 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
charge of such vehicle to stop the vehicle and
cause it to remain stationary as long as may
reasonably be necessary for examination of the
contents in the vehicle and inspection of all
records relating to the forest-produce and in
possession of such driver or other person in
charge of the vehicle or any other person in the
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vehicle."
(2) In sub-section (2), for the words "make a
report of such seizure to the Magistrate having
jurisdiction to try the offence on account of which
the seizure has been made" the following shall be
substituted, namely :-
(a) where the offence on account of which the
seizure has been made is in respect of the forest-
produce which is the property of the State
Government or in respect of which the State
Government has any interest, to the concerned
authorized officer under Sec.61-A;
(b) in other cases to the Magistrate having
jurisdiction to try the offence on account of which
the seizure has been made.
53. Power to release property seized under Sec.52
-
Any Forest Officer of a rank not inferior to that
of a Ranger who, or whose subordinate, has
seized any tools, boats, carts, or cattle under
Sec.52, may release the same on the execution by
the owner thereof of a bond for the production of
the property so released, if and when so required,
before the Magistrate having jurisdiction to try
the offence on account of which the seizure has
been made.
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55. Forest-produce, tools, etc. when liable to
confiscation. -
(1) All timber or forest-produce which is not the
property of Government and in respect of which a
forest offence has been committed, and all tools,
boats, carts and cattle used in committing any
forest offence, shall be liable to confiscation.
(2) Such confiscation may be in addition to any
other punishment prescribed for such offence.
61-A. Confiscation by Forest Officers in certain
cases. -
(1) Notwithstanding anything contained in the
foregoing provisions of this Chapter or in any
other law for the time being in force, where a
forest offence is believed to have been committed
in respect of any forest-produce which is the
property of the State Government, the officer
seizing the property under sub-section (1) of
Sec.52 shall without any unreasonable delay
produce it, together with all tools, ropes, chains,
boats, vehicles, and cattle used in committing
such offence before an office authorized by the
State Government in this behalf by notification in
the Official Gazette, not being below the rank of
an Assistant Conservator of Forest (hereinafter
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referred to as "the authorized officer").
(2) Where the authorized officer seizes under sub-
section (1) of Sec. 52 any forest-produce which is
the property of the State Government or where
any such property is produced before the
authorized officer under sub-section (1) and he is
satisfied that a forest offence has been committed
in respect of such property, such authorized
officer may, whether or not a prosecution is
instituted for the commission of such forest
offence, order confiscation of the property so
seized together with all tools, ropes, chains, boats,
vehicles and cattle used in commission of such
offence.
(3) (a) Where the authorized officer, after passing
an order of confiscation under sub-section (2), is
of the opinion that it is expedient in the public
interest so to do, he may, order the confiscated
property or any part thereof to be sold by public
auction.
(b) Where any confiscated property is sold as
aforesaid, the proceeds thereof, after deduction of
the expenses of any such auction or other
incidental expenses, relating thereto, shall, where
the order of confiscation made under Sec. 61-A is
set aside or annulled by an order under Sec. 61-
C or 61-D, be paid to the owner thereof or to
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the person from whom it was seized as may be
specified in such order.
61-B. Issue of show-cause notice before
confiscation under Sec.61-A. -
(1) No order confiscating any forest-produce or
tools, ropes, chains, boats, vehicles or cattle shall
be made under Sec.61-A except after notice in
writing to the person, from whom it is seized
informing him of the grounds on which it is
proposed to confiscate it and considering his
objections, if any : Provided that no order
confiscating a motor vehicle shall be made except
after giving notice in writing to the registered
owner thereof, if in the opinion of the authorized
officer it is practicable to to so and considering
his objections, if any.
(2) Without prejudice to the provisions of sub-
section (1), no order confiscating any tool, rope,
chain, boat, vehicle or cattle shall be made under
Sec. 61-A if the owner of the tool, rope, chain,
boat, vehicle or cattle proves to the satisfaction of
the authorized officer that it was used in carrying
forest-produce without the knowledge or
connivance of the owner himself, his agent, if
any, and the person in charge of the tool, rope,
chain, boad, vehicle or cattle and that each of
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them had taken all reasonable and necessary
precautions against such use.
61-D. Appeal. -
(1) Any person aggrieved by any order passed
under Sec.61-A or Sec.61-C may, within thirty
days from the date of communication to him of
such order, appeal to the Sessions Judge having
jurisdiction over the area in which the property
to which the order relates has been seized and
the Sessions Judge shall, after giving an
opportunity of being heard to the appellant and
the authorized officer or the officer specially
empowered under Sec. 61-C, as the case may be,
pass such order as he may think fit confirming,
modifying or annulling the order appealed against.
(2) An order of Sessions Judge under sub-section
(1) shall be final and shall not be questioned in
any Court of law."
5.2 I have also considered the fact that the learned
District Court has, in earlier round of litigation, also considered
the appeal of the present respondent by allowing the appeal and
recorded the reasons, however, such findings were challenged
before this Court and this Court has remanded the matter back to
the learned District Court for fresh consideration and on fresh
consideration, the learned District Court has once again considered
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the appeal in favour of the respondent and has dealt with all the
contentions of the parties by way of the findings as noted above,
whereby the learned District Court has considered each and every
contentions raised in the appeal and by discussing the evidence of
the so-called eye-witnesses and has ultimately found that the said
statements are mostly based on the hearsay evidence and most of
the statements are extracted by the forest officials by coercive
method.
5.3 Further, it is also found that there is no sufficient,
trustworthy and reliable as well as cogent evidence to hold that
the alleged offence of forest was committed by the respondent
through his JCB machine with the help of his driver and helper
of the JCB machine and it is doubtful because it is totally
dependent on so-called statement of one independent witness and
when the said witness has not been cross-examined on behalf of
the respondent.
5.4 Considering all these aspects as well as considering the
provisions of the Indian Forest Act and considering the material
available on record, this Court finds that the learned District
Court has not committed an error and the impugned judgment is
in accordance with law and the reasons assigned by the learned
District Court is just and proper and no error is found and
therefore, the present application is required to be dismissed and
is dismissed accordingly.
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6. It is open for the respondent to approach the
concerned department for return of the bank guarantee and same
shall be considered in accordance with law, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
