Madhya Pradesh High Court
Gabbu Singh vs Pradhikrath Adhikari Avm Up Wan ... on 5 August, 2024
1 MCRC-46479-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 5 th OF AUGUST, 2024
MISC. CRIMINAL CASE No. 46479 of 2022
GABBU SINGH S/O SHRI BALU SINGH
Versus
PRADHIKRATH ADHIKARI AVM UP WAN MANDALADHIKARI
Appearance:
Applicant by Shri Rajendra Kumar Namdeo - Advocate.
Respondent - State of Madhya Pradesh by Shri Ajay Raj Gupta - Panel
Lawyer appearing on behalf of Advocate General.
ORDER
This miscellaneous petition under Section 482 of the Code of Criminal
Procedure, 1973 (herein after referred to as the Code) has been preferred
challenging order dated 12.09.2022 (Annexure P/3) passed in Criminal
Revision No.279 of 2022 by the learned 5th Additional Sessions Judge,
Indore, District Indore (MP) wherein order Inward Number / Protection /
2022 / 205 Indore dated 06.06.2022 (Annexure P/2) passed by learned
Appellate Authority Avam Additional Principal Chief Conservator of Forest,
Indore Circle, Indore (MP), affirming order number / Protection / Authorized
Officer / 2022 / 07 dated 28.02.2022 (Annexure P/1) passed by Authorized
Officer Avam Deputy Divisional Forest Officer, Sub Division, Mhow,
District Indore have been affirmed. Vide order (Annexure P/1) vehicle
number MP-09 GE-6395 and 40 quintal of Gum Arabic ( Babool) and Mango
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(Aam) woods seized from the possession of the applicant have been
confiscated.
2. Relevant facts for disposal of this petition are that on 30.08.2021 at
about 04.30 AM during patrolling Eicher vehicle bearing registration number
MP-09 GE-6395 (covered with Tirpal) was intercepted. It was being driven
by driver Ranjeet Kalmodiya S/o Gabbu Singh (son of applicant) and he
could not produce necessary documents for transporting near about 40
quintal of woods of Babool and Mango, and therefore, an offence under
Sections 41 and 52 of the Indian Forest Act, 1927 (herein after referred to as
the Act) was registered as Criminal Case No.618 of 2005 dated 30.08.2021,
Range Case No.29 of 2021, Circle Manpur and vehicle along with seized
woods were taken to Manpur Depot of Forest Department. After complying
with due procedure, woods along with vehicle were confiscated vide order
dated 28.02.2022 (Annexure P/1). This order, when assailed before the
Appellate Authority, vide order dated 06.06.2022 (Annexure P/2) the
Appellate Authority dismissed the appeal, affirming confiscation
proceedings; and thereafter when both the aforesaid orders passed by the
Forest Authorities were assailed in criminal revision, the same was also
dismissed vide order dated 12.09.2022 (Annexure P/3) passed in Criminal
Revision No.279 of 2022 by the learned 5th Additional Sessions Judge,
Indore (MP, which gives rise to this petition.
3. Learned counsel for the applicant submits that the aforesaid forest
produce - woods (Van Upaj ) were transported for own use of the owner of
the woods (Van Upaj ) and it is exempted under Rule 3 of Madhya Pradesh
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Transit (Forest Produce) Rules, 2000 (herein after referred to as the Rules).
The registered owner of the vehicle was not given an opportunity of hearing,
and therefore, the orders passed by the Forest Authorities are bad in law.
4. To bolster his submissions, learned counsel for the applicant has placed
reliance on judgment delivered by the Apex Court in case of Rakesh alias
Tattu v. State of Madhya Pradesh & others reported in 2020 (3) MPLJ (Criminal)
(SC) 425 (paragraphs 2 to 6 and 8 to 10) and the same are extracted, as
under: -
"2. This appeal takes exception to the judgment and
order dated 28th September, 2018 passed by the High
Court of Madhya Pradesh at Jabalpur in MCRC
NO.5482 of 2018.
3. The short question involved in this appeal is whether
the offer made by the appellant of compounding the
offence in respect of violation of Sections 26(1)(g) and
41 of the Indian Forest Act, 1927 (for short, 'the Act')
has been justly declined by the competent authority.
4. Indeed, Section 52 of the Act enables the competent
authority to confiscate the seized vehicle-Tractor used
in connection with the stated offence. Even so, when the
owner of the Tractor admits the use of the Tractor, the
provisions of Section 68 of the Act, as applicable at the
relevant time in the State of Madhya Pradesh, enabled
the State Government to authorize the Forest Officer to
accept the offer of compounding the offence and release
the seized property. The Section reads thus: -
"68. Power to compound offences.
(1) The State Government may, by notification in the
Official Gazette, empower a Forest officer-
(a) to accept from any person against whom a
reasonable suspicion exists that he has
committed any forest-offence, other than an
offence specified in section 62 or section 63,
a sum of money by way of compensation for
the offence which such person is suspected to
have committed, and
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(b) when any property has been seized as
liable to confiscation, to release the same on
payment of the value thereof as estimated by
such officer."
5. Indisputably, the present case does not fall under
excepted category, as the offences are under Sections 26
(1) (g) and 41 of the Act. The competent authority in its
order dated 23.02.2016, while dealing with the request
made by the appellant for compounding of the offence,
observed thus: -
"Forest offence committed by using vehicle
has been admitted and he seeks settlement
with the department and whatever penalty
that may be imposed by the department he is
ready to pay the same. Vide office letter
No.S.D.C./27580 dated 09.11.2015 was sent
to Range Assistant of Bansa to furnish
document regarding valuation sheet of forest
produce seized in the case. However, the said
document has not been submitted till date by
the Range Assistant of Bansa before this
court. Therefore, the entire prosecution
evidence and admission of forest offence by
accused Rakesh alias Tattu Pathak R/o Bansa
Tarkhera as per his written reply itself proves
involvement of seized vehicle Escort Tractor
Trolley No.M.P. 15F.1223 in forest offence
which is violation of Section 26(1) of Indian
Forest Act, 1927.
Accused himself agreeing for settlement also
admits the incident as deposed by the
witnesses during the entire proceeding which
proves that on the date of incident accused
persons after illegal excavation of 1 trolley of
Kathal stone from Forest Compartment
R.F.118 have committed the offence of
illegal transportation of the same in tractor
torelly No.M.P.15 F.1223, which amounts to
violation of Section 26(1) (g) and 41 of
Indian Forest Act 1927. On finding vehicle
seized in the case being liable to be
confiscated under Section 52(3) of the Indian
Forest Act, 1927, it is ordered that: -
xxx xxx xxx"
6. On a fair reading of the aforesaid
observation of the competent authority, it appears to us
that the sole consideration weighed with the authority
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was that the appellant had admitted the commission of
offence in question. That by itself cannot be the basis to
deny the option of compounding predicated in Section
68 of the Act, reproduced above."
"8. In our opinion, the competent authority in the
present case has not considered the matter in proper
perspective. It has failed to give full effect to the
provisions of Section 68 of the Act. In that, the
Authority proceeds merely on the basis that the
appellant has admitted his guilt and the use of subject
vehicle in the commission of offence. As aforesaid, that
by itself is not enough. As a matter of fact, ordinarily,
when the accused takes recourse to the remedy of
compounding the offence, it presupposes that he has
admitted the commission of stated offence or about the
use of seized vehicle in the commission of the offence.
Only then he would apply for compounding the offence.
Counsel for the appellant justly submits that the
exercise of power, though discretionary, has to be
judicially exercised. While doing so, the competent
authority is obliged to reckon tangible factors such as
gravity of offence as expounded in Govind Singh
(supra) or that the vehicle has been used for
commission of specified offence even in the past etc. In
the present case, however, the only factor weighed with
the authority is that the appellant has admitted the
commission of offence. In other words, the authority
has not exercised its discretion in judicious manner.
9. In our opinion, therefore, the impugned judgment and
order deserves to be quashed and set aside. We order
accordingly.
10. Instead, we allow the prayer of the appellant to
compound the stated offences and to take follow up
steps in that regard by releasing the subject vehicle
upon payment of requisite amount, as may be
determined by the authorities as per the applicable rules
and regulations and complying with other formalities
including filing of undertaking, if any. That be so done
within four weeks from today."
He also relied upon a judgment passed by a coordinate bench of this
Court in case of Umesh Kumar Soni v. State of Madhya Pradesh and another
reported in 2017 (2) MPLJ (Criminal) 508 , (paragraphs 6 to 8) and the same
6 MCRC-46479-2022
are extracted, as under: -
"6. This petition has been filed under Section 482 of the
Cr.P.C. This court is expected to exercise the powers
vested under Section 482 of the Cr.P.C. very sparingly
with a view to secure the ends of justice or to prevent
misuse of process of the court. Now, in this case, this
short question is put for consideration whether the order
of confiscation of the vehicle is must or the authority
concerned could have exercised other discretionary
powers looking to the fact of the case that in this case
the seized vehicle was being used by the owner of the
vehicle for the purpose of transporting firewood, in
which, near about 25 in number long size wood and 1/ 2
Chatta of firewood were loaded. It also appears from
the record that it is the first offence of the petitioner.
The value of forest produce may not be more than
thousands rupees and the value of the seized properties
is in lacs and the powers vested to the authority for
confiscation under Section 52 of the Forest Act is not
mandatory but it is discretionary. Similarly, the
provisions of Section 68 of the Indian Forest Act
empower certain forest officers to compound the
offences and release the forest produce or vehicle
without any further proceedings. Here it would be
beneficial to re-produce the aforesaid provisions of
Section 52 and 68 of the Forest Act: -
52. Seizure of property liable to confiscation
and procedure therefor. - (1) When there is
reason to believe that a forest offence has
been committed in respect of any reserved
forest and protected forest or forest produce,
the produce, and all tools, boats, vehicles,
ropes, chains or any other article used in
committing such offence may be seized by
any forest officer or police officer.
(3) Subject to sub-section (5), where the
authorized officer upon production before
him of property seized or upon receipt of
report about seizure, as the case may be, is
satisfied that a forest offence has been
committed in respect thereof, he may by
order in writing and for reasons to be
recorded confiscate forest produce so seized
together with all tools, vehicles, boats, ropes,
chains or any other article used in
committing such offence. A copy of order of
confiscation shall be forwarded without any
undue delay to the Conservator of Forests of
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the forest circle in which the timber or forest
produce, as the case may be, has been seized.
68. Power to compound offences. - (1) The
State Government may, by notification in the
Official Gazette, empower a Forest Officer-
(a) to accept from any person
against whom a reasonable
suspicion exists that he has
committed any forest-offence,
other than an offence specified in
section 62 or section 63, a sum of
money by way of compensation
for the offence which such person
is suspected to have committed,
and
(b) when any property has been
seized as liable to confiscation, to
release the same on payment of the
value thereof as estimated by such
officer.
(2) On the payment of such sum of money, or
such value, or both, as the case may be, to
such officer, the suspected person, if in
custody, shall be discharged, the property, if
any seized shall be released, and no further
proceedings shall be taken against such
person or property.
(3) A Forest-officer shall not be empowered
under this section unless he is a Forest
Officer of a rank not inferior to that of a
Ranger, and the sum of money accepted as
compensation under clause (a) of sub-section
(1) shall in no case be less than two times the
value of the forest produce:
Provided that in case the forest produce in
respect of which an offence has been
committed is not the property of the
Government or in case the value of the forest
produce is less than one thousand rupees and,
if the offender has committed the offence for
the first time, the suspected person may be
discharged and the property (other than the
forest produce), if any, seized may be
released on payment of the sum of ten
thousand rupees or the value of the seized
property, whichever is less; the seized forest
8 MCRC-46479-2022
produce may be released only it if is not the
property of the Government or on the
payment of the value thereof, as the case may
be.
In the present case, admittedly, offences under Section
26 (1) (cha), 41 and 52 of the Forest Act have been
registered against the petitioner. In other words, it is not
a case of the offences under Section 62 and 63 of the
Act. Therefore, the provisions of Section 68 of the Act
are applicable in the present case.
7. Having gone through the aforesaid provisions and the
facts and circumstances of the case where the provisions
of Section 52 of the Forest Act with regard to
confiscation are discretionary, the authority concerned
is expected to first take recourse of Section 68 and if the
matter has remained unresolved then initiation of the
proceedings under Section 52 of the Act should be
considered. The object of the provisions of Section 68
of the Act is very clear. As per provisions, in petty cases
instead of starting confiscation preceding directly, the
offence may be compounded by the competent officers.
If in petty matters, the powers vested under Section 68
of the Act to compound the offences are not exercised
and in every case confiscation proceeding is started, it
cannot be said that the act of the authority is reasonable
or justifiable, and the proceeding of confiscation should
be initiated only in such cases, in which, in view of the
facts and circumstances of the case, stringent and
coercive process is required to prevent the forest
offence with a view to put up an example before the
offenders.
8. In view of the aforesaid discussion, in this case
without exercising the powers to compound the offence
under Section 68 of the Forest Act, initiating the
proceeding for confiscation and ultimately passing the
order of confiscation has caused injustice to the
petitioner as this is not a case, in which, he should be
deprived of getting the vehicle having worth of rupees
lacs where the value of the forest produce is not more
than thousands rupees and the offence has been
committed for the first time. The power vested under
Section 52 of the Forest Act is discretionary and it is
trite law that the discretionary power should be
exercised objectively not arbitrarily or capriciously. In
the present case, it does not appear that the power has
been exercised objectively rather it appears that it has
been exercised in arbitrary and capricious manner.
Therefore, with a view to secure the ends of justice, the
9 MCRC-46479-2022
impugned orders are set-aside and the concerned forest
authority is directed to examine the case with a view to
exercising the powers vested under Section 68 of the
Forest Act and provide an opportunity to the petitioner
to resolve the matter, failing which, the competent
authority may take recourse in accordance with law
with regard to the seized vehicle."
5. Learned counsel for the applicant on the above grounds urges the Court
to allow the petition and set aside the aforesaid orders of the Forest
Authorities and also the order passed by the Sessions Court in criminal
revision as well as for releasing the seized vehicle.
6. Learned counsel appearing for the respondent - State has vehemently
opposed the prayer on the ground that the transportation of the forest produce
(woods), as seized, could have been done under a transit pass, which was not
obtained by driver Ranjeet Kalmodiya S/o Gabbu Singh, the driver of the
offending vehicle and its confiscation.
7. Learned counsel further inviting attention of this Court towards the
impugned orders passed by the Forest Authorities and the Sessions Court as
well, submits that the vehicle was being used for subsequent offence, which
was not compoundable, as per the provisions of Section 68 of the Act. He
further submits that exemption from transit pass, as claimed, was not
available, as forest produce, which were seized, were not being removed for
bona fide domestic consumption. On these grounds, learned counsel
appearing for the respondent - State opposed the prayer.
8. Heard learned counsel for the parties and perused the record.
9. Section 68 of the Act, as applicable in the State of Madhya Pradesh is
extracted below: -
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"68. Power to compound offences. - (1) The State
Government may, by notification in the Official
Gazette, empower a Forest-Officer-
(a) to accept from any person against whom a
reasonable suspicion exists that he has
committed any forest offence, other than an
offence specified in section 62 or section 63,
a sum of money by way of compensation for
the offence which such person is suspected to
have committed, and
(b) when any property has been seized as
liable to confiscation, to release the same at
any time before the order of confiscation is
passed by the appropriate authority, on
payment of the value thereof as estimated by
such officer.
(2) On the payment of such sum of money, or such
value, or both, as the case may be, to such officer, the
suspected person, if in custody, shall be discharged, the
property, if any, seized shall be released, and no further
proceedings shall be taken against such person or
property.
(3) A Forest officer shall not be empowered under this
section unless he is a Forest Officer of a rank not
inferior to that of a Ranger, and the sum of money
accepted as compensation under clause (a) of sub-
section (1) shall in no case be less than two times the
value of the forest produce:
Provided that in case the forest produce in respect of
which an offence has been committed is not the
property of the Government or in case the value of the
forest produce is less than one thousand rupees and, if
the offender has committed the offence for the first
time, the suspected person may be discharged and the
property (other than the forest produce), if any, seized
may be released on payment of the sum of ten thousand
rupees or the value of the seized property, whichever is
less; the seized forest produce may be released only if it
is not the property of the Government or on the
payment of the value thereof, as the case may be."
Rule 3 of Rules, which has been relied upon by the applicant, runs as
under: -
11 MCRC-46479-2022
"3. Regulation of transit of forest produce by means of
passes.- No forest produce shall be moved into or
outside the State or within the State of Madhya Pradesh
except in the manner as hereinafter provided without a
transit pass in Form A, B or C annexed to these rules.
The Transit Pass will be issued by a Forest Officer or
Gram Panchayat or a person duly authorised under
these rules to issue such pass:
Provided that no transit pass shall be required for the
removal: -
(a) Of any forest produce which is being
removed for bona fide domestic consumption
by any person or in exercise of privilege
granted in this behalf by the State
Government or of a right recognised under
the Act within the limits of a village in which
it is produced.
(b) Of such forest produce as may be
exempted by the State Government from the
operation of these rules by notification in the
Official Gazette.
(c) Of forest produce covered by Money
receipts/Rated passes/ Forest produce
passes/carting challan issued by competent
authority in accordance with the rules made
in this behalf for the time being in force.
(d) Of minor forest produce from forests to
the local market or to the collection Centre or
for bona fide domestic consumption.
(e) Of mineral from forest for which transit
pass is not compulsory under these rules."
From a bare perusal of the said rule, it is manifest that transit pass can
only be dispensed with in case of any forest produce which is being removed
for bona fide domestic consumption by any person or in exercise of privilege
granted in this behalf by the State Government.
10. From perusal of the impugned orders, wherein evidence has also been
produced, it is apparent that forest produce was not found being transported
for bona fide domestic consumption. It is also apparent that the same vehicle
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was seized for the subsequent offence. Earlier also, against applicant Gabbu
Singh, a Forest Offence Case No.241 of 2013 dated 11.11.2019, Range Case
No.92 of 2019 was also registered. Being the subsequent offence, it could
not be compounded, as per provisions of Section 68 of the Act, as applicable
in the State of Madhya Pradesh.
11. Speaking orders have been passed by the Forest Authorities and
learned Additional Sessions Judge in criminal revision as well. The
judgment relied upon by applicant in case of Rakesh alias Tattu (supra) is
not applicable in the facts of the case, as in the instant case, it has been found
that it was a subsequent offence committed by the applicant, which debars a
Forest Officer to compound offence with regard to the provisions of Section
68 of the Act, as applicable in the State of Madhya Pradesh. For the same
reasons, the judgment in Umesh Kumar Soni (supra) is also not applicable.
The order (s) passed by the Court below is well reasoned order (s) and passed
after affording an opportunity of hearing to the applicant. No irregularity,
illegality and impropriety could be pointed out by the applicant in the
aforesaid order (s).
12. Resultantly, this petition fails and is hereby dismissed.
(BINOD KUMAR DWIVEDI)
JUDGE
rcp
