In that view of the matter, merely because the petitioner had made certain representations to the respondent-authorities for release of his vehicle whereby he has accepted his guilt and just because the petitioner has further clarified that the alleged commission of offence in question by his driver was because of the bona fide act of his driver, does not confer any right in him much less under the provisions of Indian Forest Act to claim release of vehicle immediately unless the inquiry as was proposed and conducted in the matter is completed. We are fortified in our view in light of the law laid down by the Hon'ble Apex Court in the case of State of Karnataka v. K. Krishnan, reported in MANU/SC/0512/2000 : AIR 2000 SC 2729. The Hon'ble Apex Court while dealing with the similar case, in paragraphs '7' and '8' observed thus:
7. Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, catties, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and then-produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.
Citation: 2014(4)FLT821, 2014(5)MhLj286,2016 CRLJ(NOC)76 BOM
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
W.P. No. 3805 of 2002
Decided On: 02.04.2014
Sanjay Namdeorao Suryawanshi Vs. State of Maharashtra
Hon'ble Judges/Coram:S.V. Gangapurwala and N.W. Sambre, JJ.
1. Heard learned Counsel appearing on behalf of respective parties. The petitioner claiming to be owner of transport vehicle of Tata make bearing registration No. MH-22/497, which was purchased by him under the Government Scheme being an educated unemployed youth, has questioned the action on the part of the respondent Nos. 1 to 7 in detaining his vehicle for commission of forest offence under the provisions of the Indian Forest Act, 1927 and has prayed for issuance of directions to the respondents to pay compensation of ` 2,58,500/- to the petitioner towards loss caused to him due to illegal withholding of his vehicle.
2. The petitioner claims that, upon a request made by the petitioner, Mahatma Fule Magasvargiya Vikas Mahamandal, Parbhani had sanctioned a loan of ` 3,01,432/- for purchase of Tata Tempo, against which he got possession of a Tata Tempo Transport vehicle on 2nd May, 1995, under the Self-employment Scheme floated for educated unemployed persons.
3. It is the case of the petitioner that, at the relevant time, he was residing separately from his parents and was residing at village Viregaon, Tq. Vasmat along with his wife, child, grand parents at the address mentioned in the cause title of the petition.
4. The petitioner claims that for the purpose of driving of said vehicle, he had appointed one Vilas Kurhe, who holds a valid driving license and used to assist the petitioner in operation of the said transport vehicle.
5. It is the case of the petitioner that, on 19th November, 1996, when he went to Nanded for some personal work, the said transport vehicle which was at Vasmat in the custody of his driver namely Vilas, was hired by one Hiraman Lone, who was resident of Chhabra and was Carpenter by vocation. The said Carpenter Hiraman had hired the vehicle of the petitioner for transportation of wooden material for door and windows from the village Chhabra to Nanded, for which the transportation charges were settled at `500/-. The petitioner further alleged that the driver of the petitioner believing the statement of said Hiraman, as the alleged documents demonstrating that the timber which was to be transported as a legitimate one, has given on hire the tempo for transporting of the said timber.
6. The petitioner further claims that the respondent No. 6 is impleaded as party by name, who at the relevant time was working as Ranger of Forest Department at Nanded, had stopped the vehicle of the petitioner and took the same to the Ardhapur Depot. It is further alleged that the respondent No. 6 in his official capacity has obtained the signature of the driver of the said vehicle namely Vilas on the blank papers and snatched the key of the vehicle. It is the claim of the petitioner that his driver was misguided by the person who had hired the tempo namely; Hiramana and for the bona fide mistake of his driver, the detention of his vehicle by the Forest Officials is illegal. It is further claimed by the petitioner that the respondent No. 6 and 7, who are Forest Officials and involved in the investigation in the alleged forest offence demanded illegal gratification of ` 50,000/- of which ` 45,000/- was paid in the account of one of the agent of respondent Nos. 6 and 7. According to the petitioner, the above referred facts demonstrate mala fide approach on the part of the respondent Nos. 6 and 7. The petitioner claims that though his vehicle was detained by the respondents on 18th November, 1996, in spite of his repeated requests for release of the Tempo and in addition to admission of mistake committed by the driver, his vehicle was not released, resulting into the monetary loss to the petitioner. The petitioner for the purpose of claiming compensation has relied upon the demand notice for repayment of loan issued by his financer.
7. Per contra, the respondents have denied the contentions and bona fides of the petitioner. The respondents have come out with a case that the petitioner himself was involved in the commission of forest offence in which his vehicle was taken into custody. The respondents further alleged that, the show-cause notice on 27th January, 1997, was issued to petitioner alleging therein that the vehicle bearing registration No. MH-22/497, which is a transport vehicle and owned by the petitioner was found unauthorizedly transporting illegally felled teak wood, total numbers 41, admeasuring 0.3079 Cubic meter, resulting into registration of forest offence No. 2/96-97 on 19th November, 1996. It is further alleged by the respondents that, the first person with whom the inquiry was made was the driver of the vehicle, who, in his statement, has stated that the illegally felled teak trees and illegally transportation of the same is at the behest of the petitioner. It is further stated by the said driver that the trees under transportation were felled from the Chhabra Reserve Forest area which were felled on an advance intimation and were kept ready for transportation. The vehicle in question was placed into service for illegal transportation upon an intimation to that effect received on 19th November, 1996. It is further alleged by the respondents that the aforesaid act of the petitioner is an offence punishable under section 26(1)E and F read with section 41 of the Indian Forest Act, 1927 (hereinafter referred to as "Act"). It is further alleged that though the vehicle was detained on 19th November, 1996, the preliminary inquiry in the matter took sometime and as such show-cause notice was issued to him on 27th January, 1997. It was further claimed by the respondents that the conduct of the petitioner demonstrates an admission of commission of offence in question. It is further claimed by the respondents that, the petitioner has made incorrect statement in the petition and subsequent communication that he was residing in the house constructed by his parents, whereas; his case in the petition is that he was residing away from his parents. It is further claimed by the respondents that the distance between Chhabra and Vasmat is around 45 Kms whereas; distance between Chhabra and Nanded is about 35 Kms. Considering the distance, the story put forth by the petitioner that Hiraman has hired the Tempo from Vasmat is incorrect as Ardhapur or Nanded are the places which are nearer to the Chhabra from where the vehicles are easily available. It was further claimed by the respondents in the reply that the delay caused in handing over the possession of the vehicle to the petitioner is because of the non-cooperative attitude of the petitioner, his driver and other persons who are involved in the commission of offence at the behest of the petitioner. In fact, the inquiry against the petitioner in question was required to be adjourned from time to time as the petitioner had submitted an application mentioning his inability for remaining present in the inquiry before the authorities. The respondents have further invited attention of this Court to the statement of Hiraman that he was involved in illicit felling of the trees in question and further giving shape to the same so as to use them for the purpose of making doors and window frames. The respondents further invited attention of this Court to me order passed by the Deputy Conservator of Forest, Nanded, in favour of the petitioner on 12th August, 1997, thereby directing recovery of an amount of ` 500/- towards the compounding charges for violation of provisions of section 41(2) of the Act, execution of a bond that vehicle in question in future will not be used for illegal transportation of wood.
8. In light of the above contentions, the respondents have prayed for dismissal of the writ petition.
9. Having considered the rival contentions of the parties, this Court is of the view that in exercise of extraordinary jurisdiction vested in this Court under Article 226 of me Constitution of India, this petition does not call for any interference at the behest of the petitioner in me light of the fact that the petitioner has not approached this Court with clean hands.
10. It appears from the pleadings made in the petition more particularly in paragraph '2' that, the petitioner claims to be residing with his grand parents, his wife, child at me cause tide mentioned in the petition, whereas; at page No. 23, in a representation which was made by him to the respondent - Deputy Conservator of Forest on 30th January, 1997, he has claimed that he was residing with his father in me house constructed by his father. The petitioner has also placed on record the invitation card of the House Warming Ceremony wherein his address is mentioned as "Ankur", Panchsheelnagar, Kurunda Road, Vasmatnagar, Dist. Parbhani, whereas in the cause title of the petition, he has mentioned as Viregaon, Tq. Vasmat, Dist: Parbhani.
11. The above referred submissions of the petitioner if are tested in the light of the facts and the case put forth by him that his vehicle was hired for transportation of teak wooden logs by Hiraman, the statement of Hiraman and that of driver of the petitioner namely; Vilas, falsifies the case of the petitioner. According to the statement of both these persons, the illegally felled trees which were transported in the vehicle of the petitioner were meant for his personal use i.e. for making frames of door and windows for the house of the petitioner. When the petitioner was confronted with by the respondents about the above referred facts, the petitioner has come out with a case that he is residing with his father and his father has constructed a house long back. In that view of the matter, me contentions raised by the petitioner that the respondents have detained his vehicle intentionally so as to cause loss to the petitioner, is liable to be rejected.
12. It is further noticed that in the statement of Hiraman, which was recorded by the authorities during the course of inquiry, it is reflected that the wood in question was illegally felled by said Hiraman and transported in the vehicle of the petitioner which was driven by his driver Vilas. Though the petitioner is the principal owner of the vehicle, however, the driver was acting at his behest which fact is admitted by the petitioner. It is also admitted by the petitioner that there is no proper documentation for the authentication for transport of the teak wood in question, which was under transportation. The driver Vilas in clear terms in his statement dated 20th November, 1996 has admitted that the transportation of the illegally felled wood in question was at the behest of the present petitioner. The fact remains that, the provisions of section 26(1)F of the Indian Forest Act read with section 41, constitutes an offence for illegal felling and transportation of the teak wood. The petitioner has come out with a case that, after having realized that his driver has committed a mistake of transportation of illegal felled teak woods, he has made several representations from 14th January, 1997 onwards to the respondents, requesting release of his vehicle. He further claimed that, since the mistake was bona fide in nature and he has admitted his guilt and has also undertaken that he shall abide by such punishment as shall be imposed by the authority, his vehicle ought to have been released immediately.
13. The said offence though is punishable under the provisions of Indian Forest Act, 1927, the Indian Forest Act particularly section '52' provides for seizure of a property liable to confiscation and forfeiture as is provided under Chapter '9'. Section 52(1) and (1-A) of the said reads thus:
52. Seizure of property liable to [Confiscation and forfeiture].
(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 [vehicles] or cattle used in committing any such offence may be seized by any Forest-officer or Police-officer.
[(1A) Any Forest-officer or Police-officer 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 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 to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.].
14. The Indian Forest Act, 1927 i.e. Act No. XVI of 1927 is enacted as to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce. Section 2 of the said Act deals with the interpretation of the various terms used in the Statute i.e. Indian Forest Act, 1927. Sub-section (3) to section 2 interprets the term "Forest offence" whereas; Sub-section (4) to section 2 interprets "Forest-produce", which includes the teak trees, which is the subject-matter of the present petition. The sub-section (7) of section 2 interprets the "Tree" which as stated hereinabove also includes the teak trees.
Though the term 'Reserved Forest' is not defined in the said Act however, the Supreme Court had an occasion to consider the same in the case of Union of India v. Abdul Jalil and others, reported in AIR 1963 SC 147, wherein the Supreme Court has observed thus:
""Reserved forest" are those area of forest Land which are constituted as reserved forest under Chapter II of the said Act."
Section 26 of the said Act provides for 'prohibition' of the act by any person in the forest which includes clearing of trees, damage by negligence or otherwise, felling of any tree, cutting or dragging of any timber etc.
Chapter IV of the said Act empowers the State Government to constitute any land other than the reserved forest as protected forest and; it further empowers the State Government to make rule to regulate the cutting, sawing, conversion and removal of trees and timber etc., and also provides for penalties as prescribed in the section for the acts committed by an individual or any group in contravention of the prohibition contained in the said Act.
Chapter VII of the said Act deals with the Control of the State Government over Timber and other Forests-Produce in transit and section 42 provides for penalty for breach of rules made under section 41.
Chapter IX of the said Act deals with Penalties and Procedure. The said chapter provides for seizure of property liable to confiscation and forfeiture, release of property seized under section 52 and the intervention of the Magistrate under section 54. Section 61 of the Act provides for saving of power to release property seized whereas; section61-A deals with confiscation by Forest Officer of forest-produce where forest-offence is believed to have been committed. Sections 61A to 61G provide for the procedure to be followed in respect of confiscation and forfeiture of a property used in commission of forest offence. Perusal of the said sections gives a prima facie understanding that it provides for a complete procedure to be followed while dealing with the issue of confiscation and forfeiture including that of remedies and measures available to the parties concerned, as such the same appears to be Code in itself.
The scheme of the Act further envisages that the powers conferred on the Forest Officer under section 61-A and 61-B in case of seizure effected under section 51(1) of the said Act. Section 61-B confers power and procedure to be followed by the Forest Officer to deal with the issue of confiscation and Forest-produce under section 61-A. However, it further appears that offence is made triable by Magistrate in case of offence under the Indian Forest Act is alleged to have been committed. The essential ingredients of the section 52(1) can be summarized as, a Forest-produce is seized along with the tool or vehicle used in commission of such forest offence, then Forest Officer is entitled to seize the same. There has to be circumstances which prompts the Forest Officer to form an opinion that the forest offence has been committed in respect of the said forest-produce. So far as the above referred observations are concerned, we supported in our view in light of the law laid down by the Division Bench of this Court in the case of Mangal Sarjerao Bharate v. A.B. Dhangre, Divisional Forest Officer, reported in MANU/MH/0043/1989 : 1990 Mh.L.J. 204.
If the conduct of the petitioner is tested in the light of the provisions of section 26, which provides for acts prohibited in Forest, more particularly sections 26(1)(f), section 33(f), the respondent-authorities have rightly invoked the section 52 of the Act for seizure of the property. The vehicle in question as is apparent from the provisions of section 55 of the said Act, is liable for forfeiture, which appears to be in addition to the punishment prescribed for an offence. The fact that, when the vehicle of the petitioner was stopped and he was confronted by the Forest Officials so as to find out the source of the teak trees which were sought to be transported in the petitioner's vehicle and when he was called upon to produce the transit pass as is required under the Act for transportation of teak tree, the default on the part of the petitioner or his agent to produce the same points a finger of prima facie involvement of the petitioner's vehicle in commission of forest offence.
15. In the present case, from the record it appears that, the vehicle in question was seized by the Forest Officials as is reflected in the inquiry report and the other documents.
16. It is further apparent that the petitioner was served with a show-cause notice on 27th January, 1997 and the petitioner has not cooperated with the authorities in the said inquiry, which has delayed the proceedings taken up in pursuance of the Indian Forest Act for passing a final order about the confiscation and forfeiture of the vehicle of the petitioner.
17. In that view of the matter, merely because the petitioner had made certain representations to the respondent-authorities for release of his vehicle whereby he has accepted his guilt and just because the petitioner has further clarified that the alleged commission of offence in question by his driver was because of the bona fide act of his driver, does not confer any right in him much less under the provisions of Indian Forest Act to claim release of vehicle immediately unless the inquiry as was proposed and conducted in the matter is completed. We are fortified in our view in light of the law laid down by the Hon'ble Apex Court in the case of State of Karnataka v. K. Krishnan, reported in MANU/SC/0512/2000 : AIR 2000 SC 2729. The Hon'ble Apex Court while dealing with the similar case, in paragraphs '7' and '8' observed thus:
7. Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, catties, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and then-produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.
8. The approach adopted both by the Authorised Officer and the High Court completely ignores the importance of the forests and the purpose of the object for which the Act was made. As the appellant-State has not prayed for quashing the order of the Authorised Officer we refrain to deal with that even though we do not approve it. We are, however, satisfied that the High Court had adopted a very casual approach while disposing of the petition under section 482 of the Code of Criminal Procedure. Besides that the order impugned is contrary to law, we have our reservations with respect to the powers of the High Court under section 482, Criminal Procedure Code in the matter which we do not express in this case.
18. The Hon'ble Apex Court has further referred the said position in the matter of Section Forestor and another v. Mansur Ali Khan, reported in MANU/SC/1010/2003 : AIR 2004 SC 1251.
19. Having regard to the above legal position, this Court has not noticed an illegality or irregularity on the part of the respondents in not releasing the vehicle of the petitioner immediately, whereas it is apparent that the respondents have followed the procedure as is contemplated under the provisions of the Indian Forest Act, 1927 while dealing with the issue about release of vehicle.
20. In any case, the claim put forth by the petitioner that the respondent-officers particularly respondent Nos. 6 and 7 have acted mala fide against the petitioner and has demanded illegal gratification for release of his vehicle, in no way come to the help of the petitioner in view of the fact that the said allegations of the petitioner were independently inquired into by the Superior Officers and have found no substance in the same and as such the said contention of the petitioner that the respondents have acted in mala fide manner is liable to be rejected. In light of the above, no case for interference is made out at the behest of the petitioner and same is dismissed with no order as to costs.
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