Andhra HC (Pre-Telangana)
Govt. Of A.P. vs Dinde Kanakamma And Another on 17 June, 1998
Equivalent citations: 1998(5)ALD436, 1998(5)ALT171
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. These Writ Appeals arise out of a common judgment of the learned single Judge rendered in a batch of writ petitions wherein the learned Judge upheld the orders passed by the District Judges on the appeals presented to them under sub-section (2-E) of Section 44 of the A.P. Forest Act (hereinafter referred to as 'the Act'), The appeals were preferred by the persons whose vehicles (Lorries) were confiscated by the Authorised Officer in exercise of power under sub-section (2-A) of Section 44 together with the timber/forest produce which the vehicles were carrying, on the ground that forest offences were committed in respect thereof.
2. On appeal under sub-section (2-E) of Section 44 of the Act, the District Judges set aside the orders of confiscation of vehicles subject to the condition of the petitioners paying within the stipulated period a sum of money equivalent to the value of the illicit timber seized or double the value thereof as 'compounding fee'. The confiscation order as regards the timber was, however, confirmed and we are not concerned with that aspect.
3. Contending that the power to direct release of vehicle on payment of 'compounding fee' is not vested with the appellate Court and attacking the finding of the appellate Court in some cases regarding the absence of knowledge on the part of vehicle owner, Writ Petitions were filed by the State Government against the orders passed by the Addl. District Judge, Khammam and others. Amongst the grounds urged in WP No.15862 of 1990 (which is the subject-matter of Writ Appeal No. 1453 of 1995), the following ground may be noticed:
"In any event, the second respondent (ADJ) ought not to have compounded the case. Instead, the 2nd respondent should have remanded the matter to the Authorised Officer to consider the case under Section 59 of the Act." The same contention is also reiterated before us in these writ appeals. In raising this contention, the appellant-State placed reliance on the decision of Division Bench of this Court in Divisional Forest Officer v. Laxman Pratap Ray, , which was also referred to by the learned single Judge, The details of that decision we shall advert to later. For the present, suffice it to note that at the time the appellate Courts passed the orders, that Judgment was not rendered. It is only during the pendency of the Writ Petitions that the Division Bench handed down its ruling on several important aspects concerning the interpretation of compounding provisions. Inter alia, the Division Bench ruled that the District Court has no power to direct compounding and payment of certain sum of money as compounding-fee. The learned single Judge took the view that the appellate Court passed the impugned order by was of modifying the order of confiscation 'but not by way of compounding'; Being conscious of the feet that the appellate Judge himself used the expression 'compounding', the learned single Judge took the view that in substance, it was not really a case of compounding, but it was a case in which the compounding fee prescribed under the Act was taken as a measure for fixing the sum directed to be paid in few of confiscation. To reach the conclusion which he did, the learned Judge took note of the power confided to the appellate Court to "pass such order as it may think fit''. It is on this reasoning that the orders of appellate Court were upheld in the Writ Petitions, Aggrieved by the judgment of the learned single Judge, the present Writ Appeals are filed by the State.
4. When the matter came up before a Division Bench consisting of P.S. Mishra, CJ. and M.H.S. Ansari, J, the Bench observed that the view taken by the learned single Judge, may, to certain extent conflict with the view expressed by the Division Bench in the aforementioned case. At the same time, the Division Bench made a passing observation expressing some doubt on the correctness of the decision in Laxman Pratap Ray's case (supra) in the following terms:
"There is, however, good reason to think that, in case the confiscation is not held to be a proper order on the facts and in the circumstances of the case, the appellate authority which is empowered to pass such order as it may think fit may extend to an order by the appellate authority to take steps under Section 59 of the A.P. Forest Act."
After so observing, the Division Bench refrained from expressing a definite opinion as it was not open to a Bench of co-ordinate jurisdiction to differ with the view earlier taken. The matter has, therefore, been placed before the Full Bench.
5. In this background, the question before us, briefly stated, is whether the Appellate Court exercising jurisdiction under Section 44(2-E) can, in lieu of confiscation of the vehicle, direct release of the vehicle on payment of a sum of money which might represent a part of the value of the vehicle?
6. Let us now have a look at the crucial provisions of the Act and the Rules.
7. Chapter-VII carries the heading "Penalties and Procedure". Section 44 is the first Section in the Chapter and deals with "Seizure of property liable to confiscation and procedure thereupon". Sub-section (1) provides for seizure of timber or forest produce together with tools, vehicles, cattle etc., if a Forest Officer or Police Officer has reason to believe that a forest offence has been committed in respect of the timber or forest produce. 'Forest Officer' is defined as various categories of Officers empowered to perform functions of a Forest Officer under the Act or any rule or order made thereunder but does not include a Forest Settlement Officer.
8. Sub-section (2) lays down that an officer seizing the property or the receptacle, except where the offenders agrees in writing forthwith to get the offence compounded, without any reasonable delay, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the Government (hereinafter referred to as the 'authorised officer') or make a report of such seizure to the Magistrate.
9. Sub-section (2-A) confers the power of confiscation on the authorised officer subject to giving a show-cause notice and reasonable opportunity of being heard as per sub-section (2-B). Sub-section (2-A) is extracted below:
"Where an authorised officer seizes under sub-section (1) any timber or forest produce or where any such timber or forest produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the timber or forest produce so seized or produced together rath all tools, ropes, chains, boats or vehicles used in committing such offence."
10. Sub-section (2-C) lays down that no order of confiscation of any tool, boat, vehicle etc, shall be made if the owner thereof proves to the satisfaction of the authorised, officer that it was used in carrying the property without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool, boat, vehicle etc. and that each of them had taken all reasonable and necessary precautions against such use. Sub-section (2-D) confers the power of revision on the Conservator of Forests against the order passed under sub-section (2-A). Sub-section (2-E) is the crucial provision dealing with appeal and we quote the same:
"Any person aggrieved by an order passed under sub-section (2-A) or subsection (2-D) may, within thirty days from the date of communication to him of such order, appeal to the District Court having jurisdiction over the area in which the property has been seized, and the District Court shall after giving an opportunity to the parties to be heard, pass such order as it may think fit and the order of the District Court so passed shall be final."
11. Sub-section (3) provides for making a report of seizure to the Magistrate under sub-section (2) and the power of the Magistrate to release the vehicles, boats, tools etc. on the execution of a bond for the production of the property released if and when required by the Magistrate. Sub-section (4) empowers the Magistrate, receiving a report under subsection (2) to take necessary measures for the trial of the accused and the disposal of the property according to law, except where the offence is compounded.
12. Section 45 provides for confiscation of timber or forest produce and of any tool, boat, vehicle etc. used in committing the offence, on conviction of a person concerned of a forest offence. However, if an order of confiscation has already been passed under Section 44, the Section provides that no order of confiscation should be passed by the Magistrate.
13. Section 50 lays down when the property confiscated will vest in the Government. Section 51 confers power on the Divisional Forest Officer to direct immediate release of any property under Section 44 of the Act and the withdrawal of any charge made in respect of the said property, notwithstanding anything contained in the Act. However, if a report has been made to the Magistrate under Section 44, the Divisional Forest Officer shall take the prior approval of the Magistrate before releasing the same.
14. The above are the provisions dealing broadly with seizure and confiscation.
15. Next, the set of provisions dealing with composition of offences deserve notice. The core provision is Section 59.
It reads as follows:
"59. Power to compound offences:
(1) Any Forest Officer, specially empowered in this behalf by the , Government may accept a compensation from any person who committed or in respect of whom it can be reasonably inferred that he has committed any forest offence, other than an offence under Section 52 or Section 55-
(i) a sum of money not exceeding fifty rupees where such offence is of trivial nature;
(ii) a sum of money which shall not in any case be less than the value of the, forest produce, or more than four times Such value as estimated by such forest officer, in addition to the value of the forest produce, where such offence involves any forest produce which in the opinion of the forest officer may be released;
(iii) a sum of money which shall not in any case be less than the value of the forest produce or more than four times such value as estimated by such forest officer, where such offence involves forest produce which in the opinion of the forest officer should be retained by the Government.
(2) On receipt of the sum of money referred to in sub-section (1) by such officer:
(i) the accused person, if in custody, shall be discharged;
(ii) the property seized shall, if it is not to be so retained, be released; and
(iii) no further proceedings shall be taken against such person or property."
16. Allied to Section 59, there are certain Rules governing the subject of compounding of offences, Rule 4 lays down that an enquiry into a forest offence shall be held by an Officer not below the rank of a Ranger.
Rule 5 lays down that every accused who expresses his willingness to have the offence compounded as provided in Rule 4 shall forthwith give a written undertaking in that regard in Form 'A'. Rule 6 says that if immediately after offence is detected or at the time of inquiry, accused is willing to pay in advance any amount towards compensation to be fixed under Section 59 of the Act, any Forest Officer may accept such amount and shall issue a receipt for the amount so received. Proviso to Rule-6 says that the acceptance of the aforementioned amount shall be without prejudice to any decision that may be taken by the competent authority. Rule-8 specifies the officers competent to compound the offence under Section 59. Where the accused has given an undertaking-in terms of Rule-5, the Divisional Forest Officer or the Sub-Divisional Forest Officer are authorised to pass the order of compounding in respect of all forest offences. Every order passed under Section 59 read with Rule-8 shall be in Form-B. Rule 9 makes it clear that the competent forest officer may refuse to compound an offence in any particular case without assigning reasons and in such a case, the advance compensation amount received from the accused under Rule 6 shall be refunded to him. Rule 10 gives a right of appeal to 'any person aggrieved by an order passed by an officer under Rule 8' and the appeal lies to the superior forest authorities specified therein. Rule 12 provides that if compounding is not opted for and accepted, prosecution may be launched.
17. On an analysis of the relevant provisions adverted to above, a Division Bench of this Court consisting of M. Jagannadha Rao, and P.L.N. Sarma, JJ in Divisional Forest Officer v, Laxman Pratap Ray (supra) laid down the following propositions:
(1) The application for compounding (in Form-A) has to be submitted by the offender at the time of detection or inquiry under Rules 4 and 6 and well before the matter is referred to the authorised officer or if the seizure is by the authorised officer himself, before such officer initiates proceedings for confiscation.
(2) The Officer dealing with confiscation (known as 'authorised officer') and the officer seizing the forest produce etc., even, if he be the same officer acts in different capacities. The authorised officer exercising powers under Section 44 (2A) and (2B) does not deal with the question of compounding at all.
(3) No appeal lies against an order refusing to compound the offence. Rule-10 provides for appeal only against an order of compounding made under Rule-8 i. e., in regard to the quantum. It necessarily follows that in the course of appeal to the District Court under Section 44 (2E), the propriety or otherwise of the action of the authorities concerned in refusing to compound the offence cannot be questioned.
(4) The 'inquiry' mentioned in Rule 6 should not be confused with the 'inquiry' before the confiscation authority (authorised officer).
(5) The officer referred to in Rules 4 and 6 should give a choice or option to the offender to compound the offence, before referring the case to the authorised officer for confiscation. In other words, the Forest Officer concerned shall, before the confiscation proceedings are set in motion, ask the offender whether he is prepared to have the offence compounded. However, even if the party exercises option or agrees to compound, it is open to the competent authority not to accept compounding or accept it on such conditions as it deems fit.
(6) If an opportunity of compounding is denied to the party by omitting to send an intimation or notice in this behalf, the confiscation proceedings arc liable to be set aside and the matter has to be remitted back to the anterior stage (i. e., the stage before initiation of confiscation proceedings) for giving the offender or accused such an opportunity.
(7) The expression "such order, as it may think fit" in Section 44 (2E) does not empower the Court to remit the case to the authorities concerned to the anterior stage for the purpose of giving an opportunity to compound the offence. This expression should be confined to the questions relating to confiscation.
(8) If compounding is refused, the reasons must be recorded and communicated to the party concerned. This requirement has to be read into Rule 9 in order to sub-serve procedural fairness consistent with principles of natural justice.
18. In the Writ Appeal dealt with by the Division Bench, the petitioner did not file an application for compounding. The learned single Judge permitted the petitioner to file an application before the appellate Court in this behalf. It is against this order that the Forest Department filed the writ appeal contending, inter alia, that the District Court had no jurisdiction to entertain such application and therefore such a direction ought not to have been granted. It may be stated that pursuant to the order passed in the writ petition, the District Court permitted compounding subject to the condition of the writ petitioner depositing a sum of Rs.25,000/- before the Divisional Forest Officer, while setting aside the order of the learned single Judge as well as the District Court, their Lordships directed the Officer seizing the goods or any other competent Forest Officer to give an option to the writ petitioner to have the offence compounded and to proceed further in the matter in the light of the reply received from the writ petitioner. The amount of Rs.25,000/- paid over in the meanwhile was directed to be refunded.
19. We fully concur with the reasoning and the conclusions reached by the learned Judges in Laxman Pratap Ray's case (supra), excepting to a limited extent of qualifying proposition No.6. We, therefore, refrain from entering into further discussion on the very same issues.
20. But, the question still remains whether in view of the principles laid down in the said decision, the appellate Court to have necessarily set aside the confiscation order and remitted the matter back to the stage anterior to initiation of confiscation proceedings in order to seek the willingness of the party to have the offence compounded or whether it is open to the Court to pass any other just order short of confiscation without offending the principles laid down in Laxman Pratap Ray's case (supra)? In other words, we have to consider whether the ultimate order passed by the District Court in each of these cases warrants interference though the line of approach adopted by the Court may not be in strict conformity with law.
21. In order to find an answer to the problem on hand, our first endeavour should and ought to be to understand the parameters and content of power of confiscation conferred on the authorised officer under Section 44(2-A) of the Act. The sub-section enjoins that where the authorised officer before whom the seized timber or forest produce has been produced is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the timber or forest produce seized or produced together with all tools, ropes, chains, boats or vehicles used in committing such offence. It goes without saying that if on enquiry it is found that no forest offence has been committed in transporting the timber or forest produce, the question of confiscation does not arise. The authorised officer or the appellate authority (District Court) should necessarily address itself to the question whether a forest offence has in fact been committed, if a dispute is raised in that behalf. As far as the vehicle is concerned there is another situation in which the vehicle has got to be released. That is in a case where sub-section (2-C) applies. Subsection (2-C) mandates that no order of confiscation of the vehicle shall be made if the owner thereof proves to the satisfaction of authorised officer that it was used in carrying the property without his knowledge or connivance or of his agent or the person in-charge of the vehicle in regard to commission of offence and that each of them had taken reasonable precautions against such use. If these ingredients are satisfied in the sense that the lack of knowledge on the part of the vehicle owner or of his agent or person in-charge of the vehicle is proved, the ban under sub-section (2-C) against passing an order of confiscation operates. Be it noted here that the satisfaction could be reached in this regard by the appellate Court as well.
22. If the situations adverted to above entitling the owner to secure release of the forest produce or the vehicle arc kept aside, the question would then arise whether in the absence of such situations, the confiscation of the timber/forest produce together with the vehicle used in the commission of offence is compulsive or obligatory or whether the authorised officer or the appellate Court as the case may be has still got discretion not to confiscate at all or to confiscate only a portion thereof?
23. While considering this question, we must necessarily take note of the fact that the expression used in "may order confiscation". The word' 'may'' is not a word of compulsion. Going by the plain language, the use of the expression "may" denotes that an enabling power is conferred on the authority concerned. It implies a discretion. At the same time, it is a well settled proposition that the enabling words like "may" or "shall be lawful" are construed as compulsive depending upon the context, the objective underlying such provision, the conditions subject to which the power has to be exercised and the consequences that ensue by construing it one way or the other i.e., permissive or compulsive. It is often said that the words "may" and "shall" are used as interchangeable terms while interpreting the statutory provision notwithstanding their grammatical meaning. But it is not accurate to say that the word 'may' sometimes acquires the meaning of 'must' or 'shall', as pointed out by Beg, C.J. in Official Liquidator v. Dhartj Dhan (P) Limited, . As pithily and graphically expressed by Cotton, L.J. in Inre Nichols v. Baker, 59 LJ Ch 661, "May" can never mean must, so long as the English language retains its meaning; but it gives a power and then it may be a question, in what cases, when any authority or body lias a power given to it by the word 'may', it becomes its duty to exercise that power." Beg, C.J. in Official Liquidator v. Dharti Dan (supra) spoke in more or less the same language. After referring to Section 442 of the Companies Act, the learned Judge observed:
'' In fact it is not quite accurate to say that the word "may", by itself, acquires the meaning of "must", "shall" sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness."
"If the applicant can make out, on facts that the objects of the power conferred by Section 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts. That would be the position not because the word "may" itself must be equated with "shall" but because judicial power has necessarily to be exercised justly, properly, and reasonably to enforce the principle that rights created must be enforced."
24. In a somewhat different language, the connotation and the potential meaning which the word "may" is capable of receiving was expressed in State of U.P. v. Jogendra Singh, by Gajendragadkar, J (as he then was) in the following terms:
"There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well settled that the word ' 'may'' is capable of meaning "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command."
25. This passage was cited with approval in Textile Commissioner v. Sagar Textile Mills, .
26. We shall now turn to the decided cases we have come across which interpreted the expressions "may confiscate" and "shall be liable for confiscation" occurring in different central enactments.
27. Construing Section 6-A of the Essential Commodities Act in N. Nagendra Rao & Co. v. State of A.P., , this is what the Supreme Court had to say while adverting to the same expression "may order confiscation" as is found in the A.P, Forest Act:
"But what needs to be mentioned is that since the power is very wide as a person violating the Control Orders is to be visited with serious consequences leading not only to the confiscation of the seized goods, packages or vessel or vehicle in which such essential commodity is found or is conveyed or carried, but is liable to be prosecuted and penalised under Section 7 of the Act, it is inherent in it that those who arc entrusted with responsibility to implement it should act with reasonableness, fairness and to promote the purpose and objective of the Act. Further, it should not be lost sight of that the goods seized are liable to be confiscated only if the Collector is satisfied about violation of the Control Orders. The language of the Section and its setting indicate that every contravention cannot entail confiscation. That is why the Section uses the word 'may'. A trader indulging in black-marketing or selling adulterated goods etc. should not, in absence of any violation, be treated at par with technical violations such as failure to put up the price list etc. or even discrepancies in stock"
28. Thus, the Supreme Court took the view that confiscation is not compulsive ' even if there was contravention of the Control Order. It was indicated that a mechanical approach would lead to negation of fairness and reasonableness in the decision-making. In that view of the matter, the Supreme Court was not inclined to read the expression "may" in a way different from its ordinary meaning. The power to confiscate was held to be permissive, discretionary or enabling only.
Section 6-A of the Essential Commodities Act came up for interpretation in an earlier. case i.e., in State of Karnataka v. K.B. Walvakar, . One of the contentions urged in that case was that the power conferred on the specified authority under Section 6-A of the Act is a discretionary power as the word 'may' suggest and had to be used according to the sound judicial principles. It was therefore urged that the order of confiscation of the entire consignment ought not to have been passed by the Deputy Commissioner having regard to the facts of that case. While holding that in the facts and circumstances of the case, the Deputy Commissioner acted in public interest to direct confiscation of the entire consignment of groundnut oil that was being transported without famishing the prior declaration, agreed with the Counsel for the respondent that the discretionary power is vested with the Deputy Commissioner under Section 6-A. At the same time, it was emphasised that the word 'may' used in Section 6-A makes the power coupled with a public duty to act so as to direct confiscation of the entire consignment, if the public interest was thereby sub-served. This is what the Supreme Court observed at paragraph 9:
"As to point No.(1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under Section 3, is a discretionary power. The use of the word 'may', however, does not necessarily mean that the Deputy Commissioner cannot, in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under Section 3 of the Act. It all depends on the facts and circumstances of each case whether the confiscation should be of an entire consignment or part of it, depending upon the nature of the contravention. The power conferred on the Deputy Commissioner under Section 6-A of the Act, by the use of the word 'may', makes the power coupled with a public duty. Sometimes it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention of the provisions of an order issued under Section 3."
29. However, in relation to the expression 'shall be liable for confiscation' -which prima facie sounds to be premptory and mandatory, the view of the Supreme Court is not uniform, though the preponderance of the view as reflected in three cases, viz., , , is to read into it an obligatory duty to confiscate. It was held in those cases that the confiscation of the offending vehicle or vessel is mandatory and the Court or the prescribed authority cannot avoid passing the order of confiscation on a consideration of graveness of the offence and extenuating circumstances. But, in State of M.P. v. Azad Bhamt Finance Co., , the Supreme Court took the view that confiscation was not obligatory. In that case, the Supreme Court approved the view of the High Court which interpreted Section 11 of the Opium (Madhya Bharat Amendment) Act as permissive and not obligatory, notwithstanding the use of expression "shall be confiscated". The Supreme Court observed that the use of the word "shall" does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word 'shall' occurs and the other circumstances. One of the considerations taken into account, was it would be unjust to confiscate the truck of a person if he had no knowledge whatsoever that the truck was being used for transporting opium. Such a situation is of course taken care of by the A.P. Forest Act and the considerations just now mentioned will not come into play as far as this Act is concerned. Another consideration taken into account by their Lordships was that the Section itself "may have to be struck down" as imposing an unreasonable restriction, if the meaning suggested by the State Government's Counsel was accepted. It was therefore held that the Court was not under an obligation to confiscate a vehicle in which contraband opium had been transported. The ratio of this decision was applied and adopted by Madras High Court in Mam & Co. v. Forest Range Officer, 1967, MU (Crl.) 268, while dealing with Section 43 of the Madras Forest Act.
30. We shall now notice the cases in which an apparently different view was taken as regards the confiscation of a vehicle or vessel. In the three cases which we are going to refer, the expression used was "shall confiscate" or "shall order confiscation".
31. The first decision to be noticed is the Constitution Bench decision in Indo-China Steam Navigation Co.Ltd v. Jasjit Singfc, . That was a case in which a huge quantity ot contraband gold bars was found in a concealed space behind the wall-panelling of the ship which sailed to Calcutta. The order of confiscation of the vessel was passed under Section 167(12A) of Sea Customs Act and the owner of the vessel was given option to pay a fine of Rs.25 lakhs in lieu of confiscation. Section 167(12A) provides that if a vessel constructed, adapted, altered or fitted for the purpose of concealing the goods in contravention of Section 52-A enters or is within the limits of any port of India, such vessel shall be liable to confiscation. The Supreme Court rejected the contention that the penalty prescribed by Section 167(12A) may, in a given case, not be imposed against the ship. After referring to the words - "such vessel shall be liable to confiscation'', the Supreme Court observed:
" The context seems to require that it is not open to the customs authority to refuse to confiscate the vehicle on the ground that it would be unfair to impose the penalty of confiscation. The confiscation of the vessel is the immediate statutory consequence of the finding that an offence under clause 12-A is established, just as the imposition of some penalty against the master is another statutory consequence of the same contravention.''
32. In Superintendent & Remembrancer, LA. W.B. v. Abani Maity, Sections 63 and 64 of the fiengal Excise Act came up for interpretation. That Section provided for confiscation of a conveyance such as cart or vessel if two conditions are established - (a) that the conveyance was used in carrying the contraband intoxicant; (b) that the owner of that conveyance is implicated in the commission of the offence. Section 63 enjoins that whenever an offence has been committed which is punishable under the Act, the intoxicant, utensils, implements and receptacles and the conveyance used in carrying the same shall be liable to confiscation. However, in Section 64, a permissive language was used. Section 64 lays down that if the Magistrate decides mat anything is liable to confiscation under Section 63, he may either order confiscation or give the owner of such thing an option to pay in lieu of confiscation, ,, such fine as the Magistrate thinks fit. The Supreme Court held that once the facts essential for incurring the liability to confiscation are established, the Magistrate has no option but to adopt any of the two alternative courses indicated in sub-section (1) of Section 64, that is to say, he may either order confiscation of that conveyance, or give its owner an option to pay in lieu of confiscation, such fine as the Magistrate thinks fit. The Magistrate cannot just ignore to adopt any of these alternatives. The Supreme Court concluded - "Thus considered, it seems clear that the expressions "shall be liable to confiscation" and "may" in the aforesaid provisions were intended to have a compulsive force". In doing so, the Supreme Court inter alia took into account the objective oftheAct. It is to be noted that it was a case in which the expression "shall be liable to confiscation" was used in the preceding Section 63 and in Section 64, the expression "may order confiscation'' of the thing liable to confiscation under Section 63 was employed. As the vehicle became liable for confiscation per force of Section 63, their Lordships held that the Magistrate had no discretion but to order confiscation or to give an option to pay fine in lieu of confiscation. In support of their reasoning, the Supreme Court reiterated the principle of interpretation of the word "may" in the following terms:
"For instance, the use of the word "may" would normally indicate that the provision was not mandatory. But, in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an ineffectual angel beating its wings in a luminous void in vain".
33. In Chem Taong Shang v. S.D. Baijal, , the Supreme Court had occasion to deal with Section 13 of Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act. Section 13 provides that on the conviction of the person i.e., the master and the charterer, of an offence under Section 10 or 11 or 12, the vessel used in connection with the offence together with the fish on board such ship or the sale proceeds of the sale of such fish, stores, cargo shall also be liable to confiscation. The Supreme Court observed:
"Viewed in the context, the words 'shall also be liable to confiscation' do-not leave any discretion to the Magistrate or the Court to make no order of confiscation of the vessel as soon as the masters of the vessel are convicted under Sections 10 or 11 or 12 of the said Act. The Legislative intent in making this provision is to provide deterrent punishment to prohibit fishing in exclusive economic zone of India by foreign vessel in infringement of the Act and the rules framed thereunder and the conditions of permit or licence."
34. The Supreme Court relied upon the decision in Indo-China Steam Navigation Co. Ltd., case (supra) which is a case arising under Section 167(12A) of the Sea Customs Act, 1878 and (supra) which wehavejustnowreferredto. Referring to the decision in Azad Bharat Finance Co., case (supra) the Supreme Court pointed out that the earlier decision of the Supreme Court in Indo-China Steam Navigation case (supra) was not referred to. It was also pointed out that the main consideration which weighed with the Court was that unless the knowledge on the part of the vehicle owner was established, it would be unjust to confiscate the conveyance and it was observed that such a consideration did not really crop up in that case. The Supreme Court also referred to the objects and reasons of the M.Z.I. Act in support of its conclusion.
35. On a conspectus of the various cases and the provisions of the A.P. Forest Act and the Rules and having due regard to the principles of interpretation adverted to above, we are inclined to take the view that the power of confiscation vested in the authorised officer under sub-section (2-A) or Section 44, qualified by the word 'may' is discretionary and permissive in nature. The moment a finding is reached about the commission of forest offence, the confiscation need not automatically follow. As pointed out by the Supreme Court in N. Nagendra Rao case (supra), the nature of contravention ought to be Ultimately taken into account and the original or appellate authorities are expected to exercise the power conferred on tliem in a reasonable and judicious manner. If any and every contravention is to be visited with the extreme penalty of confiscation of the offending material and the vehicle, it might often times lead to unjust and irrational consequences. The expression'forest offence' takes within its fold the entire sweep of offences punishable under the Act or any Rule made thereunder. They are not merely confined to trafficking in illicit timber or other valuable forest produce from the State owned forests. Let us take a case where the wood or some other forest produce obtained from the trees of a private patta land or from a private forest is transported bonafide for a legitimate purpose; but, it is not covered by a transit permit as required under the Rules or the currency of permit had expired a day earlier. Or, let us take a case where cut sizes of timber are purchased from a licensed saw-mill under a bill and/or a delivery challan and when they are being transported to the house of the buyer for construction purpose, they are seized on the ground that the saw-mill owner received some quantities of timber without transit permits in contravention of sub-rule (5) of Rule 6-A of the A.P. Saw Mills (Regulation) Rules. In such situations, is it just and proper and is it reasonable to confiscate the entire material together with the vehicle by which it has been carried? If no discretion is left to the authorised officer or the appellate authority, confiscation should follow even in situations of the nature adverted to above, notwithstanding the fact that the forest offence is trivial, technical and unintentional. Let us also take the illustration of a lorry carrying timber a small portion of which is not covered by a transit permit whereas there is transit permit for a substantial quantity thereof. In such case, is it reasonable to hold that the Act contemplates and enjoins the confiscation of the lorry together with the timber? The answer can only be in the negative. The expression "may order" has been advisedly used by the Legislature to save hard cases from the rigour of law and to imbue rationality and judiciousness to the confiscatory action. The concept of proportionality in penal action is ingrained and implied in the enabling expression' 'may order confiscation' '." That is not to say that the authorities concerned at their whim and fancy can refuse to exercise the power of confiscation when it is warranted on the facts and circumstances of the case and choose to adopt an over-liberal istic view. It may be recalled that even an enabling power is coupled with a duty to act when the action is called for. Let us take case where a truck load of valuable timber or red sandars stealthily obtained from reserve Forest area is carried with the full knowledge of the lorry owner. In such a case, it could normally be said that the public interest warrants confiscation of not only the forest property but also the truck. Or, let us take a case where vehicle is found to be habitually used for transporting the timber unauthorisedly. Such cases also might call for a deterrent action by way of confiscation of the vehicle. If the concerned authority fails or refrains from exercising that power without an apparently valid reason, that amounts to abuse or perverse exercise of discretion which itself is an independent ground to invalidate such action. The use of the word 'may' does not support the theory of absolute discretion nor does it countenance abuse of power or the exercise of power for a collateral purpose, because as discussed above, the discretionary power denoted by the expression "may" is a power coupled with duty to act whenever the situation warrants, keeping in view the paramount consideration of public interest underlying the provisions of the Act. The power ought to be exercised when by all objective standards, it can be said that the occasion for exercise of power is imminent and expedient or where the non-exercise of power of confiscation in a given case would have the deleterious effect of emasculating the enforcement of the Act. But, it should not be assumed that the vesting of discretion with the authority concerned to invoke or not to invoke the power of confiscation would itself make the Act ineffective or self-defeating. On the other hand, the recognition of the discretionary power will facilitate grant of relief in needy cases and culmination of penal action in the form of confiscation, if the facts and circumstances warrant. For instance, carriage of smuggled or clandestinely removed forest produce does not stand on the same footing as one's own material or material secured * from a legitimate source. The interpretation which we are placing in tune with the well established canons and the decided cases bearing on the interpretation of analogous provisions will, in our considered view, remove the sting of harshness and paves the way to a balanced, rational and holistic approach. Such approach finds its echo in the doctrine of proportionality which has been elaborately discussed and succinctly stated in a recent decision of the Supreme Court in Union of India v. Ganayutham, .
36. The interpretation placed by the Supreme Court in the two decisions arising under the Essential Commodities Act are nearer home and they furnish a safe guide to understand the connotation of the expression "may order confiscation". The very same expression was construed to confer a discretionary power. It was, however, stressed in K.B. Walvakar's case (supra) that the discretion was not absolute, but required to be exercised judiciously, depending on the fact situation as the power is coupled with duty. We do not sec any compelling reasons to adopt a different approach and to accord a different meaning to that expression occurring in Section 44 (2-A) of the A.P. Forest Act. We cannot draw much support from the four cases referred to above, in which a different expression - "shall confiscate" or "shall be liable to confiscation" was employed. Considerations of difference in language apart, the three cases referred to supra (9, 10 & 11 supra), are distinguishable on other grounds as well. In Indo-China Steam Navigation Co. Ltd., case (supra) and in Chem Taong Shang case (supra), the magnitude of the offence and the evil intended to be curbed is not comparable to the forest offences of many types. Moreover, the primary responsibility for contravention has to be placed on the ship or vessel. As far as the Sea Customs Act is concerned, there is a provision for levy of fine in lieu of confiscation which will have a mitigating effect at times. So is the case with Bengal Excise Act (dealt with in Abani Maity case - supra) where the Magistrate is given the choice of imposing fine. The ratio of the decision in that case was that the Magistrate was bound to resort to one of the alternatives i.e. either confiscation of conveyance or imposition of fine when once the offence is proved and in choosing to exercise one of them, the Magistrate is expected to act judiciously. We do not therefore think that any of these decisions afford any assistance to the State's plea. In feet, after brief arguments in this regard, the learned Government Pleader did not consider it necessary to pursue it to its logical end, realising the limitations of his argument.
37. We shall now turn our attention to an equally important question - whether in a case warranting confiscation, is it obligatory to confiscate the vehicle or conveyance used in the commission of offence or a part of the value thereof can be directed to be paid and forfeited to the State! Incidentally, we shall have to consider whether a part of timber or forest produce can be confiscated while releasing the rest.
38. The expression used in the confiscation provision i.e., sub-section (2-A) is - 'may order confiscation of the timber or forest produce.... together with all tools, ropes, chains, boats or vehicles used in committing suchoffence'. We have held that a permissive or enabling power is conferred on the authorised officer to confiscate or not to confiscate and such power is expected to be exercised judiciously and reasonably. The same discretion is implicit in the appellate power. It is well settled that in the absence of specific limitations on the exercise of appellate power, the appellate authority can do what the original authority could do in relation to the subject-matter before it. Sometimes, the powers of the appellate authority may stretch beyond the parameters of the power vested in the original authority, for instance, the power of remand. If the original authority i.e., the authorised officer can be said to be endowed with the power to confiscate a part of the thing seized and to release the rest, undoubtedly, the appellate authority too will have the same power. We must therefore address ourselves to the question whether subsection (2-A) enables the authorised officer to confiscate a portion of the goods seized and release the rest.
39. When a discretionary or enabling power is conferred on the authorised officer to confiscate the timber or forest produce, by necessary implication, the power is conferred on him not only to release the whole lot of the timber or produce but also to release only a part of it. The content of the power of confiscation, emcompassed in the widely worded expression 'may order confiscation', is net to be construed in a narrow and restricted sense. The larger power, in our view, takes within its fold the smaller power to confiscate only a portion of the forest produce seized and to release the rest. The same considerations which weighed with us in interpreting the confiscation provision as conferring and enabling or discretionary power will equally hold good in conceding the power to confiscate only a portion of the timber or forest produce. It is difficult to countenance the possible plea that either there should be confiscation of the whole lot or not at all and there could be no mid-way. Such a construction of subsection (2-A), in our view, will frustrate the very objective of the provision and unduly hamper the amplitude of the power couched in wide and general terms. We may take an illustration: Supposing, a lorry load of one's own wood derived from the trees cut from the private land is seized while in transit from his field to his house without a permit. On a consideration of the overall circumstances, the authorised officer may feel that it is not a fit case for confiscation of the entire wood, but at the same time, the circumstances warrant the confiscation of atleast a part of the wood being carried in the larger interests of conservation of the adjacent reserve forest though there was no malpractice or mala fide intention on the part of the owner. In such a case, it is neither logical nor reasonable to deny such power to the authorised officer. The discretion of the authorised officer should be allowed to have its full play so long as he acts reasonably and fairly. Considerations arising out of exigencies of forest conservation in the local area coupled with the considerations bearing on the intention and conduct of the person concerned and the hardship that would otherwise result are all germane to the ultimate decision. Guided by these considerations, if the authorised officer deems fit to confiscate only a part of the forest produce in respect of which an offence would have been committed, it is difficult to say that the prescribed officer had exceeded his power or outstepped his jurisdiction. In any case, we need not dilate on this aspect any further in view of the definite indication we get from Section 50 of the Act which reads as follows:
"Property when to vest in Government: (1) Where an order of confiscation of any property passed under sub-section (2-A) or sub-section (2-D) of Section 44 has become final in respect of the whole or any portion of such property, such property or the portion thereof as the case may be, shall vest in the Government free from all encumbrances."
40. Section 50 is a clear pointer that the Legislature contemplated the confiscation of a portion of the property and the possibility of a portion of the property being released. When the Section refers to the confiscation order becoming final in respect of any portion of the property, it necessarily means that the appellate or revisional authority could have directed the release of a portion of the property confiscated. by the authorised officer. Let us take a case where licit origin of a part of the wood that is being carried in a vehicle is not established. But, as far as a substantial portion of the wood is concerned, a person is able to establish that it is not smuggled or unauthorised material and he may even establish that there is a valid permit in respect of a portion of that wood, hi such a situation, it is possible to direct confiscation of only that part of the wood in respect of which there is no proper explanation and/or which is not covered by the permit The Legislature is obviously conscious of the confiscation being confined ultimately to a portion of the forest produce.
41. Having thus reached the conclusion that (1) the authorised officer, appellate and revisional authorities are possessed of a discretionary power to direct release of the timber or forest produce seized even on reaching a finding of commission of forest offence, and (2) the power under subsections (2-AX (2-D) and (2-E) embraced within its scope the power to direct confiscation of only a portion of the property seized while releasing the rest, the next and final question is whether the later power can be extended to a vehicle? Though the basic considerations that ought to weigh with the original, appellate or revisional authority are the same - whether it be a case of confiscation of offending forest produce or vehicle, a practical difficulty may arise in exercising the power of partial confiscation in relation to a vehicle because it is not possible to direct confiscation of a part or parts of the vehicle. But, in our considered view, a pedantic or literalistic approach has to be avoided. The enabling provision has to be so read and modulated so as to allow the said provision to have its full play and effect. It would be unjust and even discriminatory to order release of a part of the forest produce being carried by the truck and at the same time direct the confiscation of the entire vehicle although the truck cmner had only a secondary role to play and was not an active privy to the offence. "Either release or confiscate the vehicle" - cannot be the governing principle. There may be situations - some of which we have already adverted to where confiscation of the vehicle may be unjust and wholly disproportionate to the gravity of the offence or the omissions and commissions of the vehicle owner or the person in-eharge thereof. At the same time, the authorised officer ,or the appellate authority may feel that the vehicle owner should not go scot-free and he should be visited with some penalty. There may be myriad situations in which it may not be desirable to go the whole hog and either confiscate or release the vehicle. In such situations, the original, appellate or revisional authorities should not be handicapped to pass just and appropriate orders. Fastening liability' on the vehicle owner merely on the ground that it is impracticable to confiscate a part or portion of the vehicle just as in the case of offending forest produce may stultify the very object of discretionary power conferred by the statute apart from leading to unjust consequences. Going by the language used in sub-section (2-B) or by the underlying objective, we do not think that in principle, there should be a distinction in the plenitude of confiscatory power between a vehicle and forest property. Therefore, choosing the path of purposive interpretation and invoking the concept of ancillary power, we are inclined to hold that the power to direct payment of money representing a portion of the value of the vehicle ought to be conceded to the authorities exercising powers under sub-sections (2-A), (2-D) and (2-E) of Section 44 of the Act in relation to the confiscation of the vehicle. We take it as a settled law that all powers necessary to make the exercise of substantive power effectual ought to be implied, more so, when it otherwise leads to unjust and unintended consequences. By conceding such powers to the statutory authority, it cannot be said that the Court is conferring a power \\hich is outside the scope and confines of tlie statute. On the other hand, it would promote the statutory purpose and intcndmcnt and pave the way to join the main stream of the provision. In our view, the power to confiscate money equivalent to the vehicle or a part of the value thereof is necessarily implicit in the larger power of confiscation of vehicle itself. Incidentally, we may mention a case in which bank guarantee is furnished for the value of vehicle and the vehicle is not available for confiscation. Necessarily the competent authority is empowered to invoke bank guarantee and forfeit the cash. Such instances are not lacking in actual practice. Taking such a step would not be outside the jurisdiction of a confiscating authority or the appellate authority. By parity of reasoning, there should be no legal bar against passing an order directing the vehicle-owner to deposit a part of the value of the vehicle as determined by the competent authority or appellate Court and to forfeit or confiscate the same. In effect and in substance, it would still be a confiscation order adapted to meet the particular situation. Such order is not beyond the contemplation of sub-section (2-A) of Section 44, but merely an adjunct to the power of confiscation. In this context, it is not out of place to refer to second proviso to Section 6-A of the Essential Commodities Act which enjoins that in the case of vehicle or other conveyance in which the goods arc carried in contravention of the relevant control order, the owner of the vehicle or other conveyance shall be given option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure, of the essential commodity sought to be carried therein. Thus, an express provision lias been made in the Essential Commodities Act as far as the confiscation of vehicle or conveyance is concerned in order to control the rigour of the confiscation provision and to impart rationality to the provision. The absence of such express provision in the A.P. Forests Act ought not to stand in the way of interpretation which we are inclined to place on sub-section (2-A) of Section 44 to make the provision more flexible in tune with the scheme and underlying purpose.
42, There was some debate on the scope of the expression "pass such order as it may think fit" occurring in sub-section (2-E) of Section 44 dealing with appeal. Though, having regard to the view we have taken, an elaborate discussion on this aspect is unnecessary. We deem it appropriate to say a few words 'before giving a finale to this judgment. Though the phrase "as he deems fit" or "as he thinks fit" is an expression of wide import, it does not authorise the statutory authority' 'to make any order on considerations cle hors the statute which the authorities consider best according to their notions of justice" (vide R.M. Paranjype v. AM. Mali, ). It "only confers power to make an order in terms of the statute, an order which would give effect to a right which the Act has elsewhere conferred'". Similarly, it was observed in Dr. Akshaybar Lal v. Vice-Chancellor, R.H. University, , that the words "shall take such action thereon as it may think fit" do not give a discretion to take action outside the statute. Hie above dicta of the Supreme Court, indicate in a broad sense the parameters of the power denoted by the expression "as it thinks fit" or "deems fit". The view we have taken as regards the application of power of confiscation in relation to a vehicle does not, as already discussed, go counter to the provisions of the Act. It only makes die provision conferring the power to confiscate more rational and effectual without in any way derogating from the main thrust of the provision. No doubt, the aforementioned words by themselves do not confer a substantive or independent power on the appellate authority to pass an order of any kind according to its own notions of justice. However, these words do emphasise the appellate authority's power not only to set aside or uphold the confiscation order but also to modify or mould the same in order to ensure that the power sub-serves the intended purpose and efficacy of the provision. In a recent judgment of the Supreme Court in , the Supreme Court observed that the expression "deems fit" must be construed as to meet the ends of justice. While the liiherent limitations as set out in cannot be ignored while construing this expression, the brief exposition of the words inJ.S. Jadhavv. Mustafa Haji Mohd. Yousuf , does countenance our approach.
43. We would like, however, to emphasise that the determination of the quantum related to the value of the vehicle lias to be done on balancing various relevant considerations. The determination cannot be done arbitrarily. Too low a fixation or too high a fixation ought to be avoided. We arc sounding this note of caution because we have come across cases in which the appellate Courts have taken an unduly liberal viewtfn this behalf The clement of deterrence is also one of the relevant considerations to be kept in view by the Court while modifying the order of confiscation. As observed by Neeladri Rao, J,, in the judgment under appeal, the scale or measure fixed in the compounding provisions can no doubt, provide a guide for fixing the quantum. Clause (ii) of Section 59(1) enjoins that unless the offence is of a trivial nature, the sum. of money which can be accepted as compensation shall not be less than the value of the forest produce and it should not be more than four times and this is in addition to the value of forest produce if it is liable to be released. If it is liable to be retained by the Government, four times the value is the maximum compensation that can be accepted. But, there can be no hard and fast rule in this regard as the compounding Rules do not "proprio vigore" apply. We would like to reiterate that if the appellate Court on a consideration of the facts and circumstances of the case feels that the order of confiscation of vehicle has to be upheld, it is perfectly open to it to do so.
44. In each of these cases, the Appellate Court purported to direct payment of a certain sum of money as compounding fee. Though such approach is wrong even according to the learned single Judge, the ultimate order passed was upheld on the ground that the compounding provision must be deemed to have been taken as a measure in fixing the quantum of money which Ihe vehicle owner was required to pay in lieu of confiscation of vehicle. In view of the discussion supra and the facts of the case before us, we are not inclined to interfere with the order passed by the learned single Judge.
45. Before closing the case, we may mention that the Additional District Judge, Khammam, fixed the amount payable by the vehicle-owner at a sum either equivalent to or one-and-a-half to two times more than the value of the forest produce seized. In one case, i.e., in WA No.9 of 1992, the appellate Judge directed payment of amount equivalent to three times the value. In WA No. 1351 of 1992, the lorry was carrying 193 teak sizes and round timber worth Rs.23,450/-. The learned District Judge directed payment of a sum equivalent to the value of the said material. We are pointing out this fact only to highlight the approach of the District Judge in fixing the quantum somewhat irrationally. If the value of the illicit forest produce is less, he fixed higher quantum whereas if the value is high, he fixed lesser quantum i.e. equivalent to the forest produce confiscated. This sort of estimate fails to take into account the gravity of the offence which is one of the important elements. However, we are not inclined to interfere at this point of time having regard to the fact that the seizures were effected more than a decade back and in all these cases, the authority concerned did not give an opportunity to the offender to express his willingness for compounding the offence which the law, as laid down by this Court, requires him to do. In the appeals disposed of by the Additional District Judge, Kumool, the quantum was fixed at a sum equivalent to three to four times the value of teak or firewood. There are no grounds to disturb the said orders.
46. In the light of the above discussion, we dismiss the writ appeals and uphold the orders of the learned single Judge. No costs.