Madhya Pradesh High Court
Ramendra Singh vs The State Of Madhya Pradesh on 7 March, 2013
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IN THE HIGH COURT OF JUDICATURE : PRINCIPAL SEAT AT
JABALPUR
D.B. : HON'BLE SHRI JUSTICE S. A. BOBDE
AND HON'BLE SHRI JUSTICE RAJENDRA MENON
W.A. No.1038/2011
Ramendra Pal Singh
Vs.
The State of Madhya Pradesh and another
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Shri A. K. Jain, Advocate for the appellant/petitioner.
Shri K. Pathak, Dy. Advocate General for respondents/State.
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ORDER
(7.3.2013) PER S. A. BOBDE, C.J.
The appellant/petitioner has challenged the order of confiscation dated 27.1.2007 passed by the Revisional Authority i.e. District and Sessions Judge, Balaghat refusing quashment of the order dated 25.3.2006 passed by the Divisional Forest Officer and confirmed by the Appellate Authority by its order dated 10.10.2006 in the writ petition.
02. By the said orders the respondent/Forest Officer has confiscated the petitioner's machines known as Pokland Tata Machine (Hitachi- Ex-60 (chain wheel drive) as well as Dumpers bearing registration No.MP26-D/3150 and MP23-D/5004 under Section 26 (1), 30 and 33 of the Indian Forest Act, 1927 read with Section 2 (2) of the Forest 2 Conservation Act, 1980.
03. The undisputed facts are that the petitioner's machines were seized by the Forest Officer on 24.11.2001 while they were found engaged in lifting Manganese Ore from mines in the forest area. On a complaint made by the Beat Officer of the Forest Department one Chhotelal and two other persons were found at the spot with the aforesaid vehicles. According to the Forest Authorities the contractor, who had hired the vehicles of the petitioner/appellant, in conspiracy with the petitioner was extracting Manganese Ore from Mines, for which, the Contractor did not have a valid permission from the Forest Department and that in any case, the extraction of the Ore was being made with the consent of the Contractor as well as the petitioner. A criminal case was registered against the petitioner and the driver as well as the labourers, who were present on the spot, under Section 26 (1), 30 and 33 of the Forest Act and Section 2 (2) of the Forest Protection Act. Thereafter, the matter was investigated into by the Forest Officer. In the meanwhile a criminal complaint, which was made to theJudicial Magistrate First Class, was decided and it was held that from the evidence on record the petitioner/appellant did not have any intention to indulge in any forest offence and there was no material on record to show that petitioner could be prosecuted under Section 26 (1) read with Section 30 and 33 of Forest Act. The petitioner/appellant was thus discharged. 3
04. The Forest Authority however, seized and confiscated the machines as well as the dumpers. Aggrieved with the said decision an appeal was preferred by the petitioner/appellant to the Appellate Authority under Section 59 of the Act, which was dismissed and the revision challenging the order of Appellate Authority, has also been dismissed. Thus, the present writ appeal has been filed by the appellant/petitioner.
05. The main contention on behalf of petitioner is that the petitioner's property as aforesaid could not have been confiscated since the petitioner had merely given his machines on hire to the forest contractor under an agreement dated 21.11.2001 for transportation purported to have been signed at Nagpur between the parties. Thus, the petitioner's property ought not to have been confiscated, since the petitioner did not have any knowledge of the purpose for which the vehicle has been used. Shri A. K. Jain, learned counsel for the appellant/petitioner relied upon Section 52 (5) of the Indian Forest Act, 1927, which reads as follows :-
"52 (5) - No order of confiscation under sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than the timber or forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such tools, vehicles, boats, ropes, chains or other articles were used without his knowledge or connivance or, as the case may be, without the knowledge or connivance of his servant or agent and that 4 all reasonable and necessary precautions had been taken against use of the objects aforesaid for commission of forest-offence."
06. The submission on behalf of the petitioner is that an order of confiscation could not have been passed since the appellant/petitioner has proved to the satisfaction of the Forest Officer that his vehicle etc. were used without his knowledge or connivance. Therefore, the petitioner is entitled to benefit of such provision.
07. The second submissions made on behalf of the petitioner is that the petitioner has not committed any forest offence, and that his property was not liable to be confiscated under the provisions of Indian Forest Act, since the petitioner has been discharged in respect of the said Act by the Magistrate under Section 26 (1), 30 and 33 of the Forest Act and Section 2 (2) of the Forest Protection Act.
08. Having examined the matter and giving our anxious consideration to the issue, we find that the submission made on behalf of the appellant/petitioner cannot be accepted, since the original agreement of transportation, on the basis of which the petitioner has claimed immunity of his property, could not have been produced before any Court since only photocopies thereof were submitted to the Forest Officer under Section 52 of the Indian Forest Act, 1927. It is not disputed on behalf of the appellant/petitioner that proceedings are indeed governed by Indian Evidence Act, 1872, if that is so, it is clear that the petitioner was bound to produce the original agreement in 5 view of Section 64 of the Indian Evidence Act, which reads as follows:-
"64 - Proof of documents by primary evidence. - Documents must be proved by primary evidence except in the cases hereinafter mentioned."
Even before this Court the original agreement is not produced inspite of repeated opportunities being granted.
09. No application has been made for permission to produce the secondary evidence, which is required under Section 65 of the Indian Evidence Act, 1872, which reads as follows :-
"65. Cases in which secondary evidence relating to documents may be given. - Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
(a) when the original is shown or appears to be in the possession or power -
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or 6 neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
10. Suffice it to say, there was no material before the Forest Officer to come to the conclusion that the petitioner's machinery was used without his knowledge or connivance. Thus, there is also no merit in the second submission on behalf of the appellant/petitioner that the petitioner's property is not liable to be confiscated under the provisions of Indian Forest Act, since the petitioner has been discharged in relation to the same incident under the provisions of Indian Penal Code.
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11. It is settled law that the proceedings under the Indian Forest Act, 1972 are independent proceedings. Section 52 (1) of the Act reads as follows :-
"52 (1) - When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest-Officer or Police- Officer."
12. The aforesaid section undisputedly casts a duty upon the Forest Officer to satisfy himself whether any forest-offence has been committed in respect of any forest-produce and there is any reason to believe that such an offence has been committed. In the case of State of M.P. Vs. S. P. Agencies - AIR 2004 SC 2088 the Supreme Court has observed as follows :-
"10. In the present case, the allegations are that by committing breach of Rule 3, a forest offence withing the meaning of Section 2 (3) of the Act has been committed for which a criminal prosecution under Rule 29 of the Transit Rules as well as a confiscation proceeding under Section 52 of the Act could be initiated. From the scheme of the Act, it would appear that for contravention of Rule 3, two independent actions are postulated - one criminal prosecution and other confiscation proceeding. The power of confiscation, exercisable under Section 52 of the Act, cannot be said to be in any manner dependent upon launching of criminal prosecution as it has nowhere been provided therein that the forest produce seized can be confiscated only after criminal prosecution is launched, but the condition precedent for initiating a confiscation proceeding is commission of 8 forest offence, which, in the case on hand is alleged to have been committed. Reference in this connection may be made to a decision of this Court in the case of Divisional Forest Officer and another Vs. G. V. Sudhakar Rao and others , (1985) 4 SCC 573, wherein it has been clearly laid down that the two proceedings are quite separate and distinct and initiation of confiscation proceeding is not dependent upon launching of criminal prosecution. In the said case, the Court observed thus:
"The conferral of power of confiscation of seized timber of forest produce and the implements etc. on the Authorized Officer under sub-section (2-A) of Section 44 of the Act on his being satisfied that a forest offence had been committed in respect thereof is not dependent upon whether a criminal prosecution for commission of a forest offence has been launched against the offender or not. It is separate and distinct proceeding from that a trial before the Court for commissioner of an offence. Under sub-section (2-A) of Section 44 of the Act, where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized timber before the authorized officer alongwith a report under Section 44 (2) the authorized officer can direct confiscation to Government of such timber or forest produce and the implements etc. if he is satisfied that a forest offence has been committed, irrespective of fact whether the accused is facing a trial before a Magistrate for the commission of a forest offence under Section 20 or 29 of the Act."
11. In the case of State of West Bengal Vs. Gopal Sarkar, (2002) 1 SCC 495, while noticing the view taken in the case of G. V. Sudhakar Rao (supra) this Court has reiterated that the power of confiscation is independent of any criminal prosecution for the forest offence committed. This being the position, in our view, the High Court has committed an error in holding that initiation 9 of confiscation proceeding relating to Kattha was unwarranted as no criminal prosecution was launched."
13. Shri Jain learned counsel for the appellant/petitioner lastly submits that the petitioner's property may be released on payment of a fine as was done in the case of State of West Bengal and another Vs. Mahua Sarkar - (2008) 12 SCC 763.
14. We find that the said decision is not in authority for the proposition that in all such cases whenever an offender makes an offer of compensation his property must be released instead of being confiscated. These are the matters within the discretion of the forest authorities. In fact, Shri Pathak, learned Dy. Advocate General had taken time to obtain instructions whether the imposition of fine instead of confiscation will satisfy the interest of justice. Learned Dy. Advocate General states that it is not possible to do so.
15. In the circumstances, we find no merit in the writ appeal. The same is accordingly dismissed. Rule is discharged. No order as to costs.
(S. A. Bobde) (Rajendra Menon)
Chief Justice Judge
AK