Bombay High Court
Forest Development Corporation Of ... vs Prakash Mallesh Cheraku And Another on 9 January, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
Cri.W.P. No.738/2017 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.738 OF 2017
Petitioner : Forest Development Corporation of
Maharashtra Limited, Forest Division,
Bramhapuri, through Assistant Manager-2,
FDCM Limited, Bramhapuri,
Tahsil Bramhapuri, District Chandrapur.
-- Versus --
Respondents : 1] Prakash Mallesh Cheraku,
Aged about 40 years, Occu : Cultivation,
R/o. Sindewahi, Tahsil Sindewahi,
District Chandrapur.
2] The State of Maharashtra,
through its Secretary,
Department of Revenue & Forest,
Mantralaya, Mumbai.
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Shri M.M. Sudame, Advocate for the Petitioner.
Shri R.R. Vyas, Advoate for Respondent No.1.
Shri H.D. Dubey, A.P.P. for Respondent No.2.
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CORAM : S.B. SHUKRE, J.
DATE : 9th JANUARY, 2018.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by consent.
::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 2 02] This petition challenges the legality and correctness of the order dated 01/08/2017 passed by the learned Additional Sessions Judge, Chandrapur thereby setting aside the order dated 22/03/2016 passed by the Authorised Officer and Assistant Manager, Forest Development Corporation of Maharashtra Limited, Brahmapuri (hereinafter referred to as 'FDCM Limited' for short) directing confiscation of the seized vehicles, i.e. one tractor and one trolley bearing Registration Nos.MH-34/L/926 and MH-34//2309 respectively, on the ground that these two vehicles, belonging to respondent no.1, were used for illegal transportation of teak wood and other cut wood illegally obtained through illegal felling of teak and other trees in the forest of FDCM Limited, Bramhapuri. 03] There is an objection taken to the maintainability of this writ petition by the learned Counsel for respondent no.1. He has invited my attention to Section 61G of the Indian Forest Act, 1927 (hereinafter referred to as 'the Forest Act' for short), which lays down that any order passed by the Additional Sessions Judge hearing an appeal under Section 61D of the Forest Act shall be final and that no other Court, notwithstanding anything contained contrary in any law, shall have jurisdiction to make order with regard to the custody, possession, delivery, disposal or distribution ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 3 of seized property including the seized vehicle. The learned Counsel for the petitioner, however, submits that the bar of jurisdiction under Section 61G is not applicable to the writ jurisdiction of this Court under Article 227 of the Constitution of India, which is extraordinary in it's nature and which is required to be exercised when a patent illegality is committed in passing the order by a judicial or quasi judicial authority. According to him, patent illegality as well as perversity both have been committed in the present case while passing the impugned order. 04] The objection as to the maintainability of this writ petition for its adjudication, in turn, depends on the answer that we would get on the issue as to whether or not any patent illegality or perversity has been committed by the learned Additional Sessions Judge while passing the impugned order. If this aspect of the case can be addressed and resolved properly, we would also have an answer ready made before us for deciding the question of maintainability or otherwise of the present writ petition. 05] It is well settled law that in order to exercise power of confiscation under Section 61A (Maharashtra amendment) of the Forest Act, it is necessary that there is a seizure of the vehicle used ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 4 for commission of forest offence properly made and that the authorised officer is satisfied that there is a reason for him to believe that such an offence has been committed in respect of timber, sandalwood or any other notified forest-produce. It is also well settled law that the confiscation proceedings are separate and independent from the prosecution that may be instituted against the offender and that even if no prosecution has been initiated against the owner of the seized vehicle, the seized vehicle would be liable to confiscation if the two conditions just mentioned are fulfilled. It is equally well settled that if the owner is not to lose the vehicle by way of confiscation to the State, it would be essential for him to prove that the seized vehicle was used without his knowledge for committing the forest offence and that the standard of proof, required to be tendered by the owner, will not be the same as is required for proving a criminal offence. The law is that in order to discharge such a burden, which is placed upon the shoulder of the owner of the seized vehicle, the owner has to bring on record a reasonable probability of his not possessing the requisite knowledge. A useful reference in order to ascertain the settled position of law, as has been discussed now, could be had to the cases of :
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1. State of West Bengal and others vs. Sujit Kumar Rana -
[(2004) 4 SCC 129].
2. State of W.B. vs. Mahua Sarkar - AIR 2008 SC 1591, Ghatge Patil Transport Limited vs. The State of Maharashtra - [2008(2) Mh.L.J.(Cri.)69].
3. Shyamrao s/o Kewalram Kapgate vs. State of Maharashtra and others - [2003 (4) Mh.L.J. 181].
4. Mrs. Kavita Sandip Tandel vs. State of Maharashtra & another in Criminal Writ Petition No.3678/2013. 06] In the present case, it is not in dispute that the allegation of commission of main forest offence has been made only against two forest officers viz. Shri G.U. Rathod and Shri G.U. Dhage, both Forest Guards. The main forest offence has been registered against the said forest guards together with driver of the seized vehicles, one Tractor and one Trolley belonging to respondent no.1. It is also an admitted fact that, it is not registered against respondent no.1, the owner of the seized vehicles. The main forest offence alleged against these persons is of illegal felling of 9 teak trees and 7 other trees growing in the forest belonging to FDCM Limited, Brahmapuri, punishable under Section 26(1)(f) of the Forest Act. It is also alleged that after felling of these 16 trees was over, the cut trees were reduced into logs and transported out of the forest area by the seized vehicles and unloaded at an illegal ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 6 place without having any transit pass, in contravention of Section 41 of the Forest Act and Rule 66 of the Maharashtra Forest Rules, 2014 (for short, Rules 2014"). It is this allegation which has given rise to controversy involved in this case as it is directed against respondent no.1.
07] Now, on the back drop of the admitted facts, let us examine the order of confiscation passed by the authorised officer. It discloses that the authorised officer was aware that respondent no.1, the owner of the seized vehicles, was not involved in any manner in commission of the main forest offence but at the same time had reason to believe that he was involved in commission of another illegal act, the act of transportation of the cut teak and other trees or the forest-produce from a declared forest area, like Brahmapuri forest range, without any transit pass, the obtaining of which was the requirement of law in terms of Section 41 of the Forest Act read with Rule 66 of the Rules, 2014.
08] The learned Counsel for respondent no.1 submits that the order passed by the authorised officer is perverse for the reason that it records a finding to begin with that the respondent no.1 was not involved in commission of the forest offence and then ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 7 it goes on to contradict it by holding that the seized vehicles were indeed involved in illegal transportation of forest produce. However, I do not find any such dichotomy in the order of the authorised officer. What he has found is that respondent no.1, as an owner of the seized vehicles, had nothing to do with illegal felling of the trees, thereby indicating that he was not involved in the commission of main offence of illegal tree felling but has further noted that respondent no.1 was presumed to know that he could not have allowed his vehicles to be used for the carriage of forest- produce without any transit pass and that he did not take care to ensure that before the carriage was allowed, a transit pass was issued by the competent authority. These observations clearly implied that complicity of respondent no.1 was very much there in the transportation of forest produce without obtaining any transit pass, an act prohibited under the Forest Act as well as Rules, 2014. So, these findings distinct as they are, cannot be viewed as characteristically contradictory.
09] The learned Counsel for respondent no.1 further submits that the authorised officer did not take into consideration all the facts placed before him particularly the fact that respondent no.1 did possess transit pass for carriage of other forest-produce, that ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 8 there was no evidence to show that the forest-produce which was transported in the night between 23/12/2015 and 24/12/2015 was the property of the FDCM Limited, and that it was illegally obtained from the forest of FDCM Limited, Brahmapuri. I find no merit in this argument, as the statement of respondent no.1 recorded by the authorised officer and produced before me during the course of the argument by the learned Counsel for the petitioner, shows that respondent no.1 never took any such defence before the authorised officer. It shows that respondent no.1 did not plead before the authorised officer that he was in possession of transit pass in respect of the other forest-produce and that there was no evidence available on record establishing nexus of the forest- produce carried by the seized vehicles with the trees in the Bramhapuri Range of the FDCM Limited. On the contrary, the statement of respondent no.1 given by him before the authorised officer discloses that he admits that seized vehicles were indeed used for transportation of the very same timber, which was obtained through illegal felling of teak and other trees standing in the forest range of FDCM Limited at Bramhapuri. Therefore, there was no occasion for the authorised officer to consider any such defence. In fact, the admissions of respondent no.1 expose hallowness of the defence now taken by him and reasonably ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 9 establish the facts that his vehicles were used for transportation of forest produce and that he had not obtained any transit pass for their carriage despite his having knowledge about the need for obtaining it. As such, the order passed by the authorised officer, could not be said to be perverse.
10] The order of the authorised officer, a careful reading of which, in my view, does disclose proper application of mind to the facts so established on record. In the present case, as stated earlier, the main forest offence was of illegal felling of teak and other trees in the forest area belonging to FDCM Limited. This offence was in terms of Section 26(1)(f) of the Forest Act. Admittedly, in this offence, respondent no.1 was not involved. But the matter does not end here. After commission of the main forest offence, yet another prohibited act, which can also be said to be constituting a distinct forest offence has been committed in the present case and it is of illegal transportation of the forest-produce without having any transit pass to carry the same. However, the learned Counsel for respondent no.1 submits that the authorised officer did not pin-point as to exactly which forest offence was committed by respondent no.1 and that there is no prosecution launched for any forest offence against respondent no.1. About the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 10 second limb of this argument, I may only say that the settled position of law discussed earlier deals with it and denotes that non- prosecution for any forest offence does not adversely impact the confiscation proceedings. The first part of this argument, of course, needs consideration, which I would do now.
11] Section 41 of the Forest Act prescribes that the control of all timber and other forest-produce in transit by land or water, is entirely vested in the State Government. It also empowers the State Government to make rules to regulate transit of all timber and other forest-produce. In exercise of the powers under Section 41 of the Forest Act, the State of Maharashtra has framed the Rules, 2014. Rule 31 of the Rules, 2014 prescribes that no forest- produce shall be moved into or from or within any District of the State without a pass issued for such transportation by the competent officer. So, Section 41 of the Forest Act has been given complete effect by Rule 31 of the Rules, 2014. There is one more Section, which calls for our attention. It is Section 42 of the Forest Act. It empowers the State Government to prescribe penalty by framing appropriate rules for contravention of any of the provisions of the rules framed by it in exercise of the powers given to it under different sections including Section 41 of the Forest Act. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 11 Accordingly, Rule 82 has been inserted in the Rules 2014 prescribing for penalty for contravention of Rule 31. The penalty prescribed is of an imprisonment for a term which may extend to one year or fine which may extend to Rs.2,000/- or both. Again, one has to say that mandate of Section 42 of the Forest Act has seen it's implementation in Rule 82 of the Rules, 2014. So, it is now clear that transportation of forest produce in contravention of Rule31 is an offence, punishable under Rule 82. Now, let us examine the issue, if contravention of Rule 31 is a forest offence or not. This is necessary as satisfaction of the authorised officer that the owner of the vehicle has committed forest offence before confiscation is ordered by him is one of the pre-requisites of Section 61A of the Forest Act.
12] Section 2(3) of the Forest Act defines forest offence as under :
"Forest offence" means an offence punishable under this Act or under any rule made thereunder;
It is clear that forest offence is an offence punishable under the Forest Act or under any rule made under the Forest Act. The contravention of Rule 31 regarding transportation of forest- ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 12 produce, without transit pass, we have just seen, has been made an offence punishable with maximum imprisonment of one year and/or fine of Rs.2,000/- under Rule 82 of the Rules, 2014. Therefore, the transportation of the forest-produce, which has been done in the present case sans transit pass by the seized vehicles, also constituted yet another forest offence. For this forest offence, the driver of the seized vehicles is already being prosecuted, but respondent no.1, the owner of the seized vehicles, has been kept out of the prosecution. The reasons are not known. At the same time, the law being what it is, as discussed earlier, non-prosecution of respondent no.1, the owner of the seized vehicles, would have no adverse impact on the confiscation proceedings initiated in respect of the seized vehicles by the authorised officer. Then, the question would arise as to whether the authorised officer could have directed confiscation of the seized vehicles or not. 13] In the present case, sufficient opportunity was granted by the authorised officer to the respondent no.1 to make out his defence. But as seen from the statement given by the respondent no.1 before the authorised officer, the respondent no.1 admitted use of the seized vehicles in transportation of the forest-produce involved in the present case on the one hand and did not adduce ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 13 any evidence or bring on record any circumstances, which could have probabilized his case that he had no knowledge about the use of the seized vehicles by his driver for transportation of the forest- produce without getting issued any transit pass for the same. The respondent no.1 could have produced his driver before the authorised officer and got him say that he used the vehicles for transportation of the forest-produce without obtaining any permission for the same from his owner. The respondent no.1 could have also submitted his driver's written say before the authorised officer that he did not even inform the owner i.e. the respondent no.1, about the use of his vehicles for transportation of the forest-produce. So, one has to say that the burden to prove the fact that the vehicles were used without knowledge of the owner, which was there on the shoulders of the respondent no.1, was not discharged by him even as a reasonable probability. This fact has been appropriately considered by the authorised officer when he recorded a finding that if respondent no.1 possessed the knowledge that his vehicles could not be used for transportation of the forest- produce without having any transit pass, respondent no.1 ought not to have allowed his vehicles to be so used and, the fact that he did allow that user only showed contravention of the relevant rule, resulting in commission of forest offence and rightly so. This only ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 ::: Cri.W.P. No.738/2017 14 showed that as an owner of the seized vehicles, he failed to take reasonable care in spite of knowing the degree of care that he was under law, obliged to take, and thus he too committed a forest offence, though distinct and separate from the main forest offence. However, the learned Additional Sessions Judge did not consider this basic aspect of the case and the settled position of law and, therefore, committed a manifest illegality in returning a finding that the order passed by the authorised officer was illegal and, therefore, liable to be quashed and set aside.
14] The illegality committed by the learned Additional Sessions Judge is ex-facie present on the record of the case. There is also a perversity, perversity in ignoring admitted facts, which has gone into the impugned order passed by the learned Additional Sessions Judge. This would make this petition as maintainable and holding so, I reject the objection taken in this regard by the learned Counsel for respondent no.1.
15] In the circumstances, I find that the impugned order passed by the learned Additional Sessions Judge cannot be sustained in law while the order passed by the authorised officer would have to be confirmed.
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16] In the result, following order is passed :
i. The writ petition is allowed.
ii. The impugned order passed by the learned Additional Sessions Judge is quashed and set aside and the order of the authorised officer is confirmed.
iii. Rule is made absolute in these terms.
(S.B. SHUKRE, J.) *sdw ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:38:04 :::