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Bombay High CourtIndian Cases

Shaikh Said Shaikh Hussain vs A.D. Chaudhary And Anr. on 8 October 1987

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Bombay High Court
Shaikh Said Shaikh Hussain vs A.D. Chaudhary And Anr. on 8 October, 1987
Equivalent citations: 1988(1)BOMCR26, (1987)89BOMLR530

C.S. Dharmadhikari, Acg., C.J.

1. This writ petition is filed by the petitioner against the judgement dated 11th August, 1986, passed by the Addl. Session Judge, Dhule, in appeal filed under section 61-D of the Indian Forest Act, 1927, confirming the order of confiscation of the truck by the authorised officer.

2. A truck bearing No. MWD 7951 belonging to the present petitioner was intercepted on 26th May, 1986 on Bombay-Agra road near Dhule by the Flying Squard of the Forest Department. On the search of the truck, 93 pieces of teak wood were found loaded therein without there being a pass or permit. Therefore, the wood as well as truck were seized and an offence was also registered. After issuing the necessary show cause notice and giving an opportunity to him of being heard, the authorised officer passed an order of confiscation of the truck. It came to be challenged before the Additional Sessions Judge, Dhule, in appeal. The Additional Sessions Judge confirmed the finding of fact recorded by the authorised officer dismissed the appeal. As already observed, it is against this appellate order, present writ petition is filed.

3. Shri Mohite learned Counsel appearing for the petitioner, contended before us that the provisions of section 61-A to 61-G of the Indian Forest (Maharashtra Amendment) Act, 1984 are ultra vires of Article of the Constitution of India, being wholly unreasonable and arbitrary. He also contended that even on merits the orders passed by the authorised below are illegal.

4. It is not possible for us to accept any of these contentions. As to what is the scope of the provisions of section 61-A to 61-G fell for consideration of the Supreme Court in Divisional Forest Officer v. G.V. Sudhakar Rao, in the context of somewhat similar provisions of the Andhra Pradesh Forest Act. After scrutinising the relevant provisions, the Supreme Court observed in para 5 of the report as under :-

“The change in the law was brought about with a view to prevent the growing menace of ruthless exploitation of Government forests by illicit felling of teak and other valuable forest produce by unscrupulous traders, particularly from the reserved forest by providing for a machinery and confiscation of illegally felled tress or forest produce by the Forest authorities. Under section 45 of the Act as it stood, where a person was convicted of a forest offence, the Court sentencing him was empowered to order confiscation to the Government of timber or forest produce in respect of which a forest offence was committed and of any tool, boat, vehicle other than a cart drawn by animals vessels or other conveyance or any other article used in committing such offence. Although there was a provision for seizure of such article in section 44 of the Act, there was no provision in the Act enabling the forest officers to confiscate such timber or forest produce and the implements, etc., used for committing forest offences even in a case where he was satisfied that a forest offence had been committed. In view of this, the Forest Department was finding it difficult to curb the forest offences effectively and quickly inspite of the fact that large scale falling and smuggling of forest produce was on the increase. Hence, it was thought necessary to empower the officials of Forest Department seizing any property under sub-section (1) of section 44, instead of merely making a report of the seizure to a magistrate, also to order confiscation of timber or forest produce seized together with all the tools, boats, vehicles etc. used in committing such offence. Statement of Objects and Reasons. The intendment of the Legislature in enacting Act 17 of 1976 was therefore to provide for two separate proceedings before two independent forums in the Act, one, for confiscation by a departmental authority exercising quasi-judicial powers conferred under sub-section (2-A) of section 44 of the goods forming the subject-matter of the offence, and the other for the trial of the person accused of the offence so committed.”
Then, in para 10 of the judgment, the Supreme Court further held that the proceedings before the Criminal Court and the proceedings of confiscation of forest produce and vehicle, etc., are independent and there is no conflict of jurisdiction, as there is clear demarcation over the areas in which they operate. Ultimately, the Supreme Court observed in para 12 of the judgement:—

“A close careful and combined reading of the various sub-sections of section 44, section 45 and section 58-A of the Act as introduced or amended by Act 17 of 1976 leaves no doubt that the intendment of the Legislature was to provide for two separate proceedings before two different forums and there is no conflict of jurisdiction as section 45, as amended by the Amendment Act, in terms curtails the power conferred on the Magistrate to direct confiscation of timber or forest produce on conviction of the accused. The conferral of power of confiscation of seized timber or forest produce and the implements, etc., on the Authorised 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 a separate and distinct proceeding from that of a trial before the Court for commission of an offence. Under sub-section (2-A) of section 44 of the Act, where a Forest Officer makes report of seizure of any timber or forest produce and produces the seized timber before the Authorised Officer alongwith a report under section 44(2), the Authorised 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 the fact whether the accused is facing a trial before a Magistrate for the commission of an offence under section 20 or 29 of the Act.”
In view of this, it is not possible for us to accept the contention of Shri Mohite that the provisions of section 61-A to 61-G are either unreasonable or no guidelines are laid down in that behalf. From a bare reading of the said provision, it is quite clear that before an action could be taken for the confiscation of the forest produce and vehicles, etc., a show cause notice is issued and the person concerned is given reasonable opportunity to raise objections and to put forward his case. Under section 61-D, an appeal is provided to the Sessions Judge against the order passed under section 61-A or 61-C of the Act. Therefore in our view, the relevant provisions provide for sufficient checks any counterchecks as well as the guidelines for exercise of the power, and hence, cannot be termed either as arbitrary or unreasonable or conferring any unbridled powers on the Forest Officers.

5. The special machinery for confiscation of illicitly felled timber or forest produce etc., by the Authorised Officer is enacted in the general public interest to suppress the mischief of ruthless exploitation of Governments Forest, by illicit felling and removal of forest produce. The power under section 61-A of the Act, is conferred on a high-officer of the status not below the rank of an Assistant Conservator of Forests. Against an order passed under section 61-A, an appeal lies to an independent judicial officer of the status of Sessions Judge. The order could be passed where a forest offence his believed to have been committed, in respect of timber, sandalwood, firewood, charcoal or any other notified forest produce which is the property of State Government. Before an order of confiscation is passed authorised officer should be satisfied that a forest offence is committed in respect of such property and the vehicle was used in committing such offence. Section 61-B(1) and (2) and 61-D provide sufficient safeguards to the owner of the vehicle. The authorised officer is expected to pass a reasoned order He must give good reasons in support of the order and not merely state his bald conclusion. It should be a well considered order as an appeal lies against the said order. It is also subject to the revisional jurisdiction under section 61-C. Hence power conferred is not uncanalised. Therefore, section 61-A is not violative of Article 14 of the Constitution.

6. So far as the merits of the controversy are concerned, in the appellate order, the learned Additional Sessions Judge has observed that it was not disputed at any stage that the present petitioner was the owner of the truck and was himself driving it. He had also stated in a statement dated 30th May, 1986, made before the officers of the Flying Squad of the Forest Department, Dhule, that he knew that the forest produce which was being transported in his truck was a teak wood illegally cut. Even before the Additional Sessions Judge, this position was no disputed. In these circumstances, it is quite obvious that the teak wood which was illegally cut was being illegally transported in the truck of the petitioner. In this view of the matter, it cannot be said that the findings of fact recorded by the authorities below are not based on any evidence or material on record. Hence, we do not feel that this is a fit case for interference in the writ jurisdiction of the Court under Article 226 of the Constitution of India.

7. In the result, therefore, the Rule is discharged.