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1990 DIGILAW 52 (GUJ)

STATE OF GUJARAT v. LUHANA PRABHUDAS VRAJLAL

1990-04-10

J.U.MEHTA

body1990
J. U. MEHTA, J. ( 1 ) THE State has approached this Court under Arts. 226 and 227 of the Constitution of India for quashing and setting aside the judgment and order passed by the learned Addl. Sessions Judge Junagadh in Criminal Appeal No. 40 of 1985 dated 20-5-1987. ( 2 ) BRIEF facts of the prosecution case are : ( 3 ) THAT on 12-9-1984 the respondents who is owner of the Matador passed through Bilkha-Visavadar Road. At that time near Navi Chavand Patia the Range Forest Officer Visavadar Range raided the vehicle with the help of Police party. On search he found illegal out Sagi wood. There were in all 40 Sagi wood was forest produce and there- fore under Sec. 61a of the Indian Forest Act (hereinafter referred to as the Act) the offence was registered and inquiry was held and ultimately on 28-11-1985 the Deputy Conservator of Forest Gir (West) Junagadh convicted the wood as well as the vehicle used in illegal transportation of the said Sagi wood. ( 4 ) AGAINST the said order of confiscation the accused preferred an appeal under Sec. 61d of the Act in the Court of the learned Additional Sessions Judge Junagadh and the learned Additional Sessions Judge by his judgment and order dt. 20/05/1987 allowed the said appeal and set aside the said order of confiscation passed by the Deputy Conservator of Forest Gir (West) dt. 28-11-1985. The learned Addl. Sessions Judge also ordered to return the amount of Rs. 1000. 00 to the accused-appellant which was recovered as advance Recovery by the Deputy Conservator of Forests Junagadh ( 5 ) BEING aggrieved and dissatisfied by the learned Addl. Sessions Judge Junagadh the State has performed this petition before this Court under Arts 226 and 227 of the Constitution of India ( 6 ) THE learned Addl. P. P. appearing on behalf of the petitioner urged before this Court that the learned Addl. Sessions Judge while deciding the appeal has not kept in mind the provisions of Sec 61d of the Forests Act and therefore he has wrongly come to the decision of quashing and setting aside the order of confiscation. The learned Addl. P. P. submits that by virtue of sub-sec. Sessions Judge while deciding the appeal has not kept in mind the provisions of Sec 61d of the Forests Act and therefore he has wrongly come to the decision of quashing and setting aside the order of confiscation. The learned Addl. P. P. submits that by virtue of sub-sec. (2) of Sec. 61b the owner must satisfy the authorised officer that the vehicle was used in carrying the forest produce without knowledge of connivance of the owner himself his agent if any and the person in charge of the vehicle his taken all reasonable and necessary precautions against such use. There is no evidence on record that the owner of the vehicle had taken care and necessary precautions and the it was used in carrying forest produce without knowledge or connivance of the owner of the vehicle. Under these circumstances the learned Addl. Sessions Judge committed an error in coming to the conclusion that the order of the Deputy Conservator of Forest was bad ( 7 ) THE learned Advocate appearing on behalf of the respondents submits that this Court has limited jurisdiction under Art 227 of the Constitution of India and this Court cannot interfere usually to correct the error of law is the decision and will not review or re-weigh the evidence upon which the determination was arrived at by the superior Court ( 8 ) NOW sub-secs. (1) and (2) of Sec 61a of the Forests Act reads as under notwithstanding anything contained in the foregoing provisions of the Chapter or in any other law for the time being in force where a forest offence is believed to have been committed in respect of any forest produce which is the property of the state Government the officer seizing the properly under sub-sec (1) of See shall without any unreasonable delay produce it together with all tools ropes chains boats vehicle and cattle used in committing such offence before an Officer authorised by the state Government in this behalf by notification in the Official Gazette not being below the rank of an Assistant Conservator of Forest (hereinafter referred to as the authorised Officer ). (2) Where the authorised Officer seizes under sub-sec (1) of Sec. 52 and forest produce which is the property of the State Government or where any such property is produced before the authorised Officer under sub-sec. (2) Where the authorised Officer seizes under sub-sec (1) of Sec. 52 and forest produce which is the property of the State Government or where any such property is produced before the authorised Officer under sub-sec. (1) and he is satisfied that a forest offence has been committed in respect of such property such authorised Officer may whether or not a prosecution is instituted for the commission of such forest offence order confiscation of the property so seized together with all tools ropes chains boats vehicles and cattle used in committing such offence. Section 61b reads 85 order :61 (1) No order confiscating any forest produce or tools ropes chains boats vehicles or cattle shall be made under Sec. 61a except after notice in writing to the person from whom it is seized informing him of the grounds on which it is proposed to confiscate it ant considering his objection any; provided that no order confiscating a Motor Vehicle shall be made except after giving notice in writing to the registered owner thereof If in the opinion of the authorised Officer it is practicable to do so and considering his objections if any. (2) Without prejudice to the provisions of sub-sec (1) no order confiscating any tool rope chain boat vehicle or cattle shall be made under Sec. 61a If the owner of the tool tope chain boat vehicle ox cattle Droves to the satisfaction of the authorised Officer that it was used in carrying forest produce without the knowledge or connivance of to owner himself his agent if any and the person in charge of the tool tope chain boat vehicle or cattle and that such of them had taken reasonable and necessary precaution against such usesection 61d reads as under:61 (1) Any person aggrieved by may order passed under Sec. 61a or Sec. 61c may within thirty days from the date of communication to him of such order appeal to the Sessions Judge having jurisdiction over the ares in which the property to which the order relates has been seized and the Sessions Judge shall after giving on opportunity of being beard to the appellant and the authorised Officer or the Officer specially empowered under Sec. 61c as the case may be pass such order as be may think fit confirming modifying or annulling the order appealed against. (2) An order of the Sessions Judge under sub-sec (1) shall be final and shall not be questioned in any Court of law ( 9 ) THE learned Addl. P. P. appearing on behalf of the petitioner took me through the judgment of the learned Additional Sessions Judge and pointed out that in arriving at the conclusion of quashing and setting aside the order of confiscation the learned Addl. Sessions Judge has not addressed himself with regard to the provisions of Sec. 61 (2 ). Sub-sec. (2) of Sec. 61b says that if the owner of the vehicle proves to the satisfaction of the authorised Officer that it was used in carrying forest produce without knowledge or connivance of the owner himself no order confiscating any vehicle shall be made under Sec. 61a. ( 10 ) IN my opinion the learned Addl. Sessions Judge failed to look to the relevant provisions of Sec. 61b of the Indian Forest Act while deciding the appeal. Though under Art. 227 of the Constitution of India scope for interference by the High Court is limited but in this case there is non-application of mind by the learned Addl. Sessions Judge to the relevant provisions of the Act as aforesaid and it would amount to error apparent on the face of the record Therefore this High Court is entitled to interfere under Art 227 of the Constitution of India. ( 11 ) UNDER the circumstances I quash and sot aside the order passed by the learned Additional Sessions Judge and remand the matter to the learned Addl. Sessions Judge Junagadh to hoar the aforesaid Criminal Appeal afresh and to decide the same in accordance with law in the light and observations made hereinabove and the evidence produced on record in this behalf ( 12 ) THE matter is old one of 1985 and therefore it is hoped that the learned Additional Sessions Judge will give top property in disposing this matter within one month from the date of the receipt of the writ of this Court Rule made absolute. (KMV) Rule made absolute. .