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2005 DIGILAW 781 (CAL)

PRATIMA GHOSH v. STATE OF WEST BENGAL

2005-12-23

ARUN KUMAR BHATTACHARYA

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ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE hearing stems from an application under section 401 read with section 482 Cr. PC filed by the petitioners praying for revision of the order dated 25. 02. 97 passed by the ld. Additional District judge, 2nd Court, Jalpaiguri in Criminal Misc. Appeal No. 10/94 affirming the order dated 08. 06. 94 passed by the ld. authorized officer confiscating the seized vehicle No. WBS-3719 together with produce seized in connection with Forest case No. 392/mpp-I. ( 2 ) THE circumstances leading to the above application are that during patrolling at Mahakal Chaupatti by Pabitra Mondal, Deputy Field Director, buxa Tigar Reserve along with Forest Guards Kartick Nandi and Bibhuti bhusan Das, he found the aforesaid bus WBS-3719 crossing Chaupatti towards samuktala. The bus was intercepted by the forest staff and after checking the same 39 bundles of sal firewood kept concealed inside the bus could be recovered. As the accused persons who were driver, conductor and khalasi, on demand, could not produce any document for valid possession of the said firewood, the same was seized and the accused persons were arrested. The government suffered a loss of Rs. 80,000/ -. After enquiry P. O. R. was submitted against the accused persons who were charged under section 3 of the Prevention of Damages of Public Property Act, 1934 and Rule 11 of the West Bengal Forest produce Transit Rules, 1959. They were convicted by the Id. SDJM under Rule 11 of the" said West Bengal Forest Produce Transit Rules, 1959 and were sentenced to pay fine of Rs. 300/- each, but in appeal being Criminal Appeal no. 13/95 they were acquitted by the ld. Additional Sessions Judge. ( 3 ) IN Forest Case No. 392/mpp-I the authorised officer by order dated 08. 06. 94 confiscated the vehicle on the same allegation on the ground that the registered owner of the bus failed to prove that the forest produce was carried without his knowledge and each of them had taken all reasonable and necessary precaution against use of the vehicle in commission of the offence. The said order was confirmed by the impugned order in appeal being No. Misc. Appeal no. 10/94 by the ld. Additional District Judge. ( 4 ) BEING aggrieved by, and dissatisfied with, the said order, the petitioners have come up before this Court in revision. The said order was confirmed by the impugned order in appeal being No. Misc. Appeal no. 10/94 by the ld. Additional District Judge. ( 4 ) BEING aggrieved by, and dissatisfied with, the said order, the petitioners have come up before this Court in revision. ( 5 ) ALL that now requires to be considered is whether the Id. Court was justified in passing the above order. ( 6 ) MR. De, ld. Counsel for the petitioners, on referring the cases of Ram Deo sha vs. State of West Bengal, reported in 2003 (1) CHN 217 , Gurudev Singh rai vs. Forest Officer, reported in AIR 1992 Ori 287 and Nazban Nessa vs. State of West Bengal, reported in 2001 C Cr. LR (Cal) 178, advanced argument contending that when the value of the bus confiscated was at least 4 to 5 lacs it was well within the jurisdiction and discretion of the authorised officer to impose fine to the tune of the loss of Govt. i. e. Rs. 80,000/- in lieu of confiscation, and since it has not been clone and the Court of Appeal also failed to consider this aspect, this Court by exercising inherent power under section 482 Cr. PC can give such relief to the petitioners. Mr. De further contended that though the application has been filed under section 401 read with section 482 Cr. PC, this court can consider the same as one under Article 227 of the Constitution and grant the relief. Mr. Mallick, ld. Counsel for the State, on the other hand, relying upon the case of State of H. P. vs. Dhanwant Singh, reported in 2005 scc (Cri) 248, challenged the maintainability of the present revision contending that since the order passed by the ld. District Judge in appeal under section 59d (2) of the Forest Act, 1927, as amended by the W. B. Act 22 of 1988, is final, revision under section 401 Cr. PC is not maintainable nor the provision of section 482 Cr. PC can be invoked in view of the said specific provision of sub section (2) of section 59d and the same can be assailed and dealt with under article 227 of the Constitution. ( 7 ) SECTIONS 59a-59g have been inserted by W. B. Act 22 of 1988, section 17, with effect from 03. 02. 89. PC can be invoked in view of the said specific provision of sub section (2) of section 59d and the same can be assailed and dealt with under article 227 of the Constitution. ( 7 ) SECTIONS 59a-59g have been inserted by W. B. Act 22 of 1988, section 17, with effect from 03. 02. 89. Sub-section (3) of section 59a of the Act provides that where any timber or other forest produce which is a property of the State government is produced before an authorised officer under sub-section (1)and the authorised officer is satisfied that a forest-offence has been committed in respect of such property, he may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence. Sub-section (1) of section 59d provides for appeal against the order passed under section 59a to the District Judge. Under sub-section (2) of section 59d the order of District Judge shall be final and shall not be called in question by any Court. ( 8 ) THE expression "whether or not a prosecution is instituted for the commission of such offence", as used in sub-section (3) of section 59a is significant, as it denotes that the power of confiscation is independent of any proceeding of prosecution for the forest offence committed. In this connection, reference may be made to the case of State of West Bengal vs. Gopal Sarkar, reported in AIR 2002 SC 221 . ( 9 ) NEVERTHELESS, in so far as the said finality clause, as embodied in sub section (2) of section 59d is concerned, it is well-settled that such a statutory provision cannot take away the Constitutional right given by Articles 32, 226 and 227 of the Constitution, and in a proper case, the High Court or the Supreme court, as the case may be, in the exercise of their special jurisdiction under the Constitution have the power to determine how far the provisions of the statutes have or have not been complied with in arriving at the determination in question, as was observed in the said case of Dhanwant Singh (supra ). Upholding the view taken by the High Court that revision under sections 401/ 397 is not maintainable, it was further held in the above case that in view of the finality clause and legislative mandate, it may not be permissible to invoke section 482 of the Code, but the same cannot be an impediment to deal with the revision as one under Article 227 of the Constitution and as such directed the High Court to entertain the proceedings as a petition under Article 227 of the Constitution and consider the question. In view of the above decision, though the present revision under section 401 read with section 482 Cr. PC is not maintainable, there is no bar in treating the present application as one under article 227 of the Constitution subject to payment of requisite Court-fees, and accordingly it has been treated so as an application under Article 227. ( 10 ) ON a bare reading of the impugned judgment and order passed by the ld. Additional District Judge, it does not appear to suffer from any material illegality or irregularity or infirmity. ( 11 ) AS regards the contention of Mr. De for payment of fine equivalent to the sum of loss of Government i. e. Rs. 80,000/-, in lieu of confiscation of the bus as the value of the bus is Rs. 4 to 5 lacs which is much more than the value or loss of Government to the tune of Rs. 80,000/-, section 59g which starts with a non-obstante clause, provides that the officer authorized under section 59a or the forest officer specially empowered under section 59c or the District Judge to whom the appeal may be preferred under section 59d shall have and any other officer or forest officer or Court, Tribunal or authority shall not have jurisdiction to make order with the regard to the custody, possession, delivery, disposal or distribution of any property or tools, ropes, chains, boats, vehicles or cattle seized under section 52. As per provision of section 60, when an order for confiscation of any property has been passed and Appellate Court confirms such order in respect of the whole or a portion of such property, such property or such portion thereof, as the case may be, shall vest in the Government free from any incumbrances. As per provision of section 60, when an order for confiscation of any property has been passed and Appellate Court confirms such order in respect of the whole or a portion of such property, such property or such portion thereof, as the case may be, shall vest in the Government free from any incumbrances. ( 12 ) TO find out the intention of the legislature is a primary function in the interpretation of a statute, and the key to "unlock the heart" of the legislature is the plain meaning of the words actually used in the statute. A statute might be subjected to strict or liberal construction only because the type of construction utilised gives effect to the legislative intent. Sometimes a liberal construction may be used in order to make the legislative intent effective and sometimes such a construction will defeat the intention of the legislature. A strict or liberal construction is thus simply a means by which the scope of a statute is restricted or extended or restricted in order to convey the legislative meaning, as was observed in the case of R. S. Rao vs. Commissioner of Income Tax, Madras, reported in AIR 1956 SC 604 . We should guard against overstretching the language in our quest of the intention of the legislature and at the same time we should also pay regard to contemporaneous ex positio and try to avoid absurdity in the interpretation. In the words of Craies, "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made". No assumption should be made that the legislature made mistakes, there being a strong presumption to the contrary. If blunders are found in legislation, they can be repaired by the legislature alone. It is not the function of the Court to rewrite a section or to amend a statutory provision with a view to translating the supposedly real intention of the framers of the Act, or on grounds of any inadvertence of the legislature, as that would not be construing an Act but altering or amending it. Only in cases of compelling necessity, addition of words may be made to make good any drafting mistake, for example, in order to give effect to the intention of the legislature. Only in cases of compelling necessity, addition of words may be made to make good any drafting mistake, for example, in order to give effect to the intention of the legislature. In the Full Bench decision of this Court in Ajit Kumar vs. Surendra Nath, reported in AIR 1953 Cal 733 , it was held that the canons of construction of statutes do not permit the Court to take the reasonableness or unreasonableness of the consequence of interpretation as a factor for deciding on the correct interpretation. Whether the result is reasonable or not is in substance a question of expedience and it is not for the Court to dabble in it. In the light of the above principles, a literal meaning to the language used by the Parliament is to be given unless the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act. In this connection, reference may be made to the case of S. S. Railway Company vs. Workers' Union, reported in AIR 1969 SC 513 . So, when the language is clear and unambiguous, there is no scope on the part of this Court to convert the confiscation of seized article into one of release on payment of fine equivalent to the loss of the government or value of the property. Furthermore, section 68 of the Act, in its application to the State of West Bengal, empowers a forest officer to (a) accept from any person against whom a reasonable suspicion exists that he has committed any forest-offence, other than an offence specified in section 62 or section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed and (b) when any property has been seized as liable to confiscation, to release the same on payment of an amount equivalent to double the market value thereof. Such compounding offence in case of clause (b) is permissible only before confiscation The petitioners had enough opportunity to avail of the said provision but it failed to do so. When something is directed to be done in certain way, that thing shall have to be done in that way and no other. To accede to the above prayer of Mr. When something is directed to be done in certain way, that thing shall have to be done in that way and no other. To accede to the above prayer of Mr. De will amount to usurpation of the function vested in the forest officer which is not permissible. If it was a case that the concerned authority failed to discharge its function in accordance with the law it would have been completely a different matter. Lastly, as held by the Apex Court in State of Jharkhand vs. Govind Singh, reported in 2005 (10) SCC 437 , release of the vehicle by imposing fine in lieu of confiscation is impermissible. ( 13 ) IN the premises, in the light of the above discussion, the present revisional application being not sustainable be dismissed. The impugned judgment and order of the appellate authority are affirmed. Revisional application dismissed.