ORAL JUDGMENT : (Per : B.P. DHARMADHIKARI, J.) 1. By this petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure and Section 61(D) of the Indian Forest Act, 1927 (hereinafter referred to as ‘1927 Act’), the petitioner, an owner of saw mill, challenges the judgment dated 7.3.1998 delivered by Additional Sessions Judge, Gondia in Criminal Appeal No.9/1997 dismissing it. Said appeal was directed against order dated 1.2.1997 passed by Authorised Officer and Assistant Conservator of Forests (Tendu Leaves), Gondia Forest Division, Gondia u/s 61 (D) of the Indian Forest Act confiscating teak wood logs and two saw bands earlier seized. This court has on 30.4.1998, while issuing notice before admission in the present criminal writ petition, directed that property confiscated under the impugned order shall not be put to auction till then and that interim order was continued on 22.6.1998 while issuing Rule. With the result, the property has not been put to auction and the order of confiscation has not attained finality. 2. Briefly stated facts show that respondent no.2 Assistant Conservator of Forest, an Authorised Officer visited saw mill of petitioner on 17.8.1996 and found 8 logs of teak wood admeasuring 1.261 cubic meter in a room in the premises of that saw mill. The logs were without any hammer marks and not supported by any Transit Pass. He, therefore, seized said logs as also the saw mill of petitioner. In saw mill there are two saw bands or machines one is 39” vertical saw machine while other is 42” vertical second saw machine. The motor vehicle namely truck having registration No. MWY5459 which was used to transport those logs from forest to saw mill belonging to one Ashok Dube and driven by Rakesh Tiwari also came to be seized. This action was u/s 52 of 1927 Act. It was alleged that Rule 3 sub-rule 17 and 27 of the Bombay Transit of Forest Produce (Vidarbha Region, Saurashtra and Kutch Areas) Rules, 1960 were violated and Forest Offence, accordingly was committed by these persons. 3. It is in this background that we have heard Senior Advocate Shri Anil Mardikar with Advocate Shri S.S. Ghate for the petitioner, Advocate Mrs. B.H. Dangre with Advocate Shri Autkar for respondent nos.1 and 2 and Learned Additional Public Prosecutor Mrs. S.S. Jachak for respondent no.3. 4. 3. It is in this background that we have heard Senior Advocate Shri Anil Mardikar with Advocate Shri S.S. Ghate for the petitioner, Advocate Mrs. B.H. Dangre with Advocate Shri Autkar for respondent nos.1 and 2 and Learned Additional Public Prosecutor Mrs. S.S. Jachak for respondent no.3. 4. Senior Advocate Mardikar has pointed out that judgment has been delivered on 23.2.1998 in Summary Criminal Case No.592/1996 by Judicial Magistrate, First Class, Amgaon and he acquitted present petitioner of offence punishable under Rules 3 and 17 and 25 of above mentioned 1960 Rules. He contends that, in this background, show cause notice issued to petitioner for confiscation needs to be appreciated. He submits that said show cause notice dated 10.10.1996 was duly replied by the petitioner on 25.10.1996 and, thereafter, petitioner received two notices for hearing scheduled then on 27.11.1996 and 28.11.1996. On 26.11.1996 petitioner forwarded a medical certificate and sought adjournment beyond 20.12.1996 as he was to continue under medical treatment from 25.11.1996 till 20.12.1996. Ignoring this document and request, impugned order came to be passed by Authorised Officer and Assistant Conservator of Forest on 1.2.1997. Said officer in paragraph 7 found that the petitioner remained absent and, therefore, concluded the confiscation proceeding against him. He submits that this order of confiscation was challenged in an appeal registered as Criminal Appeal No.9/1997 under Section 61(D) of 1927 Act before Additional Sessions Judge, Gondia and vide judgment dated 7.3.1998 that appeal came to be dismissed. He has then invited attention to judgment dated 25.7.2011 delivered by learned Single Judge of this court in Criminal Appeal No. 23/1999 to urge that thereby judgment and order dated 23.2.1998 acquitting petitioner in Summary Criminal Case No.592/1996 challenged by respondent nos.1 and 2 before this court came to be confirmed by this Court. He has also invited attention to findings recorded therein to urge that those findings conclusively established that there could not have been any reason to believe commission of any forest offence by petitioner on 17.8.1996 and hence recourse to provision of Section 52 of 1927 Act or then consequential action u/s 61A (Maharashtra Amendment Act) is, therefore, without jurisdiction and misconceived. He has taken us through provisions of Section 61A to 61G of said Act to show that property confiscated can vests in State Government only when judgment or order passed earlier by Authorised Officer attains finality. He has taken us through provisions of Section 61A to 61G of said Act to show that property confiscated can vests in State Government only when judgment or order passed earlier by Authorised Officer attains finality. He contends that in view of challenge thereto in present Criminal Writ Petition and grant of interim order on 30.4.1998, by this Court, the said order never became final. 5. Order passed by this Court on 19.11.1999 in the present matter is also read out to point out how hearing of present Criminal Writ Petition and Criminal Appeal No.23/1999 was segregated. He submits that this court then found it proper to have judgment in Criminal Appeal No.23/1999. He submits that thus judgment in that appeal clinches the controversy in favour of present petitioner. The judgment delivered by this Court in Criminal Writ Petition No.302/1997 on 2.3.1998 is also pressed into service by him to submit that in said writ petition filed by owner of motor vehicle and its driver, this court has set aside the order of confiscation of truck. He also relies upon the reasons recorded by Division Bench in said judgment to urge that those reasons again expressly refer to case of present petitioner and, therefore, help him in present challenge. 6. He submits that vertical saw machine with 42 inches was idle and not used in any forest offence and only one saw mill (39") was in working condition and as such 42" saw mill or machine not in use could not have been seized or confiscated. Submission made is without prejudice to the argument that in present facts, even other saw mill with 39 inches could not have been seized and confiscated. He submits that saw machines have been seized because of finding of 8 teak logs but then those teak logs had no connection with saw mill or any of the saw machine. Lastly, he submits that the word “Tool” employed in Section 52 of 1927 Act cannot be stretched to include the sawing machines installed in saw mill of the petitioner. 7. Advocate Mrs. B.H. Dangre with Advocate Shri Autkar submit that the language of Section 52 is very clear and any tool or vehicle or implements used in committing forest offence can be seized by forest officer if there is reason to believe that forest offence has been committed. 7. Advocate Mrs. B.H. Dangre with Advocate Shri Autkar submit that the language of Section 52 is very clear and any tool or vehicle or implements used in committing forest offence can be seized by forest officer if there is reason to believe that forest offence has been committed. In fact, an adjournment was sought to produce before this court a spot panchanama to demonstrate that 8 teak wood logs were found in saw mill of petitioner only. Learned counsel submits that admittedly those logs did not carry any hammer mark and there was no transit pass issued to support their movements and hence commission of an offence in relation thereto is already proved. She contends that in this situation there was a reason to believe and hence invocation of Section 52 by respondent nos.1 and 2, in this situation, cannot be challenged. It is further submitted that trees were chopped in forest where small branches and leaves were found lying. Stems were converted into wooden logs and saw machines were used for that purpose. Thus, the tool i.e. saw machine of petitioner were then used for committing forest offence and hence, both saw machines have been rightly seized. An attempt is also made to demonstrate that though the petitioner contends that 42 inches vertical saw bands was not functioning or lying idle, the facts at spot demonstrate otherwise. It is contended that action of seizure u/s 52 and consequential orders of confiscation u/s 61A of 1927 Act are independent of prosecution for criminal offence. Again our attention has been drawn to Sections 61A to 61G to urge that the criminal prosecution or punishment therein or then acquittal therein does not have much bearing on confiscation proceeding. Support is also sought from judgments of Honble Apex Court in the case of Divisional Forest Officer and another .vs. G.V. Sudhakar and others, reported in AIR 1986 SC 328 and in the case of State of W.B. .vs. Gopal Sarkar, reported in (2002) 1 SCC 495 . Case of State of M.P. .vs. S.P. Sales Agencies and others, reported in (2004) 4 SCC 448 has also relied upon to point out the object or purpose of such provisions. Case of State of M.P. .vs. S.P. Sales Agencies and others, reported in (2004) 4 SCC 448 has also relied upon to point out the object or purpose of such provisions. Observations of Hon’ble Apex Court in judgment in the case of State of West Bengal and others .vs. Sujit Kumar Rana, reported in 2004 (1) SCR 870 are also relied upon to urge that acquittal in such prosecution does not have any impact on ‘reason to believe’ formed by Authorised Officer u/s 52 of 1927 Act. A judgment delivered by Division Bench of this court on 2.8.1996 in Criminal Writ Petition No.146/1998 is also relied upon for very same purpose. 8. It is submitted that logs were lying in room within premises of saw mill and it was, in fact, godown in possession of petitioner. The defence that said room was let out to a tenant is by way of after thought and taken belatedly. It is contended that, in this situation, facts available on 17.8.1996 are only material and as those facts are sufficient and relevant to form a belief of involvement in commission of forest offence, no interference is warranted. Insofar as violation of principles of natural justice is concerned, our attention has been drawn to stand taken in paragraph 12 and 15 of return filed by said respondents before this court. 9. Learned Senior Advocate, in reply, has attempted to distinguish the judgment cited by Advocate Mrs. Dangre. He submits that facts of those judgment show that either effort was made to obtain stay of confiscation proceeding because criminal prosecution was pending or then, as a matter of fact, the use of saw bands in offence has been brought on record. He submits that documents on record before this court do not show use of any saw bands in saw mill of petitioner and hence the saw bands need to be released. He submits that as commission of forest offence itself is not proved, the court has already ordered release of motor vehicle namely truck in favour of its owner Shri Dube. He relies upon specific assertion in memo of writ petition to urge that petitioner received only a notice dated 13.11.1996 about hearing on 27.11.1996 and 28.11.1996. Apart from that, he did not receive any notice and hence in absence of any notice, further hearing conducted by respondent no.2 is in violation of settled procedure. He relies upon specific assertion in memo of writ petition to urge that petitioner received only a notice dated 13.11.1996 about hearing on 27.11.1996 and 28.11.1996. Apart from that, he did not receive any notice and hence in absence of any notice, further hearing conducted by respondent no.2 is in violation of settled procedure. As petitioner was not given opportunity, finding of facts recorded by said authority, cannot be said to be final and determined. 10. Judgment of Hon’ble Apex Court in the case of Divisional Forest Officer and another .vs. G.V. Sudhakar and others (Supra) shows that an effort was made by the respondent-accused of commission of forest offence to stall confiscation proceeding till disposal of criminal case pending against him before the court of Metropolitan Magistrate. It is in this background that Hon’ble Apex Court, in paragraph 12, has considered this aspect and found that prosecution for forest offence and proceeding for seizure u/s 52 or then for confiscation u/s 61A are independent of each other. Judgment in the case of State of W.B. .vs. Gopal Sarkar (supra) is on same lines and, in fact, draws support from AIR 1986 SC 328 (supra) judgment. In the case of State of M.P. .vs. S.P. Sales Agencies and others (supra) the Hon’ble Apex Court holds that power of confiscation is independent of criminal prosecution and, therefore, confiscation proceedings need not be initiated only after launching of criminal prosecution. Only condition precedent for initiating confiscation proceeding is found to be commission of forest offence. In the case of State of West Bengal and others .vs. Sujit Kumar Rana (supra) the Hon’ble Apex Court has, while analyzing the position in this respect under another enactment, noted that there is no provision to the effect that if confiscated property or the amount deposited in the Treasury pursuant to the auction of the confiscated goods would be returned to the owner thereof in the event the criminal trial ends in an acquittal. It has observed that court is, therefore, not concerned with effect of acquittal visavis the confiscation proceeding. For the said purpose, it has also invited attention to the Division Bench judgment of the Andhra Pradesh High Court in Mohd. Yaseen .vs. Forest Range Officer, Flying Squad, Rayachoti (1980). 11. It has observed that court is, therefore, not concerned with effect of acquittal visavis the confiscation proceeding. For the said purpose, it has also invited attention to the Division Bench judgment of the Andhra Pradesh High Court in Mohd. Yaseen .vs. Forest Range Officer, Flying Squad, Rayachoti (1980). 11. We may also refer to unreported judgment of this Court i.e. dated 2.8.1996 in Criminal Writ Petition No.146/1998 [Sukhadev Bhivraj Rathi .vs. The Authorised Officer & Assistant Conservator of Forest, Yavatmal and another]. The challenge therein was specifically to confiscation of sawing machine i.e. saw bands under very same provision. The forest offence committed was under Rules 3, 17 and 23 of above mentioned 1960 Rules. The High Court has found that use of sawing machine was proved in facts before it. Five, out of nine, logs were seen chopped and it also noted that timber of logs were swan on the sawing machine. Division Bench notices that the person, who affects that seizure, has to produce the seized material before the authorized officer as per Section 61A (1) of the Act. When the same are produced before authorized officer, after issuing show cause notice as enjoined u/s 61B of the Act and affording opportunity to person interested of being heard in the matter and upon being satisfied that forest offence has been committed with respect to said property and tools were used for committing the said forest offence, authorised officer can confiscate that material. This satisfaction has to be on the basis of material placed before authority and seizure panchanama is found to be of cardinal importance. In this situation, it is further noted that Section 61A (3) of the Act does not speak of proof much less proof beyond reasonable doubt that forest offence has been committed or tool was used for committing forest offence. 12. In the present criminal writ petition, on 30.4.1998 this court granted interim order and stayed auction of confiscated property. That interim order was continued till 22.6.1998 while issuing Rule. On 19.11.1999, this court has passed following order : “In the midst of hearing of this petition, it was submitted that in the forest offence alleged to have been committed by the petitioner, the petitioner has been acquitted, and Criminal Appeal No.23 of 1999 filed by the Range Forest Officer and another is pending before this Court. On 19.11.1999, this court has passed following order : “In the midst of hearing of this petition, it was submitted that in the forest offence alleged to have been committed by the petitioner, the petitioner has been acquitted, and Criminal Appeal No.23 of 1999 filed by the Range Forest Officer and another is pending before this Court. Earlier when this Court admitted the said Criminal Appeal, it passed an order that it should be heard with this petition. Thereafter, on the application moved by the petitioner in the aforesaid Criminal Appeal, an order came to be passed to delink the matter. Mr. Hardas, the learned counsel for the petitioner, submits that the petitioner has no objection if the aforesaid Criminal Appeal is also heard by this Court by dispensing with the paper book, as the record and proceedings are available, so that this petition can also be disposed of. Mr. Deshpande has no objection. In this view of the matter and in our opinion, it will be proper if Criminal Appeal No. 23 of 1999 is first disposed of by the Single Judge and then this petition is taken up for hearing. Therefore, we direct the office to place Criminal Appeal No.23 of 1999 before the learned Single Judge for disposal in accordance with law. Liberty to the petitioner to move this Court after the Criminal Appeal No.23 of 1999 is disposed of.” 13. Thus, by the said order its earlier order clubbing present Criminal Writ Petition with Criminal Appeal No.23/1999 was modified and this court felt that hearing of Criminal Appeal first may facilitate consideration of criminal writ petition. However, said order is an interlocutory order and various binding precedents or law which we have noted (supra) were not required to be looked into at that juncture. 14. The power to seize can be resorted to when there is a reason to believe that forest offence has been committed. The reason to believe in the present matter should have been in existence on 17.8.1996 or then on the date on which authorised officer passed an order of seizure. Section 61A again refers to similar belief. It is, therefore, obvious that when said belief is recorded, prosecution itself may not have been lodged or may be pending, Hon’ble Apex Court has categorically held that acquittal in criminal prosecution is, therefore, is not decisive in confiscation proceedings. 15. Section 61A again refers to similar belief. It is, therefore, obvious that when said belief is recorded, prosecution itself may not have been lodged or may be pending, Hon’ble Apex Court has categorically held that acquittal in criminal prosecution is, therefore, is not decisive in confiscation proceedings. 15. Question before this court, therefore squarely is, whether on 17.8.1996 there was enough material on record to warrant an order of seizure and whether similar material was available when further order of confiscation u/s 61A came to be passed. The facts noted by us (supra) show grievance that petitioner did not receive any opportunity after he sent an application seeking time beyond 20.12.1996 on 26.11.1996. The respondent nos.1 and 2, in their return, have pointed out that the petitioner was duly served with show cause notice and he tendered his reply thereto, that reply has been looked into by forest officer. Authorised Officer has issued notice to petitioner on 13.11.1996, 9.12.1996 and 2.1.1997. Reply discloses that in spite of these notices, petitioner never remained present and did not participate any inquiry. In paragraph 15, it is stated that petitioner did not submit any reply or application for adjournment along with medical certificate on 26.11.1996. Petitioner, in his petition in paragraph 15, has pointed out forwarding of application dated 26.11.1996 along with certificate of physician and stated that thereafter he did not receive any communication either to appear or for cross-examination or for tendering evidence. Again said grievance is reiterated in paragraph 20 of writ petition wherein it is stated that after his communication dated 26.11.1996, petitioner was not issued any letter before conclusion of proceeding and order passed by authorised officer on 1.2.1997 is, therefore, illegal. Though respondents state that communications dated 9.12.1996 and 2.1.1997 were sent to petitioner to rebut this assertion of petitioner, they have not placed on record any service report or there is no specific assertion that petitioner had received those notices on a particular date i.e. before date scheduled for hearing. Authorised Officer, in his order dated 1.2.1997 in paragraph 7, has mentioned that notices dated 9.12.1996 and 2.1.1997 were sent to the petitioner, but again the order does not show that said notices were served upon him. 16. Authorised Officer, in his order dated 1.2.1997 in paragraph 7, has mentioned that notices dated 9.12.1996 and 2.1.1997 were sent to the petitioner, but again the order does not show that said notices were served upon him. 16. In this situation, it is apparent that opportunity needs to be given to the petitioner before ordering confiscation of the property, which had been effected under Section 61B & before passing order of confiscation, a notice in writing to petitioner and consideration of his objections is must. Here, though petitioner had filed his reply, he was called on two dates i.e. 27.11.1996 and 28.11.1996 for hearing. The subsequent notices referred to in return before an order of confiscation dated 1.2.1997 are not on record. 17. It appears that, even after receipt of his reply, respondent no. 2 found it necessary to extend opportunity of hearing to petitioner. Thus, the findings of facts only after such an opportunity of hearing can be final and hence facts presently on record, cannot be said to be finally settled, so as to enable this court to proceed on that basis. The petitioner can, in the process of hearing, demonstrate that on 17.8.1996 there was no reason to believe indulgence of petitioner in any forest offence. Material relevant for said purpose can be pressed into service by him before respondent no.2. That material may have come on record in his trial in Summary Criminal Case No.592/1996. Observations of this court in its judgment dated 25.7.2011 in Criminal Appeal No.23/1999 or then judgment dated 2.3.1998 in Criminal Writ Petition No.302/1997 may also be pressed into service to contend that there was no such material. However, we are not commenting further upon said observations or in that regard. Respondent No.2, which is quasi-judicial authority, has to consider all relevant aspects in this respect independently and it has to reach its own conclusions in accordance with law. In this situation, as we find that petitioner was not given necessary opportunity, we quash and set aside the order of confiscation dated 1.2.1997 passed by respondent no.2. Consequently, judgment delivered by Additional Sessions Judge, Gondia in Criminal Appeal No.9/1997 is also set aside. Proceedings are restored back to file of respondent no.2. Petitioner shall appear before respondent no.2 on 1.7.2014. Consequently, judgment delivered by Additional Sessions Judge, Gondia in Criminal Appeal No.9/1997 is also set aside. Proceedings are restored back to file of respondent no.2. Petitioner shall appear before respondent no.2 on 1.7.2014. Respondent no.2 shall proceed further in accordance with law and take suitable decision in terms of Section 61A and 61B of 1927 Act within next six weeks. Till then, the position as on today, in relation to the two saw bands of petitioner shall be maintained. 18. Criminal Writ Petition is thus accordingly allowed and disposed of. No costs.