JUDGMENT : 1. Since both the petitions are related to the same Crime No. 22326/2005 dated 4-9-2009 and, therefore, covered under the present common order. 2. In M.Cr.C. No. 1977/2013, the owners of a JCB machine bearing engine No. 62567683 have filed the present petition under section 482 of the Cr.P.C. against the order dated 31-1-2013 passed by 10th Additional Sessions Judge, Gwalior in Criminal Revision No. 480/2012, whereby the order dated 22-10-2012 passed by the appellate authority in Appeal No. 17/2011 was confirmed, in which the order dated 23-4-2010 of confiscation of aforesaid JCB machine passed by the authorized officer was confirmed. Applicants have also challenged the orders of the appellate authority as well as the authorized officer. 3. In M.Cr.C. No. 2645/2013, the applicant has challenged the order dated 31-1-2013 passed by 10th Additional Sessions Judge, Gwalior in Criminal Revision No. 477/2012, whereby the order dated 20-10-2012 passed by the appellate authority in Appeal No. 22/2011 was confirmed, in which the appellate authority has confirmed the order dated 14-10-2011 of confiscation of trolla bearing registration No. RJ-05-GA-1840 being involved in the forest crime passed by the authorized officer. The applicant has also challenged the order passed by the appellate authority as well as the authorized officer. 4. Facts of the case, in short, are that on 4-9-2009 various forest officers went to the forest of block Shanichara suit No. 19 and found that illicit digging was being done by two JCB machines having engine No. 62567683 and 62687667 and a trolla bearing registration No. RJ-05-GA-1840 was found lying near the road, thereafter a case was registered and POR was issued. Initiation of confiscation proceedings was done. Initially an ex parte order was passed against the petitioners but in appeal, it was found that the applicants were not given an opportunity of hearing and defence, therefore, the appellate authority remanded the case to the authorized officer, who again inquired the matter and passed the aforesaid orders relating to a JCB machine bearing engine No. 62567683 and aforesaid trolla, confiscating both the vehicles being involved in the forest crime, appeal as well as revision filed by the applicants were dismissed. 5. 5. The defence of the applicants was that the applicants of M.Cr.C. No. 1977/2013, i.e., partners of M/s Talwale Hanuman ji Trading Company (in short "the applicants' company") have entered into a written contract with one Rakesh Kushwaha, who had a license of digging stones in a mine situated at the land bearing Survey No. 112/7(ga) area 1.600 hectare at village Paroli and he engaged the JCB machine bearing engine No. 62567683 to dig stones for Rakesh Kushwaha. According to the agreement dated 25-8-2009, it was mentioned that the JCB machine shall be sent at Paroli on 4-9-2009 and the aforesaid JCB machine was sent according to the contract for mining on the allotted land to Rakesh Kushwaha. Since distance of the spot was too much from Dholpur and, therefore, JCB machine could not be driven and, therefore, the applicant of M.Cr.C. No. 2645/2013 Salim Uddin was contacted and aforesaid trolla of Salim Uddin was engaged by partners of the applicant company. When the trolla was two kilometers away from the village Paroli, its wheel got struck in the soft soil of village road and, therefore, the JCB machine was unloaded from trolla and the driver and staff of JCB machine and trolla were trying to remove that wheel from the soil. In the meantime, the forest officers came and they assaulted the driver and staff members of trolla as well as JCB machine and those vehicles were seized. 6. I have heard the learned counsel for the parties at length. 7. It is submitted by the learned counsel for the applicants that the authorized officer, appellate authority as well as the revisionary Court did not pay any attention to the defence given by the applicants. Agreement, which took place with the applicant company and Rakesh Kushwaha on 25-8-2009, was duly notarized and it could not be proved that it was a document, which was prepared after the seizure of vehicles. According to that document, JCB machine was to be supplied on 4-9-2009 and it was found on the road along with trolla on 4-9-2009 only two kilometers away from village Paroli. According to that document, JCB machine was to be supplied on 4-9-2009 and it was found on the road along with trolla on 4-9-2009 only two kilometers away from village Paroli. The digging found by the authorized officer could be done by another JCB machine and authorized officer could not opine with the surety that JCB machine bearing engine No. 62567683 was digging any soil in the forest area and, therefore, while considering the evidence of the prosecution, the defence of the applicants was ignored. It was also submitted that if JCB machine was sent for illicit digging then it was not required for the trolla to be kept on the road. It could be immediately sent back after dropping the JCB machine at the spot, but presence of trolla at the spot clearly indicates that the machine was seized when it was being taken to the village Paroli to do its work according to the contract and due to contingency, it was unloaded at the spot. 8. It is further submitted that the trolla as well as the JCB machine were sent on demand of Rakesh Kushwaha so that JCB machine would be provided at village Paroli to start his work in the mine, which was allotted to Rakesh Kushwaha. In this connection, the learned counsel for the applicant has placed his reliance upon various judgments of the Apex Court in case of Assistant Forest Conservator and others vs. Sharad Ramchandra Kale, (1998) 1 SCC 48 and judgments of single Bench of this Court and Chhhattisgarh High Court in cases of Sarjoo Prasad s/o Mullu Choudhary vs. State of M.P. and others, 2006(2) M.P.L.J. 65 , Subhash Agrawal vs. Sub-Divisional Forest Officer, MPWN 2002 (I) SN 67 and Devkinandan s/o Badriprasad Sharma vs. Authorised Officer and Additional Divisional Forest Officer and another, 2012(2) M.P.L.J. 45 . 9. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that defence taken by the applicants was pulpable. They examined Rakesh Kushwaha, who confirmed the contract. The various forest officers and officials gave their statements that both the JCB machines were involved in illicit mining and trolla was lying on the road. They examined Rakesh Kushwaha, who confirmed the contract. The various forest officers and officials gave their statements that both the JCB machines were involved in illicit mining and trolla was lying on the road. It was established that when raid took place, the staff of trolla and JCB machine were taking their lunch and after viewing the forest officers, they ran away. Driver of one JCB machine created some problem in the JCB machine and trollla so that such machines could not be taken to adjacent village Kothe Ka Pura. On the next day, the same was taken to Kothe Ka Pura and, thereafter kept at the Police Station Bamore. However, there is a lot of contradiction between the statements given by the various forest officers and officials. It would be apparent that one trolla and two JCB machines were recovered from the spot and, therefore, it was to be shown by the forest officer that out of three vehicles, which vehicle was not working and its parts were found hidden below a stone. Mr. R.K. Sharma, Incharge outpost Shanichara, Mr. Ramavtar Singh Rathore, Incharge outpost Pahadi, Mr. Ramesh Singh Rathore, Forest Guard outpost Shanichara and Mr. Rameshchand Kothari, Forest Guard outpost Shanichara could not tell that whether the parts, which were hidden below stones, were the parts relating to JCB machine, by which a work of digging took place. However, none of these witnesses have made clear that whether such parts were matching with the JCB machine of the applicant company or those parts were matching with another JCB machine. It was not clearly mentioned by these witnesses that out of three vehicles, which was spoiled by the driver and which could not be taken to the nearer village Kothe Ka Pura. Mr. Ramavtar Singh Rathore has accepted in his examination-in-chief that the trolla was taken to the village Kothe Ka Pura on the same very day and it was kept there in the night because the forest force had a night halt at village Kothe Ka Pura . However, there were two JCB machines and none of the forest officer and official have stated that both the machines were not working at the time or both the machines were repaired. 10. A statement was given by Mahesh Singh Jadon, driver of JCB machine that trolla was taken on hire and JCB machine was loaded on the trolla. However, there were two JCB machines and none of the forest officer and official have stated that both the machines were not working at the time or both the machines were repaired. 10. A statement was given by Mahesh Singh Jadon, driver of JCB machine that trolla was taken on hire and JCB machine was loaded on the trolla. When the trolla was hardly two kilometers away from the mines, its wheel was struck in the soft soil and, therefore, JCB machine was unloaded from trolla and they were trying to remove the wheel, which was seized. The most important fact, which is ignored by the revisionary Court as well as the appellate authority and the authorized officer that after seizure of the vehicles, various documents memo of spot, Panchnama and FIR (POR) were prepared. On document Ex. D-1, there is a single memo of seizure that a single JCB machine bearing engine No. 62487667 was found digging in forest area and that was seized. In POR Ex. D-3, a case was made against a single JCB machine and its No. 62487667 was scored with a plain line but Crime No. 22326/04 was registered for that JCB machine, thereafter, a second memo of spot was prepared, in which it was shown that two JCB machines were working at the spot and, thereafter, those were seized. Again a trolla was seized and, thereafter, all the three vehicles were sent to the Police Station Bamore to keep them safe. No second POR has been shown to the forest officer that a separate crime was registered for the JCB machine of the applicant company or the trolla and a crime, which was initially registered for JCB machine bearing engine No. 62487667, the entire case of JCB machine of the applicant company and trolla of the applicant Salim Uddin was inserted in the case, which was registered for another JCB machine. Forest officers did not give any explanation before the authorized officer for doing so. They were required to give an explanation that if two JCB machines were found functioning at the spot then as to why the case was not registered against both the machines from the very beginning, why the memo of spot was prepared that another JCB machine was found working and it was seized. They were required to give an explanation that if two JCB machines were found functioning at the spot then as to why the case was not registered against both the machines from the very beginning, why the memo of spot was prepared that another JCB machine was found working and it was seized. If the forest officers wanted to make separate cases for various JCB machines then as to why a seizure memo-cum-memo of spot was prepared for two JCB machines on one paper. No forest officer has given an explanation as to why they prepared a single memo of the spot and seizure for another JCB machine and thereafter a common memo was prepared for two JCB machines. 11. Also if one JCB machine was working and digging some soil then on raid, it was not possible for the driver of the JCB machine to remove the parts of JCB machine, which was being used for digging and to hide them below the stones. Therefore, it is highly doubtful that the second machine was found digging the soil. If the forest officers found parts of JCB machine, which were used for digging, were hidden below the stones then it would be apparent that when they reached the spot, they found one JCB machine lying at the spot having no instrument for digging and a trolla, which was lying on the road and the JCB machine of the applicant company, was also found parked there because it was unloaded from the trolla. If the drivers of the JCB machines of the applicant company or trolla absconded from the spot along with staff then such trolla could not be taken to the village Kothe Ka Pura on the same very day, whereas the witness Ramavtar Singh Rathore, Incharge outpost Pahadi has accepted that trolla was taken to the village Kothe Ka Pura on the same day and on the next day, another JCB machine and trolla etc. were sent to the Police Station Bamore. It was for the forest officers to examine the mechanic as a witness, who repaired the JCB machine so that it could be taken to the village Kothe Ka Pura and thereafter Police Station Bamore. were sent to the Police Station Bamore. It was for the forest officers to examine the mechanic as a witness, who repaired the JCB machine so that it could be taken to the village Kothe Ka Pura and thereafter Police Station Bamore. It is possible that no independent witness in the case who could prove that the JCB machine of the applicant company was not found working or it was spoiled and it was taken to the village Kothe Ka Pura after its repairing. As discussed above, the forest officers did not make the situation clear that out of two JCB machines, which was non-functioning and which was found functioning at the spot. 12. As discussed above, when a part of JCB machine by which digging could be done, was found hidden below a stone by the forest officers indicates that no JCB machine was found digging any soil at the time, when the forest officer did raid and since they found that some soil was dug in the forest area and they found one JCB machine whose working part for digging was missing, they prepared a memo Ex. D-1 then the Ex. D-3. Thereafter, they found another JCB machine with one trolla then they seized all the three vehicles by presumption that both the JCB machines were used for digging. However, as discussed above if trolla had dropped JCB machine to do illicit digging then there was no need to keep that trolla lying there along with JCB machine. The trolla was hired to drop the JCB machine to village Paroli and, therefore, when the JCB machine was dropped two kilometers away from Paroli, it could be taken back but the trolla was found at the spot and trolla was taken to village Kothe Ka Pura on the same very day, which indicates that the defence as proved by the applicants was pulpable. The trolla was taking JCB machine of the applicant company to village Paroli and since its wheel struck in the soft soil, the JCB machine was unloaded and the forest officers found some soil dug in the forest area, seized all the three vehicles on suspicion. 13. It was for the forest officers to examine the mechanic to show that repairing was done in the JCB machine of the applicant company or it was not working at the time of seizure. 13. It was for the forest officers to examine the mechanic to show that repairing was done in the JCB machine of the applicant company or it was not working at the time of seizure. It was for the forest officer to show as to why a single memo of spot and seizure was prepared for another JCB machine and registered a crime for a single machine, thereafter, in the same crime, the trolla of the applicant Salim Uddin and JCB machine of the applicant company were inserted by preparation of another memo of spot seizure. Conduct of the forest officer in the present case is not clean. It appears that when they reached to the spot, they did not find any JCB machine working and since some soil was found dug and operating portion of one JCB machine was found hidden below the stone, all the three vehicles were seized on the basis of suspicion. Hence, the prosecution has failed to prove that the JCB machine of the applicant company was used in committing the forest crime. Consequently, the forest officer could not confiscate the JCB machine of the applicant company. 14. It is also pertinent to note that the trolla was provided by the applicant Salim Uddin so that JCB machine could be taken to the village Parolli. A contract is proved between Rakesh Kushwaha and the applicant company that a JCB machine was to be provided to Rakesh Kushwaha for his mining work at village Paroli and the same was sent on transit on 4-9-2009 and on the same very day, those vehicles were recovered by the forest officers, when those were two kilometers away from the village Paroli. The authorized officer, appellate authority as well as the revisionary Court have wrongly found that the trolla was involved in the forest crime. When the trolla was hired and it was sent to transport the JCB machine according to the contract of Rakesh Kushwaha to the village Paroli then it was not possible for the driver of trolla to involve in the forest crime. If JCB machine was unloaded on a different place then it cannot be said that the driver of trolla was also involved in the crime. If the trolla did not leave the place then it indicates that the defence version is correct. If JCB machine was unloaded on a different place then it cannot be said that the driver of trolla was also involved in the crime. If the trolla did not leave the place then it indicates that the defence version is correct. Since wheel of the trolla got struck in the soft soil, therefore, it could not be moved otherwise the main work of the trolla was to take the JCB machine to a given place. Hence by mere presence of a trolla and the fact that one of the JCB machine was brought in that trolla, it cannot be said that the trolla was used in any forest crime and, therefore, the order of confiscation of trolla passed by the forest officer and confirmed by the appellate authority as well as the revisionary Court was basically incorrect and illegal. The trolla was not at all found being used in the forest crime. Hence, if trolla was found at the road within the forest area then by such presence, no forest crime was committed with the help of trolla. It is accepted by the various forest officers that the road to the village Paroli goes through the forest area and, therefore, the trolla was found on that road, which approaches to village Paroli and, therefore, it is not proved beyond doubt that the trolla was being used for any forest crime. 15. Also as per agreement filed by the parties, it would be apparent that the JCB machine of the applicant company was given on hire to one Rakesh Kushwaha for a valid mining and, therefore, it was not in the knowledge of the applicant company or its partners that it would be used for illicit mining and, therefore, when there was no knowledge to the owner of JCB machine about that forest crime, their vehicle could not be confiscated. In the case of Assistant Forest Conservator (supra), Hon'ble the Apex Court has laid that if owners of the vehicle had any knowledge of likelihood of the vehicle being used for forest crime then confiscation of vehicle cannot be done. The same view taken by various single Benches of this Court and Chhattisgarh High Court is applicable in the present case looking to its factual position and, therefore, JCB machine of the applicant company could not be confiscated. The same view taken by various single Benches of this Court and Chhattisgarh High Court is applicable in the present case looking to its factual position and, therefore, JCB machine of the applicant company could not be confiscated. Similarly as discussed above it was not established that the trolla was being used in committing a forest crime and it is shown that the trolla was engaged on hire by its owner Salim Uddin to transport the JCB machine of the applicant company from Dholpur to village Paroli and, therefore, on the same principle, the owner of trolla had no knowledge that his vehicle would be used for forest crime and, therefore, in the light of the aforesaid judgments, the trolla could not be confiscated. 16. On the basis of the aforesaid discussions, the trolla and JCB machine bearing engine No. 62567683 could not be confiscated, hence, the petitions filed by the applicants appear to be acceptable and consequently, they are accepted. Both the petitions filed by the various applicants are hereby allowed. The orders of authorized officer, appellate authority and the revisionary Court relating to confiscation of the aforesaid trolla and JCB machine bearing engine No. 62567683 are hereby set aside. The trolla bearing registration No. RJ-05-GA-1540 and JCB machine bearing engine No. 62567683 are declared free from any confiscation etc. Those vehicles are in the interim custody of their owners and, therefore, it is directed that interim custody bond of these vehicles shall stand discharged. 17. Copy of the order be sent to the revisionary Court for information.