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2021 DIGILAW 82 (GUJ)

Mahendra Vishram Patel v. State Of Gujarat

2021-01-29

A.P.THAKER

body2021
ORDER : 1. This petition is filed under Article 227 of the Constitution of India whereby the petitioner is challenging the order passed by the Dy. Conservator of Forest (North), Valsad whereby the respondent No.2 vide order dated 27.3.2017 directed that the vehicle being Truck bearing registration no. GJ15XX6519 be vested with the State as per the provisions of Section 61(f) of the Indian Forest Act, 1927 and the decision of the learned Sessions Court Valsad, passed in Criminal Appeal No. 32 of 2017 (hereinafter referred to as 'the Act'). 2. The brief facts giving rise to present petition is that the petitioner had purchased the vehicle being Truck bearing registration no. GJ15XX6519 from the respondent no.3 by executing one agreement to the said effect dated 9.9.2016. However, the said Truck was not transferred in the records of RTO in the name of the petitioner. The said vehicle was seized by Respondent no.2 when the same was parked loaded with forest product viz. Khair logs which were illegally cut from the forest. According to Respondent No.2, the First Offence Register i.e. FOR was registered on 8.10.2016 and the statement of the petitioner was recorded on 7.10.2016 and pursuant to the registration of the FOR, the Round Offence No.8 of 201617 was registered and whereafter Dharampur Range Offence No. 49 of 2016 was registered. It is also case of the respondent that pursuant to the registration of the said offence, vehicle in question was taken into custody by the forest authorities and proceedings for confiscation of the vehicle was initiated vide Ka/Offence/Vahan/T8/ 390616/ 201617 before Respondent No.2, who has passed the impugned order. 2.1 The said Order of the Respondent No.2 was then challenged by the Petitioner by filing Criminal Appeal No. 32 of 2017 before the Learned District & Sessions Judge, Valsad, who has also confirmed the order passed by respondent no.2. 2.2 It is contended by the petitioner that the Forest authorities as well as learned Sessions Judge, Valsad has committed serious error of facts and law in passing the impugned orders. It is contended that the Sessions Judge ought to have appreciated that the only criteria required to be taken into consideration while releasing the muddamal vehicle is that whether the vehicle was utilised for transportation of forest products or not. It is contended that the Sessions Judge ought to have appreciated that the only criteria required to be taken into consideration while releasing the muddamal vehicle is that whether the vehicle was utilised for transportation of forest products or not. It is contended that in the present case, it is not in dispute that the forest produce alleged to have been illegally transported was not a property of the Government and, therefore, the vehicle could not have been confiscated. According to him, the statement of the person, who is occupying the land viz. Amrutbhai Patalbhai was also recorded and he has specifically stated that because of financial difficulty, he had sold the said trees to the petitioner and, therefore, the trees log cannot be said to be Government property as it was purchased from a private man. He has also contended that the Sessions Judge has not taken into consideration the provisions of Section 68 of the Indian Forest Act and that opportunity ought to have been given to the petitioner as per Section 68 of the Indian Forest Act. He has also contended that pursuant to the seizure of the vehicle in question, no complaint has been made by the Forest Officer before the learned Magistrate and in absence of any such complaint, the order of confiscation is bad. On this grounds, he has sought following relief: “(A) YOUR LORDSHIPS be pleased to admit and allow this petition; (B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the order dated 9.5.2018 passed by the Ld. Sessions Judge, Valsad in Criminal Appeal No. 32 of 2017 as well as order dated 27.3.2017 passed by respondent no.2 in proceedings no. Ka/Offence/ Vahan/ T9/ 390616/2016-17 and further be pleased to direct the respondent no.2 to release the vehicle being Truck bearing registration no. GJ15XX6519 in favour of the petitioner, in the interest; (C) Pending the admission, hearing and final disposal of this Petition, YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of impugned order dated 9.5.2018 passed by the Ld. Sessions Judge, Valsad in Criminal Appeal No. 32 of 2017 as well as order dated 27.3.2017 passed by respondent no.2 in proceedings no. Ka/Offence/ Vahan/ T9/ 390616/2016-17 and further be pleased to direct the respondent no.2 to release the vehicle being Truck bearing registration no. Sessions Judge, Valsad in Criminal Appeal No. 32 of 2017 as well as order dated 27.3.2017 passed by respondent no.2 in proceedings no. Ka/Offence/ Vahan/ T9/ 390616/2016-17 and further be pleased to direct the respondent no.2 to release the vehicle being Truck bearing registration no. GJ15XX6519 in favour of the petitioner on such terms and conditions as this Hon'ble Court may deem fit and proper, in the interest of justice; (D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper in the interest of justice and equity.” 3. The Respondent has filed affidavit-in-reply wherein it is submitted that on the basis of input on 7.10.2016, Police Inspector of Dharampur Police Station found a truck in question loaded with illegal Khair wood at residence of the petitioner at Village Fulvadi, Taluka Dharampur, Dist. Valsad. It is also submitted that as loaded Khair woord found illegal, Dharampur Police detained the truck along with the present petitioner and handed over the seized truck loaded with illegal Khair wood with the Petitioner to Dharampur Forset Range Staff on 7.10.2016 and Dharampur Forest Department took over seized material and carried out necessary Panchnamas, numbered seized Khair wood and calculated it as 141 Khair wood logs, 2.820 Cmt. It is also submitted that as the material was from illegal source and without cutting as well as transit permission, an offence was registered with Makadban Round Forester Offence No. 01/2016-17 dated 08.10.2016, Makadban Round Offence No. 08/2016-17, Dharampur Range offence No. 49/2016-17 under Section 41(2)(B) of Indian Forest Act, 1927 and for breach of Bombay Forest Rules, 1942 Rule No. 91, 92 and 94 against the petitioner. It is also submitted that the petitioner accused was released on bail by Assistant Conservator of Forest, Dharampur as per provisions of Section 65 of Indian Forest Act. 3.1 It is also submitted by the authority that after following proper procedures, Deputy Conservator of Forest, Valsad North Forest Division, has passed an order No. K/Guna/VHN/T8/390616 dated 27.03.2017 for confiscation of seized Khair Wood logs along with the Truck involved in the matter against which the petitioner has preferred Criminal Appeal No. 32/2017, which came to be rejected by the Sessions Court, Valsad. 3.2 It is also submitted by the authority that during the investigation of the said offence, it was found that the Khair wood in question were cut from private land bearing Survey No. 145 paiki 1 and 146/1 of Fulvadi village, Dharampur taluka, Valsad District. It is also submitted that as per statement of the petitioner accused dated 7.10.2016, the petitioner has purchased said Khair trees located on said survey numbers from one Shri Amrutbhai Patalbhai Patel on lump sum amount of Rs.50,000/-. According to the respondent, as per statement of Amrutbhai Patalbhai Patel, he is managing the said land from ancestral time which is not entered in the village Form in his name. He has also submitted that out of Shri Nanubhai Ukaliyabhai, Ghelabhai Ukaliyabhai, Kamalben Narsingbhai, Niranjanaben Narsingbhai, Hiteshbhai Narsingbhai, the statements of Shri Nanubhai Ukaliyabhai, Ghelabhai Ukaliyabhai, Kamalben Narsingbhai were recorded by Range Forest Officer, Dharampur on 9.10.2016, wherein they have stated that Amratbhai Patalbhai Patel has grabbed their land forcefully and cut Khair trees without their knowledge as well as permission. 3.3 According to the Respondent, the truck in question was found to be registered in the name of one Shri Ishwarbhai Bhanabhai Patel, r/o. Bhensdhara, Nisal Faliya, Taluka Dharampur, Dist. Valsad, who in his statement before Range Forest Officer, Dharampur on 15.10.2016 , stated that he has sold the said truck to the present petitioner on 15.8.2016 and has also produced selling document (Dastavej) on Stamp Paper of Rs.100/of dated 9.9.2016. It is also contended that present petitioner in his statement before the authority has stated that he carried out cutting of Khair trees with labourers provided by one Shri Lahnubhai r/o. Mohana Kavchali village, Dharampur and paid Rs.2000/per ton as a labour charge. It is also stated by the petitioner in his statement that he was about to sale this Khair wood to a person namely Shri Mangleshwar, r/o. Maharashtra and he has also supplied one truck Khair wood earlier. 3.4 It is also contended that sufficient opportunity of being heard has been provided to the petitioner and thereafter final order was passed. It is also submitted that Khair tree is declared as a reserved tree as per provisions of Mumbai Land Revenue Act vide Gujarat Government's Resolution No. TRS/1661/100095A4 dated 5.1.1962 and rights regarding Khair trees lies with Gujarat Government. It is also submitted that Khair tree is declared as a reserved tree as per provisions of Mumbai Land Revenue Act vide Gujarat Government's Resolution No. TRS/1661/100095A4 dated 5.1.1962 and rights regarding Khair trees lies with Gujarat Government. According to the authority, as per the provisions of Bombay Forest Rules Rule No. 90 to 94, permission of Government is required for cutting of reserve trees and no such permission has been obtained in the present case. While narrating the antecedents of the petitioner, it is submitted by the authority that the present petitioner was involved in the same activity earlier. The authority has stated that there is no illegality committed in passing the order of confiscation of truck in question. 4. Heard Mr. Adil Mirza, learned advocate for the petitioner and Ms. Maithili Mehta, learned APP for the respondent State through videoconferencing. 5. Mr. Adil Mirza, learned advocate for the petitioner has submitted same facts which are narrated in the Petition. In addition to that, he has submitted that Khair wood in question is not a produce of the Forest Department but it was cut from the private land. He has also submitted that it was not the property of the government and no report was made under Section 62(2) of the Act, of the Magistrate concerned. According to him, in absence of any prosecution, no confiscation of the truck can be made by the authority in question. He has also contended that no panchnama regarding Khair wood in question is prepared. He has also stated that the Petitioner is only demanding the possession of the vehicle and not that of the log wood. He has vehemently submitted that the action on the part of the Forest Authority is devoid of merits and the order passed by the learned Sessions Judge in Appeal is erroneous on both counts, in factual as well as legal aspect. He has prayed to allow the present petition by setting aside the order of the Sessions Court as well as trial Court and the Forest Authority. 6. Ms. Maithili Mehta, learned APP has supported the order passed by the Forest Officials as well as that of the learned Sessions Court. He has prayed to allow the present petition by setting aside the order of the Sessions Court as well as trial Court and the Forest Authority. 6. Ms. Maithili Mehta, learned APP has supported the order passed by the Forest Officials as well as that of the learned Sessions Court. She has also submitted that there is a clear breach of the provisions of the Forest Act as no permission has been sought for cutting the trees in question and the offence is made out against the petitioner. She has also submitted that in view of the facts narrated in the affidavit-in-reply, proper opportunity has been given to the petitioner and there is past antecedent of the petitioner in committing such offence and, therefore, this Court may not interfere with the order passed by the Forest Authority as well as order passed by the Sessions Court in Appeal. 7. At this stage, it is worthwhile to refer various provisions of the Forest Act, 1927, which reads as under: "Section 52. Seizure of property liable to confiscation. (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest-officer or Police officer. (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account which the seizure has been made: Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. The State of Gujarat has substituted the word "vehicles" in place of word "carts". The State of Gujarat has substituted the word "vehicles" in place of word "carts". The State of Gujarat has also inserted subsection 1 in Section 52 as follows: "(1A) Any Forest-officer or Police officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest-produce in respect of which there is reason to believe that a forest-offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle and inspection of all records relating to the forest-produce and in possession of such driver or other person in charge of the vehicle or any other person in the vehicle." "3. In Subsection (2), for the words "make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made", substitute the following words, namely: "make a report of such seizure (a) where the offence on account of which the seizure has been made is in respect of the forest-produce which is the property of the State Government or in respect of which the State Government has any interest to the concerned authorised officer under section 61A; and (b) in other cases, to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made." "61. Saving of power to release property seized.-Nothing hereinbefore contained shall be deemed to prevent any officer empowered in this behalf by the State Government, from directing at any time the immediate release of any property seized under section 52". After section 61, the State of Gujarat has inserted the following sections, namely:" 61A. Saving of power to release property seized.-Nothing hereinbefore contained shall be deemed to prevent any officer empowered in this behalf by the State Government, from directing at any time the immediate release of any property seized under section 52". After section 61, the State of Gujarat has inserted the following sections, namely:" 61A. Confiscation by Forest officer in certain cases.-(1) Notwithstanding any thing contained in the foregoing provisions of this Chapter or where any other law for the time being in force, where a forest-offence is believed to have been committed in respect of forest-produce which is the property of the State Government, the officer seizing the property under subsection (1) of section 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles 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 Forests (hereinafter referred to as the "authorised officer").(2) Where an authorised officer seizes under subsection (1) of section 52, any forest produce which is the property of the State Government or where any such property is produced before the authorised officer under subsection (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 together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence. (3)(a) Where the authorised officer, after passing an order of confiscation under subsection (2), is of the opinion that it is expedient in the public interest so to do, he may, order the confiscated property or any part thereof to be sold by public auction. (b) Where any confiscated property is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses, relating thereto, shall where the order of confiscation made under section 61A is set aside or annulled by an order under section 61C or 61D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order. 8. 8. Having considered the submissions on behalf of both the sides coupled with the aforesaid legal aspects, it appears that there is no dispute as to the vehicle in question i.e. Truck bearing registration no. GJ15XX6519 with Khair wood have been seized by the Police and thereafter it was handed over to the concerned Forest Authority. The main question raised by Mr. Mirza, learned advocate for the petitioner is that Khair wood are not the property of the government as it was cut from the private land is concerned, it is admitted facts that the vehicle in question was found with "Khair woodlogs" which is "Reserved Tree" from the Forest area. Further in case of reserved tree, even if it is grown on the private land, it cannot be cut without the prior permission of the concerned Forest Authority. Now admittedly in this case, Khair log wood was found from the Muddamal truck. Therefore, before cutting Khair wood which has been declared as reserved tree, prior permission of the Authority was imperative. Now, admittedly no such permission has been sought by the land owner or even by the present petitioner and, therefore, the cutting of Khair wood, which is a reserved tree, is a Forest offence. 9. It is pertinent to note that in view of Section 52 of the Act, by amendment, the State of Gujarat has substituted the word 'vehicles' in pace of 'carts' in subsection (1) of Section 52. Now Section 52 of the Act gives the power of seizure of the property liable to be confiscation. According to subsection (1) of Section 52 of the Act, with amendment, when there is a reason to believe that a Forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles, carts and cattle used in committing of such offence, may be seized by any Forest Officer or Police Authority. 10. Further it appears from the record that the opportunity of being heard was given to the petitioner herein and he was also heard by the Authorities. Thus, proper opportunity was provided to the petitioner. 11. Now, admittedly in this case, the petitioner has already approached the learned Sessions Court against the orer of confiscation passed by the Forest Authority and the said Appeal has come to be rejected by the learned Sessions Judge, Valsad. Thus, proper opportunity was provided to the petitioner. 11. Now, admittedly in this case, the petitioner has already approached the learned Sessions Court against the orer of confiscation passed by the Forest Authority and the said Appeal has come to be rejected by the learned Sessions Judge, Valsad. At this juncture, the provisions regarding the Appeal as contained in Section 61(D) needs to be reproduced, which runs as under: "61D. Appeal.—Any person aggrieved by any order under section 41, 61A or section 61C may, within forty-five days from the date of communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property to which the order relates has been seized and the Sessions Judge shall, after giving an opportunity of being heard to the appellant and the authorised officer or the officer specially empowered under section 61C, as the case may be, pass such order as he may think fit confirming, modifying or annulling the order appealed against. (2) An order of the Sections Judge under subsection (1) shall be final and shall not be questioned in any Court of law. 12. In view of the aforesaid provisions, the order of the learned Sessions Judge under subsection (1) of Section 61D is final and it is not liable to be questioner in any Court of law. Now, the present petition has been filed by the petitioner under Article 227 of the Constitution of India challenging both the orders of the Forest Authority as well as learned Sessions Judge. It is well settled principles of law that the exercise of jurisdiction under Article 227 of the Constitution of India is a supervisory revisional jurisdiction. It is also well settled that in case of revisional or supervisory authority, the High Court cannot interfere with the findings of facts reached by the authorities below except where there is an error on the part of the lower authority in considering the legal provisions applicable to the case. Thus, in present case, this Court has to keep in mind this well settled law. Now, considering this aspect, it is crystal clear that on facts both the subordinate Authorities i.e. the Forest Authority as well as learned Sessions Judge, Valsad has considered the factual aspect as well as legal provisions contained in Forest Act and the Rules made therein. Thus, in present case, this Court has to keep in mind this well settled law. Now, considering this aspect, it is crystal clear that on facts both the subordinate Authorities i.e. the Forest Authority as well as learned Sessions Judge, Valsad has considered the factual aspect as well as legal provisions contained in Forest Act and the Rules made therein. On perusal of the orders of the Forest authority as well as learned Sessions Judge, Valsad it appears that they have not committed any serious error of facts much less the error of law in deciding the matter at their end. It also reveals from the material placed on record that the present petitioner has, in past also, committed the same activity in the Forest, without obtaining any permission from the concerned authority. Therefore, considering the entire facts and circumstances of the case, this Court is of the opinion that the present petition is liable to be dismissed. 13. In view of the above, the petition is dismissed. Rule stands discharged.