IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1192 OF 2001. WRIT PETITION NO.1192 OF 2001. WRIT PETITION NO.1192 OF 2001. The State of Maharashtra. ..Petitioner. versus Bhimsingh Shishu Ramsingh Mandal. ..Respondent. .... Ms.A.T.Jhaveri, APP, for the Petitioner. None for the Resondent. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 30TH JULY,2008. : 30TH JULY,2008. : 30TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the leaned APP were heard on 23rd July 2008 and 28th July 2008. I had called upon the learned APP to produce the original record and the learned APP has produced the original record for consideration of this Court. 2. By this Writ Petition under Article 227 of the Constitution of India, the Petitioner- State of Maharashtra has taken an exception to the Judgement and Order dated 9th May 2001 passed by the learned Sessions Judge at Thane, in an Appeal preferred under Section 61-D of the Indian Forest Act, 1927 as amended by Maharashtra Act No.VII of 1985 - 2 - (hereinafter referred to as "the said Act of 1927"). 3. With a view to appreciate the submissions made by the learned APP appearing for the Petitioner, it will be necessary to refer to the facts of the case in brief. The truck bearing registration no.HR-32-GA-0069 which was bearing a fake number plate was seized on 23rd April 2000. The allegation is that the truck was been used for illegally transporting certain forest produce. An offence was registered under the said Act of 1927. The Respondent herein is claiming to be the Owner of the said truck. The Authorised Officer held an inquiry and passed an order dated 31st August 2000 releasing the truck on the ground that the Respondent did not consent or connive in use of the said truck in the forest offence and the Respondent-Owner had taken precaution for ensuring that the truck is not used in forest offence. The Conservator of Forests exercised suo-motu power under section 61-C of the said Act of 1927 and passed an order setting aside the order of the Authorised Officer dated 31st August 2000. The Conservator of Forests directed that the said truck shall be confiscated. An Appeal was preferred by the Respondent herein before the learned Sessions Judge - 3 - by invoking Section 61-D of the said Act of 1927. By the impugned Judgment and Order, the said Appeal has been allowed by the learned Sessions Judge. 4. The learned A.P.P appearing for the Appellant has taken me through the record and especially the orders dated 31st August 2000 and 1st February 2001. The learned APP invited my attention to sub-section (2) of Section 61-D and submitted that admittedly, the truck was caught carrying forest produce and therefore, the burden was on the Respondent-Owner to prove that the truck was so used without his knowledge or connivance and that he had taken all reasonable and necessary precautions against such use. She pointed out that the contention of the Respondent was that he had issued a notice dated 1st January 1998 to the driver and the cleaner employed by him calling upon them not to use the truck for any illegal purpose. She submitted that after holding an inquiry, the Conservator of Forests found that the alleged notice dated 1st January 1998 was a fabricated document. She submitted that the Respondent did not discharge the burden by establishing the authenticity of the said notice dated 1st January 1998. She pointed out that - 4 - according to the case of the Respondent, the said notice was typed at Village Narvane, District Jing, State of Haryana and the inquiry made by the Conservator of Forests after recording the statement of one Sachin Suresh Gujre showed that the said notice was typed at Village Shahapur in Taluka Shahapur District Thane long after 1st January 1998. She also invited my attention to the report of Forensic Science Laboratory, Mumbai dated 1st February 2001 which proves that the alleged notice dated 1st January 1998 was typed at Shahapur after 1st January 1998. She submitted that the finding of the learned Sessions Judge that the statement of the said Sachin Suresh Gujre was recorded behind the back of the Respondent is completely erroneous. She, therefore, submitted that in the light of the finding recorded by the Conservator of Forests after holding an inquiry, the learned Sessions Judge ought not to have interfered. None has appeared for the Respondent. 5. I have carefully considered the submissions. Section 61-A of the said Act of 1927 provides that whenever a forest offence is believed to have been committed in respect of notified forest produce or - 5 - timber, sandle-wood, etc., which is the property of the State Government, the Officer seizing the said property together with all tools, boats, vehicles and cattle used in committing such an offence shall produce the same before the Authorised Officer. Sub-section (3) of Section 61-A gives power to the Authorised Officer to pass an order of confiscation of the forest produce as well as vehicles used in commission of the offence. Sub-section (1) of Section 61-B provides that no order of confiscation of the timber, sandalwood as well as goods, vehicles, etc. shall be made without giving notice in writing to the registered Owner of the vehicle. Sub-section (2) of Section 61-B provides that no order confiscating any tool, boat, vehicle or cattle shall be made under Section 61-A, if the Owner of the said tool, boat, vehicle or cattle proves to the satisfaction of the Authorised Officer that the use of the tool, boat, vehicle for carrying timber, sandalwood, etc. was made without the knowledge or connivance of the Owner and that the Owner had taken all reasonable and necessary precautions against the said illegal use. Thus, in such inquiry, the burden is on the Owner of the vehicle used for carrying timber, sandalwood, etc. to prove that the use of - 6 - the vehicle was without his knowledge or connivance or without knowledge and connivance of his agent and that each of them have taken all reasonable and necessary precautions against such use. Thus, this burden has to be discharged by the registered owner of the vehicle before the Authorised Officer. 6. Section 61-C gives power to the Authorised Officer not below the rank of Conservator of Forests to suo-motu call for the record of any order passed under Section 61-A of the said Act of 1927 and to make such an inquiry as he deems fit. 7. It must be noted here that the case of the Respondent-Onwer before the Authorised Officer was that the driver and the cleaner of the truck used the truck for carrying the forest produce without his knowledge. The Respondent had placed reliance on a letter dated 1st August 1998 allegedly issued by him to show that the Respondent had taken all necessary precautions against said use of the vehicle. 8. In paragraph No.10 of the impugned order, the learned Sessions Judge has observed thus :- "10. Unfortunately what has been opted by - 7 - the Conservator Mr.Zha is that he called upon Mr.Appellant and got replied from his mouth in the form of questions and answer and at that time perhaps he must have been surrounded by the Khaki uniformed officers either from the forest department or from the police department. Notice is issued by the forest department to this appellant dtd.28.06.2000 before passing this alleged so called review order however, the statement is recorded of the witness Sachin Suresh Gujre as later on 2.12.2000 and that too, perhaps behind back of the appellant. Question answer formula seems to have been recorded on 16.11.2000 as is so reflected from the original document of question answer form. This positively go to indicate that alleged statement of Sachin was never therefore, came into existence at all for being put to the present appellant which was admittedly recorded on 2.12.2000. I fail to understand as to how statement recorded of witness Sachin Gujre recorded later on can be alleged to be used against appellant and that too, for confiscating his own property worth lakhs of rupees. This is nothing but order reflected to certain attitude of anarchy and nothing else can be said about this attitude." 9. I have perused the statement of the son of the Respondent who appeared on behalf of the Respondent before the Conservator of Forests. Perusal of the record of the inquiry shows that the Respondent was given all the opportunity to discharge the burden on him. The Respondent was given ample opportunity to prove the notice dated 1st August 1998. - 8 - 10. The finding recorded by the Conservator of Forests in revision under section 61-C was that the Respondent has failed to discharge the burden on him. The perusal of the impugned Judgment shows that the learned Sessions Judge has not at all considered the provisions of section 61-B and in particular, sub-section (2) thereof which puts the burden on the Owner to prove the absence of knowledge and connivance on his part and also to prove that he has taken all necessary and reasonable precautions against the illegal use of the vehicle. While upsetting the findings recorded by the Conservator of Forests, the learned Sessions Judge has not recorded a finding that the Respondent discharged the burden contemplated by sub-section (2) of Section 61-B of the said Act of 1927. The appeal before the learned Sessions Judge was under section 61-D which was directed against an order passed under section 61-C. Since the learned Sessions Judge was exercising the appellate power, it was necessary for the learned Sessions Judge to consider the material on record of the inquiry and to ascertain whether the Respondent has discharged the burden. Perhaps the attention of the learned Sessions Judge was not invited to sub-section (2) of Section 61-B of the said Act of - 9 - 1927. Even assuming that the statement of Sachin Gujare was recorded by the Conservator of Forests behind the back of the Respondent, it was for the learned Sessions Judge to consider the material on record independently and to record a finding on the question whether the Respondent had discharged the burden on him. There is no specific finding recorded in the appeal that the Respondent had discharged the said burden. the entire approach of the learned Sessions Judge appears to be erroneous. 11. The Petitioner has filed this Writ Petition under Articles 226 and 27 of the Constitution of India. While deciding the Writ Petition finally, this Court cannot record a finding of fact on the question whether the Respondent had discharged the burden on him. This Court cannot reappreciate the evidence. The said exercise has to be done by the Court of Appeal as the Appellate Court can consider the entire evidence on record afresh and even re-appreciate the same. 12. Considering what is stated above, in the interests of justice it is necessary that by setting aside the impugned order, an order of remand should - 10 - be passed. 13. Hence, I pass the following order :- (1) The impugned order dated 9th May 2001 is quashed and set aside and Criminal Appeal No.13/2001 is restored to the file. (2) The learned Sessions Judge shall decide the Appeal afresh as expeditiously as possible and preferably within the period of six months from the date of production of a certified copy of this order before the learned Sessions Court. (3) The learned Sessions Court is bound to consider provisions of section 61-B of the said Act of 1927 while deciding the appeal afresh. (4) The Writ Petition is partly allowed in above terms with no orders as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]