1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL WRIT PETITION NO. 844 OF 2009 Assistant Conservator of Forest (JKSS) Kinwat District Nanded ...Petitioner VERSUS 1 Baburao s/o Motiram Jadhav, age 45, occ. Agriculture, r/o Waitanda, Tq. Himayatnagar, District Nanded, 2 Santosh s/o Govind Pawar, aged 40, occ. Transport, r/o Gokunda, Tq. Kinwat, District Nanded ...Respondents ..... Shri M.B.Bharaswadkar, advocate for the petitioner Shri P.V.Mandlik, Senior advocate holding for Shri Amol Gandhi, advocate for the respondents. ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 29th September, 2009 ORAL JUDGMENT: (Per Naresh H.Patil, J.) 2 1 Rule returnable forthwith. By consent of the parties, the matter is taken up for final hearing. 2 The petitioner challenges the judgment and order passed by the learned Additional Sessions Judge, Nanded in Criminal Appeal No. 28 of 2009 under Section 61-D of the Indian Forest Act, 1927 dated 17.8.2009. The vehicle bearing No. MH-26/H-2842 was seized by the Forest Officer, as according to the petitioner, it was carrying forest wood illegally. A notice was issued, which is annexed at page 33 with the petition, to respondent no.1 - Baburao Motiram Jadhav dated 2.2.2009. The statement of respondent no.1 was recorded by the Assistant Conservator of Forest, which is annexed at Exh.’D’. By an order dated 26.3.2009 under Section 61 of the Indian Forest Act, 1927 the vehicle was confiscated along with 76 pieces of wooden logs. The vehicle is defined as Bolero Jeep along with trolley. 3 The petitioner preferred an appeal before the Sessions Court, Nanded. By an order dated 17.8.2009 in Criminal Appeal No. 28 of 2009, the learned Additional Sessions Judge, Nanded allowed the appeal and the order passed by the Assistant Conservator of Forest was set aside. The vehicle involved in the 3 alleged crime was allowed to be handed over to the registered owner on executing a bond of Rs.5,00,000/- by putting certain conditions. 4 Learned counsel appearing for the petitioner submits that the sole ground, on which the lower appellate Court allowed the appeal was that the notice issued under Section 61(B) of the Forest Act, 1927 was defective. Learned counsel submits that on merits the matter was not considered by the learned Judge. Learned counsel submitted that the vehicle, if was to be allowed to be used by the owner ought to have been permitted on registered owner furnishing bank guarantee. 5 Learned counsel for the petitioner, in support of the case of the petitioner, relied upon the following reported judgments : AIR 2000 SC 2729 State of Karnataka vs K. Krishnan 2006 (2) Mh.L.J. (Cri.) 689 Mohd. Ashique s/o Shaikh Ameer vs. State of Maharashtra 2008 (2) Mh.L.J. (Cri.) 69 Ghatge Patil Transport Ltd., Kolhapur vs State of Maharashtra and others 2009 (2) Mh.L.J. (Cri.) 77 Mohd. Ashique vs State of Maharashtra 4 5 Learned Senior counsel submits that the vehicle is lying in the custody of Forest Officer since last nine months. The Bank loan is obtained by the petitioner. The petitioner is unable to pay the bank instalments. The petitioner’s statement is eloquent enough to show his innocence. The counsel submits that though the lower appellate Court did not dwell upon the explanation of the registered owner, but that shall not be a ground for the petitioner to challenge the order passed. As notice itself was defective, the benefit of the same shall go to respondent no.1, and not to the petitioner, according to the learned Senior counsel. 6 We have considered the submissions advanced and perused the relevant material placed before us. We find that the learned Additional Sessions Judge, Nanded has mainly placed reliance on notice issued under Section 61 (B) of the of the Forest Act, 1927 by the Assistant Conservator of Forest to the petitioner, which was termed as defective. We have perused the so called notice. In fact the contents of the said notice itself demonstrate that the vehicle was already seized and the petitioner was called upon to record the statement. This show cause notice must be clear to the party concerned, so that the party is not misled on that ground. We find that after show cause notice is issued, the authority concerned is supposed to consider 5 the reply given thereon and thereafter pass an appropriate order. Though it may sound to be a procedural irregularity, but being a matter where vital rights of the parties are affected and it being a special statute, strict compliance and adherence thereof according to law is required to be followed by the authorities concerned. 7 In the given fact situation of the case, we find it appropriate to grant a fair opportunity to the parties concerned and that would be by allowing the Assistant Conservator of Forest to issue afresh show cause notice in accordance with law to the respondents. After considering the further reply filed by the respondent, if any, the Assistant Conservator of Forest would be entitled to pass appropriate order in accordance with law. In case, the order goes adverse to the respondents, they are not remediless. Another important feature in this case is that the vehicle is lying in the custody of the Forest Department. We find it appropriate to allow respondent no.1, registered owner, to use the vehicle except to carry the transportation of wood by submitting supratnama by executing a bond of Rs.5,00,000/- with the Assistant Conservator of Forest. Learned Senior counsel submits that the bond and supratnama is already submitted to the authority concerned. Respondent no.1 shall also file undertaking 6 with the Assistant Conservator of Forest that the vehicle would not be used for the purpose, which is prevented under the Forest Act, 1927 and the owner respondent no.1 would undertake to take abundant care and caution regarding user of the vehicle. The writ petition is, therefore, required to be allowed partly. 8 The writ petition is partly allowed. The impugned order passed by the Assistant Conservator of Forest and the lower appellate Court are quashed and set aside. The Assistant Conservator of Forest shall issue afresh show cause notice to respondent no.1 under the provisions of Section 66(B) of the Forest Act, 1927 within 15 days from the date of receipt of order. Respondent no.1, if desires, shall file reply within further 15 days from the date of receipt of such show cause notice. The Assistant Conservator of Forest shall pass an order on the same within 2 weeks from the receipt of reply filed by respondent no.1. In case the Assistant Conservator of Forest passes an order adverse to the interest of respondent no.1, respondent no.1 is entitled to file an appeal under the provisions of the Forest Act, 1927, if any. 9 On furnishing undertaking to the Assistant Conservator of Forest, the vehicle shall be released in favour of the registered owner - respondent no.1 forthwith. 7 10 Rule is made partly absolute accordingly. In the circumstances, there shall be no order as to costs. 11 Authenticated copy of this order be given to the parties. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crwp844.09