® IN THE HIGH COURT OF CHHA'ITISGARH AT BIL/A/SPUR CG WRIT PETITION No.3;70/L /2005 l State of Chhattisgarh through the Divisional Forest Officer, Rajnandgaon (C.G.) VERSUS / Umesh Sahu, C/o. Sahu ‘Saw Miil, G.E. Road, Rajnandgaon. Chhattisgarh. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION/ OF INDIA RESPONDENT / / / , HIGH cOURT OF CHHATTISGARH AT BILASPUR S‘B: Hon’ble Shri Prashant Kumar Mishra ’ Writ Petition No‘ 3702 [2005 PETlTlONER 1 State of Chhattisgarh. Versus RESPONDENT : Umesh Sahu, - Shri GD. Vaswani‘ Govt. Advocate for the State/petitioner. Shri H.B. Agrawal, Seniar Advocate, Mt}? Shn‘ Pankaj Agréwal, counse] for respondent. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF META ORAL ORDER (08.02201 1 } By this common order two writ petitions bearing W.P. No. 3702/05 and 3705/05 both are iinally disposed of as the matter have been heard finally at motion stage with the consent of teamed counsel for the parties. {2) Facts of the case, briefly stated. are that the concemed Divisional Forest Officer conducted inspection of the Saw'Mill premises belorwing to the respondent. During inspection it was found that the respondent was not keeping account of stock of wood available in the Saw Mill. Finding violation of provisions contained in Section 9 of the Chhattisgarh Kashtha #‘vChiran Niniyaman) Adhiniyam, 1984 {henceforth ‘the Adhimyam), PCR , case was registered and notices were issued to the respondent. Writ Petition No. 3705 12005 PETITIONER : State of Chhattisgarh. Versus RESPONDENT : Lalchand Timber Traders, Appearance: 3<’ (3) On receipt of noticey the respondent appeared and pleaded guilty. He admitted that accounts were not kept properly. however he offered to compound the offence. His plea for composition was accepted and the Prescribed Authority passed an order directing the respondent to pay fine of Rs.5000/- and at the same time the seized quantity of forest produce was confiscated. (4) The respondent preferred an appeal before the Cohservator of Forest. The Appellate Authority allowed the appeal and reduced the amount of penalty from Rs.5000/- to Rs.1000/- and the order of confiscation of the forest produce was set-aside. Revision preferred by the State before the Sessions Judge was reiected by the impugned order. (5) Shri GD. Vaswani. Learned State counsel for the petitioner would argue that the Conservator of Forest has wrongly interfered with theorder v passed by the Prescribed Authority and the Sessions Court has also not considered the matter in its true perspective. He would submit that the present is a case where order of confiscation could not have been set- aside in view of provisions contained in the Adhiniyam. (6) Shri H.B. Agrawal. leamed Senior Counsel vehemently opposes the contention of the learned State counsel and has submitted that two concurrent orders have been passed against the'State by the Appeilate as well as Revisional Authority and no interference is called for. He /wouid submit that seized timber belongs to third party. therefore it could ‘ not have been confiscated. (7f to refer to provisions contained in Sections 8» 9 and 18 of the Adhinivami 1984. ’3, To appreciate rival submission made by the parties, it is necessary “ "8. Submission of returns. Every licensee shall submit such returns relating to the business of the saw mill or saw piL as the case may be. andin such forms and to such officer and on such dates as may be prescribed. 9. Keeping of account of stock of wood in saw mill and saw pit. — All wood whether sawn or not. found in or brought ‘ to the saw mill or saw pit or at the site of sawing at any time or during any period by any person in any manner or by any means for purpose of sawing or for any other relevant evidence documents. receipts. order and certificate as are necessary to show that the wood is legally obtained shaii be maintained and made available at the time of inspection. lt shall be presumed in respect of the stock of wood which is. not accounted for satisfactorily that the same has been obtained unlawfully and the stock of wood shall be liable for confiscation. 18. Composition of offences-(1) Forest Officer empowered by the State Government in this behalf may - (a) accept from any person whose licence is liable to be revoked or suspended under sub-section (5) of section 6 or who is reasonably suspected of having committed for the first time of an offence relating to non submission of return under section 8 or of non- maintenance of account of wood under section 9’or sawing of wood unlawfullyobtained which is of less than half a cubic meter in volume, a sum not exceeding five thousand rupees in lieu of such revoked'or suspension or by way of composition for i each such offence, as the case may be, and may . impose as a penalty a sum not exceeding five “ ._L’— thousand rupees and shall order comscamn of‘ unlawfully chained wood which was seized: (b) in any case in which any property has been seized as liable to confiscation under this Act. at any time before an order of confiscation is passed by the appropriate authority under this Act release the same on payment of the value thereof as estimated by the Forest Officer. (2) On the payment of such sum of moneyt or such value. or both, as the case may bet to the forest offrcert the accused person if in custody shall be dischargedt the property seized shall be releasedt and no further proceedings shall be taken against such person or in relation to such property." (8) 0n a reading of the above quoted provisions it would appear that when the owner of the Saw Mill fails to keep the account of stock of wood available in his Saw Mill, the provisions of law presumes that in respect of the stock of wood which is not accounted for satisfactorily, that the same has been obtained unlawfully and such stock of wood shall be liable for confiscation. When the mandate of Section 9 of the Adhiniyam clearly provides for confiscation of the unaccounted stock of wood and faced with this leqal mandate the respondent moved an application for compounding the offence and pleaded guilty; at this stage provisions contained in Section 18 of the Adhiniyam is attracted wherein it is provided under Clause (a) of sub-Section (1) that on composition the person committing the offence shall be liable to pay penalty not exceeding Rs.5000/— and confiscation of unlawfully obtained wood. .(9) Thus, if the violation is proved” under both the provisions i.e. 7;7rrrr//\\/Section 9 and Section 18 of the Adhiniyam., contiscation of the seized ~ timber is mandatory and no discretion has been conferred on the “5’ authority either to accept the explanation or to pass a different order than ‘ contiscation. The only discretion with the Authority is to impose a tine which cannot exceed of Rs.5000/— meaning thereby that the authority has the discretion to impose penalty of any amount up to Rs. 5000/—. {1 0) The Appellate Authority of Conservator of Forest has reduced the penalty from Rs.5000/- to Rs.1000/- and has set-aside the order of confiscation. in the opinion of this Court such an order’settinq aside confiscation coutd not have been passed by the Appellate Court in View of the express mandate of law in Section 9 read with $ection 18 of the v Adhiniyam. (11) In view of the abovet the instant writ petition is allowed inipart. Since discretion has been conferred for imposinqtflnernot exceeding Rs.5000/-, the saidpart of the order passed by the Appellate Authority and contirmed by the Revisionai Authority whereby the amount of tine has been reduced from Rs.5000/— to Rs.1000/- is not interfered. However, the other part whereby the Appellate Authority has set-aside the order of connscation of seized forest produce/timber is quashed and the order of confiscation of the forest produce/timber passed by the Prescribed Authority is restored. (12) The writ petition is allowed in part. (1 3) No order as to costs. Sd/- Prashant Kumar Misttra Judge