WP(C) 1853/2007 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGMENT AND ORDER By making this application under Article 226 of the Constitution of Indi a, the petitioner has challenged the order, dated 28.03.2007, passed, in Crimina l Appeal No. 30(D-4)/2006, by the learned Sessions Judge, Darrang, setting aside the order of confiscation, dated 04.12.2006, passed by the Authorized Forest Of ficer-cum-Divisional Forest Officer, Mangaldoi Division, under Section 49 C of t he Assam Forest Regulations, 1891 (in short, ’the AFR’). 2. Before entering into the merit of this writ petition, the material facts , which have led to the making of the present writ petition, may be set out as f ollows: (i) On 29.12.2005, some forest officials of Dumunichowki Forest Check Gate i ntercepted a truck, bearing registration number AS-12B-9732, which was carrying wooden frames of ventilators, windows and one dining-table towards Guwahati. Th e said wooden frames were seized by the forest officials on the ground that the same were ’forest produce’ within the meaning of Section 3(4) of the AFR. As fa r as the vehicle was concerned, a proceeding of confiscation was initiated under Section 49 of the AFR. Pursuant to the confiscation proceeding, so initiated, respondent No. 1 herein, namely, Sunil Sutradhar, who is the owner of the vehicl e, in question, appeared in the proceeding and filed his reply to the show cause notice served upon him asking him to explain as to why the said vehicle should not be confiscated to the State. (ii) According to the case set up by the respondent No. 1 in the confiscation proceeding, M/s Guru Furniture House, Darrang, with one Shri Paritosh Bishwa Sa rma as the proprietor, had sold, on 29.12.2005, some finished wooden products to one Sri A. Sarma of Hatigaon, Guwahati. These wooden products consisted of five pieces of wooden frames of window, nine pieces of wooden frames of ventilator a nd one dining-table. These wooden products were finished products made out of f orest produces and in terms of the Government Notification, dated 04.05.2002, no transit permit was required for transportation thereof. Respondent No. 2 was t he driver of the said truck and an employee of respondent No. 1. (iii) In the confiscation proceeding both sides adduced evidence. The Authori zed Forest Officer concluded that the said finished products of wood were ’fores t produce’ and, as the vehicle, in question, had been found carrying the ’forest produce’ without requisite documents, namely, transit permit, the vehicle was l iable to confiscation for being used in the commission of forest offence. Havin g, thus, concluded that the vehicle, in question, was liable to be confiscated, the Authorized Forest Officer, vide order dated 04.12.2006, confiscated the vehi cle to the State. Aggrieved by the order, dated 04.12.2006, aforementioned, res pondent No. 1 herein impugned the same in an appeal preferred under Section 49C AFR. This appeal gave rise to Criminal Appeal No. 35(D-4)/2006 aforementioned. By an order, dated 28.03.2007, passed in the said appeal, as the learned Sessio ns Judge, Darrang, has set aside the order of confiscation, dated 04.12.2006, an d directed restoration of the vehicle to the respondent No. 1 herein, as owner t hereof, the Authorized Forest Officer has, with the help of the present writ pet ition, impugned the said appellate order seeking to get the same set aside and q uashed. 3. I have heard Mr. G. Uzir, learned counsel for the writ petitioner, and M r. B. K. Ghosh, learned Senior counsel, appearing on behalf of the respondent No . 1. I have also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, As sam, and Mr. G. N. Sahewalla, learned Senior counsel, as amicus curiae. 4. It is submitted by Mr. G. Uzir, learned counsel, that the entire scheme of the AFR and the Rules framed thereunder clearly shows that it is not only the power, but also the duty of the forest officials to ensure that no ’forest prod uce’ is allowed to be transported except in accordance with the provisions made in the AFR and the rules framed thereunder. In terms of the rules, so framed, points out Mr. Uzir, transportation of a ’forest produce’ is not possible withou t transit permit. Hence, when questioned, a person transporting a ’forest produ ce’, must be able to produce a transit pass authorizing him to transport such ’ forest produce’. It is also the submission of Mr. Uzir that a forest official i s duty bound to trace out the origin of the ’forest produce’ and, hence, it is w ithin the competence of a forest official to demand production of requisite docu ments on the strength of which a ’forest produce’ is being carried or transport ed from one place to another. In the present case, the wooden frames, etc. wer e, according to Mr. Uzir, ’forest produce’ and since the same were found being c arried without requisite transit permit, ’forest offence’ was found to have been committed and since such ’forest offence’ was found to have been committed by making use of the vehicle, in question, the forest officer had acted within his power in confiscating the vehicle. The learned Sessions Judge, contends Mr. Uzi r, erred, in the facts and circumstances of the case and the law relevant theret o, in setting aside the order of confiscation. Since the AFR or the Rules frame d thereunder do not provide for any other remedy to the forest officer, he has b een compelled to file this application, under Articles 226 and 227 of the Consti tution of India, seeking interference by this Court so as to uphold the law. 5. Appearing on behalf of respondent No. 1 and 2, Mr. B. K. Ghosh, learned Senior counsel, submits that neither the wooden frames nor the dining table, whi ch were found to have been carried in the vehicle, in question, can be said to b e ’forest produce’. Far from being ’forest produce’, the said materials, accord ing to Mr. Ghosh, were ’finished products’ and commercially known as new article s. Such commercial product, contends Mr. Ghosh, cannot be said to be ’forest pr oduce’ within the provisions of the AFR and no ’forest offence’ can, therefore, be said to have been committed, when the vehicle was found carrying the wooden materials. It is further submitted by Mr. B. K. Ghosh that as far as the respon dent No. 1 is concerned, he is the owner of the vehicle and the wooden materials , in question, were carried by the respondent No. 2 without the knowledge of res pondent No. 1 and, hence, in such circumstances, the vehicle, even if found to h ave been carrying ’forest produce’, could not have been confiscated inasmuch as a vehicle is not liable to confiscation if the vehicle carries ’forest produce’ without the knowledge of the owner thereof. In support of his submission, Mr. G hosh places reliance on the provisions of Section 49(6) of the AFR. Support for his submission is sought to be derived by Mr. Ghosh also from the decisions in Suresh Lohiya Vs. State of Maharashtra and another, reported in (1996) 10 SCC 39 7, State of Orissa and others Vs. Titaghur Paper Mills Company Ltd and another, reported in 1985 (Supp) SCC 280, and Mulibash Hastasilpa Samabay Samity Ltd and another Vs. State of Assam, reported in 2006(1) GLT 477. In the facts and circu mstances of the present case, the order of confiscation was, submits Mr. Ghosh, wholly illegal and the learned Sessions Judge committed no error of law in setti ng aside the same. 6. Appearing as amicus curiae, Mr. Sahewalla, learned Senior counsel, submi ts that the dining table and the wooden frames, in question, were ’finished prod ucts’ in the light of the decision in Suresh Lohiya Vs. State of Maharashtra and another (supra) and, hence, in such circumstances, the vehicle ought not to hav e been confiscated. As far as the learned Additional Public Prosecutor is conce rned, his submission is that the order of confiscation is a valid order inasmuch as the wooden frames were ’forest produce’. 7. Before I endeavour to determine the question as to whether the materials found to have been allegedly carried in the vehicle, in question, were ’forest produce’ or not, it is necessary to clearly understand as to when a ’forest prod uce’, even if found to have been carried in a vehicle, does not make the vehicle liable to confiscation. 8. I may point out that a ’forest offence’, according to Section 2(5) of th e AFR, means an offence punishable under the AFR or any rule framed thereunder. 9. The rule-making power of the State Government is traceable to Section 40 , which falls under Chapter VI of the AFR. This chapter reads, ’Control of Fores t Produce in Transit’. The relevant provisions of Section 40 state as under: 40. Power to make rules to regulate transit of forest produce. -(1) The control of all rivers and their banks as regards the floating of timber as well as the control of all forest produce in transit by land or water, is vested in the Stat e Government, and that Government may make rules to regulate the transit of any forest produce. (2) Such rules may, among other matters,- (a) prescribe the routes by which alone forest produce may be imported into, ex ported from or moved within the territories to which this Regulation extends; (b) prohibit the import, export, collection or moving of forest produce without a pass from an officer authorised to issue the same or otherwise than in accorda nce with the conditions of such pass: (c) provide for the issue, production and return of such passes: * * * * * * * * * * * * * * * (f) provide for the stoppage, reporting, examination and marking of forest produ ce in transit in respect of which there is reason to believe that any money is p ayable to the Government or to which it is desirable, for the purposes of this R egulation, to affix a mark: * * * * * * * * * * * * * * * (i) authorise the transport of timber across any land, and provide for the awa rd and payment of compensation for any damage done by the transport of such timb er: * * * * * * * * * * * * * * * (3) The State Government may direct that any rule made under this Section sh all not apply to any specified class of timber or other forest produce or to any specified local area. 10. A careful reading of Section 40 shows that the State Government may make rules to regulate, inter alia, the transit of any ’forest produce’ by, amongst others, prescribing the Rules by which alone ’forest produce’ may be allowed to be moved, prohibit movement of ’forest produce’ without a pass to be issued by a n officer authorized in this behalf to issue such pass, production and return of such passes, authorize transport of timber across any land and provide for stop page, reporting, examination and marking of ’forest produce’ in transit. Secti on 41 empowers the State Government to make breach of any of the rules punishabl e by imprisonment not exceeding three years or fine, which may extend to five th ousand rupees or both. 11. As correctly pointed out by Mr. Uzir, a set of Transit Rules have been f ramed by the State Government in exercise of its powers under Sections 40 and 41 of the AFR. In fact, it was not in dispute, in the confiscation proceeding or in the appeal under Section 49 C, nor is it in dispute, in the present writ peti tion, now, that movement of ’forest produce’ is not possible except in accordanc e with requisite transit permits, which are to be issued in terms of the Transit Rules framed under Sections 40 and 41 of the AFR. It is also not in dispute th at the movement of ’forest produce’, without a transit pass, is a ’forest offenc e’ within the meaning of Section 3(5) of the AFR. 12. Bearing in mind what is indicated above, let me, now, turn to Section 49 . The relevant provisions of Section 49, which prescribe the penalties and proc edure in respect of forest offence, including confiscation, read as under: 49. Seizure of property liable to confiscation - (1) When there is reason to be lieve that a forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, motorized boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implements , articles or materials used in the commission of such offence may be seized by any Forest Officer not below the rank of a Forester or any Police Officer not be low the rank of a Sub-Inspector or Police. **** **** (4) Subject to the provisions of sub-sections (5) and (6), where the Authorised Officer upon production before him of the property seized or upon receipt of a r eport about seizure as the case may be, and after such personal inspection of ve rification as he may deem fit and necessary, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reason s to be recorded therein, confiscate the forest produce so seized together with all tools, vehicles, cattle, trucks, motorised boats, boats, carts, machineries rafts, vessels, ropes chains or any other implements or articles used in committ ing such offence. A copy of the order of confiscation shall, without any undue d elay, be forwarded to the Circle Conservator of Forests of the Circle in which t he forest produce has been seized and the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. (5) No order confiscating any property shall be made under the preceding provisi ons unless the Authorised Officer - (a) sends an intimation in the prescribed form about the initiation of the proce eding for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made; (b) issue a notice in writing to the person from whom the property is seized and to any other person who may appear to the Authorised Officer to have some inter est in such property and in cases of motorised boats, vessels, vehicle trucks et c. having a registered number to the registered owner thereof; (c) affords to the persons referred to in Clause (b) above a reasonable opportun ity of making a representation within such reasonable time as may be specified i n the notice, against the proposed confiscation; and (d) gives to the Officer effecting the seizure and the person or persons referre d to in Clause (b) or (c) above, a reasonable opportunity or being heard on a da te or dates to be fixed for the purpose. (6) Notwithstanding anything contained in the foregoing provisions, no order of confiscation under sub-Section (4) of any tools, boats, motorised boats, vessels cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other i mplements, articles (other than timber or forest produces shall be made if any p erson referred to in Clause (b) of sub-Section (5) proves to the satisfaction of the Authorised Officer that such tools. vehicles, machinery, trucks, vessel boa ts, motorised boats, rafts, carts, cattle, ropes, chain or any other implements or articles were used without his knowledge or connivance or abetment or as the case may be, without the knowledge or connivance or abetment of his servant or a gent and that all reasonable and due precautions had been taken against the use of the object aforesaid for the commission of forest offence. 13. A careful reading of Section 49(1) shows that when there is reason to be lieve that a ’forest offence’ has been committed in respect of any ’forest prod uce’, then, a forest officer, not below the rank of a Forester, is empowered to seize not only the ’forest produce’, but also, amongst others, all the tools, th e vehicle, etc., which may have been used in the commission of such ’forest offe nce’. Section 49(6) shows that an order of confiscation cannot be made if the p erson, proceeded against in a confiscation proceeding, proves, to the satisfacti on of the forest officer, that such tools, vehicle, etc., were used without his knowledge or connivance or abetment or, as the case may be, and without the know ledge or connivance or abetment of his servant or agent and that all reasonable and due precautions had been taken against the use of the object(s) aforesaid fo r the commission of forest offence, no order of confiscation of such tools, vehi cles, etc., shall be made. 14. From a minute reading of Section 49(6), it becomes clear that in order t o avoid confiscation of a vehicle, it is not enough for the owner of the vehicle to show that the vehicle was used in the commission of ’forest offence’ without his knowledge or connivance or abetment; rather, the owner of the vehicle must also show that all reasonable and due precautions had been taken against the use of his vehicle for the commission of any forest offence. In the case at hand, it had been contended, in the confiscation proceeding, that the vehicle, in ques tion, was not found to have been carrying ’forest produce’, for, wooden window o r ventilator frames were not ’forest produce’ nor was the dining-table a ’fores t produce’. If it is, now, found that the items aforementioned were not ’forest produce’, no ’forest offence’ can be said to have been committed and the vehicl e, in question, would, then, not be liable to confiscation. If, however, the sa id wooden frames were found to be ’forest produce’ and, since the same were, ad mittedly, being carried in the vehicle aforementioned without requisite transit permit, a ’forest offence’ would be deemed to have been committed. In the later case, it would not be enough for the owner of the vehicle, i.e. the respondent No. 1, to show that his vehicle was used for commission of forest offence withou t his knowledge or connivance or abetment; rather, he must also prove that he to ok all reasonable and due precautions to ensure that his vehicle was not used fo r commission of such forest offence. 15. In the present writ petition, though it has been the case of respondent No. 1 that the materials, in question, were carried in his vehicle without his knowledge or connivance or abetment, what is of utmost importance to note is tha t there is neither any assertion in this regard nor any evidence, direct or indi rect, showing that respondent No. 1 took all reasonable and due precautions to e nsure that his vehicle was not used for carrying ’forest produce’. Nowhere, in his reply to the said notice issued in the said confiscation proceeding, nor in his evidence, the respondent No. 1, as owner of the vehicle, had contended that he had given clear instructions to respondent No. 2, who was, admittedly, drivin g the vehicle, that his said vehicle must not be used for carrying any ’forest p roduce’ without requisite transit permit. 16. Bearing in mind what is indicated above, let me, now, determine as to wh ether the ’wooden frames’, in question, can be held to be ’forest produce’. 17. My quest for an answer to the question, as to whether ’wooden frames’ of window and ventilator can be regarded as ’forest produce’ or not, brings me to the definition of ’timber’ and, when I turn to the definition of ’timber’, I not ice that Section 3(3), which contains the definition of ’timber’, reads thus: ’t imber’ means trees, when they have felled or have been felled, or all wood, whet her cut out or fashioned or hollowed out for any purpose or not and includes tre es when cut into pieces or sizes or peeled out or sliced out (veneer) for manufa cturing of ply-board, block board or any other purposes or not. 18. Turning to Section 3(4), I notice that ’forest produce’ stands defined a s follows: 3(4) ’’forest produce’’ includes - (a) the following, whether found in, or brought from, a forest or not that i s to say, - timber, charcoal, caoutchoue, catechu, wood-oil, resin, natural varn ish, bark, lac, myrabolams and rhinoceros horns and (b) the following when found in, or brought from, forest that is to say - (i) trees and leaves: and fruits and all other parts or produce not hereinbe fore mentioned of trees, (ii) plants not being trees (including grass creepers, reeds and moss) and al l parts or produce of such plants, (iii) wild animals and skins, tusks, and horns other than rhinoceros horns, bo nes, silk, cocoons, honey and wax and all other parts or produce of animals, and (iv) peat, surface-soil, rock and minerals (including limestone, late rite mi neral oils and products of mines or quarries). 19. A careful reading of Section 3(4)(a) shows that ’forest produce’ include s ’timber’ and when one turns to Section 3(3), it becomes clear that ’timber’ me ans, amongst others, tree. One is, therefore, required to know the definition o f ’tree’ too. It is Section 3(2), which defines ’tree’ thus: ’tree’ includes pal ms, bamboos, stumps, brushwood and canes. 20. What is, however, important to note is that a tree, ordinarily, mean a t hick natural wooden stump from which branches grow usually with leaves on them; whereas bamboo is a tall tropical plant, which is a member of the grass family. Bamboo has hard hollow stumps, which are used for making furniture, poles, etc. Cane is the solid stem of small, slender palms (sometimes climbers but usually branchless), such as Calamus or Rattan, Sugar-cane, etc., or the hard hollow s tump of the larger grasses, such as, Bamboo, etc. The word ’Cane’ is defined, i n Chambers Twentieth Century Dictionary (Revised Edition - 1976), as the stem o f one of the small palms (as calamus or rattan) or the larger grasses (as bamboo , sugar-cane), or raspberry or the like. In The Oxford English Dictionary (Vol -II C - 1933), the word ’Cane’ is defined as The hollow jointed ligneous stem of various giant reeds or grasses, as Bamboo and Sugar cane, and the solid stem of some of the more slender palms, esp. the genus calamus (the Rattan); also the stem of the Raspberry and its congeners. A three Judge Bench, in T.N. Godavar man Thirumulpad vs. Union of India - IA 707 (decided on 18.02.2002), clarified a s under: Clarification - Order prohibiting cutting of trees not to apply to bamboos exce pt areas that are National Parks or Sanctuaries. ORDER It is clarified that the order of this Court prohibiting cutting of trees does n o apply to bamboos including cane, which really belongs to the grass family, oth er than those in the national parks and sanctuaries. In other words, no bamboos including cane in national parks and sanctuaries can be cut but the same may be cut elsewhere. The IA stands disposed of. 21. From what has been clarified by the Supreme Court, in T.N. Godavarman Th irumulpad (supra), it is clear that ’bamboo’ or ’cane’ does not, ordinarily, mea n ’timber’. In this light, one has to, now, consider the definition of ’tree’ a nd determine if ’timber’, as defined under Section 3(3), would include not only ’tree’, as is, ordinarily, understood, but also ’bamboo’ and ’cane’; and if ’bam boo’ and ’cane’ falls within the definition of ’timber’, whether fashioned ’ba mboo’ and