IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :04.09.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.882 of 2008 M/s.S & S Goods Private Limited rep.by Its Manager Mr.R.Vedantam 108, Velacherry Main Road, Guindy, Chennai – 600 032. ... Petitioner vs. 1.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai – 600 015. 2.Conservator of Forests, Chennai Circle, Chennai -6. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, to call for the records of the second respondent in Ref.No.A2/3821/06 dated 27.04.2007 and quash the same and consequently direct the respondents to release the sandalwood which were seized on 21.01.2006 from the petitioner's godown situated at 109, GNT Road, Ponniamman Medu, Madhavaram, Chennai-110 which were the subject matter in compounding fee receipt No.102673 and 102674 dated 22.02.2006. For Petitioner : Ms.Selvi George For Respondents: Mr.S.N.Kirubanandam O R D E R The petitioner is a private limited company known as M/s.S & S Goods Private Limited. The said company is represented by its Manager, one Mr.R.Vedantam. The challenge in this writ petition is to the order of the second respondent in his proceedings in Ref.No.A2/3821/06 dated 27.04.2007, seeking to quash the same and for a further direction for the release of the sandalwood seized on 21.01.2006 from the petitioner's godown situated at 109, GNT Road, Ponniamman Medu, Madhavaram, Chennai-110. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts of the case are as follows: (i)The petitioner is a dealer in sandalwood doing export of sandalwood. On 21.01.2006, the forest officials headed by the then Assistant Conservator of Forests, one Mr.C.Sreerangaram conducted a raid at the business premises of the petitioner's mill. He found 73.175 kgs of sandalwood in two bags of total value of Rs.35,000/-, illegally stored in the godown. The said property was seized under the cover of a mahazar. Mr.N.Seetharaman, who was the then Accountant at the said office of the petitioner, was present during the search. He gave a statement to the Assistant Conservator of Forests confessing that he possessed the above said quantity of sandalwood in violation of the Tamil Nadu Forest Act. He admitted the guilt and prayed for leniency in the matter of punishment. His statement was recorded in the presence of witnesses on 16.02.2006 itself. On the basis of the said search conducted and seizure made, a case in Forest Offence Report No.3/2006 was registered on 21.01.2006 against N.Seetharaman for offence under Section 35B of the Tamil Nadu Forest Act. (ii)During the same search, another quantity of 73.175 kgs of sandalwood was found. The value of the same is Rs.35,000/-. Since the same was also illegally stored, it was also seized by the Assistant Conservator of Forests under the cover of a Mahazar. Mr.Vedantam, who was present during the search gave a statement confessing to the guilt. He also prayed for leniency in the matter of punishment. His statement was recorded and thereafter, a case in Forest Offence Report No.2/2006 dated 16.02.2006 was registered against Mr.R.Vedantam under Section 35B of the Tamilnadu Forest Act. 3. Subsequently, the Assistant Conservator of Forests Mr.C.Sreerangaram, by his proceedings in STOR.No.3/2006 dated 22.02.2006 allowed Mr.Seetharaman to compound the offence by paying a sum of Rs.75,000/- as compounding fee under Section 55 of Tamil Nadu Forest Act. In the same proceeding, he passed an order confiscating the sandalwood seized. Similarly, in the case in Forest Offence Report No.2 of 2006, the Assistant Conservator of Forests by his proceedings in STOR No.2 of 2006 dated 22.02.2006 allowed Mr.Vedantam to compound the offence by paying a sum of Rs.75,000/- as compounding fee. In the same proceeding, the Assistant Conservator of Forests ordered confiscation of the entire quantity of 73.175 kgs of sandalwood seized. 4. Against the orders of confiscation made by the Authorised Officer cum Assistant Conservator of Forests as stated above, there was no appeal preferred either by Seetharaman or by Vedantam or by the petitioner company as provided under Section 49D of the Act. Thus, the orders of confiscation made in both the cases have become final. https://hcservices.ecourts.gov.in/hcservices/ 5. Subsequently, it appears that the very same Authorised Officer cum Assistant Conservator of Forests C.Sreerangaram issued another order on 12.10.2006, thereby, withdrawing the earlier orders of confiscation made under Section 49A(2) of the Tamil Nadu Forest (Amendment) Act, 1992 on the ground that it is a duplication of confiscation of seized goods already made under Section 55 r/w Rule 3 of the Tamil Nadu Forest Act, 1882. 6. Subsequently, the petitioner company has issued a legal notice through Mr.T.Datchina Murthy, Advocate on the instructions of R.Vedantam, Manager of M/s.S & S Good Pvt. Ltd namely, the petitioner company. In the said notice, it has been contended that the petitioner company is entitled for return of the sandalwood in both the cases as provided under Section 55(2) of the Tamil Nadu Forest Act. This notice was addressed to the Principal Conservator of Forests, Chennai. The said notice demanded return of the sandalwood to the petitioner company. For the said legal notice, a reply has been sent by the Conservator of Forests, Chennai Circle by his proceedings in Ref.No.A2/3821/06 dated 27.04.2007, wherein, the Conservator of Forests has disputed the claim of the petitioner company for the return of the goods. He has stated that the property has become the property of the Government and so the question of returning the same to the petitioner company does not arise at all. On that footing, the request of the petitioner company for the return of the sandalwood was rejected. It is the said reply notice which is under challenge in this writ petition. 7. I have heard the learned counsel for the petitioner and Mr.S.N.Kirubanandam, learned counsel appearing for the respondents. 8. The learned counsel for the respondents has produced both the files relating to the above two cases and the Conservator of Forests is also present before this Court to assist the learned counsel for the respondents. 9. The contention of the learned counsel for the petitioner is that under Section 55 of the Act, if once the offence is compounded, thereafter, the authority has no power, except to order release of the property to the person from whom it was seized after collecting the value of the goods. In this case, since the same was not done, according to the petitioner, there may be a direction to the respondents to release the sandalwood to the petitioner. 10. The next contention is that under Section 49A, of course, the authority has got power to confiscate. But in this case, the orders confiscating the properties passed by the Authorised Officer cum Assistant Conservator of Forests was later on withdrawn by the same officer by his proceedings dated 12.10.2006 and thus as of now, there are no orders of confiscation in force and therefore, the properties are liable to be returned to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 11. Per contra, the learned counsel appearing for the respondents would submit that under Section 55 of the Tamil Nadu Forest Act, a discretion has been vested with the Authorised Officer either to return the properties after collecting the value of the property or to order for confiscation. In this case, according to the learned counsel, the Authorised Officer, namely, Mr.C.Sreerangaram did not choose to order for return of the property after collecting the value. Instead, he passed an order directing confiscation of the property under Section 49A of the Act. The said orders of confiscation have become final, since there was no appeal preferred under Section 49D of the Act. For these reasons, according to the learned counsel for the respondents, the property is not liable to be returned. He would further submit that the order dated 12.10.2006 came to be passed under the mistaken impression that there had already been passed two orders, one under Section 49A(2) of the Act and the other under Section 55 of the Act. Both the orders are for confiscation of sandalwood. Therefore, to avoid the duplication, the said order came to be passed. 12. I have considered the rival submissions. 13. A close reading of Section 55 of the Act would make it abundantly clear that the Authorised Office can allow the offence to be compounded by imposing compounding fee to be collected from the offender. Besides that, he can also collect the value of the goods and return the same to the person from whom it was seized. But, it is not always necessary for the officer to return the goods after collecting the value of the property. It is absolutely the discretion of the officer concerned either to order for confiscation under Section 49A of the Act or to order for return of the goods to the person concerned after collecting the value of the property under Section 55 of the Act. Ofcourse, it is true that the said power of discretion has to be exercised in a judicious manner. In this case, Mr.Sreerangaram, the then Assistant Conservator of Forests had thought it fit not to release the goods to the persons concerned and instead he ordered for confiscation of the same under Section 49A of the Act. Admittedly, the said orders have become final, since there was no appeal preferred against the same in both the cases. 14. The learned counsel for the petitioner would place reliance on the order of the Assistant Conservator of Forests Sreeranganathan dated 12.10.2006, in both cases, wherein, he has withdrawn the order of confiscation made under Section 49A(2). I am really surprised to know as to that, such an order of withdrawal has been made by the officer. The power of the officer flows only from the Act as he is a statutory Authority. The Act empowers him only to order for confiscation and subsequent to that, there is no power given to him at all to withdraw such an order of confiscation. As soon as an order of confiscation is made under Section 49(A) of the Act, the https://hcservices.ecourts.gov.in/hcservices/ Authorised Officer becomes functus officio and thereafter, he does not have power to withdraw the same. Though Mr.Sreerangaram has passed order on 12.10.2006 withdrawing the earlier orders of confiscation, in my considered opinion, the said orders are without jurisdiction and therefore, the same are non est in the eye of law. If it is the case of the petitioner that the orders of confiscation made by the Assistant Conservator of Forests in both the cases on earlier occasion is against law, in as much as the same was not passed in a judicious manner, very well, the petitioner could have preferred an appeal under Section 49D of the Act. But the petitioner has not chosen to do so. Therefore, placing reliance on the order dated 12.10.2006, the petitioner cannot contend before this Court that the orders of confiscation stands withdrawn and therefore, the properties are to be returned to the petitioner. This argument is therefore rejected. 15. One more aspect which requires consideration is that in this case, from the records, I am able to see that the petitioner company is not shown as an accused at all. In one case, one Mr.Seetharaman is the accused and in the other case, Mr.R.Vedantam is the accused. In both the cases, the compounding fee have been paid not by the company, but by the individuals namely, Seetharaman and Vedantam. Now, Seetharaman is not before this Court. Even Mr.Vedantam has not filed this writ petition in his individual capacity. He has filed this writ petition representing the company. Since the company was neither an accused nor has paid any compounding fee, I am of the considered opinion, the company cannot maintain this writ petition before this Court. If it is the grievance of the petitioner that the property belongs to the company and not to the individuals, nothing would have prevented the company from preferring an appeal under Section 49D of the Act. 16. Yet another aspect of the case is that, admittedly, the goods were seized only from the godown of the petitioner mill. Shockingly and surprisingly, the company has not been made as an accused. When this Court wanted to know about the reasons for the same, the learned counsel for the respondents would submit that Mr.C.Sreerangaram, the then Assistant Conservator of Forests, with a view to favour the petitioner company made it convenient to split up the quantity of sandalwood seized from the petitioner's company premises into two quantities, so as to enable to compound the offence under Section 55 of the Act by overcoming the bar contained under Section 55(2) of the Act and for having done so and for having not prosecuted the company, disciplinary proceeding has already been initiated against C.Sreerangaram. The learned counsel for the respondents has produced the file relating to the same in Ref.No.AA2/29553/07 dated 28.06.2007. A perusal of the file would go to show that disciplinary proceeding has been initiated against Mr.Sreerangaram. https://hcservices.ecourts.gov.in/hcservices/ 17. Therefore, in my considered opinion, simply because an officer has favoured the petitioner company by not adding the company as an accused in the criminal case, the petitioner cannot be allowed to take advantage of the same. The learned counsel for the respondents would submit that the punishment provided under Section 35B of the Act is five years of imprisonment and thus according to him, the period of limitation is still available for the department to prosecute the petitioner company. The learned counsel would further submit that the department is now contemplating to take appropriate action against the company. Any how, this statement is not very much material for the decision of this case. If so advised, it is always open for the respondents to initiate any proceedings against the petitioner company including prosecution, if under law, the said course is permissible. 18. For the purpose of deciding the writ petition, as I have already stated, total quantity of sandalwood seized from the petitioner company premises was 146.35 kgs. Under Section 55(3) of the Act, there is no jurisdiction for the Authorised Officer either to compound any offence relating to the same or to return the sandalwood in view of the bar contained in Section 55(3) of the Act. However, Mr.Sreerangaraman has chosen to overcome the same by splitting of the property into two consignments. 19. For all the reasons stated above, I am of the view that the property cannot be returned to the petitioner company at all. The second respondent was therefore right in giving a reply to the petitioner that the property has become the property of the Government and therefore, the same cannot be returned. Thus, I find no merit at all in the writ petition. The writ petition fails and the same is dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. svki To 1.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai – 600 015. https://hcservices.ecourts.gov.in/hcservices/ 2.The Conservator of Forests, Chennai Circle, Chennai -6. + 1 CC To Mrs.Selvi George, Advocate SR NO.50067 + 1 CC to the Special Government Pleader (Forest) SR Nos.49968 & 50067 W.P.No.882 of 2008 GR(CO) SRA(16/09/2008) https://hcservices.ecourts.gov.in/hcservices/