THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13835 OF 2006 DATED 1ST JULY, 2011 BETWEEN Southern Timbers, Represented by its Proprietor, S.K.Soundara Rajan, S/o J.Kannan, R/o 6-C, Ananthapuram Street, Saidapet, Arni, TVM District., Tamilnadu. …Petitioner And The Conservator of Forests, Ananthapur, Ananthapur District and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13835 OF 2006 ORDER: The order dated 17.06.2006 passed by the Sub-Divisional Forest Officer, Penukonda, the second respondent, confirmed by the Conservator of Forests, Anantapur, the first respondent, in his proceedings dated 26.06.2006 was called in question by medium of this writ petition. A consequential direction was sought to the respondent authorities to release the petitioner’s vehicle along with the forest produce, viz., 13.193 cubic meters of Babul timber (Nalla Tumma). This Court, by order dated 07.07.2006, took note of the fact that the second respondent himself had ordered release of the petitioner’s vehicle along with the seized wood by levying a penalty of Rs.92,350/- and accordingly confirmed the same by directing the release of the vehicle along with the wood subject to the condition that the petitioner furnishes a Bank Guarantee for Rs.92,350/- to the satisfaction of the second respondent. The said order was made absolute on 10.08.2006. It is not in dispute that the petitioner purchased the subject wood under valid documentation from M/s.Nagpur Wood Private Limited, Nagpur, and was transporting the same to Kerala by road. It is also admitted by the respondent forest authorities that the said wood is exempted in Maharashtra State and therefore, there was no requirement for the petitioner to obtain any permit for transporting the same from the Forest Department of Maharashtra State. The said wood is also subject to exemption, under Rule 16 of the Andhra Pradesh Forest Produce Transit Rules, 1970 (for brevity, ‘the Transit Rules of 1970’) read with Sl.No.2 of Schedule-II appended to the said Rules, in all Revenue Districts in the State of Andhra Pradesh except Anantapur District. In the course of the transport of the wood from Maharashtra to Kerala, the petitioner’s vehicle, being Lorry bearing No.TN-30Y-4719, entered Anantapur District. Thereupon, it was seized along with the wood at Penukonda Sales Tax Check Post. Consequent to such seizure, the second respondent passed order dated 17.06.2006 directing the petitioner to pay a sum of Rs.92,350/- towards the compounding fee for the offence and for securing the release of the vehicle and the wood. Thereupon, the petitioner filed an appeal before the first respondent, which was rejected under proceedings dated 26.06.2006. It is stated that pursuant to the order of this Court, the vehicle and the wood were released upon the petitioner furnishing a Bank Guarantee for the sum of Rs.92,350/-. In the light of the aforestated facts, the issue that arises for consideration is whether the petitioner committed a forest offence and if so, whether the respondents are justified in levying compounding fee for the same at twice the value of the forest produce seized. It is no doubt true that Rule 3 of the Transit Rules of 1970 posits that no forest produce shall be moved into or from or within the State by land or water, unless such produce is accompanied by a permit issued therefor under Rule 5 and produced for check immediately on demand. The proviso to the said rule states that where forest produce is imported into the State from any other State, it would be enough if such produce is accompanied by a permit issued by the Government of that State. Rule 16 however exempts forest produce specified in Schedules-II and III. As stated supra, the Babul wood (Nalla Tumma) transported by the petitioner is exempted in the State of Maharashtra and also all over the State of Andhra Pradesh except Anantapur District. Therefore, there was no possibility of the petitioner obtaining a permit from the State of Maharashtra or even upon entering into the State of Andhra Pradesh. It is also not in dispute that there is no Forest Check Post provided at the entry point of Anantapur District, wherefrom the petitioner could have obtained such permit. Once the forest officials failed to make provision for a Check Post to facilitate those entering the District with a load of ‘Nalla Tumma’ to obtain a permit, it is not open to them to allege that there is a violation of Rule 3 of the Transit Rules of 1970 or treat the same as an offence. A Full Bench of this Court in V.NARAYANA RAO v. STATE OF A.P.[1] pointed out that the law providing for confiscation is an appropriatory legislation and the same is to be strictly construed. The Bench observed that before an order of confiscation is passed, the authority must satisfy itself that all the ingredients therefor are satisfied keeping in view the proposition of law in mind that confiscation is deprivation of property and existence of mens rea is also an essential ingredient and plays a vital role in such matters. In the present case, no effort was made by the respondent authorities to establish the factum of mens rea prior to their conclusion that the petitioner had committed a forest offence. Pertinent to note, it is not the case of the Forest Department that the petitioner’s lorry crossed their Check Post without obtaining the necessary permit under Rule 3 of the Transit Rules of 1970, which could have demonstrated the necessary mens rea on the part of the petitioner to commit an offence. In the absence of such proof, it is not open to the Forest Department to baldly conclude that the petitioner has committed a forest offence and levy an exorbitant compounding fee at twice the value of the wood. Even if the petitioner were to be held to have committed an offence, in the light of the given facts it could, at best, amount to a trivial offence and Section 59 of the Andhra Pradesh Forest Act, 1967 empowers the forest officials to compound such a trivial offence upon payment of a sum of Rs.50/-. Further, as pointed out by a Full Bench of this Court in GOVT. OF A.P. v. DINDE KANAKAMMA[2], the power of confiscation is discretionary and permissive and need not automatically follow upon a finding that a forest offence has been committed. This exercise of discretion is significantly absent in the present case. In the light of the facts and circumstances of the case as narrated supra, the Forest Department ought to have applied its mind as to whether the petitioner could be indicted of having committed a forest offence at all and if so, as to the quantum of punishment that should be imposed. Instead of applying their mind, the Forest Department seems to have blindly passed an order of confiscation and thereafter, subjected the release to an exorbitant condition that the petitioner should pay twice the value of the seized wood. This was wholly unwarranted and grossly disproportionate. Viewed from any angle, the orders passed by the second and first respondents compounding the offence allegedly committed by the petitioner upon payment of Rs.92,350/- cannot be sustained. The Writ Petition is accordingly allowed setting aside the impugned proceedings dated 17.06.2006 and 26.06.2006 passed by the respondent forest officials. The petitioner is at liberty to revoke and encash the Bank Guarantee furnished pursuant to the interim order passed by this Court. The respondents shall co-operate in this regard by providing such documentation as may be required. Miscellaneous petitions filed in this writ petition shall stand dismissed as infructuous in the light of this final order. No order as to costs. ____________________ SANJAY KUMAR, J. 1ST JULY, 2011. VGSR/PGS [1] 2002 (6) ALD 163 (FB) [2] 1998 (5) ALD 436 (FB)