IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Date of Decision: April 17, 1996. SPECIAL CRIMINAL APPLICATIION NO. 374 OF 1995 For Approval and Signature: THE HON'BLE MR. JUSTICE H.R. SHELAT. 1. Whether Reporters of Local Papers may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? 3. Whether Their Lordships wish to see the fair copy of Judgment ? 4. Whether this case involves substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5. Whether it is to be circulated to the Civil Judge? ================================================================= Shri K.P. Raval, APP for the petitioner. Shri P.M. Thakkar, Advocate (Shri M.M. Tirmizi with him) for the respondent. ================================================================= State of Gujarat : Petitioner.. Versus Siddik Haji Ibrahim Patel : Opponent. Coram: H.R. Shelat,J. (17-4-1996) JUDGMENT: By this application, the State has brought the order dated 30-11-1994, passed by the then learned Additional Sessions Judge at Vadodara, in Criminal Appeal No. 27 of 1994 on his file, setting aside the order dated 12-5-1994, passed by the then Dy. Conservator of Forest at Chhotaudepur, and directing the petitioner to hand over the teak wood seized together with Rs.1000/- the amount of penalty, to the opponent, under challenge. 2. Owing to Narmada Dam Project certain lands and many villages were likely to be immersed in water. The Government of Gujarat planned for the rehabilitation of those affected not only providing lands elsewhere but building materials and some amounts also. The persons affected were permitted to take wreckage of their huts and tress grown on their lands. Kanubhai Shankerbhai, Naika Jugla Vasava and others affected, migrated from Sinduri a village in Dhule District of Maharashtra State to Suratalav/Tarsada along with wreckage, i.e. baulk joists, raftars, poles, ridges tiles and certain logs of teak wood grown on their lands. Being poor and in dire need of money for their livelihood, they decided to sell out the teak wood in surplus. The respondent residing at Godhra purchased 50 logs of teak wood from Kanubhai Shankerbhai and Naika Jugla Vasava. By hiring the truck GTB 6765 the teak wood purchased were being taken to Godhra on 28-4-1994. When the truck reached the Halol Forest Check-post, the round forest officer intercepted and checked. He suspected interloperring by illegal transportation of the forest produce as the driver of the truck was not having any pass or permit and there was no hammer mark of forest department on the logs. He hence attached the truck along with the woods; and report thereof was made to his higher officer. A case Pavagadh Round Cri. Register No. 6/94-95 was then registered and inquiry under the Indian Forest Act (hereinafter referred to as `the Act') was initiated. The truck was later on released but the log-woods were seized u/s. 52 keeping Sec. 26(1)(f) & (g) and Sec. 41(2)(b) of the Act in mind. Further the opponent was directed to pay Rs.1000/- by way of compensation. The order of seizure and compensation came to be passed by the Dy. Conservator of Forest on 12-5-94. The respondent then preferred Cri. A. No. 27 of 1994 before the Court of Sessions at Vadodara. The then learned Addl. Sessions Judge at Vadodara allowed the appeal, set aside the order of the Dy. Conservator of Forest and ordered to hand over the seized woods and Rs.1000/- to the opponent. Being aggrieved by such order, this petition is filed. 3. The learned advocate for the petitioner contended that this petition under Articles 227 or 226 of the Constitution of India was not maintainable; the appeal ought to have been filed. To deal with the submission, the relevant provisions of the Act must be looked into. Admittedly u/s. 52 of the Act, the goods are seized, and so the seized goods are to be dealt with in accordance with Sec. 61A to Sec. 61G, added to the Act by amendment made by the State of Gujarat. As per Sec. 61-A forest produce seized u/s. 52 are to be produced before the authorised officer who undergoing necessary procedure may pass the order of confiscation of the property. Any forest officer not below the Conservator of Forest empowered by State issuing notification may examine the record and make inquiry and may pass the order as deemed fit u/s. 61-C. The party aggrieved by any order u/s. 61-A or 61-C of the Act, can file appeal before the Sessions Judge having jurisdiction over the area in which the property to which the order relates to has been seized. Sec. 61-D(2) of the Act, makes the order of the Sessions Judge final and so the order passed by the Sessions Judge cannot be questioned in any Court of law by way of appeal or revision. However High Court's supervisory jurisdiction under Art.227 of the Constitution of India for limited purpose continues to hold the field. When that is so, the petition under Art.227 is maintainable. This court has way back in 1985 answered the point raised in the case of Manubhai Babubhai Patel v. Deputy Conservator of Forests, Valsad & Anr. - 26(2) [1985(2)] G.L.R. 836, holding that in such case petition is maintainable. But I may add, for limited purpose. The contention therefore fails. 4. About the validity of the seizure of the teak wood, submissions are made contending that the requirements of law are not satisfied. To deal with the same relevant provisions of the Act must be borne in mind. Section 52 of the Act applicable to the State of Gujarat owing to State amendment reads as under:- "52. Seizure of property liable to confiscation.__ (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, vehicles or cattle used in committing any such offence, may be seized by any Forest-officer or Police Officer. (1A) Any Forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe that a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle and inspection of all records relating to the forest produce and in possession of such driver or other person in charge of the vehicle or any other person in the vehicle. (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure__ (a) where the offence on account of which the seizure has been made is in respect of the forest produce which is the property of the State Government or in respect of which the State Government has any interest, to the concerned authorised officer under section 61A; and (b) in other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made. Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior." A perusal of Section 52 shows that the Forest Officer or the police officer, when he has a reason to believe, on the basis of some material, and not on mere suspicion, that a forest offence has been committed or is being committed qua the forest produce, he may seize the forest produce along-with all tools, boats, vehicles or cattle used in committing the offence. When the offence in respect of the forest produce is envisaged, one cannot by pass the definition of the forest produce. The term `forest produce' is defined vide Clause (4) of Section 2 of the Act which reads as under: "2(4). "Forest-produce includes __ (a) the following whether found in, or brought from a forest or not that is to say :- timber, charcoal, caoutchouc, catechu wood oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrobalans; and (b) the following when found in, or brought from, a forest, that is to say:- (i) trees and leaves, flowers and fruits, and all other parts or produce, not hereinbefore mentioned, of trees, (ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants, (iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey, and wax, and all other parts of produce of animals, and (iv) peat, surface soil, rock, and minerals (including limestone, laterite, mineral oils, and all products of mines or quarries);" In Cl.(a) to Sec.2(4) of the Act, when the word "timber" is used it can well be said that forest produce includes timber. In the case on hand teak woods are seized. It is therefore necessary to look into the definition of timber. Sec. 2(6) of the Act defines the timber which reads thus: "2(6) "timber" includes trees when have fallen or have been felled, and all wood whether cut up or fashioned or hollowed out for any purpose or not; and" (7) xx xx xx xx A combined reading of the definitions of "forest produce" and "timber" unequivocally shows that the teak wood fallen, felled or cut up or fashioned or hollowed out for any purpose or not is definitely covered. After felling the tree, even if by sawing or otherwise it is shaped as baulks, joists, raftars, planks and polls, etc, the same will not lose its characteristics of a forest produced till transformed into another object of different character or different and distinct commodities, i.e. after being used while erecting a structure or a hut, a house; or building or preparing furniture or other articles. Those pieces of wood which can be termed wreckage would not be the forest produce, but certainly rest of the logs of the teak-wood would being the timber, will remain to be the forest produce. 5. It has been contended on behalf of the petitioner that by removing the teak-wood offences under Sec. 26(1)(f) and (g) of the Act were committed as the timber trees (teak) were felled and removed from the forest area. A perusal of the record of the lower forum shows that statements of Laxman Dhula Naik, Jayesh Gala Naik, Firoz Sattar Sakla, Shantilal Ranchhodbhai Tadvi, Nayka Jugla Vasava, Kanubhai Shankerbhai Tadvi, Siraz Yusuf Shaikh, were recorded, and panchnama of the court yards of Kanubhai Shankerbhai Tadvi and Nayka Jungla Vasava was drawn. Another panchnama soon after the seizure of the truck and goods was drawn near the check-post. What can be deduced from these statements and panchnamas is that Kanubhai Shankerbhai Vasava and Nayka Jugla Vasava had obtaining passes from Forest Department, which are produced on record, brought the wreckage and teak wood from village Sinduri as their village was evacuated because of Narmada Project. They being poor and in dire need of money sold out the excess wood to the present opponent for Rs.25,000/-. In all 50 logs of wood were sold, of them 27 were old being the part of the wreckage, while 23 were new i.e. spick and span. It also transpires that the goods were removed from the residence of these two persons at Tarsada which is admittedly not situated within the reserved forest area. When the goods are removed by the opponent from the non-forest area namely Tarsada and initial removal upto Tarsada was under the pass issued both the sections would not come into play. The contention advanced on behalf of the petitioner therefore gains no ground to stand upon. 6. It was next contended that the opponent had committed the offence u/s.41 regulating transit of forest produce. It may be noted before the contention is dealt with, that Sec. 41 is neither the provision casting an obligation on the person to do or not to do a particular act, nor the penal provision for the wrong done. By that provision the State Govt. is vested with power to make Rules to regulate the transit of forest produce relating to the subjects namely export, import, movement, transit, route of transit, marking, duty, royalty, storing places like depots etc., so as to check malpractices,fraud,or mischief, or cheating or misappropriation, dishonesty, or unfair trade-practice, or loss being caused to Government by different devices, or unjust enrichment or marring the common-good. It is therefore the mistaken impression of the petitioner that Sec. 41(2)(b) of the Act being the penal provision will come into play, if not, Sec. 26(1)(f) or (g). However, it should be noted that u/s.41, the then Bombay Government to curb mischief, unjust trade-practice,corrupt-practice, fraud etc., framed Bombay Forest Rules, 1942 which are made applicable to the State of Gujarat. Rule 66 thereof reads as under:- "66. Regulation of transit of forest produce by means of passes.___ No forest produce shall be moved into, or from, or within any district of the State of Bombay, except as herein provided, without a pass from some officer or person duly authorised by or under these rules to issue such pass, or otherwise than in accordance with the conditions of such pass or by any route or to any destination other than the route or destination specified in such pass : Provided that no pass shall be required for the removal__ (a) except to a bunder, landing place or railway station__ (i) of any forest-produce which is being removed for private consumption by any person, in exercise of a privilage granted in this behalf by the State Government, or of a right recognised under the Act within the limits of a village as defined in Bombay Land Revenue Code, 1879, in which it is produced, (ii) of twigs, leaves, brushwood and grass intended solely for conversion into ash-manure, (iii) of such small branches as are given gratis from departmental cutting solely for private consumption, (b) of firewood not exceeding three inches in diameter at the thickest part, grass or leaves, the property of one person or the joint property of two or more persons, which is conveyed in quantities not exceeding one head load once in 24 hours unless it be brought to a bunder, landing place or railway station or to any area to which the State Government may from time to time declare by notification in the Bombay Government Gazette that this exemption shall not extend, or (c) of such forest-produce as may be exempted by the State Government from the operation of the rules in this Chapter by notification in the Bombay Government Gazette." It should hardly be stated that wherever the word "Bombay" appears in Rule 66, the word "Gujarat" has to be read. By this Rule, the movement or transit of forest produced from one place to another in the State cannot be effected without obtaining necessary pass from the officer/person duly authorised to issue pass; and contrary to the conditions of the pass; except in cases where pass is not required. As per Sec. 78 of the Act the Rules framed u/s. 41 shall have the force of law as if enacted in the Act, and so breach of the Rule if committed would constitute the offence under the Act. The breach of the Rules is made penal vide Sec. 42. 7. How removal of the forest produce from one place to another without pass would constitute the offence under the Act is also the point posed before me. Above quoted Sec. 2(4) is the answer to the contention raised. The meaning of the expressions underlined hereinabove while quoting Sec. 2(4) is significant. It should be noted that Sec.2(4) divides the forest produce into two categories, the first refers the goods listed in Clause (a), while second refers the goods listed in Clause (b). Vide Clause (a) the goods listed therein are covered within the meaning of the expression "found in" or "brought from a forest or not", and it is because of their nature whether they are found in a forest, or not or brought from a forest or not; while for the second category Clause (b) contemplates those goods found in or brought from a forest, not by virtue of their nature alone but by virtue of the fact that they are found in or brought from a forest. The words "found in" or "brought from" appearing in Clause (b) of Section 2(4) therefore contemplate the forest to be the source or original depository of the forest produce. The words "found in" actually refer to things growing in forest like timber, trees, fruits, flowers or mineral deposit or stones existing in the forest. If the goods covered by Clause (b) are brought from the non-forest area the same would not fall within the ambits of the words "brought from a forest" i.e., within the area of forest. Thus, Clause (a) has a wider coverage than Clause (b). Clause (b) confines to the goods within the forest area while Clause (a) covers the goods not only found within the forest area or brought from forest area but also the area other than forest. It should be noted that the forest produce may be of Government ownership or private ownership, because definition thereof includes not only the goods listed therein are covered within the meaning of the expression 'forest produce grown on or collected from the property of Government but also that grown on or collected from the property of private individual. In short, removal of forest produce covered by Cl. (a) of Sec. 2(4) from one place to another, regardless of both or either of the places being situated within the forest area or not, would constitute offence if pass or permit is not obtained; while removal of forest produced covered by Cl. (b) will constitute the offence only when the same are found in; or brought from the forest area, i.e. source must be the place within the forest area. Rule 66 of the Bombay Forest Rules goes a step-father. Without any categorisation, or confinement to any area, it prohibits transit of every forest produce without pass, or contrary to the terms and conditions of the pass, unless exception to the rule vide proviso comes into being. What can therefore be deduced from the aforesaid provisions is that whoever, when exception provided is not attracted, removes or transport the forest produce without pass, or contrary to the conditions of the pass, from one place to another regardless of the same being in forest area or not, and regardless of the ownership thereof (Govt. or private) commits the offence under the Act made punishable u/s.42. 8. At the time of checking near Halol Check-post, the forest officer could not see the hammer-marks on the teak wood which certainly falls within the definition of "timber". On being questioned the driver of the truck and labourers on the truck did not reply satisfactorily, and made it clear that they did not have pass or permit to carry the teak wood from Tarsada to Godhra. The forest officer had therefore in view of such facts, reason to believe that the offence under the Act was committed, and so he seized both the teak-wood and the truck. All the requirements of Sec. 52 at the time of checking were found. Consequently the seizure of the teak-wood and truck was legal. The contentions advanced on behalf of the opponent therefore fail. 9. If the forest produces are seized under Section 52 under the belief that offence under the Act is committed, the officer seizing the goods has to make a report. As per Section 52, if the goods seized are the Government property, or the Government has any interest, the report has to be made to the forest officer authorised under Section 61-A, who in turn initiates confiscatory proceedings under Section 61-A of the Act, and may considering the facts before him confiscate the forest produce, or may release the property. If he prefers to confiscate the goods, the party aggrieved may prefer the appeal before the Court of the Sessions Judge having jurisdiction over the area within 30 days from the date of the communication of the order. The Sessions Judge hearing the appeal under Section 61-D of the Act may confirm the order or upset the same and his decision is final. Before the order confiscating the goods under Section 61-A is passed, no appeal can be preferred before the Sessions Judge, and if it is preferred it will not be competent in law and cannot be entertained. After the goods are seized u/s.52 of the Act and before the order in confiscatory proceeding is passed, so far as the law applicable to Gujarat State, is concerned, there is no provision to prefer the appeal before Sessions Judge for redressal of one's own grievances. The party has to wait till the confiscatory order is passed. If the goods seized are admittedly not the Government property or the Government has no interest in the goods, the officer seizing the goods has to make the report to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. In that case however necessary prayer for getting the goods back if made shall have to be dealt with as per Sec.55 which provides that non-Govt. goods shall subject to Sec. 61-G be liable to confiscation. Section 61-G reads as under:- "61G. Bar of jurisdiction to certain cases.__ Whenever any forest produce belonging to the State Government or any tool, rope, chain, boat, vehicle or cattle used in committing any offence is seized under sub-section (1) of Section 52 the authorised officer under section 61A or the officer specially empowered under section 61C or the sessions Judge hearing an appeal under section 61D shall have and, notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, any other officer, court, tribunals or authority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property." In case therefore the goods not owned by the Government are confiscated, the party aggrieved has to prefer the appeal before the Sessions Judge. Before the order confiscating the goods is passed u/s. 61-A, no appeal can lie before the Sessions Judge having jurisdiction over the area. In any case therefore the appeal before the Sessions Judge is not competent in law applicable to Gujarat State after the seizure of the forest produce and before the order confiscating the forest produce is passed u/s. 61-A of the Act. 10. The Deputy Conservator of Forest at Chhota-udepur passed the order on 12-5-1994 confiscating 27 old logs of wood out of the total logs of 50, as hammer marks were not thereon and were suspicious because of difference in measurements and description mentioned in the pass permitting transport from Sinduri to Tarsada giving rise to a reason to believe that mischief was played and under the guise of the wreckage, theft of the forest produce belonging to Government was committed and were sold to the opponent. The preamble of that order on record shows that the seizing officer (Range Forest Officer) had made report about the seizure and so confiscating proceeding u/s. 61-A was initiated. The officer who passed the order was the authorised officer u/s. 61-A. The officer who seized the goods was not authorised to pass the order u/s. 61-A of the Act. The order passed is the result of the confiscatory proceeding and so it is the order u/s. 61-A. In that order written