1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. A. P. P. W. NO. 25 OF 2011 IN WRIT PETITION NO. 733 OF 2010 State of Maharashtra through Chief Conservator of Forest, Yavatmal, District Yavatmal. PETITIONER. VERSUS Subodh Kumar Amin Ojha Aged about 35 yrs., Occu. Contractor, R/o Near Ayyappa Temple, Chandrapur. RESPONDENT. Shri M. P. Badar, Counsel for the petitioner. Shri. Anjan De, Counsel for the respondent. CORAM: SMT. V. K. TAHILRAMANI & M. L. TAHALIYANI JJ. Date: 6th MAY 2011. ORDER: (Per TAHALIYANI J.) The petitioner has moved this Court for grant of interim relief 2 pending final decision in the Writ Petition. 2] The Writ Petition impugns the order passed by Additional Sessions Judge Pandharkawda (Kelapur) in Criminal Appeal No. 29 of 2010. The said appeal was filed by the applicant (respondent in the present Writ Petition) against the order passed by the Assistant Conservator of Forest Wani dated 21st July 2010 which was later on confirmed by the Chief Conservator of Forest on 27th August 2010. By the said order the Assistant Conservator of Forest and Chief Conservator of Forest both had directed confiscation of Excavation Machine (known as J.C.B. Machine) belonging to the applicant. The learned Additional Sessions Judge had allowed the appeal and had set aside the order passed by the Chief Conservator of Forest on 27th August 2010 confirming the order of Assistant Conservator of Forest. 3] The State has filed this Writ Petition against the said order of the learned Additional Sessions Judge. Writ Petition has been admitted for final hearing. 4] When the present application came up for hearing, it was suggested by the Court that the Writ Petition could be heard finally. However, during the course of hearing of Writ Petition, it was found that there were many arguable points which needed serious consideration. As such it was not possible to decide the Writ Petition finally before Summer Vacation. Therefore, we have decided to hear the present application. 3 5] The learned counsel Shri Badar for the petitioner/State in the Writ Petition has relied upon the judgment of Hon’ble Supreme Court in the matter of State of Karnataka Vs. K. Krishnan reported in 2000 CRI. L. J. 3971, and has submitted that this Court may not consider the prayer for interim relief inasmuch as the excavating machine is likely to be misused by the applicant/original respondent for committing similar offences. It was submitted that there are no exceptional reasons to release the vehicle at interim stage. Learned counsel Shri De, for the applicant/original respondent has submitted that the case of the forest department is very weak and there are strong chances of original respondent/applicant getting favorable result in the Writ Petition. It was pointed out by Shri De that the basic requirement of seizure of the forest produce was not complied by the Forest Department. It was contended that the vehicle or tool could not be seized unless the forest produce is seized and that seizure of vehicle is incidental to seizure of forest produce in respect of which offence is alleged to have been committed. 6] Admittedly the forest produce in respect of which alleged forest offence is committed and which is claimed to be timber by the learned counsel has not been properly described in the Writ Petition and in the orders of the Forest Officers. It is, therefore, necessary to examine whether the forest produce, in respect of forest offence has allegedly been committed really falls in any category mentioned in Section 61-A of the Forest Act (Maharashtra Amendment). It is also necessary to examine whether the vehicle, machine or tool could be seized without seizure of the forest 4 produce, in respect of which the alleged forest offence has been committed, particularly when the said forest produce was available for seizure. The forest produce allegedly involved is bushes and shrubs. 7] More over, the applicant/original respondent is ready to give bank guarantee. The Hon’ble Supreme Court has said that, if at all the vehicle or tool involved in the forest offence is to be released on interim basis, furnishing a bank guarantee should be a minimum condition. Since the applicant/original respondent is ready to fulfill the said minimum condition and since we do not have any apprehension that the applicant/original respondent will in any manner dispose of the property in violation of the Court order and considering the nature of forest produce we are inclined to pass the following interim order: O R D E R The Excavation Machine (known as J.C.B.) bearing No. MH-34/L-4873 be returned to the applicant/original respondent Subodh s/o Amin Ozha on execution of his personal bond of Rs. 10,00,000/- (Rupees Ten Lac) and on furnishing bank guarantee of Rs. 10,00,000/- (Rupees Ten Lac) from any nationalized bank on following conditions: i] The applicant shall not change the description of the said excavation machine (known as J.C.B.). ii] The applicant shall not part with or create third party interest 5 in the said excavation machine (J.C.B.). iii] The applicant shall not move the said excavation machine (J.C.B.) out of Yavatmal district without prior permission of this Court. Applicant shall produce the said machine before Additional Sessions Judge Pandharkawda (Kelapur) or any competent officer of Forest Department, as may be directed by this Court during the pendency of the Writ Petition. Bond shall be executed before the Competent Officer of Additional Sessions Court Pandharkawda (Kelapur). The bank guarantee also shall be produced before the said Competent Officer. Hamdast be given. JUDGE JUDGE svk 6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. A. P. P. W. NO. 25 OF 2011 IN WRIT PETITION NO. 733 OF 2010 State of Maharashtra through Chief Conservator of Forest, Yavatmal, District Yavatmal. PETITIONER. VERSUS Subodh Kumar Amin Ojha Aged about 35 yrs., Occu. Contractor, R/o Near Ayyappa Temple, Chandrapur. RESPONDENT. Shri M. P. Badar, Counsel for the petitioner. Shri. Anjan De, Counsel for the respondent. CORAM: SMT. V. K. TAHILRAMANI & M. L. TAHALIYANI JJ. Date: 6th MAY 2011. 7 OPERATIVE ORDER: (Per TAHALIYANI J.) For the reasons separately recorded in the judgment the following order is passed: The Excavation Machine (known as J.C.B.) bearing No. MH-34/L-4873 be returned to the applicant/original respondent Subodh s/o Amin Ozha on execution of his personal bond of Rs. 10,00,000/- (Rupees Ten Lac) and on furnishing bank guarantee of Rs. 10,00,000/- (Rupees Ten Lac) from any nationalized bank on following conditions: i] The applicant shall not change the description of the said excavation machine (known as J.C.B.). ii] The applicant shall not part with or create third party interest in the said excavation machine (J.C.B.). iii] The applicant shall not move the said excavation machine (J.C.B.) out of Chandrapur district without prior permission of this Court. Applicant shall produce the said machine before Sessions Judge Chandrapur or any competent officer of Forest Department, as may be directed by this Court during the pendency of the Writ Petition. Bond shall be executed before the Competent Officer of Sessions Court Chandrapur. The bank guarantee also shall be produced before the said Competent Officer. Hamdast be given. JUDGE JUDGE 8 svk 9