State of Goa Vs. Devanand Shrikant Naik & Ors.
EmailAppeal: Criminal Appeal No. 729 of 1996
Petitioner: State of Goa
Respondent: Devanand Shrikant Naik & Ors.
Apeal: Criminal Appeal No. 729 of 1996
Judges: R.C. LAHOTI & P. VENKATARAMA REDDI, JJ.
Date of Judgment: Oct 31, 2001
Head Note:
CRIMINAL LAW
Indian Forest Act, 1927
Sections 61-A, 52 (as amended and applicable to Goa) – Applicability – Two persons prosecuted for trespassing and theft of shisham logs – Trial court acquitting – Also directing return of Maruti van to owner and issuance of show cause notices to PWs – Confiscation of vehicle already ordered – No specification as to what action is proposed on PWs – Also no reasons given in orders of confiscation. Held that orders of confiscation were illegal. Hence, even if the magistrate could have not directed release of vehicle, said order cannot be interfered with. However, directing issuance of show cause notice is set aside as no action specified.
Held:
The magistrate could not have directed the release of the vehicle once it was shown to his satisfaction that the seizure was under section 52 of the Forest Act. So far as the seizure of property, including vehicle, which has been seized on the ground that it has been or is being used for the transport of forest produce in respect of which there is reason to believe that offence is being or has been committed, is concerned, the Forest Act is a self-contained legislation laying down the procedure for release and confiscation. (Para 7)
Section 61G provides that it is only the officer authorised under section 61A or the officer specially empowered under section 61C or the sessions judge hearing the appeal under section 61D who shall have the power to deal with the matter relating to confiscation and notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or any other law for the time being in force, no other officer, court, tribunal or authority shall have the jurisdiction to make an order with regard to the custody, possession, delivery or distribution of such property including vehicle. However, still, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the order directing the release of the vehicle as passed by the learned magistrate. (Para 7)
The order of the trial court directing show cause notice to be issued to P.W. 1 and P.W. 6, is concerned, in our opinion the direction deserves to be set aside. The direction to issue notice to show cause “why action should not be taken against them” without specifying the nature of action which was proposed to be taken or the law whereunder the action was proposed to be taken or the notices were directed to be issued, is too vague a direction and does not serve any purpose. That direction is therefore directed to be deleted.(Para 9)
JUDGEMENT:
ORDER
1. On 3rd July, 1991, it is alleged that three accused persons trespassed into government reserve forest at Durgini, Dharbandors within the limits of Ponda police station and cut 12 logs of sheesham wood worth Rs. 5,000/-. The range forest officers detected 12 logs of sheesham wood lying in the reserve forest and a Maruti van bearing registration no. GA-01-P-7676 parked at a distance of few meters therefrom. Two of the accused persons were seated in the Maruti van. The range forest officers tried to apprehend the accused persons who tried to flee away in the Maruti van. However, the Maruti van was intercepted and seized by the forest officers. A report of theft was lodged with the police. Offences under sections 447, 379 read with 34 IPC and section 3 of Prevention of Damage to Public Property Act, 1984 were registered. The accused persons having been found on investigation by the police, to have committed the alleged offences, they were chargesheeted and produced before the court of judicial magistrate, first class at Sanguem, Goa. The chargesheet filed by the police – reported the seizure of 12 logs of sheesham wood and Maruti van as also one axe and one ‘quita’ – the tools used for cutting the trees. While the axe and ‘quita’ were physically produced in the court, the seizure of 12 logs of wood and Maruti van was only reported to the learned magistrate as these two articles were in the custody of forest conservator at Collem. On trial, the learned magistrate found the offences under sections 379, 447 read with 34 IPC and section 3 of Prevention of Damage to Public Property Act, 1984 having been not made out and therefore acquitted the accused persons of the offences charged. The learned magistrate also directed the Maruti van to be released to accused no. 1 or to its owner within a period of 60 days from the date of the judgment. During the course of his judgment, the learned magistrate held that the two range forest officers examined as P.W. 1 and P.W. 6 before him, had acted in high-handed manner and their act in seizing the Maruti van and prosecuting the accused persons could not be said to be bona fide. The learned magistrate, in the operative part of judgment, also directed – “Issue show cause notice to P.W. 1 and P.W. 6 as to why action should not be taken against them”.
2. Aggrieved by the acquittal of the accused respondents, the direction of the trial court releasing the Maruti van and the direction to issue show cause notice to P.W. 1 and P.W. 6, the state government preferred an appeal before the High Court of Bombay, Panaji, Goa. By the impugned order dated 3rd April, 1998, the High Court has refused to interfere with the order of the acquittal made by the trial court. The state government of Goa has filed this appeal by special leave.
3. So far as the acquittal of the accused – respondents for the offences charged is concerned, having gone through the judgment of the trial court as also the evidence adduced by the prosecution, we are satisfied that no result can be found with the acquittal of the accused respondents. However, the more serious challenge made by the learned counsel for the state, during the course of submissions, is to the two directions made by the trial court, specially that part of the judgment, which directs the release of the seized vehicle to accused no. 1 or the owner thereof.
4. It appears that according to the documents relating to the seized vehicle, the owner thereof is one Smt. Mastani Begum, Panigatti. The vehicle was seized under section 52 of the Indian Forest (Goa Amendment) Act, 1927. In this case we are dealing with the provisions of Indian Forest Act, 1927 as amended in its application to Goa, by legislative assembly of Goa, which shall, hereinafter, be referred to as ‘the Act’ for short. Notice was issued to the said owner to show cause why the vehicle be not confiscated under section 61A of the Act. According to the reply given to the show cause notice, she had stated that the vehicle was never involved in any forest offence and on the date of incident it was permitted to be taken by the accused no. 1 who was an accountant handling sales tax matters in her husband’s business. Deputy conservator of forest, the authorised officer, after affording an opportunity of hearing to the owner, directed, by the order dated 5th December, 1991, the vehicle to be confiscated.
5. A perusal of the order of confiscation shows that vehicle was confiscated for allegedly attempting to transport the illegally cut sheesham logs from forest Durgini Dharbandors. The order of confiscation records that at the time of seizure the vehicle was parked at a distance of 1.20 meters from the place where the illegally cut logs of sheesham wood were lying. Two of the accused persons were seated in the vehicle. They tried to run away from the forest but they were intercepted at about 200 meters away and thereafter the vehicle was seized and the two accused were arrested. The reason for seizure, as stated in the order of confiscation is, because the two accused persons had tried to escape in the vehicle.’ The order of confiscation nowhere records the belief, founded on the reasons arrived by any authorised officer seizing the vehicle, that the vehicle was used, or was being used, for the transport of forest produce in respect of which any forest offences was, or was being, committed.
6. A perusal of the order of acquittal dated 9th January, 1996 passed by the learned magistrate shows that the factum of the vehicle having been seized under section 52 of the Act was brought to the notice of the learned magistrate though it does not appear whether a copy of the order of confiscation was produced before him. In spite of that the learned magistrate directed the seized vehicle to be released. In the petition filed before the High Court seeking leave to file an appeal against the order of acquittal, the order of confiscation dated 5.12.91 passed by the authorised officer was annexed with the petition, and brought to the notice of the High Court. However, the petition filed in the High Court suffers from a serious infirmity. Although the learned magistrate had directed the seized vehicle to be released to accused no. 1 or to its owner, yet the owner of the vehicle was not joined as party in the petition filed in the High Court. Needless to say the High Court could not have set aside that part of the order which directed the release of seized vehicle to the owner in the absence of the owner having been impleaded as party in the High Court and having been put on notice.
7. We find merit in the submission of the learned counsel for the state that the learned magistrate could not have directed the release of the vehicle once it was shown to his satisfaction that the seizure was under section 52 of the Forest Act. So far as the seizure of property, including vehicle, which has been seized on the ground that it has been or is being used for the transport of forest produce in respect of which there is reason to believe that offence is being or has been committed, is concerned, the Forest Act is a self-contained legislation laying down the procedure for release and confiscation. Section 61A confers jurisdiction to direct confiscation on an officer authorised by the government in his behalf by notification in the official gazette. Section 61G provides that it is only the officer authorised under section 61A or the officer specially empowered under section 61C or the sessions judge hearing the appeal under section 61D who shall have the power to deal with the matter relating to confiscation and notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or any other law for the time being in force, no other officer, court, tribunal or authority shall have the jurisdiction to make an order with regard to the custody, possession, delivery or distribution of such property including vehicle. However, still, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the order directing the release of the vehicle as passed by the learned magistrate. It is true that ordinarily any person aggrieved by the order of confiscation dated 5.12.91 should have preferred an appeal against that order or laid a challenge to its propriety or legality in accordance with law. However, the owner of the vehicle is not before us. The contents of the order which we have briefly reproduced in the earlier part of this judgment go to show that the jurisdictional facts which would have enabled the vehicle to be seized and then confiscated are lacking in the order. The order itself shows that the vehicle was neither used nor was being used for commission of offence in the forest. A mere possibility or likelihood of its being used for transporting illegally cut logs of wood from the reserved forest, did not empower the range authorised officer to seize the vehicle nor empower the deputy conservator of forests, the authorised officer who passed the order of confiscation, to confiscate the vehicle. The owner of the vehicle, who was given notice by the deputy conservator of forest, very specifically took the plea in reply to the show cause notice that the vehicle was not involved in any forest offence and therefore was neither liable to be seized nor liable to be confiscated. No finding has been recorded in the order of confiscation repelling the contention of the owner of the vehicle. The seizure and the confiscation were therefore, neither justified nor legal. An interference with the order directing the release of the vehicle by the learned magistrate would result in giving effect to the order dated 5th December, 1991 which, being patently illegal order, is wholly unsustainable and cannot be upheld so as to result in retaining of the vehicle by the state.
8. For this reason, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution to set aside the order passed by the trial court releasing
the vehicle to the accused no. 1 or its owner.
9. So far as the order of the trial court directing show cause notice to be issued to P.W. 1 and P.W. 6, is concerned, in our opinion the direction deserves to be set aside. The direction to issue notice to show cause “why action should not be taken against them” without specifying the nature of action which was proposed to be taken or the law whereunder the action was proposed to be taken or the notices were directed to be issued, is too vague a direction and does not serve any purpose. That direction is therefore directed to be deleted.
10. Consequently the judgment of the trial court to the extent it acquits the accused – respondents and directs the seized vehicle to be released to accused no. 1 or its owner, on the terms directed by the trial court, is maintained. The direction to issue show cause notice to P.W. 1 and P.W. 6, the two forest range officers is set aside. The appeal stands disposed of in these terms.
1. On 3rd July, 1991, it is alleged that three accused persons trespassed into government reserve forest at Durgini, Dharbandors within the limits of Ponda police station and cut 12 logs of sheesham wood worth Rs. 5,000/-. The range forest officers detected 12 logs of sheesham wood lying in the reserve forest and a Maruti van bearing registration no. GA-01-P-7676 parked at a distance of few meters therefrom. Two of the accused persons were seated in the Maruti van. The range forest officers tried to apprehend the accused persons who tried to flee away in the Maruti van. However, the Maruti van was intercepted and seized by the forest officers. A report of theft was lodged with the police. Offences under sections 447, 379 read with 34 IPC and section 3 of Prevention of Damage to Public Property Act, 1984 were registered. The accused persons having been found on investigation by the police, to have committed the alleged offences, they were chargesheeted and produced before the court of judicial magistrate, first class at Sanguem, Goa. The chargesheet filed by the police – reported the seizure of 12 logs of sheesham wood and Maruti van as also one axe and one ‘quita’ – the tools used for cutting the trees. While the axe and ‘quita’ were physically produced in the court, the seizure of 12 logs of wood and Maruti van was only reported to the learned magistrate as these two articles were in the custody of forest conservator at Collem. On trial, the learned magistrate found the offences under sections 379, 447 read with 34 IPC and section 3 of Prevention of Damage to Public Property Act, 1984 having been not made out and therefore acquitted the accused persons of the offences charged. The learned magistrate also directed the Maruti van to be released to accused no. 1 or to its owner within a period of 60 days from the date of the judgment. During the course of his judgment, the learned magistrate held that the two range forest officers examined as P.W. 1 and P.W. 6 before him, had acted in high-handed manner and their act in seizing the Maruti van and prosecuting the accused persons could not be said to be bona fide. The learned magistrate, in the operative part of judgment, also directed – “Issue show cause notice to P.W. 1 and P.W. 6 as to why action should not be taken against them”.
2. Aggrieved by the acquittal of the accused respondents, the direction of the trial court releasing the Maruti van and the direction to issue show cause notice to P.W. 1 and P.W. 6, the state government preferred an appeal before the High Court of Bombay, Panaji, Goa. By the impugned order dated 3rd April, 1998, the High Court has refused to interfere with the order of the acquittal made by the trial court. The state government of Goa has filed this appeal by special leave.
3. So far as the acquittal of the accused – respondents for the offences charged is concerned, having gone through the judgment of the trial court as also the evidence adduced by the prosecution, we are satisfied that no result can be found with the acquittal of the accused respondents. However, the more serious challenge made by the learned counsel for the state, during the course of submissions, is to the two directions made by the trial court, specially that part of the judgment, which directs the release of the seized vehicle to accused no. 1 or the owner thereof.
4. It appears that according to the documents relating to the seized vehicle, the owner thereof is one Smt. Mastani Begum, Panigatti. The vehicle was seized under section 52 of the Indian Forest (Goa Amendment) Act, 1927. In this case we are dealing with the provisions of Indian Forest Act, 1927 as amended in its application to Goa, by legislative assembly of Goa, which shall, hereinafter, be referred to as ‘the Act’ for short. Notice was issued to the said owner to show cause why the vehicle be not confiscated under section 61A of the Act. According to the reply given to the show cause notice, she had stated that the vehicle was never involved in any forest offence and on the date of incident it was permitted to be taken by the accused no. 1 who was an accountant handling sales tax matters in her husband’s business. Deputy conservator of forest, the authorised officer, after affording an opportunity of hearing to the owner, directed, by the order dated 5th December, 1991, the vehicle to be confiscated.
5. A perusal of the order of confiscation shows that vehicle was confiscated for allegedly attempting to transport the illegally cut sheesham logs from forest Durgini Dharbandors. The order of confiscation records that at the time of seizure the vehicle was parked at a distance of 1.20 meters from the place where the illegally cut logs of sheesham wood were lying. Two of the accused persons were seated in the vehicle. They tried to run away from the forest but they were intercepted at about 200 meters away and thereafter the vehicle was seized and the two accused were arrested. The reason for seizure, as stated in the order of confiscation is, because the two accused persons had tried to escape in the vehicle.’ The order of confiscation nowhere records the belief, founded on the reasons arrived by any authorised officer seizing the vehicle, that the vehicle was used, or was being used, for the transport of forest produce in respect of which any forest offences was, or was being, committed.
6. A perusal of the order of acquittal dated 9th January, 1996 passed by the learned magistrate shows that the factum of the vehicle having been seized under section 52 of the Act was brought to the notice of the learned magistrate though it does not appear whether a copy of the order of confiscation was produced before him. In spite of that the learned magistrate directed the seized vehicle to be released. In the petition filed before the High Court seeking leave to file an appeal against the order of acquittal, the order of confiscation dated 5.12.91 passed by the authorised officer was annexed with the petition, and brought to the notice of the High Court. However, the petition filed in the High Court suffers from a serious infirmity. Although the learned magistrate had directed the seized vehicle to be released to accused no. 1 or to its owner, yet the owner of the vehicle was not joined as party in the petition filed in the High Court. Needless to say the High Court could not have set aside that part of the order which directed the release of seized vehicle to the owner in the absence of the owner having been impleaded as party in the High Court and having been put on notice.
7. We find merit in the submission of the learned counsel for the state that the learned magistrate could not have directed the release of the vehicle once it was shown to his satisfaction that the seizure was under section 52 of the Forest Act. So far as the seizure of property, including vehicle, which has been seized on the ground that it has been or is being used for the transport of forest produce in respect of which there is reason to believe that offence is being or has been committed, is concerned, the Forest Act is a self-contained legislation laying down the procedure for release and confiscation. Section 61A confers jurisdiction to direct confiscation on an officer authorised by the government in his behalf by notification in the official gazette. Section 61G provides that it is only the officer authorised under section 61A or the officer specially empowered under section 61C or the sessions judge hearing the appeal under section 61D who shall have the power to deal with the matter relating to confiscation and notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or any other law for the time being in force, no other officer, court, tribunal or authority shall have the jurisdiction to make an order with regard to the custody, possession, delivery or distribution of such property including vehicle. However, still, in the peculiar facts and circumstances of this case, we are not inclined to interfere with the order directing the release of the vehicle as passed by the learned magistrate. It is true that ordinarily any person aggrieved by the order of confiscation dated 5.12.91 should have preferred an appeal against that order or laid a challenge to its propriety or legality in accordance with law. However, the owner of the vehicle is not before us. The contents of the order which we have briefly reproduced in the earlier part of this judgment go to show that the jurisdictional facts which would have enabled the vehicle to be seized and then confiscated are lacking in the order. The order itself shows that the vehicle was neither used nor was being used for commission of offence in the forest. A mere possibility or likelihood of its being used for transporting illegally cut logs of wood from the reserved forest, did not empower the range authorised officer to seize the vehicle nor empower the deputy conservator of forests, the authorised officer who passed the order of confiscation, to confiscate the vehicle. The owner of the vehicle, who was given notice by the deputy conservator of forest, very specifically took the plea in reply to the show cause notice that the vehicle was not involved in any forest offence and therefore was neither liable to be seized nor liable to be confiscated. No finding has been recorded in the order of confiscation repelling the contention of the owner of the vehicle. The seizure and the confiscation were therefore, neither justified nor legal. An interference with the order directing the release of the vehicle by the learned magistrate would result in giving effect to the order dated 5th December, 1991 which, being patently illegal order, is wholly unsustainable and cannot be upheld so as to result in retaining of the vehicle by the state.
8. For this reason, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution to set aside the order passed by the trial court releasing
the vehicle to the accused no. 1 or its owner.
9. So far as the order of the trial court directing show cause notice to be issued to P.W. 1 and P.W. 6, is concerned, in our opinion the direction deserves to be set aside. The direction to issue notice to show cause “why action should not be taken against them” without specifying the nature of action which was proposed to be taken or the law whereunder the action was proposed to be taken or the notices were directed to be issued, is too vague a direction and does not serve any purpose. That direction is therefore directed to be deleted.
10. Consequently the judgment of the trial court to the extent it acquits the accused – respondents and directs the seized vehicle to be released to accused no. 1 or its owner, on the terms directed by the trial court, is maintained. The direction to issue show cause notice to P.W. 1 and P.W. 6, the two forest range officers is set aside. The appeal stands disposed of in these terms.
