STATE OF GUJARAT Vs. YUSUF AIYUB MITHA

JUDGEMENT

(1.) Invoking Articles 226 and 227 of the Constitution, the petitioner-State has sought to challenge the order dated 24.10.1997 of the learned Sessions Judge, Panchmahals whereby the appeal of the respondent was allowed and the order of confiscation of the truck belonging to the respondent herein was set aside.

(2.) According to the original order dated 5.8.1996 of the Deputy Conservator of Forest, the truck bearing registration No.GTK 3049 was held to have been involved in forest offence under the provisions of section 61-B of the Indian Forest Act, 1927 (for short, "the Act") and, in exercise of the powers under section 61-A, it was ordered to be confiscated after affording to respondent-truck owner adequate opportunity of being heard and after elaborate discussion of the issues raised by the respondent. The authorized officer had come to the definite conclusion that the respondent herein was the owner of the truck who had come forward after seizure of the truck and public notice regarding the same. It was found that the teakwood carried in the truck in question was the property of the Government in view of the rebuttable presumption provided under section 69 of the Act and the presumption having not been rebutted. It was noted that the same truck was caught for the first offence of similar nature only about a month ago and it was released after execution of an affidavit by the respondent stating that the truck will not be involved in any forest offence in future. In view of the findings that the teakwood carried in the truck was not of private ownership, that the truck was involved for the second time in similar offence and no care or precaution was taken to prevent such recurrence of the offence and in the circumstances that the forest produce was transported under the covers by night and the truck was required to be chased and firing was required to be resorted before it could be seized, the order, as aforesaid, confiscating the truck was made on 05.8.1996.

(3.) The aforesaid order was carried in appeal by the respondent herein. The appellate court noted that the driver of the truck had informed the owner that the person carrying the teakwood was stated to have the necessary pass, but the driver had not verified whether in fact there was the required permit for transportation of the goods. The appellate court held that the vehicle was not in the control of the owner and he was not in the know of the fact that it would be used for transporting forest produce. Even the driver of the truck did not know that some villagers will contact him and that he would go to his village and load teakwood logs and transport them. The action of fleeing by the persons in charge of the truck and the goods was considered to be quite natural. The presumption under section 69 of the Act was held to have been rebutted by the rozkam prepared by the Assistant Conservator of Forest in which one Duraji Sherka had stated that the logs were belonging to him and they were brought from village Ferkads when they were shifted from there. The court observed that, naturally, after four years, the necessary passes might have been lost and the persons concerned being villagers, they were not expected to preserve them for a pretty long time. Therefore, the appellate court found it difficult to hold that any forest offence was committed in respect of the logs carried by the truck. The appellate court recorded a curious observation, as under, which deserves to be quoted: