MOHD ASHIQUE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this writ petition under Articles 226 and 227 of Constitution of India the petitioner, owner of motor vehicle - a truck having registration Number MH-30 - B--2897 confiscated by Assistant Conservator of Forest (Authorized Officer) under Section 61-A of Indian Forest Act, 1927, has prayed for its release by quashing and setting aside said orders. The truck has been found involved in forest offence on 7/1/1999 in which illicitly felled Nimb wood, Katsawar wood was transported. The order of confiscation under Section61-A is dated 17/6/2002 while appeal preferred against it under Section 61-D by present petitioner has been dismissed by Sessions Judge, Akola, on 14/10/2002. This court on 17/3/2003 while admitting the writ petition stayed both these orders and directed release of truck in favour of petitioner subject to execution of personal bond in the sum of Rs. One lakh in addition to the bank guarantee of any of the Nationalised banks in the sum of Rs. One lakh to be kept alive till disposal of this writ petition. Necessary facts in this respect are as under.

(2.) Petitioner states that above truck belongs to him and he had engaged one Mohd. Shabbir resident of Medshi for transportation of timber on 7/1/1999. That timber was transported accordingly to Geeta Saw Mill belonging to Gangaram Manaji Patel of Kolhapur as per transit pass and as per law. Petitioner thereafter learnt that on or about 8/1/1999 the officers of the Forest Department seized said timber including Katsawar (Bombax) from Geeta Saw Mill. Thereafter without any reason said officers took away the truck of petitioner which was standing on Mankarna plot near his residence. When petitioner could not find his truck, he reported the matter to local police and thereafter he learnt that his truck has been carried away by Forest Department. The contention of petitioner is that seizure of truck on the basis of statement given by owner of Saw Mill is illegal. He therefore moved application before Chief Judicial Magistrate, Akola for its release. He also received show cause notice dated 4/10/2001 from Assistant Conservator of Forest about the seizure of truck. He contends that even as per said show cause notice there was transit pass for the wood in question and information given by one R.A. Chavan was also suppressed in said notice. He states that there were 3 passes having number 667308 dated 8/5/1998 and 736977 dated 29/10/1998 and 001805 dated 7/1/1999. Petitioner states that all these 3 passes need to be looked together and the entire timber transported is covered by it. He states that perusal of first two passes reveal that timber therein belongs to Sahebrao Ghuge of Malegaon and Ramchandra A. Chavan of Bodkha. Therefore the allegations made in show cause notice were incorrect and false. He appeared before the authority issuing show cause notice and requested to supply all documents but respondent avoided to supply these documents and did not even permit him to take inspection of records. Ultimately on the basis of information and documents which he could gather, he filed his reply pointing out his innocence. He states that he also pointed out report dated 17/3/1999 submitted by Range Forest Officer Shri Bansod communicating that the report of illegal transportation was doubtful. He also relied upon statement of guard Shri Chavan and others to point out that their statements also did not support facts in show cause notice. He contended that show cause notice issued was without any inspection of the concerned owners & forest rangers. In spite of this on 17/6/2002 authority passed the order and confiscated the truck. Hence he preferred Appeal No 42/2002 under Section 61D but the same came to be dismissed on 14/10/2002.

(3.) We have heard Advocate Anil Mardikar for the petitioner and Shri Badar, Special counsel for the respondent. Inviting attention to the fact that the truck was not interrupted while allegedly transporting illicitly felled timber but was seized more than a month thereafter and that too from his residence, petitioner contended that the identity of timber seized from Saw Mill at Kolhapur with the timber transported through his truck has not been established. Learned counsel argues that Saw Mill may be having other timber and that timber cannot be fastened upon or corelated with truck of petitioner. He states that entire timber was transported as per valid transit pass issued on 7/1/1999 and the wood of Katsawar was very much included in it. He further argues that case of department is that said transit pass is forged but the officer of department, prima facie found responsible by respondents for issuing it, could not be prosecuted and the department has accordingly filed report in the court of J.M.F.C. He argues that no excess quantity of timber was transported by petitioner. He has taken the court through the material on record and also through the impugned orders. As against this Shri Badar, learned counsel for Department has contended that even if all 3 transit passes are read together, the fact of illegal transportation is established. 1.388 cubic meters have been transported illegally and 20 logs without any hammer marks have been seized from Geeta Saw Mill. He argues that burden to explain transportation of illegal timber was upon petitioner and he has failed to discharge it. He further invites attention to relevant provisions of Indian Forest Act to point out the scheme and to state that impugned orders are perfectly legal & valid. He further states that against the officers of forest Department, who conspired with the petitioner, departmental inquiry has already been initiated.