KAMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CAN the cattle instrumental in the commission of forest offence under Section 26 (1) (d) and/or (f) of the Indian Forest Act, 1927 (the Act) be confiscated under Section 61a (3) of the Act, is a point of some importance raised in this petition.

(2.) FACTUAL background is: The petitioners Kama Gawali, Rira Gawali and Pandu Wada are nomadics who migrate along with their cattle from place. They had at the material time settled in the village Zari in district Chandrapur, which is in the vicinity of a forest. On 25-6-1988 herds of about 125 cattle were found grazing deep inside the compartment No. 345 of a reserved forest. The cattle belonged to the petitioners. Three graziers were looking after the cattle. With the help of about 150 labourers engaged by tjle Forest Officers the herds of cattle was attempted to be caught. On noticing the forest office and the labourers, graziers ran away. 65 cattle heads were caught In the forest and a large number ran towards the village were they w re chased and caught. The cattle was seized. Some statements were recorded and a show cause notice under Section 61 (b) was issued to the petitioners as to why the cattle seized should not be confiscated under Section 61 A (3) The petitioners admitted that they had no licence for grazing cattle in the forest, that the cattle had entered the forest and that they were liable to pay fine, Indeed they even showed willingness to pay the fine. One of their contention was that they had gone out to the market and cattle strayed in the forest by the animal instinct. The second respondent after holding enquiry recorded a belief that forest offence of pasturing cattle and/or permitting cattle to trespass under Section 26 (1) (d) and damaging the tress under Section 26 (1) (f) were committed and the said cattle were instrumental in the commission of those offences. He, therefore, ordered the cattle seized under Section 52 (1) to be confiscated under Section 61a. The said order was challenged in appeal under Section 61d before the sessions Judge, who was pleased to remand the matter to the second respondent for fresh inquiry. Accordingly fresh inquiry was also held, 7 persons were examined. The petitioners cross-examined them through a lawyer and also examined defence witnesses. After hearing the petitioners order of confiscation was made once again. Appeal was carried to the Sessions Judge by the petitioners but without any success and hence this petition. Facts found are - (i) cattle were unauthorisedly pastured and/or permitted to be trespassed in the reserved forest by the petitioners with the help of graziers, (ii) the cattle ate and damaged forest produce such as grass, young plants of bamboos and other tree saplings and caused damage to the tune of Rs. 4- 68 lakhs, (iii) the guilt was even admitted and (iv) the defence of cattle straying in the forest merely by animal instinct despite all possible precautions by the owners was incorrect.

(3.) A brief resume of alient provisions of the Act relevant for the purposes of adjudication of me points involved may be made first. Section 2 (1) of the Act defines the term Tcattle Section 2 (3) the term forest-offence, Section 2 (6) the term timber and Section 2 (7) the term tree. Section 26 (1) gives the list of forest offences. Sub section (d) and (f) read thus: 26. Acts prohibited in such forests (1) Any person who (d) Trespasses or pastures cattle, or permits cattle to trespass: (e) Fells, girdles, lops, taps or bumo; any tree or strips off the bark or leaves from or otherwise damages, the same. Section 52 deals with the subject of seizure of property liable to confiscation and forfeiture, Section 55 deals with forfeiture, by a convicting Court, Section 61ato 610 as inserted by the Indian forest (Maharashtra Amendment) Act, 1984 (Act No. 7 of 1985) deal with the power and procedure for confiscation of property which is independent of a criminal prosecution. Sections 61a and 61b are material and hence we reproduce them for ready reference. TT6ia. (I) Notwithstanding anything contained in the foregoing provision of this Chapter or any other law, where a forest - offence is believed to have been committed in respect of timber, sandalwood, firewood, charcoal or any other notified forest produce which is the property of the State Government, the officer seizing the property under sub-section (1) of Section 52 shall without any unreasonable delay produce it, together with all tools, boat vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf by notification in the Official Gazette, not being an officer below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer) (2) The State Government may authorise on or more officers for any local area under subsection (1 ). (3) Where an authorised officer seizes under sub-section (I) of Section 52 any timber, sandalwood, firewood, charcoal or any other notified forest-produce which is the property of the State Government or any such property is produced before an authorised officer under sub-section (1) and he is satisfied that a forest-offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest-offence, order confiscation of the property so seized together with all tools, boats, vehicles and cattle used in committing such offence. (4) (a) Where the authorised officer, after passing an order of confiscation under sub-section (3), is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof and the tools, boats, vehicles and cattle to be sold by public auction. (b) Where any confiscated property or the tools, boats, vehicles and cattle are sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses elating thereto shall, where the order of confiscation made under this Section is set aside or annualled by an order under Sections 61c or 61d, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order. 618. (i) No order confiscating any timber, sandalwood, firewood, charcoal or any other notified forest-produce, tools, boats, vehicles or cattle shall be made under Section 61 A except after notice in writing to the person room whom it is seized and considering his objections, if any: Provided that no order confiscating a motor vehicle shall be made except after giving notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so, and considering his objections, if any. (2) Without prejudice to the provisions of sub-section (I), no order confiscating any tool boat, vehicle or cattle shall be made under Section 61 A if the owner of the tool, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying the timber, sandalwood, firewood, charcoal or any other notified forest-produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use. Section 61c deals with the revisional power and Section 61d with the appellate power. Section 61e clarifies that the award of any confiscation under Section 61a Of Section 61c or Section 61d shall not prevent the infliction of any punishment under the Act or any other law. The Cattle Trespass Act, 1871 is applied to certain cattle trespass in a reserved forest by Section 70 of the Act which permits seizure and impounding of p cattle by any forest Officer or Police Officer. By Section 71, fines fixed under the Cattle Trespass Act is altered