Partly allowed

State of Maharashtra v. Bhimsingh Shishu Ramsingh Mandal

Bombay HC30 Jul 2008WP/1192/2001

Case brief

AI extract

What is this about?

State filed writ to quash Sessions Judge order allowing respondent's appeal against vehicle confiscation. High Court found Sessions Judge erred in not applying Section 61-B(2), which places burden on owner to prove lack of knowledge.

What did the court decide?

Petitioner's writ petition partly allowed; impugned order quashed; appeal remanded to Sessions Judge to decide afresh within six months considering Section 61-B(2); criminal appeal restored to file.

State of Maharashtra Vs Bhimsingh Shishu Ramsingh Mandal — Land Acquisition | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1192 OF 2001.

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The State of Maharashtra.

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..Petitioner.

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versus

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Bhimsingh Shishu Ramsingh Mandal.

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..Respondent.

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Ms.A.T.Jhaveri, APP, for the Petitioner. None for the Resondent.

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CORAM : A.S. OKA, J. DATE : 30TH JULY,2008.

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ORAL JUDGMENT :

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The submissions of the leaned APP were heard on 23rd July 2008 and 28th July 2008. I had called upon the learned APP to produce the original record

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and the learned APP has produced the original record

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for consideration of this Court.

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2.		By this	Writ Peti	tion unde	r Articl	e 227 of
the	Constit	ution	of	India,	the	Petition	er-	State	of
Maharashtra		has	taken	an	excepti	on to	the	Ju	dgement
and	Order	dated	9th	May	2001	passed	by	the	learned
Sessions	Judge	at	Thane,	in	an	Appea	l	preferred	under
Section	61-D	of	the	In	dian	Forest	Act,	1927	as

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amended by Maharashtra Act No.VII of 1985

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(hereinafter referred to as "the said Act of 1927").

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With a view to appreciate the submissions

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made by t	he learned APP appearin	g for the Petitioner,
it will	be necessary to refer to	the facts of the
case in	brief. The truck	bearing registration
no.HR-32-GA-0069	which was bearin	g a fake number
plate was	seized on 23rd April	2000. The allegation
is that	the truck was been	used for illegally
transporting	certain forest produce.	An offence was
registered u	nder the said Act	of 1927. The
Respondent	herein is claiming to be	the Owner of the
said truck.	The Authorised Office	r held an inquiry
and passed	an order dated 31st	August 2000 releasing
the truck	on the ground that the	Respondent did not
consent or	connive in use of the	said truck in the
forest offen	ce and the Respondent-	Owner had taken
precaution for	ensuring that the truc	k is not used in
forest offence.	The Conservator	of Forests exercised
suo-motu p	ower under section 61-C	of the said Act of
1927 and	passed an order setting	aside the order of
the Authori	sed Officer dated 31st A	ugust 2000. The
Conservator	of Forests directed that	the said truck
shall be co	nfiscated. An Appeal	was preferred by the
Respondent	herein before the learn	ed Sessions Judge

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by invoking Section 61-D of the said Act of 1927. By

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the impugned Judgment and Order, the said Appeal has

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been allowed by the learned Sessions Judge.

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4.	Th	e learned A.P.P appearing for the Appellant
has	taken	me through the record and especially	the
orders	dated	31st August 2000 and 1st February	2001.
The	learned	APP invited my attention to sub-	section
(2)	of	Section 61-D and submitted that adm	ittedly,
the	truck	was caught carrying forest produce	and
therefore,	the	burden was on the Respondent-Owner	to
prove	that the	truck was so used without	his
knowledge	or	connivance and that he had taken	all
reasonable	and	necessary precautions against	such
use.	She	pointed out that the contention of	the
Respondent	was	that he had issued a notice dated	1st
January	1998	to the driver and the cleaner em	ployed
by him	calling	upon them not to use the truck for	any
illegal	purpose.	She submitted that after holding	an
inquiry,	the	Conservator of Forests found that	the
alleged	notice	dated 1st January 1998 was	a
fabricated	docu	ment. She submitted that	the
Respondent	did	not discharge the burden	by
establishing	the	authenticity of the said	notice
dated	1st Jan	uary 1998. She pointed out	that

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according	to the	case	of the	Respondent, the	said
notice	was typed	at	Village	Narvane, District	Jing,
State	of Haryana	and	the	inquiry made by	the
Conservat	or of	Forests	after	recording the st	atement
of	one Sachin	Suresh	Gujre	showed that the	said
notice	was typed	at	Villag	e Shahapur in	Taluka
Shahapur	District	Thane	long	after 1st January	1998.
She	also invited	my	attenti	on to the report	of
Forensic	Science	Laborat	ory,	Mumbai dated	1st
February	2001	which	proves	that the alleged	notice
dated	1st Janua	ry 1998	was	typed at Shahapur	after
1st	January 1998.	Sh	e sub	mitted that the finding	of
the	learned Sessi	ons Ju	dge th	at the statement of	the
said	Sachin Suresh	Gujre	was	recorded behind the	back
of	the Responde	nt i	s comp	letely erroneous.	She,
therefore,	submitted	that in	the	light of the	finding
recorded	by the	Cons	ervator	of Forests after	holding
an	inquiry, the	learned	Sessions	Judge ought not	to

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have interfered. None has appeared for the

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Respondent.

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I have carefully considered the submissions.

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Section 61-A of the said Act of 1927 provides that whenever a forest offence is believed to have been committed in respect of notified forest produce or

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timber, sandle-	wood, etc., whi	ch is	the property	of
the State	Government, the	Officer	seizing the	said
property together	with all	tools,	boats, vehicles	and
cattle used	in committing	such	an offence	shall
produce the	same before	the	Authorised	Officer.
Sub-section (3)	of Section	61-A gi	ves power to	the
Authorised Off	icer to pass	an ord	er of con	fiscation
of the for	est produce as	well as	vehicles used	in
commission of	the offence.		Sub-section (1)	of
Section 61-B	provides that	no ord	er of con	fiscation
of the timber,	sandalwood as	well	as goods,	vehicles,
etc. shall	be made wit	hout givi	ng notice in	writing
to the reg	istered Owner o	f the	vehicle. Su	b-section
(2) of	Section 61-B	provides	that no	order
confiscating	any tool, boat	, vehicl	e or cattle	shall
be made und	er Section 61-A,	if the	Owner of the	said
tool, boat,	vehicle or	cattle	proves to	the
satisfaction of	the Authorised	Officer	that the	use
of the too	l, boat, vehic	le for	carrying	timber,
sandalwood, etc.	was made	without	the knowledge	or
connivance of	the Owner and	that	the Owner had	taken
all reasonab	le and necess	ary pr	ecautions against	the
said illegal	use. Thus,	in such	inquiry, the	burden
is on the	Owner of the	vehicle	used for	carrying
timber, sandalwo	od, etc. t	o prove	that the use	of

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the vehicle was without his knowledge or connivance or without knowledge and connivance of his agent and that each of them have taken all reasonable and necessary precautions against such use. Thus, this

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burden has to be discharged by the registered owner

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of the vehicle before the Authorised Officer.

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Section 61-C gives power to the Authorised

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Officer not below the rank of Conservator of Forests to suo-motu call for the record of any order passed

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under Section 61-A of the said Act of 1927 and to

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make such an inquiry as he deems fit.

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It must be noted here that the case of the

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Respondent-Onwer before the Authorised Officer was that the driver and the cleaner of the truck used the truck for carrying the forest produce without his knowledge. The Respondent had placed reliance on a letter dated 1st August 1998 allegedly issued by him

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to show that the Respondent had taken all necessary

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precautions against said use of the vehicle.

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In paragraph No.10 of the impugned order, the

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learned Sessions Judge has observed thus :-

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"10. Unfortunately what has been opted by

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the Conservator Mr.Zha	is that he called	upon
Mr.Appellant and go	t replied from his	mouth
in the form of	questions and answer and	at
that time perhaps	he must have	been
surrounded by	the Khaki uniformed	officers
either from the for	est department or from	the
police department.	Notice is issued by	the
forest department	to this	appellant
dtd.28.06.2000 before	passing this alleged	so
called review order	however, the statement	is
recorded of the	witness Sachin Suresh	Gujre
as later on 2.12.2	000 and that too,	perhaps
behind back of	the appellant.	Question
answer formula seems	to have been recorded	on
16.11.2000 as is	so reflected from	the
original document	of question answer	form.
This positively go	to indicate that	alleged
statement of Sachin	was never therefore,	came
into existence at	all for being put to	the
present appellant	which was ad	mittedly
recorded on 2.12.20	00. I fail to un	derstand
as to how stat	ement recorded of	witness
Sachin Gujre recorded	later on can be	alleged
to be used ag	ainst appellant and that	too,
for confiscating his	own property worth	lakhs
of rupees. This	is nothing but	order
reflected to certai	n attitude of anarchy	and
nothing else can attitude."	be said about	this

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I have perused the statement of the son of

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the	Respond	ent	who	appeared	on	behalf	of	the
Respondent		before	t	he	Conservator	of		Forests.
Perusal	of	the	record	of the	inquiry	shows	that	the
Respondent	was	g	iven	all the	opportu	nity	to	discharge
the	burden	on	him.	The	Respondent	was	given	ample

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opportunity to prove the notice dated 1st August

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10.	The finding recorded by th	e Conservator of
Forests	in revision under s	ection 61-C was that	the
Respondent	has failed to dis	charge the burden on	him.
The	perusal of the impugne	d Judgment shows that	the
learned	Sessions Judge has	not at all considered	the
provisions	of section 61-B	and in pa	rticular,
sub-section	(2) thereof which	puts the burden on	the
Owner	to prove the	absence of knowledge	and
connivance	on his part and	also to prove that he	has
taken	all necessary	and reasonable pre	cautions
against	the illegal use	of the vehicle.	While
upsetting	the findings recorded	by the Conservator	of
Forests,	the learned Sessio	ns Judge has not r	ecorded
a	finding that the Respo	ndent discharged the	burden
contemplated	by sub-section	(2) of Section 61-B	of
the	said Act of 1927.	The appeal before the	learned
Sessions	Judge was under	section 61-D which	was
directed	against an order	passed under section	61-C.
Since	the learned Sessions	Judge was exercising	the
appellate	power, it was	necessary for the	learned
Sessions	Judge to consider	the material on record	of
the	inquiry and to ascert	ain whether the Res	pondent
has	discharged the burden.	Perhaps the attention	of
the le	arned Sessions Judge	was not invited	to
sub-section	(2) of Section	61-B of the said Act	of

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Even assuming that the statement of Sachin Gujare was recorded by the Conservator of Forests behind the back of the Respondent, it was for the learned Sessions Judge to consider the material on record independently and to record a finding on the question whether the Respondent had discharged the burden on him. There is no specific finding recorded in the appeal that the Respondent had discharged the

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said burden. the entire approach of the learned

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Sessions Judge appears to be erroneous.

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The Petitioner has filed this Writ Petition

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under	Articl	es 226	and	27 of	the	Constit	ution	of
India.		While	deciding	the Wr	it	Petition		finally,
this	Court	cannot	record	a finding	of	fact	on	the
question		whether	the	Respondent	had	discharge	d	the
burden	on	him.	This	Court	cannot	reappreci	ate	the
evidence.		The	said exer	cise has	to be	done	by	the
Court	of	Appeal	as the	Appellate	Court	can		consider

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the entire evidence on record afresh and even

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re-appreciate the same.

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Considering what is stated above, in the

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interests of justice it is necessary that by setting

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aside the impugned order, an order of remand should

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10 -

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be passed.

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Hence, I pass the following order :-

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(1) The impugned order dated 9th May 2001 is

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quashed and set aside and Criminal Appeal

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No.13/2001 is restored to the file.

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(2) The learned Sessions Judge shall decide

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the Appeal afresh as expeditiously as

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possible and preferably within the period of

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six months from the date of production of a

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certified copy of this order before the

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learned Sessions Court.

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(3) The learned Sessions Court is bound to consider provisions of section 61-B of the said Act of 1927 while deciding the appeal afresh. (4) The Writ Petition is partly allowed in above terms with no orders as to costs.

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[ A.S.OKA, J.]

State of Maharashtra v. Bhimsingh Shishu Ramsingh Mandal

Case brief

What is this about?

What did the court decide?

State of Maharashtra v. Bhimsingh Shishu Ramsingh Mandal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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