Allowed

Arjun Bhaurao Patil v. the State of Maharashtra and Anr.

Bombay HC23 Mar 2018WP/1765/2017

Case brief

AI extract

What is this about?

In two criminal writ petitions, a Division Bench ordered the quashing of orders confiscating JCB machines owned by petitioners hired to operate them. The court held the owners lacked knowledge of the offence and granted custody to them in lieu of an interim bond.

What did the court decide?

Confiscation orders of respondent no.2 and the Sessions Judge were quashed; custody of JCB machines granted to petitioners upon execution of a surety bond of Rs. 25 Lakh subject to conditions.

Arjun Bhaurao Patil Vs the State of Maharashtra and Anr. — Property and Title | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL WRIT PETITION NO. 1765 OF 2017

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Arjun Bhaurao Patil,
age 54 years, occ. Agriculture,
R/o Gotane, Tal.& Dist. Dhule… Petitioner

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VERSUS

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1] The State of Maharashtra,

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2] The Authorised Officer, Assistant Conservator of Forest, Forest Department, Dhule … Respondents

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.....

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Mr. S.S.Patil, advocate for the petitioner
Mr. G.O.Wattamwar, A.P.P for respondents

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.....

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CRIMINAL WRIT PETITION NO. 1817 OF 2017

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Pramod Ananda Gujar,
age 49 years, occ. Agriculture,
R/o At Post Wadi,
Tal.Shirpur, Dist. Dhule...Petitioner

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VERSUS

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1] The State of Maharashtra, through Range Forest Officer, Shirpur, Tal.Shirpur, District Dhule,

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2] The Authorised Officer, Assistant Conservator of Forest, (Regional and Wild Life) Forest Department, Dhule … Respondents

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.....
Mr. S.P.Brahme and Mr. R.S.Devdhe, advocates for
the petitioner

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Mr. G.O.Wattamwar, A.P.P for respondents

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.....

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CORAM : K.L.WADANE, J.
DATE OF RESERVING
THE JUDGMENT : 21.3.2018
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 23.3.2018

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J U D G M E N T :

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Rule. Rule returnable forthwith. With

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the consent of the learned counsel for the

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parties, both the petitions are taken up for final
hearing.

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Heard the learned counsel for the

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petitioners and the learned A.P.P. For respondents
in both the petitions.

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2.By the present petitions, under Article
227 of the Constitution of India, the petitioners

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challenge the orders, dated 19.10.2015 and
29.10.2015, respectively, passed by respondent

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no.2 and the judgment and order dated 23.11.2017,
passed by learned Sessions Judge, Dhule, in
Criminal Appeal Nos. 89 and 92 of 2015,
respectively.

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3.It is the case of the petitioners that

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they are agriculturists by occupation and for the
purpose of carrying out agricultural activities
they have purchased JCB machine bearing
registration no. MH-18/Z-7364 and no. MH-18/Z-
3071, respectively.

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4.In Writ Petition No. 1765 of 2017,
Chhagan Pawar is accused no.1 and Bhausaheb

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Mausule, driver of JCB machine is accused no.2.
It is contended that on 29.6.2015, the accused
persons spotted felling and cutting trees for

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preparing boundary of agricultural land by using
aforesaid JCB machine on Block No. 205 of Chaugaon
reserved forest land. It is further contended

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that Chhagan Pawar owner of land bearing Gut No.
385 has engaged the said JCB machine for preparing

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boundary of his agricultural land. It is
contended that forest officer registered offence
bearing C.R. No. 2 of 2015 for an offence
punishable under Section 26 (1) of Indian Forest
Act, 1927 (for short, 'the Forest Act') against
said Chhagan Pawar and driver of JCB machine
namely, Bhausaheb Mausule.

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5.In Writ Petition No. 1817 of 2017,

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Shrikant Chaudhari is accused no.1 and Pravin
Bhil, driver of JCB machine is accused no.2. it is
contended that on 3.7.2015, the reserved forest
land bearing compartment No. 909, situated at
Nandarda was found to be encroached by the accused
persons and it was noticed that leveling and
digging work was done by them by using JCB
machine, thereby causing damage to the forest
property. Hence, the forest officer registered
offence at C.R. No. 1 of 2015, for offence
punishable under Section 26 (1) of Indian Forest
Act, 1927 (for short, 'the Forest Act') against
said Shrikant Chaudhari and driver of JCB machine

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namely, Pravin Bhil.

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6.It is further contended that the forest
officer seized said JCB machines. It is contended

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that the accused persons were arrested and
released on bail. It is further contended that

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the petitioners are merely owners of said JCB
machines and they had no knowledge about the
alleged offence. However, the JCB machines owned
by the petitioners came to be seized by respondent
authorities.

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7.ThepetitionerspreferredCriminal

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Miscellaneous Application No. 1351 of 2015 and
Criminal Miscellaneous Application NO. 345 of
2015, respectively, under Section 457 of the Code
of Criminal Procedure, before Judicial Magistrate,

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First Class, Dhule for custody of JCB machines.
Learned Magistrate rejected the said applications

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by orders, dated 27.8.2015 and 18.8.2015,
respectively, on the ground that he does not have
jurisdiction to entertain such applications, since

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the JCB machines were seized under Section 52 of
the Forest Act.

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8.The petitioners thereafter approached
respondent no.2 seeking custody of JCB machines.
The petitioners have contended that the JCB
machine were not used in commission of the
offence, but those were given on hire for carrying
out agricultural activities, namely cultivation,
etc. The petitioners have no knowledge that the
JCB machines would be used for causing damage to
the forest land. The petitioners have stated
before respondent no.2 that they are ready to
execute necessary bond and furnish security for
release of the JCB machines. The petitioners also
contended before respondent no.2 that they have
purchased JCB machines by obtaining loan and it is
becoming difficult for them to pay installments to
the finance company, and thus, they are suffering
financial loss.

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9.Respondent no. 2 passed orders on

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19.10.2015and29.10.2015,respectively,
confiscating the JCB machines under Section 61-A
of the Forest Act.

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10.Aggrieved by the orders, dated 19.10.2015
and 29.10.2015, passed by respondent no.2, the
petitioners preferred Criminal Appeal Nos. 89 of
2015 and 92 of 2015, respectively, under Section
61-D of the Forest Act, before learned Sessions
Judge, Dhule. After hearing the parties, learned
Additional Sessions Judge, Dhule dismissed the
appeals, by order, dated 1.3.2016, thereby
confirming the orders passed by respondent no. 2.

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11.Being aggrieved by the aforesaid orders,
passed by the learned Additional Sessions Judge,
Dhule, the petitioners have preferred Criminal

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Writ Petition Nos. 426 and 452 of 2016,
respectively, in this Court. This Court, by order
dated 24.8.2016, allowed the petitions partly, set
aside the judgment and order, dated 1.3.2016,
passed by the learned Additional Sessions Judge,

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Dhule, in Criminal Appeals and remitted matter
back to the learned Sessions Judge, Dhule, thereby
directing to decide the same by himself. This
Court also directed that till final decision of
appeals, respondent no.2 or his subordinates are
restrained from auctioning the JCB machines
belonging to the petitioners.

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12.After remand as aforesaid, learned
Sessions Judge, Dhule, by judgment and order,
dated 23.11.2017, dismissed the appeals preferred
by the petitioners. Thus the present petitions.

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13.Mr. Patil and Mr. Brahme, learned counsel

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appearing on behalf of the petitioners, in both
the petitions, argued that the petitioners are not
at all concerned with the offence registered under
the provisions of the Forest Act. They submit
that the petitioners are owners of the JCB
machines and they have given the same on hire.
The petitioners have no knowledge that the JCB
machines would be used in commission of alleged

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offence under the Forest Act. In view thereof,
respondent no.2 committed an error in passing the
order of confiscation. Learned counsel submits
that the learned Additional Sessions Judge
committed an error by dismissing the appeals
preferred by the petitioners. They further submit
that for lack of knowledge that the JCB machines
would be used in commission of forest offence,
respondent no.2 ought not to have confiscated the
JCB machines.

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14.Learned counsel submit that the forest
officer has recorded statements of the
petitioners, wherein the petitioners have stated
that they are neither connected with the
commission of the offence nor they have done the
same intentionally and that they have given on
hire the said JCB machines to the accused.

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15.In support of their submissions, learned
counsel for petitioners placed reliance on the
judgment rendered by the Division Bench of this

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Court at Nagpur in the matter of Authorised
Officer/Assistant Conservator of Forest (FLS) and
others vs Mohammad Arif Ibrahim Solanki and
another, reported in 2012 (1) Bom.C.R. (Cri.) 276
and the judgments rendered by learned Single Judge
of this Court in the matter ofState of
Maharashtra and another vs Kisan Genu Pawar,
reported in 1991 (2) Bom.C.R. 167 and in the
matter of Laxman Kisan Mundhe and others vs The
Conservator of Forest, Thane and others, reported
in 1999 Bom.C.R. (Cri.) 849.

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16.Learned Additional Public Prosecutor

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opposed the petitions. Affidavit-in-reply of
respondent no.2 is filed on record. Learned
Additional Public Prosecutor submits that the

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impugned orders are legal and justified in the
facts and circumstances of the present case. In
support of his submissions, learned Additional
placed reliance on judgments in the case of,
(1) State of West Bengal and anr. Vs Mahua Sarkar

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[2008 (12) SCC 763], (2) Mohd. Ashique vs State

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of Maharashtra [2009 (1) SCC 368], and (3) Kavita
Sandip Tandel vs State of Maharashtra and another
[2015 ALL M.R. (Cri.) 2760].

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17.Upon hearing the parties and on perusal of
the record as well as affidavit-in-reply and the
authorities cited, it is noticed that respondent
no.2, without there being any supporting material,
arrived at the conclusion that the petitioners had
knowledge that the JCB machines given on hire to
accused persons would be used in commission of the
forest offence. There is no material on record to

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draw an inference that the petitioners had
knowledge that the said JCB machine would be used
in commission of the forest offence. Thus, the
orders passed by respondent no.2 confiscating the
JCB machines are not sustainable in law.

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18.Learned counsel for petitioners were
justified in placing reliance on the judgments
cited supra. In the judgment rendered in the
matter of Laxman Kisan Mundhe (supra), learned

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Single Judge has held that the order passed on

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assumption that offence was committed with
knowledge of owner was not proper. The ratio
laid down in the judgment in the matter of Laxman

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Kisan Mundhe (supra) is squarely applicable to the
facts of the present case, whereas the facts in
the cases relied on by the learned Additional
Public Prosecutor are different than the present
case, and thus, those judgments are not applicable
to the facts of the present case.

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19.The petitioners are not involved in the
forest offence. They are owners of the JCB
machines in question. Their statements were
recorded by the forest officer, wherein the
petitioners have stated that they have no

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knowledge that the said JCB machines given on hire
to the accused for the purposes of carrying out

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agricultural activities would be used for clearing
forest land for cultivation. The trial against

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the accused may take considerable time for its
conclusion. If the said machines are kept idle

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for longer period, there is every likelihood of

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causing damage to the machines and financial loss
to the petitioners. It is also to be noted that
the trial in STCC No. 1311 of 2015 and STCC
No.1285 of 2015, respectively, against aforesaid
accused is pending adjudication before learned
Magistrate and the offence is yet to be proved
against the accused.

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necessary to order interim custody of the JCB
machines in favour of the petitioners, subject to
certain conditions.

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2015 and Criminal Writ Petition No. 1817
of 2017 are allowed.

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29.10.2015, respectively, and the impugned

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orders, dated 23.11.2017, passed by

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learned Sessions Judge, Dhule, in Criminal
Appeal Nos. 89 and 92 of 2015 are quashed
and set aside.

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(iii)The custody of the JCB machines be
given to the petitioners, on executing
suprutnama of Rs. 25 Lakh, till disposal
of the trial.

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(iv)The petitioners shall not dispose
of or transfer the JCB machines and shall
not change the nature and look of the JCB
machines.

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(v)The petitioners are directed to
produce the JCB machines, as and when
required by the Trial Court, for the
purpose of hearing.

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(vi)Rule is made absolute accordingly.

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 (K.L.WADANE, J.)

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dbm

Arjun Bhaurao Patil v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Arjun Bhaurao Patil v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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