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SCR.A/787/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 787 of 2008
======================================
MANSINGBHAI
SHANKARBHAI DANGI
Versus
STATE
OF GUJARAT & another
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Appearance :
MR
HRIDAY BUCH for petitioner
Mrs.
Falguni Patel, APP, for
respondent-State
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 27/08/2008
ORAL
ORDER
1 This
petition under Article 227 of the Constitution of India is filed by
the petitioner challenging the order dated 29th December
2007 passed by the learned Principal District Judge, Dahod, in
Criminal Appeal [Forest] No.8 of 2006, confirming the order dated 6th
June 2006 passed by the Deputy Conservator of Forest, District Dahod,
respondent No.2 herein, in Baria Round Crime No.6/2005-06,
confiscating vehicle Tempo No.GJ-20-T-3712, under Section 61[C] of
the Indian Forests Act, 1927, [for short, ‘the Act’].
2 When
the present matter came up for admission hearing, this Court passed
the following order on 17.6.2008.
?SHeard Mr.Hriday Buch,
learned Advocate for the petitioner.
2. It is submitted that
at the time of the raid, some of the pieces of the wood were lying in
the tempo belonging to the petitioner; whereas rest of the pieces
were lying in the Saw Mill. That despite the aforesaid position, the
owner of the Saw Mill has been let-off lightly; whereas the tempo of
the petitioner has been confiscated. It is submitted that the
petitioner is ready and willing to deposit an amount equal to the
value of the entire stock of teak wood. It is further submitted that
this is the first offence registered against the present petitioner
and that in any case considering the allegations made against the
petitioner, the same do not justify confiscation of the tempo of the
petitioner.
3. Considering the
submissions advanced by learned Advocate for the petitioner as well
as considering the findings recorded by the learned Principal
District Judge, Dahod, issue Notice and Notice as to interim relief
returnable on 2nd July, 2008.
4. Mr. K.P.Raval, learned
Additional Public Prosecutor, waives service of Notice on behalf of
respondent No.1-State of Gujarat. Direct Service is permitted qua
respondent No.2.??
3 It
is the case of the prosecution that on 22nd October 2005,
the vehicle in question was used for illegal transporting teak wood
worth Rs.20,686/- without pass or permit. Therefore, Round Crime No.
6/2005-06 was registered and the petitioner was arrested. Thereafter,
a notice was issued to the petitioner under Section 61(A), (B) read
with Section 51(1) of the Act. The petitioner filed reply thereto.
After affording an opportunity of hearing, respondent No.2 passed
the order dated 6th June 2006 confiscating vehicle Tempo
No.GJ-20-T-3712, under Section 61[C] of the Act. Being aggrieved by
the said order, the petitioner filed Criminal Appeal [Forest] No.8
of 2006 in the Court of learned Principal District Judge, Dahod,
who, by judgment and order dated 29th December 2007,
dismissed the said appeal and confirmed the order passed by
respondent No.2.
4 Heard
learned counsel for the petitioner and learned APP.
5 Learned
counsel for the petitioner submits that the petitioner has been
falsely implicated with a view to save the saw-mill owner. He further
submits that the impugned order has been passed by respondent No.2 in
gross violation of the principles of natural justice and the
documents, which are relied upon by respondent No.2, are not served
upon the petitioner. He submits that both the authorities below have
unnecessarily placed reliance on the mobile phones belonging to the
petitioner and the saw-mill owner and wrongly drawn inferences, which
are unsustainable. He further submits that the vehicle in question is
the only source of livelihood and, even on humanitarian ground also,
the impugned orders deserve to be quashed and set aside and the
vehicle in question may be released by imposing reasonable amount of
fine.
6 A
bare perusal of the order passed by the Competent Authority in
exercise of powers under Section 61(A)(B) of Act, it is clear that,
after appreciating documentary as well as oral evidence, it was found
that the vehicle in question was involved in commission of offence
punishable under Sections 26(1)(f) and 41(2)(b) of the Act. While
passing the order dated 6th June 2006, the Competent
Authority has considered various facets, namely, statements of
labourers, saw-mill owners, and contact of the petitioner with the
saw-mill owners with mobile telephone and it was found that timber
woods freshly cut was transported.
6.1 In
the appeal preferred by the petitioner, the learned Principal
District Judge, Dahod, in paragraph 15, 16 and 17 of the order dated
29th December 2007, observed as under.
?S15. Looking
to the records of the case and order passed by the respondent, the
appellant had been given a show cause notice dated 25.11.2005 which
was replied by the appellant on 18.11.2005 and 3.12.2005 in form of
written statement. As per the Rojkam made in the record, the
appellant remained present on the day of hearing on 27.12.2005 and
10.1.2006. Considering these very facts, one cannot say that the
reasonable opportunity was not given to the appellant for being heard
and on the basis of such argument, the order passed by the respondent
cannot be held one-sided or illegal. It is the say of the appellant
that the forest officer had not acted as per the provisions of the
Forest Act. But, particularly, at what point of time, the forest
officer illegally acted or did not act as per the provisions of the
Forest Act, is not shown by the appellant, in such circumstances, I
do not find any force in this argument and it clearly appears vague
without any support of even a single documentary or oral evidence.
16 The
Ld. Adv. Mr. Chhajed has referred to and relied upon the authorities,
cited above. I have gone through all the cited decisions of the
Honourable Supreme Court as well as the Hon’ble High Court and I
fully agree with the principles laid down by the Honourable Supreme
Court as well as the Hon’ble High Court in the said decisions, but,
so far as the facts of the present case are concerned, they are quite
different and in the present matter, the appellant has admitted the
offence committed as per the Forest Act and there is a clear
provision made under the Forest Act that the vehicle found illegally
transporting teak-wood being cut from the reserve forest without pass
or permit shall be confiscated to the Government, in such
circumstances, the cited authorities are not helpful to the present
appellant.
17. Thus,
in view of the above discussion, I am of the clear view that the
order passed by the Forest Authority confiscating the vehicle tempo
of the appellant to the Government is legal and proper and as per the
provision of the Act. As per the submission of the appellant, the
family was being maintained from the income earned from the use of
the tempo. But, when it clearly appears from the record that the
appellant has illegally transported the fresh teak-wood, cut from the
forest area without pass or permit and there is a clear provision
laid down under the Forest Act that such vehicle shall be confiscated
to the Government, then one cannot say that the order, confiscating
the vehicle tempo of the appellant, passed by the respondent is
illegal or perverse or against the principles of natural law and
requires any interference by this Court. So, I do not find any
reason/ ground in the appeal to interfere in the impugned order,
hence, the appeal deserves to be dismissed and following order is
passed.??
7 In
the above backdrop of circumstances, the decision of the respondent
No.2 to confiscate the tempo-vehicle of the petitioner for
involvement into the forest offences and imposing punishment on the
saw-mill owners of Rs.20,000/- cannot be said to be illegal or
violative of Article 14 of the Constitution of India. In the case of
Style [Dress Land) vs. Union Territory, Chandgarh and another,
reported in (1999) 7 Supreme Court Cases 89, the Apex Court held that
Article 14 cannot be pressed into service for perpetuating an
illegality.
8 On
perusal of the orders passed by respondent No.2 and the lower
Appellate Authority, it cannot be said that the courts below have
committed any error of law much less any jurisdictional error of law.
No case is made out to disturb the orders passed by the courts below
recording concurrent findings of fact. The plea of the learned
counsel for the petitioner to consider the case of the petitioner for
a lighter punishment cannot be appreciated by this Court because the
Courts are more concerned with the decision making process rather
than the decision itself. This Court, in exercise of power under
Article 227 of the Constitution of India, cannot re-appreciate the
evidence, substitute its own reasons, and modify the well-reasoned
orders passed by the Courts below.
9 As
a result of foregoing discussion, this petition has no substance and
is rejected. Notice is discharged.
(ANANT
S. DAVE, J.)
(swamy)
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