JUDGMENT
C.V. Jani, J.
1. The only question agitated in these four petitions filed by the State of Gujarat and the Deputy Conservator of Forests of local division under Articles 226 & 227 of the Constitution of India, is whether the Sessions Judge has power to modify the order passed by the Forest Officer for confiscation of the vehicle in which some forest produce belonging to a third party was being transported without pass or permit. Hence, these four petitions are being heard and decided together by consent.
2. Spl. Cri. Appln. No. 113 of 1988 arises from the order passed by the learned Sessions Judge, Panchmahals, at Godhra, in Criminal Appeal No. 18 of 1987, filed by the owner and driver of the vehicle, whereby the learned Sessions Judge was pleased to set aside the order for confiscation passed by Shri Dinesh Mishra, Deputy Conservator of Forests, Devgadh Baria, and substitute the said order by imposing a penalty of Rs. 5,000/- on the owner of the vehicle in order that he may retain the custody of the vehicle. Teak wood worth Rs. 4,000/- was found to be carried in Matadoor Tempo GRQ No. 8060 by the Forest Officer on 8-5-1985. The forest produce no doubt came to be confiscated, but so far as the owner of the vehicle was concerned, the learned Sessions Judge was of the view that the order of confiscation passed by the Deputy Conservator of Forests would be unduly harsh and unjust and that imposition of penalty of Rs. 5,000/- would serve the ends of justice in view of the valuation of the Tempo at Rs. 75,000/-.
3. In Spl. Cri. Application No. 635 of 1988 the order of the learned Addl Sessions Judge, Panchmahals, at Godhra, in Criminal Appeal No, 21 of 1986 has come under challenge. Shri A.L.E. Sheikh, Deputy Conservator of Forests. Devgadh Baria, had passed an order for confiscation not only of teak wood but also the truck in which it was being carried on 26-11-1985. The learned Addl. Sessions Judge after examining the relevant provisions of law, set aside the order of confiscation of the truck and substituted it by imposing the penalty of Rs. 25,000/- in view of the fact that the Teak wood found in the truck was valued al Rs. 7,273/- only, by the Range Forest Officer.
4. In Special Criminal Appl. No. 876 of 1988 the appellate order passed by Shri A.M. Kapadia, Joint District Judge and Addl. Sessions Judge, Panchmahals, at Godhra, in Criminal Appeal No. 13 of 1988 has come under challenge. Nine pieces of Teak wood valued at Rs. 462/- were found to be carried in a truck on 11-1-1987 without the requisite pass or permit. Shri Dinesh Mishra, Deputy Conservator of Forests, Devgadh Baria, passed an order for confiscating the Teak wood as well as the truck. The owner of the vehicle challenged the order of confiscation of the truck by filing Criminal Appeal No. 13 of 1988 in the Sessions Court at Panchmahals, at Godhra. The learned Addl. Sessions Judge, after considering the relevant facts, set aside the order of confiscation of the truck and substituted it by imposition of penalty of Rs. 5,000/- in order to continue the custody of the truck.
5. In Special Criminal Appl. No. 888 of 1988, the petitioners have challenged the order of Shri N.L. Solanki, learned Addl. Sessions Judge, Panchmahals, at Godhra, in Criminal Appeal No. 39 of 1986. Some fire-wood and teak wood was found by the Range Forest Officer in the offending truck which was valued at Rs. 1820/- on 24-5-1985. Shri A.L.E. Sheikh, Deputy Conservator of Forests, Devgadh Baria, passed an order of confiscation of the wood as well as the vehicle. This order came to be set aside by the learned Addl. Sessions Judge, by substituting it by an order of imposing penalty of Rs. 20,000/- so far as the truck was concerned.
6. These four orders are being challenged in these four petitions.
7. Shri S.T. Mehta, and Shri M.A. Bukhari, learned A.P.P. appearing for the petitioners in these different petitions, urged that under Section 26(1)(g) of the Indian Forest Act, 1927, (hereinafter referred to as the ‘Act’) removal of any forest produce is punishable with imprisonment and fine. Under Section 41(2) the State Government can make rules prohibiting the import or export or moving of such Timber or other produce without a pass from an officer duly authorised to issue the same. In exercise of the aforeasid power Bombay Forest Rules were framed in the year 1942 and they are applicable to the territory in the State of Gujarat. Under Rule 66 of the aforesaid Rules, framed under Section 41, no forest produce can be removed into or from the area within any district of the State without a pass from an authorised officer. Thus, according to the statutory provisions any movement of forest produce without any requisite pass or permit is clearly prohibited; and so under Section 61A(1) of the Act, as brought on the statute book on 11th October, 1983, by Gujarat Act No. 19 of 1983, where a forest offence is believed to have been committed in respect of any forest produce which is the property of the State Government, the officer seizing the property shall, without any unreasonable delay, produce it with all tools, ropes, chains, boats, vehicle and cattle used in committing such offence, before an officer authorised by the State Government in this behalf not below the rank of an Assistant Conservator of Forests. The authorised officer has the power to confiscate the property which has been seized under Sub-section (2) of Section 61A and the confiscation may be ordered not only in respect of the forest produce, but also in respect of the vehicle. Under Section 61D any person aggrieved by any such order of confiscation may appeal to the Sessions Judge who may decide the appeal by confirming, modifying or annulling the order appealed against. The learned APPs, therefore, submitted that unless the order of confiscation is held to be bad in law, the Sessions Judge would have no jurisdiction to set it aside.
8. It is emphatically submitted that the order of the Deputy Conservator of Forests for confiscating the vehicles in which forest produce was being carried without the requisite pass or permit was perfectly justified, and could not be said to be bad in law. Thus, the thrust of their submission is that the learned Sessions Judge or the Addl. Sessions Judge had no jurisdiction to set aside the order of the Deputy Conservator of Forests, and so the order passed by him out of sympathy for the vehicle owner by substituting the order of confiscation by the order of imposition of penalty suffers from an error apparent on the face of the record, and it is required to be quashed and set aside by an appropriate writ.
9. It appears that though the submissions of the learned APPs is attractive, it cannot be said that the learned Sessions Judge or the Addl. Sessions Judge had committed an error of law in modifying the order passed by the Deputy Conservator of Forests. The relevant provisions of the Act as inserted by the Indian Forest (Gujarat Amendment) Act, 1983, read as under:
61 A. Confiscation by Forest Officers in certain cases:
(1) xxx xxx xxx xxx xxx xxx
(2) Where the authorised officer seizes under Sub-section (1) of Section 52 any forest produce which is the property of the State Government or where any such property is produced before the authorised officer under Sub-section (1) and he is satisfied that a forest offence is committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commissions of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.
(3) xxx xxx xxx xxx xxx xxx
6ID. Appeal: (1) Any person aggrieved by any order passed under Section 61A or Section 61C may, within thirty days from the date of communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property to which the order relates has been seized and the Sessions Judge shall, after giving an opportunity of being heard to the appellant and the authorised officer or the officer specially empowerd under Section 61C, as the case may be, pass such order as he may think fit confirming, modifying or annulling the order appealed against.
A combined reading of these statutory provisions leads this Court to hold that the authorised officer, namely, the Deputy Conservator of Forests, “may” order confiscation of the property seized together with the vehicle used in committing such offence. Thus, the authorised officer is not under compulsion to confiscate the vehicle or the goods but he will take into consideration all the relevant facts like value of the forest produce as well as the vehicle and the background and the mode in which the offence was committed. That is why the Sessions Judge is empowered under Section 61D to confirm, modify or annul the order of the authorised officer. If confiscation by the authorised officer is compulsory under the relevant provisions of law, no appeal would be provided against such an order. Thus, the latitude given to the authorised officer is subject to the appeal before the judicial Court which would have a similar latitude in examining all the relevant facts, and in confirming or modifying or annulling the order of the authorised officer. That is really the essence of the appellate jurisdiction.
10. As this is the only point of law urged in these four petitions it is held that the orders passed by the appellate Judges in these four matters do not suffer from any apparent error of law and this Court would not be inclined to exercise its extraordinary jurisdiction by interfering with minute insignificant details of the appellate order. Hence, the petitions are rejected and rule is discharged in each petition, with no order as to costs.
11. It appears that the respondent owner of the vehicle might have taken custody of the vehicle after furnishing an undertaking to the court, but there is’ nothing on record to show that he has paid the penalty imposed by the appellate Court, if that is so, it is ordered that the respondent will comply with the order of the appellate Judge within one month after the receipt of the writ of this Court in order to earn the benefit of the appellate order as confirmed by this Court. If the penalty is not paid as per the appellate order, necessary consequences will follow.