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2001(8) Supreme 300
SUPREME COURT OF INDIA
(From Calcutta High Court)
D.P. Mohapatra & P. Venkatarama Reddi, JJ.
State of West Bengal -Appellant
versus
Gopal Sarkar -Respondent
Criminal Appeal No. 1143 of 2001
Decided on 7-11-2001
Counsel for the Parties :
For the Appellant : Tapash Ray, Sr. Advocate and Satish Vig, Advocate.
For the Respondent : P.N. Mishra, Sr. Advocate, D. Bharat Kumar, Anand and Abhijit Sengupta, Advocates.
Held : As noted earlier, on the facts of the present case, the finding of fact recorded by the Authorised Officer which remained undisturbed was that he was satisfied that the band saw and the implements in question were used in commission of the forest offence in illicit removal and use of the timber from the forest area. It is relevant to note the validity of confiscation of timber was conceded before the High Court. It follows that the finding recorded by the Authorised Officer that the Band Saw and implements in question were used in commission of the forest offence relating to the illicit felling and removal of the timber remained undisturbed. The High Court, therefore, clearly erred in interfering with the confiscation order of the Band Saw and the implements. The position of law that is manifest on a reading of the provision of the Statute is that if tools, implements, vehicles etc. seized were used in commission of the forest offence alleged, it is open to Authorised Officer to pass order of confiscation under Section 59A(3). In that view of the matter the judgment under challenge is clearly unsustainable and has to be set aside. The appeal is allowed and the judgment under challenge is set aside. There will, however, be no order as to costs. (Paras 11 & 12)
ORDER
Leave granted.
2. We have heard learned counsel for the parties.
3. The judgment of the learned single judge of Calcutta High Court in C.R.No. 558 of 2000 setting aside the order passed by the Authorised Officer under the Indian Forest Act as amended in the State of West Bengal), confiscating certain tools and implements, is under challenge in this appeal filed by the State of West Bengal.
4. In a raid made by the Deputy Ranger of Moraghat Forest Range, on 29.7.1998 the premises of the saw mill of the respondent, 11 pieces of Gammer, Toon , Sisso, logs measuring 1.054 meters alongwith band saw and other implements were seized on the allegation that the forest produce (logs of timber) were illegally felled and removed out of the forest area without valid permission and transit permit and the band saw and other implements were used in commission of the forest offence. After completing the procedure prescribed under the statute the Authorised Officer-cum-Divisional Officer, Jalpaiguri District, by the order dated 11.2.2000 ordered confiscation of the forest produce (logs of timber) together with the band saw and implements. The order was passed in exercise of the power vested in the authority under Sec.59-A(3) of the Indian Forest Act, 1927 (West Bengal Amendment 1988) (hereinafter referred to as the Act ). The Authorised Officer recorded the finding to the effect:
"In view of the facts stated above, I am satisfied that the timber in respect of which the offence has taken place is the property of the State Government and the cutting implements (tools) i.e.Band Saw etc. was used in committing a Forest offence and also to conceal the timber by way of changing the identity of timber in question which is liable to be confiscated to the State as per provision of Section 59A(3) of the Indian Forest Act, 1927 (West Bengal Amendment, 1988). Further till this date nobody has come forward to claim the timber in question, had it been a genuine timber there must have been some claimant."
5. Summing up his finding in the proceedings he passed the order on the following terms :
"Whereas I am satisfied that a Forest Offence has been committed in respect of forest produce which is the property of the State Government and the registered owner of Band Saw which has been used as cutting tools and used in commission of said forest offence, has failed to prove to my satisfaction that the same was not used without the knowledge or connivance of himself, or his agent or person in charge of the Band saw and that he failed to prove that each of them had taken all reasonable and necessary precautions against such use of Band Saw. I Authorised Officer, Jalpaiguri District on the strength of powers conferred on me vide notification No. 2760-FOR; dated 24.5.1989 hereby order the confiscation of the said seized timber along with cutting tools (implements) to the State of West Bengal under Section 59A(3) of the Indian Forest Act, 1927 (West Bengal Amendment, 1988)."
6. The respondent did not prefer any appeal against the confiscation order before the District Judge as provided under the Act. He filed a petition purportedly under Article 227 of the Constitution of India and Section 482 of Criminal Procedure Code. In the said proceeding the order under challenge was passed.
7. From the discussions in the judgment, it appears that the learned single judge passed the order mainly relying on the decision of the High Court in the case of Subhash Rai vs. State of West Bengal, WP 1591(W) of 1997 dt. 3.2.1997, in which it was held that the confiscation proceeding of the machineries and/ or saw mill cannot be held to be valid in terms of Section 59A(3) of the Forest Act as amended by the State of West Bengal on the grounds that saw mill cannot be treated to be a property of the State Government. Relying on the said decision, the learned single judge held that the confiscation order passed by the Authorised Officer was unsustainable. That decision, in our
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