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1988 Supreme(Bom) 347
IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
State of Maharashtra.... Petitioner.
Versus
Rajendra Hilal Patil another .... Respondents.
Criminal Revision Application No. 286 and 1768, of 1988 decided on 6/7-10-1988.
Advocates appeared :
P.M. Vyas, P.P. for petitioner State.
Rajiv J. Mane for respondent No. 2.
R.S. Bhosale with Miss Kiran v. Gupta, for petitioner.
Headnote:FOREST ACT, 1927
Section 26 (g) (as amended in 1985)-Offence-Punishable-Enhancement or sentence - Offence or serious nature- Held - Deserves to be adequately punished when proved.
Punishment should be sufficiently heavy so as to act as a deterrent to the person found carrying gravel from the reserve forest by truck and thereby commits offence under Section 26 (g) of the Indian Forest Act. The offence under Section 26 (g) should not be so lightly treated in the matter of sentence. The learned Magistrate imposed a sentence of fine of Rs. 75/- only. The sentence imposed by the learned Magistrate is ridiculously low taking into consideration the gravity of the offence committed by the accused. The learned Counsel for the accused contends that the accused was a mere carrier and, therefore, no heavy sentence is called for, Court is unable to agree with him. The person who is found removing forest produce and committing the offence under Section 26 (g) whether he is carrying the forest goods for himself or for somebody else deserves to be adequately punished and the punishment should be such that it will Act as deterrent for the person inclined to commit such offences.
Section 55 (as amended in 1985)-Truck nsed in forest offence-Forfeiter-Released beyond direction to deliver it to its owner by Magistrate- Validity-Offence committed by diner without owners knowledge-Penalty-Held-Order passed by Magistrate legal and proper- Truck shall be returned to owner could not be forfeited.
Vehicle or any other property used for committing the forest offence can be forfeited by way of penalty in addition to the punishment prescribed for the offence. In view of the aforesaid substitution of the word forfeiture in place of "confiscation" in Section 55 of the Indian Forest Act, the truck not being owned by the accused could not be forfeited. The reason is obvious that forfeiture of the truck which is not owned by the accused is no penalty to the accused and it would be the penalty to the real owner who had no band in the commission of the offence and who is not charged for the accused. In this view of the matter, the order passed by the learned Judicial Magistrate on 23rd June, 1988 ordering the return of the property to the owner Jagannath Shankar Badgujar appears to be legal and proper and calls
for no interference from this court.
2. The truck in question was seized by the Forest Officer while it was being wed for carrying away gravel stone-forest produce from the forest without any licence or permission. The truck was being driven by the driver Rajendra Hilal Patil who was prosecuted for the offence punishable under section 26(g) of the Indian Forest Act and he was sentenced to pay a fine of Rs. 75/-. No order of imprisonment was passed by the learned Magistrate while disposing of the criminal case of the admission of the guilty by the accused Rajendra Hilal Patil. Later on the owner of the truck appeared before the learned Judicial Magistrate, F.C., Shahada and after hearing the owner of the truck and the complainant, the Forest Officer, the learned Judicial Magistrate on 23rd June, 1988 passed the impugned order directing the truck to be delivered to the owner Jagannath Shankar Badgujar after the appeal period was over.
3. Feeling aggrieved by the order of learned Judicial Magistrate directing the truck to be delivered to the owner Jagannath Shankar Badgujar, the State has preferred Criminal Revision Application No. 286 of 1988 and the owner of the truck filed Criminal Application No 1769 of 1988 for vacating the stay order passed by this Court and for delivery of the truck to him. The State has also sought for enhancement of the sentence passed by the learned Judicial Magistrate against the accused for the offence under section 26(g) of the Indian Forest Act. (7th October, 1988)
4. It is not disputed that the truck is not owned by the accused Rajendra Hilal Patil who has been convicted of the offence under section 26(g) of the Indian Forest Act. The truck is owned by Jagannath Shankar Badgujar and the accused Rajendra Hilal Patil was engaged by him as a driver. The owner Jagannath Shankar Badgujar filed an affidavit before the learned Judicial Magistrate wherein he stated that he was the owner of the truck and that he had given the truck to his driver to transport some goods to Shahada and he used the said truck for commission of the offence without his knowledge. Before the learned Judicial Magistrate the complainant pursuant to a notice from the learned Magistrate for his say on the application by the owner for return of the property, stated that he had no objection for return of the truck to the owner vide his say Exh. 14. Subsequently the Range Forest Officer Shahada submitted a report on 20th June, 1988 contending that the complainant gave his say Exh. 14 under the pressure of the accused and he submitted that the truck involved in the case be forfeited to the State. The learned Judicial Magistrate did not accept the contention of the Range Forest Officer that the complainant gave his say Exh. 14 under the pressure of the accused and he passed the impugned order dated 23rd June, 1988 directing the truck to be returned to Jagannath Shankar Badgujar. The learned Judicial Magistrate accepted the contention of the owner of the truck that the accused used the truck for the commission of the offence without his knowledge. The learned Judicial Magistrate having accepted the statement of Jagannath Shankar Badgujar that the truck was used by the accused for the commission of the offence without his knowledge, this Court in revision cannot take a different view and rejecting the say of the owner of the truck that the accused commit
