The importance of providing a fair opportunity for the petitioner to present evidence and defend against the confiscation.

(Per : B.P. DHARMADHIKARI, J.)

1. By this petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure and Section 61(D) of the Indian Forest Act, 1927 (hereinafter referred to as ‘1927 Act’), the petitioner, an owner of saw mill, challenges the judgment dated 7.3.1998 delivered by Additional Sessions Judge, Gondia in Criminal Appeal No.9/1997 dismissing it. Said appeal was directed against order dated 1.2.1997 passed by Authorised Officer and Assistant Conservator of Forests (Tendu Leaves), Gondia Forest Division, Gondia u/s 61 (D) of the Indian Forest Act confiscating teak wood logs and two saw bands earlier seized. This court has on 30.4.1998, while issuing notice before admission in the present criminal writ petition, directed that property confiscated under the impugned order shall not be put to auction till then and that interim order was continued on 22.6.1998 while issuing Rule. With the result, the property has not been put to auction and the order of confiscation has not attained finality.

2. Briefly stated facts show that respondent no.2 Assistant Conservator of Forest, an Authorised Officer visited saw mill of petitioner on 17.8.1996 and found 8 logs of teak wood admeasuring 1.261 cubic meter in a room in the premises of that saw mill. The logs were without any hammer marks and not supported by any Transit Pass. He, therefore, seized said logs as also the saw mill of petitioner. In saw mill there are two saw bands or machines one is 39” vertical saw machine while other is 42” vertical second saw machine. The motor vehicle namely truck having registration No. MWY5459 which was used to transport those logs from forest to saw mill belonging to one Ashok Dube and driven by Rakesh Tiwari also came to be seized. This action was u/s 52 of 1927 Act. It was alleged that Rule 3 sub-rule 17 and 27 of the Bombay Transit of Forest Produce (Vidarbha Region, Saurashtra and Kutch Areas) Rules, 1960 were violated and Forest Offence, accordingly was committed by these persons.

3. It is in this background that we have heard Senior Advocate Shri Anil Mardikar with Advocate Shri S.S. Ghate for the petitioner, Advocate Mrs. B.H. Dangre with Advocate Shri Autkar for respondent nos.1 and 2 and Learned Additional Public Prosecutor Mrs. S.S. Jachak for respondent no.3.

4. Senior Advocate Mardikar has pointed out that judgment has been delivered on 23.2.1998 in Summary Criminal Case No.592/1996 by Judicial Magistrate, First Class, Amgaon and he acquitted present petitioner of offence punishable under Rules 3 and 17 and 25 of above mentioned 1960 Rules. He contends that, in this background, show cause notice issued to petitioner for confiscation needs to be appreciated. He submits that said show cause notice dated 10.10.1996 was duly replied by the petitioner on 25.10.1996 and, thereafter, petitioner received two notices for hearing scheduled then on 27.11.1996 and 28.11.1996. On 26.11.1996 petitioner forwarded a medical certificate and sought adjournment beyond 20.12.1996 as he was to continue under medical treatment from 25.11.1996 till 20.12.1996. Ignoring this document and request, impugned order came to be passed by Authorised Officer and Assistant Conservator of Forest on 1.2.1997. Said officer in paragraph 7 found that the petitioner remained absent and, therefore, concluded the confiscation proceeding against him. He submits that this order of confiscation was challenged in an appeal registered as Criminal Appeal No.9/1997 under Section 61(D) of 1927 Act before Additional Sessions Judge, Gondia and vide judgment dated 7.3.1998 that appeal came to be dismissed. He has then invited attention to judgment dated 25.7.2011 delivered by learned Single Judge of this court in Criminal Appeal No. 23/1999 to urge that thereby judgment and order dated 23.2.1998 acquitting petitioner in Summary Criminal Case No.592/1996 challenged by respondent nos.1 and 2 before this