IMPORTANT POINT
The cattle instrumental in the commission of forest offence under Section 26(1)(d) and/or (6) of Indian Forests Act. 1927 can be confiscated under Section 61 A(3) of the Act.

JUDGMENT

V.A. Mohta. J. - Can the cattle instrumental in the commission of forest offence under Section 26(1)(d) and/or (f) of the Indian Forest Act, 1927 (the Act) be confiscated under Section 61A(3) of the Act, is a point of some importance raised in this petition.

2. Factual background is:

The petitioners Kama Gawali, Rira Gawali and Pandu Wada are nomadics who migrate along with their cattle from place. They had at the material time settled in the village Zari in district Chandrapur, which is in the vicinity of a forest. On 25-6-1988 herds of about 125 cattle were found grazing deep inside the compartment No. 345 of a reserved forest. The cattle belonged to the petitioners. Three graziers were looking after the cattle. With the help of about 150 labourers engaged by tJ1e Forest Officers the herds of cattle was attempted to be caught. On noticing the forest office and the labourers, graziers ran away. 65 cattle heads were caught In the forest and a large number ran towards the village were they w re chased and caught. The cattle was seized. Some statements were recorded and a show cause notice under Section 61(b) was issued to the petitioners as to why the cattle seized should not be confiscated under Section 61 A(3) The petitioners admitted that they had no licence for grazing cattle in the forest, that the cattle had entered the forest and that they were liable to pay fine, Indeed they even showed willingness to pay the fine. One of their contention was that they had gone out to the market and cattle strayed in the forest by the animal instinct. 'The second respondent after holding enquiry recorded a belief that forest offence of pasturing cattle and/or permitting cattle to trespass under Section 26(1) (d) and damaging the tress under Section 26(1) (f) were committed and the said cattle were instrumental in the commission of those offences. He, therefore, ordered the cattle seized under Section 52(1) to be confiscated under Section 61A. The said order was challenged in appeal under Section 61D before the sessions Judge, who was pleased to remand the matter to the second respondent for fresh inquiry. Accordingly fresh inquiry was also held, 7 persons were examined. The petitioners cross-examined them through a lawyer and also examined defence witnesses. After hearing the petitioners order of confiscation was made once again. Appeal was carried to the Sessions Judge by the petitioners but without any success and hence this petition. Facts found are - (i) cattle were unauthorisedly pastured and/or permitted to be trespassed in the reserved forest by the petitioners with the help of graziers, (ii) the cattle ate and damaged forest produce such as grass, young plants of bamboos and other tree saplings and caused damage to the tune of Rs. 4-68 lakhs, (iii) the guilt was even admitted and (iv) the defence of cattle straying in the forest merely by animal instinct despite all possible precautions by the owners was incorrect.

3. A brief resume of alient provisions of the Act relevant for the purposes of adjudication of me points involved may be made first.

Section 2(1) of the Act defines the term 'cattle' Section 2(3) the term 'forest-offence', Section 2(6) the term 'timber' and Section 2(7) the term 'tree'.

Section 26(1) gives the list of forest offences. Sub section (d) and (f) read thus:

"26. Acts prohibited in such forests

(1) Any person who

(d) Trespasses or pastures cattle, or permits cattle to trespass:

(e) Fells, girdles, lops, taps or bumo; any tree or strips off the bark or leaves from or otherwise damages, the same."

Section 52 deals with the subject of seizure of property liable to confiscation and forfeiture, Section 55 deals with forfeiture, by a convicting Court, Section 6lA'to 610 as inserted by the Indian forest (Maharashtra Amendment) Act, 1984 (Act No.7 of 1985) deal with the power and procedure for confiscation of property which is independent of a criminal prosecution. Sections 61A and 61B are material and