1. This application filed under Section 482 Cr.P.C. is directed against the order passed by the Authorized Officer under Indian Forest Act dated 08.12.2015 whereby the learned Authorized Officer confiscated blocks of Imli wood weighing 30 quintal and tractor trolley bearing registration No.MP42-6806.
2. An appeal was filed before the Appellate Authority which was disposed of by order dated 27.05.2016. This appeal is also dismissed and finally, the present applicant filed a revision before th the Sessions Court which was disposed of by 10 Additional Sessions Judge, Ujjain in Criminal Revision No.126/2016 whereby the learned Additional Sessions Judge found that at the time of incident, the Forest produced the wooden blocks of Imli wood was being transported in violation of provisions of Madhya Pradesh Transit (Forest Produce) Rules 2000 (hereinafter referred as ''Rules 2000'')
3. The Rule 3 of Rules 2000 provides that if forest produce which includes wood from private land owned by individual is to be transported a transit pass was required. The Clause B of the proviso gives the State Government power to exempt any specie from the operation of provisions of these rules by a notification. It is admitted that in September, 2015, the State Government issued a notification and the wood of Imli (Tamarind = Tamarindus Indica) was exempted from the operation of these rules.
4. According to counsel for the present applicant on 14.04.2015, one tractor and one tractor trolley in which blocks of Imli and Panchmel wood were loaded were sent by him from Akodiya to Shujalpur. This tractor was intercepted by the authorized officer and it was alleged that the driver was not having the necessary transit pass under the provisions of said Rules 2000. Subsequently, it is alleged by the applicant that the tractor was changed and for this he lodged a complaint before the higher authorities of the Forest Department and on his complaint, some forest officers were suspended. Infuriated by this as a counter blast, by the impugned order dated 08.12.2015, tractor trolley and the wood were ordered to be confiscated by the Authorized Officer. He preferred an appeal and then revision as aforesaid and lost before both the forums. Aggrieved by this order, the present application is filed.
5. The counsel for the applicant also submits that on the date of incident, the applicant was having a transit pass issued by Gram Panchayat, however, the learned Additional Sessions Judge observed that under the provisions of Rule 4 of Rules 2000 certain species were specified regarding which the Gram Panchayat was authorized to issue the pass. Imli was not included in that, and therefore, the pass even if issued by the Gram Panchayat had no legal force, and therefore, technically the wood was being transported without any valid transit pass.
6. Going through the averments made in the application and also the orders passed by the three courts below, the following positions emerged from the record (i) that the wood was cut from the private land and was the property of a person to whom the land belonged. (ii) the wood was being transported to be used for a domestic purpose and not for any commercial purpose. (iii) the applicant was having a pass from the concerning Gram Panchayat which he believed was authorized to issue such pass, however, it was held by the courts below that the pass was not a valid pass, and therefore, it was found that he was transporting the wood without any valid transit pass. (iv) there is noting on record to show that the vehicle was repeatedly used for commission of forest offence. (v) this apart, the forest offence as per the definition given under the Indian Forest Act includes any violation of rules made therein the Rules 2000 were framed under the provisions of Indian Forest Act, and therefore, violation of any provisions of the Act forms a forest offence for the purpose of Section 52 and the vehicle used in the forest produce is liable to be confiscated.
7. Learned counsel for the State opposes the application and submits that the matter has been disposed of by three courts and then concurrently that the present applicant committed forest offence and the property was liable to be confiscated, and therefore, no interference is called for.
8. The question arise whether in the facts as stated above, such confiscation was necessary. Apparently, the present applicant was transporting the wood after obtaining the transit pass from Gram Panchayat which he believed was authorized to issue such pass, however, such pass was found to be not a valid pass, and therefore, there appears to be no mens-rea on part of the present applicant. Further, the wood was from a private land, and therefore, the government was not the owner of the property. The tractor was not used repeatedly for committing the forest offence.
9. To answer this question, the order passed by the Division Bench of this Court in case of Kailash Chand and another vs. State of M.P.; AIR 1995 M.P. 1 may be referred to with some benefit. This was a writ petition filed by the petitioner in which the constitutional validity of provision of Section 52 as amended by State Amendment in the year 1983 was challenged. The following question arose before the Division Bench for consideration :- "(iii)Section 52(3) of the said Act which provides for confiscation of the vehicle, is arbitrary, unjust and unfair. It leaves no discretion to the Forest Officer to impose any penalty less than that of confiscation."
10. While answering this question, the Division Bench in paras 22 to 28 observed as under :-
"22. Point No. (iii) : Learned counsel for the petitioners contended that Section 52(3) of the Act contemplates only confiscation of the produce, tools, vehicles etc. as mandatory and no discretion is vested with the Authorized Officer to impose a lesser penalty commensurate with the gravity of the offence and, therefore, the provision is arbitrary. The assumption that confiscation is mandatory or is intended to be a punishment for the offender is erroneous. The scheme of the Central Act contemplating successful prosecution of the offender leading to confiscation has been drastically modified by the 1983 Act to provide for an additional procedure for confiscation, a procedure which is less cumbersome and more expeditious than the procedure of prosecution and at the same time, assuring necessary safeguards to the affected persons. The scheme of the Central Act provides for prosecution incidentally leading to confiscation of property. The scheme of the amendments introduced by the 1983 Act prescribes an independent procedure for confiscation. The intention is to ensure that the vehicle used in the trasaction is no longer available for such misuse and to act as deterrent for the offender and others. These objects can be well served by confiscating the vehicle.
The order of confiscation has far reaching consequences vis-a-vis the offender inasmuch as he will be deprived of his tools or valuable vehicle. This, however, cannot mean that order of confiscation should be regarded as a judgment of conviction or imposition of punishment.
23. Section 52 contemplates an order of confiscation being passed by the Authorised Officer upon his satisfaction that "a forest offence has been committed in respect of the property seized." On such satisfaction, he may, by order in writing and for reasons to be recorded, confiscate the forest produce so seized together with tools, vehicles, boats, ropes, chains and other articles used in committing such offence. Learned counsel appearing for some of the petitioners argued that whenever requisite satisfaction is present, it is obligatory for the Authorised Officer to pass an order of confiscation. We do not understand the expression ''may'' used in the provision as creating a mandatory obligation. Power conferred under the provision is discretionary. In State of Andhra Pradesh v. Bathu Prakasa Rao etc. AIR 1976 SC 1845 : 1976 Cri LJ 1387, considering similar provision of the Essential Commodities Act, it has been held that it confers only discretionary power. The discretion is not unregulated or uncanalised. The power conferred on the Authorised Officer is power coupled with public duty. It is for the Officer having regard to the policy and provisions of the Act to consider whether confiscation is to be ordered in a given case. A variety of circumstances such as the nature and gravity of the offending act, the circumstances of offender, the circumstances in which the act took place, the nature and quantity of the forest produce involved in the offence, suspicion of the vehicle being continuously misused etc. have to be considered. Consideration as to whether in a given case speedy action in the matter of investigation is necessary or whether it can be left to the more elaborate procedure of a Criminal Court has to be taken into account in arriving at a decision. In Ram Sarup v. Union of India, AIR 1965 SC 247 : 1965 (1) Cri LJ 236, while considering the choice of forum of trial by the Court Martial or by ordinary Criminal Court, the Supreme Court indicated that though Section 125 of the Army Act does not contain specified guidelines, there are sufficient materials in the Act which guided the exercise of the discretion. In Commissioner of Sales Tax v. Radhakrishan, AIR 1979 SC 1588 : 1979 Tax LR 1843, the Court, while considering the two procedures for recovery of sales tax prescribed in the M.P. General Sales Tax Act, 1959, namely, levy of penalty by the Commissioner and initiation of prosecution by the Commissioner, noticed the absence of express guidelines governing the choice and indicated that guidelines have to be implied from the policy of the Act itself. It will be advantageous to quote the following observations made by the Court (at page 1593 of AIR SC):
"In considering the validity of a Statute, the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality, the Court may lake into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived. It must be always be presumed that the Legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that Courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the section if it becomes necessary to uphold the validity of the sections."
Considering the dual procedures prescribed by the Act, the Court opined that one of the procedures can be read as being applicable to cases in which the stringent step of prosecution is considered not necessary.
24. In Slate of Kerala v. Sukumara Panicker, 1987 (2) KLT 341, a Full Bench of the High Court of Kerala considered the provisions of the Kerala Forest Act, 1961. The Court noticed the permissive language used in Section 61A(2) of the Act and observed : "It is for the Officer concerned to consider in each case having regard to all the circumstances, whether confiscation of the vessel is to be made. But it leaves no room for doubt in our mind that the power vested in the authorised officer under Section 61A of the Act should be exercised bearing in mind the policy and purpose and background of the Act which we have enumerated hcreinabove. Illicit removal of the Government property is a matter which should be viewed with serious concern. Section 61A itself was enacted to effectively check such illicit removal and with a view to provide deterrent provisions for effectively preventing such illicit removal. Any act done or conduct pursued in the matter of illicit removal should be so effectively dealt with which will also prevent recurrence."
Referring to the value of the seized contraband being negligible compared to the value of the vehicle, the Court observed :
"In our view, at the most, the factor may not be totally an irrelevant one in adjudicating the question as to whether the vehicle may be confiscated in exercise of the powers under Section 61 A(2) of the Act, in all the circumstances of the case. But this is again a matter to be primarily considered by the authorised officer in the tight of the policy, object and purpose of the Act taken as a whole, which we have enumerated above."
25. In State of M.P. v. Azad Bharat Finance Co., AIR 1967 SC 276 : 1967 Cri LJ 285, the Court considered Section 11(d) of the Opium Act, 1878, as applicable to Madhya Pradesh which stated, inter alia, that ''the property detailed hereinbelow shall be confiscated'' and held (at page 278):
"In our opinion, the High Court was correct in reading Section 11 of the Madhya Bharat Act as permissible and not obligatory. It is well settled that the use of the word ''shall'' does not always mean that the enactment is obligatory or mandatory; it depends upon the context in which the word ''shall'' occurs and the other circumstances. Three considerations are relevant in construing Section 11. First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a person steals a truck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be confiscated. It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if the meaning suggested by Mr. Shroff is given, Section 11(d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution.
Bearing all these considerations in mind, we consider that Section 11 of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case."
26. Learned counsel for the petitioners have invited our attention to the decision in Gurdev Singh Rai v. Authorised Officer, AIR 1992 Orissa 287, under Section 56(2a) of the Orissa Forest Act. The Court noticed that while providing for confiscation, the Legislature did not provide for any lesser penalty by way of fine. The Court thought that this was a lacuna in the Act and resolved to read into the statute words which are not there, namely, words providing for alternative penalty for levy of fine. We have given our serious thought to the ratio and the reasoning of the Orissa High Court. With respect, we are unable to agree with the same. We are quite conscious that interpretative process leading to absurdity should ordinarily be avoided and where two interpretations are possible, one which furthers the object of the statute should be preferred. In extreme cases, it may be quite open to a Court to read into the statute words which are not there, but we do not think that this exercise can be taken to the limit suggested by the Orissa High Court by introducing levy of fine which the Legislature never thought of. The omission to provide for imposition of fine by the Authorised Officer may not be a lacuna. It may be a result of deliberate policy on the part of the Legislature. What the Legislature intended was confiscation of the forest produce or the implements or vehicles used for commission of a forest offence. The provision for confiscation of the vehicle is introduced not to punish the offender or the abettor, but to remove the vehicle out of circulation and as deterrent. Choice is given to the Criminal Court to impose sentence of imprisonment or fine or of both as punishment for the penal offence. A choice is quite unnecessary to be provided in regard to confiscation. Either the article is to be confiscated or it is not to be confiscated depending on the facts and circumstances of each case. If imposition of fine is considered adequate, criminal prosecution could be pursued with vigour and the Authorised Officer could very well refrain from ordering confiscation.
27. Order of confiscation is not mandatory in all cases where the Authorised Officer is satisfied about commission of the forest offence and use of the vehicle in the commission of the offence. There may be circumstances which justify the order of confiscation; at the same time, there may be circumstances which do not justify the order of confiscation. The failure to provide for imposition of fine by the Authorised Officer does not create any infirmity in the statutory provision.
28. Confiscation proceeding is quasi-judicial proceeding and not a criminal proceeding. Proof beyond reasonable doubt and proof of mens rea are foreign to the scope of the confiscation proceeding. Confiscation proceeds on the basis of the ''satisfaction'' of :he Authorised Officer in regard to the commission of forest offence. This of course does not mean that innocent owner of the vehicle will be subjected to unjust action. Sub-section (5) of Section 52 protects owners of tools, boats, ropes, chains, vehicles etc. If the person concerned proves to the satisfaction of the Authorised Officer that such tools, vehicles, etc. were used without his knowledge or connivance or, as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against the use of objects aforesaid for commission of forest offence. This is a safeguard against arbitrary action. Absence of power in the Authorised Officer to impose fine as an alternative to confiscate does not render Section 52(3) unjust or unfair or arbitrary. Point answered accordingly."
11. The Division Bench of this Court observed that in para 27 that order of confiscation is not mandatory in all cases where the Forest Officer is satisfied about commission of the forest offence and use of the vehicle in commission of the offence. There may be circumstances which do not justify the order of confiscation.
12. In considered opinion of this Court, the circumstances which were enumerated above that exists in the present case calls for reconsideration by the Authorized Officer whether such confiscation was necessary or not.
13. In this view of the matter and taking the view by the Division Bench of this Court in case of Kailash Chand (supra) into consideration, this application is allowed. The orders passed by all the three courts below are set aside. The matter is remanded back to the Authorized Officer with direction to consider the special circumstances that exists in the present case and before proceeding for confiscation the vehicle and forest produce, a detail reasoned order should be passed showing that the reasons why in his opinion confiscation was necessary. With direction and observation as above, the matter stands disposed of.
