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Rafiq Kha vs The State Of Madhya Pradesh on 15 February, 2017

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IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE.

     SINGLE BENCH : HON'BLE SHRI JUSTICE ALOK VERMA

                      M.Cr.C. No.8812/2016


                Rafeeque Kha S/o Mehboob Kha

                                Vs.

                           State of M.P.


      Shri Rajendra Namdeo, learned counsel for the applicant.
      Shri Kshitij Vyas, learned counsel for respondents/State.


                             ORDER

(Passed on 15/02/2017)

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
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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
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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
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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
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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
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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
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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
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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
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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
10

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
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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.

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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.

( Alok Verma)
Judge

Kafeel

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