IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO. 991 OF 2002

State of West Bengal and Anr. …Appellants

Versus

Mahua Sarkar …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Heard learned counsel for the parties.

2. Challenge  in  this  appeal  is  to  the  order  passed  by  a

learned Single Judge of the Calcutta High Court in a writ

petition  filed  under  Article  226  of  the  Constitution  of

India,  1950  (in  short  the  ’Constitution’).   By  the

impugned order, learned Single Judge directed release of

vehicle which was seized and confiscated for an alleged

violation of the provisions of Indian Forest Act, 1927 (in

short the ‘Act’).   

3. Background facts in a nutshell are as follows:  

On  10.2.1999,  certain  forest  officials  noticed  that  a

Maruti Van was going at unusually high speed.  On suspicion,

the Beat Officer concerned chased the vehicle in a jeep and

was able  to intercept the Maruti Van by the side of reserve

forest near Range office at Bichabhanga.  It was noted that the

registration number of the vehicle was WB-72-9459.  The Beat

Officer  found  that  the  vehicle  was  loaded  with  hand  sawn

Sissoo  timber.   He  found  that  four  persons  including  the

driver were traveling in the vehicle.   The timber in question

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was not  carrying any hammer  marks and the  driver  of  the

vehicle  could  not  produce  any  document  in  respect  of  the

possession  and  transportation  of  the  timber.   Therefore,

alleged  illicit  timber  was  seized  and  the  driver  and  other

passengers were arrested and forwarded to the Court of Chief

Judicial Magistrate, Jalpaiguri.  A notice in terms of Section 8

(1)  of  West  Bengal  Forest  Produce  Transit  Rules,  1959  (in

short the ‘Transit Rules’) was issued to the driver as well as

the  owner  of  the  vehicle.   The  Range  Officer  forwarded  the

case  to  the  Divisional  Forest  Officer,  Wildlife,  Division-II,

Jalpaiguri who is the Authorised Officer, under Section 59A of

the Act as amended by Section 17 of the Indian Forest (West

Bengal Amendment) Act, 1988 (in short the ‘Amendment Act’).

In terms of sub-Section (3) of Section 59A of the Act, action

was held.  The vehicle was driven by Shri Rohini Roy who was

arrested  and  the  forest  produce  was  seized.   As  required

under Section 59B of the Act, notice was issued and served on

the owner of the vehicle to show cause as to why the vehicle in

question shall not be confiscated to the State of West Bengal

as provided under Section 59(A) of the Act.  The owner in reply

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stated that a family friend had taken the vehicle for a marriage

ceremony.  The  driver  had  without  his  permission  and

knowledge carried the articles which later on were seized by

the forest officials.  After receipt of the reply, the stand taken

was verified and ultimately it was found that the vehicle was

used  for  illicit  procurement  of  timber.   An  appeal  was

preferred before the District Judge, Jalpaiguri who dismissed

the  appeal  and  confirmed  the  findings  of  the  authorized

officer.  Writ petition was filed before the High Court.       

4. Primary  stand  taken  was  that  the  owner  had  no

knowledge  about  the  commission  of  offence  under  the  Act

and, therefore, confiscation was illegal.  The High Court inter-

alia observed as follows and directed release of the confiscated

vehicle:                      

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“It is settled law that unless the driver of the vehicle acted as an agent of the owner of the said vehicle and indulged in carrying forest produce  in  illegally  and  that  too  with  the knowledge  and  connivance  of  the  owner neither  the  vehicle  could  be  confiscated  nor the  owner  could  be  prosecuted  for  such alleged offence.”  

5. In  support  of  the  appeal,  learned  counsel  for  the

appellants  submitted  that  the  impugned  order  is  not

sustainable in law.  The onus was on the owner of the vehicle

to establish that he had no knowledge about the carrying of

illegal timber.  Additionally, the statement given by the owner

was at great variance with the statement given by the driver

and the other occupants of the vehicle at the time of seizure.

There is no appearance on behalf of the respondent in spite of

service of notice.   

6. At this juncture, it will be relevant to quote Sections 59

(A) and 59(B) of the Act as inserted by the Amendment Act.

The provisions read as follows:

“59-A.  Confiscation  by  Forest  officer  of

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forest produce in the case of forest offence believed  to  have  been  committed-  (1) Notwithstanding  anything  contained  in  the foregoing provisions of this chapter or in any other  law for the time being in force, where a forest-officer  is  believed  to  have  been committed  in  respect  of  the  timber  or  other forest-produce  which  is  the  property  of  the State  Government,  the  Forest  Officer  or  the Police-officer seizing the timber or other forest produce  under  sub-section  (1)  of  Section  52 shall,  without  any  unreasonable   delay, produce  the  same,  together  with  all  tools, ropes, chains, boats, vehicles and cattle used in committing the offence before an officer of a rank not inferior to that of an Assistant Con- servator  of  Forest  authorised  by  the  State Government  in  this  behalf  by  notification  in the official Gazette (hereinafter referred as the authorized officer).  

(2) The State Government may for any local area, authorize one or more officers under sub-section (1).

(3) Where any timber or other forest produce which  is  the  property  of  the  State Government  is  produced  before  an authorized  officer  under  sub-section  (1) and the authorized officer is satisfied that a  forest  offence  has  been  committed  in respect  of  such  property,  he  may, whether or not a prosecution is instituted for  the  commission  of  such  offence,  or other confiscation of the property together with  all  tools,  ropes,  chains,  boats, vehicles  and  cattle  used  in  committing the offence.

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(4)(a)  Where  the  authorized  officer,  after passing  the  order  of  confiscation  of  the property together with all tools, ropes, chains, boats,  vehicles  and cattle  as aforesaid under sub-section  (3),  is  of  opinion  that  it  is expedient  in the public  interest  so to do,  he may order such property or any part  thereof and such tools, ropes, chains, boats, vehicles and cattle to be sold by public auction.

(b) Where  the  order  of  confiscation  of  any property  or  tools,  ropes,  chains,  boats, vehicles or cattle under sub-section (3) is set aside  or  annulled  under  Section  59C  or Section 59-D, the proceeds of sale by auction shall,  after  deduction  of  the  expenses  of auction  and  all  other  incidental  expenses relating thereto, if any, be paid to the owner of such  property  or  tools,  ropes,  chains,  boats, vehicles or cattle or to the person from where the same was seized as may be specified in the order under Section 59-C or Section 59-D.

59-B. Issue  of  notice  before confiscation-(1)  No  order  confiscating  any property  or  tools,  ropes,  chains,  boats, vehicles or cattle shall be made under Section 59-D except after giving a notice in writing to the owner of, or the person from whom, such property  or  tools,  ropes,  chains,  boats, vehicles or cattle have been seized for showing cause  as  to  why  the  same  should  not  be confiscated and considering his objections,  if any:

Provided  that  no  order  confiscating  any motor vehicle shall be made except after giving

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a  notice  in  writing  to  the  registered  owner thereof  if,  in  the  opinion  of  the  authorized officer,  it  is  practicable  to  do  so  and considering his objections, if any.

Explanation-  “Motor  Vehicle”  shall  have  the same meaning  as in  the  Motor  Vehicles  Act, 1939 (4 of 1939).

(2) Without  prejudice  to  the  provisions  of sub-section (1), no order confiscating any tool, rope,  chain,  boat,  vehicle  or  cattle  shall  be made under Section 59-A if the owner thereof proves  to  the  satisfaction  of  the  authorized officer that such tool, rope, chain, boat, vehicle or  cattle  was used  in carrying the  timber  or other forest produce without the knowledge or connivance of the owner himself or his agent, if any, or the person in charge thereof and that each  of  them  had  taken  all  reasonable  and necessary precautions against such use.”   

7. A bare reading of sub-Section (2) of Section 59-B makes

the  position  clear  that  no  order  confiscating  any  tool,  rope

chain, boat, vehicle or cattle shall be made under Section 59-A

if the owner thereof proves to the satisfaction of the authorized

officer that such tool, rope, chain, boat, vehicle or cattle was

used in carrying the timber or other forest produce without

the  knowledge  or  connivance  of  the  owner  himself  or  his

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agent, if any, or the person in charge thereof and that each of

them  had  taken  all  reasonable  and  necessary  precautions

against such use.   

8. The language used is very clear.  It is the owner who has

to prove that the vehicle was used in carrying timber or other

forest produce without his knowledge or connivance or that of

his agent.  

9. The  requirement  is  mandatory  that  the  owner  has  to

prove that he had no knowledge or had not connived.  It is a

matter which is within his knowledge.  Mere assertion without

anything else will not suffice.  There is another requirement

that either  he or his  agent,  if  any,  or the person in-charge

thereof  had  taken  all  reasonable  and  necessary  precaution

against such use.  This aspect has to be established by the

concerned  person  by  sufficient  material.   As  noted  above,

mere assertion in that regard could not be sufficient.      

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10. The  Forest  Officer  and  the  Appellate  Authority  clearly

noted  that  the  owner  failed  to  establish  his  alleged  lack of

knowledge or connivance or taking necessary precaution.  The

High  Court  came  to  an  abrupt  conclusion  and  held  that

without  knowledge  of  the  owner  of  the  vehicle  driver  was

carrying forest  produce  illegally.   The  High Court  held  that

unless the driver of the vehicle acted as an agent of the owner

of  the  said  vehicle  and indulged  in carrying forest  produce

illegally and that too with the knowledge and connivance of

the owner, neither the vehicle could be confiscated nor could

the owner be prosecuted for such alleged offence.  

11. Both  the  forest  officer  and  the  Appellate  Authority

categorically held that the lack of knowledge as asserted was

not established.  High Court did not record any finding that all

possible care had been taken to prevent such misuse.     

12. The  High  Court  has  not  even  analysed  the  factual

position and only concluded that the vehicle was being used

for  carrying  illegal  timber  without  the  knowledge  and

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connivance  of  the  owner.   It  has  not  even  referred  to  the

materials which weighed with the forest officer and the first

Appellate Authority to conclude that the onus in law on the

owner has not been discharged.     

13. In State of Karnataka v. K. Krishnan (2000(7) SCC 80), it

was inter alia noted as follows:

“6. Chapter VI of the Act makes provision for control of timber and other forest produce in transit.  The authorised officer has the power to  seize  any forest  produce  together  with  all tools,  boats,  vehicles  or  cattle  or  any  other property  used  in  connection  with  the commission  of  an  offence  in  respect  of  any forest produce.  An authorised officer has also the power to release the property seized under Section  62.   All  timber  or  forest  produce, which is not the property of the Government and in respect  of  which a forest  offence  has been committed and all tools, boats, vehicles and  cattle  used  in  committing  any  forest offence  are  liable  to  forfeiture  by  the  State Government  subject  to  the  provisions  of Section  71-G  of  the  Act.   Section  71-A authorizes  the  Forest  Officer  to  order confiscation of  the seized  property  in certain cases.   Any  person  aggrieved  by  an  order passed  under  Section  71-A  or  Section  71-C has the right to file an appeal to the Sessions Judge  having  jurisdiction  over  the  area  in

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which the property to which the order relates has been seized.

7.   Learned  counsel  appearing  for  the appellant  State  has  submitted  and we  agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act  was  enacted.   Liberal  approach  in  the matter  with  respect  to  the  property  seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of  the  Act.   Before  passing  an  order  for releasing  the  forest  produce  or  the  property used in the commission of the forest offence, the  authorised  officer  or  the  appellate authority  has  to  specify  the  reasons  which justify  such  release,  apparently,  prima  facie excluding  the  possibility  of  such  forest produce  or  the  property  being  confiscated ultimately.   Generally,  therefore,  any  forest produce and the tools, boats, vehicles, cattle, etc.,  used  in  the  commission  of  the  forest offence,  which are liable  to forfeiture,  should not be released.  This, however, does not debar the officers and the authorities under the Act including the appellate authority from passing appropriate orders under the circumstances of each  case  but  only  after  assigning  valid reasons.  The liberal  approach in the matter would  perpetuate  the  commission  of  more offences  with  respect  to  the  forest  and  its produce  which,  if  not  protected,  is  surely  to affect  mother  earth  and  the  atmosphere surrounding it.  The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and  safeguarding  both  the  forests  and  their produce.  The forests are not only the natural

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wealth  of  the  country  but  also  protector  of human  life  by  providing  a  clean  and unpolluted  atmosphere.   We  are  of  the considered  view  that  when  any  vehicle  is seized  on the allegation that it  was used  for committing a forest offence, the same shall not normally  be  returned  to  a  party  till  the culmination of all the proceedings in respect of such  offence,  including  confiscatory proceedings,  if  any.   Nonetheless,  if  for  any exceptional  reasons  a  court  is  inclined  to release  the  vehicle  during  such  pendency, furnishing  a  bank  guarantee  should  be  the minimum condition.  No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence.  Any such easy release would tempt  the  forest  offenders  to  repeat commission of such offences.  Its casualty will be  the  forests  as  the  same  cannot  be replenished for years to come.

8.   The  approach  adopted  both  by  the Authorised  Officer  and  the  High  Court completely  ignores  the  importance  of  the forests and the purpose of the object for which the Act was made.  As the appellant State has not  prayed  for  quashing  the  order  of  the Authorised Officer we refrain to deal with that even though we do not approve of it.  We are, however,  satisfied  that  the  High  Court  had adopted  a  very  casual  approach  while disposing of the petition under Section 482 of the Code of Criminal Procedure.  Besides that the order impugned is contrary to law, we have our reservations with respect to the powers of the  High Court  under  Section 482 Cr.P.C  in

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the  matter  which  we  do  not  express  in  this case.

14. The position in law was again reiterated in State of West

Bengal v.  Gopal Sarkar (2002 (1) SCC 495).  The High Court

was not justified in setting aside the confiscation.  But there is

another  aspect  which  needs  to  be  noted.   The  vehicle  in

question  was  released  pursuant  to  the  High  Court’s  order.

Though the appeal  is allowed, there is no point in directing

restoration  of  the  vehicle.   We  direct  that  a  sum  of

Rs.20,000/- shall be deposited by the respondent within three

months from today so that the restoration of the vehicle shall

not be necessary.   The  amount shall  be  deposited  with the

concerned Forest department of the State of West Bengal.  The

appeal is allowed to the aforesaid extent.  No costs.     

………………………… …J.

(DR. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

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New Delhi: February 27, 2008

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