H.H.MEHTA - (1.) The State of Gujarat has by filing this writ petition under Article 227 of the Constitution of India challenged the legality and validity of a judgement Exh.12 dated 25.9.89 rendered by the Learned Sessions Judge, Panch Mahals, Godhra (hereinafter referred to as "the learned Appellate Judge") in Criminal Appeal NO. 10 of 1989.
(2.) The brief facts leading to the present petition in a nutshell are as follows:- On or about 15.5.1988 at about 2:13 a.m. in the midnight, the Round Forester, Singapur, Taluka Limkheda apprehended the vehicle in question i.e. Tempo No. GRV-7003 (hereinafter referred to as the "offending vehicle") loaded with reserved teak wood and injalli wood. On asking the driver of the offending vehicle as to whether he was possessing a transit pass or permit to remove the aforesaid wood, it was found that the driver had no such pass or permit and hence the felling of the trees was suspicious and hence the wood as well as the offending vehicle were seized under Section 52 of the Indian Forests Act, 1927 (for short "the Act"). The driver and the cleaner of the vehicle fled away leaving the offending vehicle behind. Thereafter, a forest offence was registered as Singapur Crime Register No. 28 of 1988-89 and the Range Forest Officer, Limkheda reported the matter to the Deputy Conservator of Forests, Baria Division, Baria on 16.5.1988. 2.1. Thereafter, the Deputy Conservator of Forests, Baria passed an order dated 17.10.1988 under Section 61(A) of the Act and confiscated the wood which was being carried in the said tempo as well as the offending tempo. In that case, with regard to confiscation of offending tempo, the present respondent, who is admittedly the owner of the vehicle, was an affected person. Against the order being passed by the Deputy Conservator of Forests, Baria, present opponent (owner of offending Tempo) had filed an appeal under Section 61(D) of the Act in the Sessions Court, Panch Mahals at Godhra. That appeal came to be registered as Criminal Appeal No. 10 of 1989. After hearing the arguments of the learned advocates for both the parties and after appreciating the evidence on record available to the Learned Appellate Judge, the Learned Appellate Judge by rendering his judgement dated 25.9.89, partly allowed that appeal preferred by the present respondent. As per the operative portion of the order, the Learned Appellate Judge set aside the order of the confiscation of the offending vehicle and simultaneously he modified the order by imposing a penalty of Rs.5000.00 to be paid by the appellant of that appeal. By operative portion of that order, it was further directed that on payment of such penalty by the appellant, the respondent no.2 shall give the custody of the offending vehicle to the appellant of that appeal. 2.3. As per Sub-Section (2) of Section 61(D) of the Act an order of the Sessions Judge under sub-section (1) is to be treated as final and it cannot be questioned in any Court of Law, the State Government has preferred this writ petition under Article 227 of the Constitution of India. 2.4. During the pendency of this present mater, the respondent i.e. the owner of the tempo moved this Court by filing Misc. Criminal Application NO. 2525 of 1990 with a request to this Court to release the tempo & hand over the same to him on suitable conditions. That Misc. Criminal Application No. 2525 of 1990 came to be decided by this Court (Coram: N.J.Pandya, J) on 27.11.1990. By order dated 27.11.90, this Court directed that pending the disposal of Special Criminal Application No. 1395 of 1989 i.e. the present matter, Vehicle No. GRV 7003 lying with the Deputy Conservator of Forests, Baria Division, Baria be handed over to the applicant i.e. the owner of the tempo on his executing a bond of Rs.50000/with a surety of like amount and the final custody of the vehicle shall abide by the order that may be passed after hearing the said application i.e. Misc. Criminal Application No. 1395 of 1989. It is pertinent to note that the State Government has not challenged that order dated 27.11.90 of this Court by which custody has been given to the present respondent.
(3.) I have heard Shri B.Y.Mankad, Learned APP for the State i.e. the petitioner and Shri Akshay Mehta for the respondent i.e. the owner of the tempo. I have perused the documents produced by the petitioner. During the course of arguments, Shri B.Y.Mankad, on query being made by this Court, produced a copy of the order dated 25.11.88 passed by the Assistant Conservator of Forests. It is taken up on record. As submitted by Mr.B.Y.Mankad, said order has been passed under Section 68 of the Act.;