A.P.THAKER, J. -
(1.) This petition is filed under Article 227 of the Constitution of India whereby the petitioner is challenging the order passed by the Dy. Conservator of Forest (North), Valsad whereby the respondent No.2 vide order dated 27.3.2017 directed that the vehicle being Truck bearing registration no. GJ15XX6519 be vested with the State as per the provisions of Section 61(f) of the Indian Forest Act, 1927 and the decision of the learned Sessions Court Valsad, passed in Criminal Appeal No. 32 of 2017 (hereinafter referred to as 'the Act').
(2.) The brief facts giving rise to present petition is that the petitioner had purchased the vehicle being Truck bearing registration no. GJ15XX6519 from the respondent no.3 by executing one agreement to the said effect dated 9.9.2016. However, the said Truck was not transferred in the records of RTO in the name of the petitioner. The said vehicle was seized by Respondent no.2 when the same was parked loaded with forest product viz. Khair logs which were illegally cut from the forest. According to Respondent No.2, the First Offence Register i.e. FOR was registered on 8.10.2016 and the statement of the petitioner was recorded on 7.10.2016 and pursuant to the registration of the FOR, the , the Round Offence No.8 of 201617 was registered and whereafter Dharampur Range Offence No. 49 of 2016 was registered. It is also case of the respondent that pursuant to the registration of the said offence, vehicle in question was taken into custody by the forest authorities and proceedings for confiscation of the vehicle was initiated vide Ka/Offence/Vahan/T8/3906 16/201617 before Respondent No.2, who has passed the impugned order.
2.1 The said Order of the Respondent No.2 was then challenged by the Petitioner by filing Criminal Appeal No. 32 of 2017 before the Learned District and Sessions Judge, Valsad, who has also confirmed the order passed by respondent no.2.
2.2 It is contended by the petitioner that the Forest authorities as well as learned Sessions Judge, Valsad has committed serious error of facts and law in passing the impugned orders. It is contended that the Sessions Judge ought to have appreciated that the only criteria required to be taken into consideration while releasing the muddamal vehicle is that whether the vehicle was utilised for transportation of forest products or not. It is contended that in the present case, it is not in dispute that the forest produce alleged to have been illegally transported was not a property of the Government and, therefore, the vehicle could not have been confiscated. According to him, the statement of the person, who is occupying the land viz. Amrutbhai Patalbhai was also recorded and he has specifically stated that because of financial difficulty, he had sold the said trees to the petitioner and, therefore, the trees log cannot be said to be Government property as it was purchased from a private man. He has also contended that the Sessions Judge has not taken into consideration the provisions of Section 68 of the Indian Forest Act and that opportunity ought to have been given to the petitioner as per Section 68 of the Indian Forest Act. He has also contended that pursuant to the seizure of the vehicle in question, no complaint has been made by the Forest Officer before the learned Magistrate and in absence of any such complaint, the order of confiscation is bad. On this grounds, he has sought following relief:
"(A) YOUR LORDSHIPS be pleased to admit and allow this petition;
(B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the order dated 9.5.2018 passed by the Ld. Sessions Judge, Valsad in Criminal Appeal No. 32 of 2017 as well as order dated 27.3.2017 passed by respondent no.2 in proceedings no. Ka/Offence/ Vahan/ T 9/390616/201617 and further be pleased to direct the respondent no.2 to release the vehicle being Truck bearing registration no. GJ15XX 6519 in favour of the petitioner, in the interest;
(C) Pending the admission, hearing and final disposal of this Petition, YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of impugned order dated 9.5.2018 passed by the Ld. Sessions Judge, Valsad in Criminal Appeal No. 32 of 2017 as well as order dated 27.3.2017 passed by respondent no.2 in proceedings no. Ka/Offence/ Vahan/ T9/390616/201617 and further be pleased to direct the respondent no.2 to release the vehicle being Truck bearing registration no. GJ15 XX6519 in favour of the petitioner on such terms and conditions as this Hon'ble Court may deem fit and proper, in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper in the interest of justice and equity."
(3.) The Respondent has filed affidavitinreply wherien it is submitted that on the basis of input on 7.10.2016, Police Inspector of Dharampur Police Station found a truck in question loaded with illegal Khair wood at residence of the petitioner at Village Fulvadi, Taluka Dharampur, Dist. Valsad. It is also submitted that as loaded Khair woord found illegal, Dharampur Police detained the truck along with the present petitioner and handed over the seized truck loaded with illegal Khair wood with the Petitioner to Dharampur Foreset Range Staff on 7.10.2016 and Dharampur Forest Department took over seized material and carried out necessary Panchnamas, numbered seized Khair wood and calculated it as 141 Khair wood logs, 2.820 Cmt. It is also submitted that as the material was from illegal source and without cutting as well as transit permission, an offence was registered with Makadban Round Forester Offence No. 01/201617 dated 08.10.2016, Makadban Round Offnce No. 08/201617, Dharampur Range offnce No. 49/201617 under Section 41(2)(B) of Indian Forest Act, 1927 and for breach of Bombay Forest Rules, 1942 Rule No. 91, 92 and 94 against the petitiioner. It is also submitted that the petitioner accused was released on bail by Assistant Conservator of Forest, Dharampur as per provisions of Section 65 of Indian Forest Act.
3.1 It is also submitted by the authority that after followng proper procedures, Deputy Conservator of Forest, Valsad North Forest Division, has passed an order No. K/Guna/VHN/T8/390616 dated 27.03.2017 for confiscation of seized Khair Wood logs along with the Truck involved in the matter against which the petitioner has preferred Criminal Appeal No. 32/2017, which came to be rejected by the Sessions Court, Valsad.
3.2 It is also submitted by the authority that during the investigation of the said offence, it was found that the Khair wood in question were cut from private land bearing Survey No. 145 paiki 1 and 146/1 of Fulvadi village, Dharampur taluka, Valsad District. It is also submitted that as per statement of the petitioner accused dated 7.10.2016, the petitioner has purchased said Khair trees located on said survey numbers from one Shri Amrutbhai Patalbhai Patel on lump sum amount of Rs.50,000/-. According to the respondent, as per statement of Amrutbhai Patalbhai Patel, he is managing the said land from ancestral time which is not entered in the village Form in his name. He has also submitted that out of Shri Nanubhai Ukaliyabhai, Ghelabhai Ukaliyabhai, Kamalben Narsingbhai, Niranjanaben Narsingbhai, Hiteshbhai Narsingbhai, the statements of Shri Nanubhai Ukaliyabhai, Ghelabhai Ukaliyabhai, Kamalben Narsingbhai were recorded by Range Forest Officer, Dharampur on 9.10.2016, wherein they have stated that Amratbhai Patalbhai Patel has grabbed their land forcefully and cut Khair trees without their knowledge as well as permission.
3.3 According to the Respondent, the truck in question was found to be registered in the name of one Shri Ishwarbhai Bhanabhai Patel, r/o. Bhensdhara, Nisal Faliya, Taluka Dharampur, Dist. Valsad, who in his statement before Range Forest Officer, Dharampur on 15.10.2016 , stated that he has sold the said truck to the present petitioner on 15.8.2016 and has also produced selling document (Dastavej) on Stamp Paper of Rs.100/ of dated 9.9.2016. It is also contended that present petitioner in his statement before the authority has stated that he carried out cutting of Khair trees with labourers provided by one Shri Lahnubhai r/o. Mohana Kavchali village, Dharampur and paid Rs.2000/- per ton as a labour charge. It is also stated by the petitioner in his statement that he was about to sale this Khair wood to a person namely Shri Mangleshwar, r/o. Maharashtra and he has also supplied one truck Khair wood earlier.
3.4 It is also contended that sufficient opportunity of being heard has been provided to the petitioner and thereafter final order was passed. It is also submitted that Khair tree is declared as a reserved tree as per provisions of Mumbai Land Revenue Act vide Gujarat Government's Resolution No. TRS/1661/100095A4 dated 5.1.1962 and rights regarding Khair trees lies with Gujarat Government. According to the authority, as per the provisions of Bombay Forest Rules Rule No. 90 to 94, permission of Government is required for cutting of reserve trees and no such permission has been obtained in the present case. While narrating the antecedents of the petitioner, it is submitted by the authority that the present petitioner was involved in the same activity earlier. The authority has stated that there is no illegality committed in passing the order of confiscation of truck in question. ;