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Judgment
V.A. Mohta, J.—Can the cattle instrumental in the commission of forest offence under S. 26(1)(d) and/or (f) of the Indian Forest Act, 1927 (the Act) be confiscated under S. 61-A(3) of the Act, is a point of some importance raised in this petition.
Factual background is :
The petitioners Karna Gawali, Hira Gawali and Pandu Wada are nomadics who migrate along with their cattle from place to place. They had at the material time settled in the village Zari in district Chandrapur which is in the vicinity of a forest. On 25-6-1988 herds of about 125 cattle were found grazing deep inside the compartment No. 345 of a reserved forest. The cattle belonged to the petitioners. Three graziers were looking after the cattle. With the help of about 150 labourers engaged by the Forest Officers the herds of cattle was attempted to be caught. On noticing the Forest Officers and the labourers, graziers ran away. 65 cattle heads were caught in the forest and a large number ran towards the village where they were chased and caught. The cattle was seized. Some statements were recorded and a show cause notice under S. 61 (B) was issued to the petitioners as. to why the cattle seized should not be confiscated under S. 61-A(3). The petitioners admitted that they had no licence for grazing cattle in the forest, that the cattle had entered the forest and that they were liable to pay fine. Indeed they even showed willingness to pay the fine. One of their contentions was that they had gone out to the market and cattle strayed in the forest by the animal instinct. The second respondent after holding enquiry recorded a belief that forest offence of pasturing cattle and/or permitting cattle to trespass under S. 26(1)(d) and damaging the trees under S. 26(1)(f) were committed and the said cattle were instrumental in the commission of those offences. He, therefore, ordered the cattle seized under S. 52(1) to be confiscated under S. 61-A. The said order was challenged in appeal u/s 61-D before the Sessions Judge, who was pleased to remand the matter to the second respondent for fresh inquiry. Accordingly fresh inquiry was also held, 7 persons were examined. The petitioners cross-examined them through a lawyer and also examined defense witnesses. After hearing the petitioners order of confiscation was made once again. Appeal was carried to the Sessions Judge by the petitioners but without any success and hence this petition. Facts found are -
(i) cattle were unauthorisedly pastured and/or permitted to be trespassed in the reserved forest by the petitioners with the help of graziers;
(ii) the cattle ate and damaged forest produce such as grass, young plants of bamboos and other tree saplings and caused damage to the tune of Rs. 4.68 lakhs;
(iii) the guilt was even admitted; and
(iv) the defence of cattle straying in the forest merely by animal instinct despite all possible precautions by the owners was incorrect.
A brief re''sume'' of salient provisions of the Act relevant for the purposes of adjudication of the points involved may be made first.
Section 2(1) of the Act defines the term ''cattle'', Section 2(3) the term ''forest-offence'', Section 2(6) the term ''timber'' and Section 2(7) the term ''tree''. Section 26(1) gives the list of forest offences. Sub-sections (d) and (f) read thus :
"26. Acts prohibited in such forests -
(1) Any person who - ......
(d) trespasses or pastures cattle, or permits cattle to trespass;
(f) fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from, or otherwise damages, the same."
Section 52 deals with the subject of seizure of property liable to confiscation said forfeiture, Section 55 deals with forfeiture by a convicting Court. Sections 61A to 61G as inserted by the Indian Forest (Maharashtra Amendment Act, 1984 (Act No. VII of 1985) deal with the power and procedure for confiscation of property which is independent of a criminal prosecution. Sections 61A and 61B are material and hence we reproduce them for ready reference.
"61.A. (1) Notwithstanding anything contained in the foregoing provision of this Chapter or any other law, where a forest offence is believed to have been committed in respect of timber, sandalwood, firewood, charcoal or any other notified forest produce which is the property of the State Government, the officer seizing the property under sub-section (1) of S. 52 shall without any unreasonable delay produce it, together with all tools, boat, vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf by notification in the Official Gazette, not being an officer below the rank of an Assistant Conservator of Forests (hereinafter referred to as "the authorised officer").
(2) The State Government may authorise one or more officers for any local area under sub-section (1).
(3) Where an authorised officer seizes under sub-section (1) of S. 52 any timber, sandalwood, firewood, charcoal or any other notified forest-produce which is the property of the State Government or any such property is produced before an authorised officer under sub-section (1) and he is satisfied that a forest-offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest-offence, order confiscation of the property so seized together with all tools, boats, vehicles and cattle used in committing such offence.
(4)(a) Where the authorised officer, after passing an order of confiscation under sub-section (3), is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof and the tools, boats, vehicles and cattle to be sold by public auction.
(b) Where any confiscated property or the tools, boats, vehicles and cattle are sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto shall, where the order of confiscation made under this section is set aside or annulled by an order under S. 61C or 61D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.
61B. (1) No order confiscating any timber, sandalwood, firewood. charcoal or any other notified forest-produce, tools, boats, vehicles or cattle shall be made under S. 61A except after notice in writing to the person from whom it is seized and considering his objections, if any :
Provided that no order confiscating a motor vehicle shall be made except after giving notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so. and considering his objections, if any.
(21 Without prejudice to the provisions of sub-section (1), no order confiscating any tool, boat, vehicle or cattle shall be made under S. 61A if the owner of the tool, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying the timber. sandalwood, firewood, charcoal or any other notified forest-produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use."
Section 61C deals with the revisional power and Section 61D with the appellate power. Section 61E clarifies that the award of any confiscation under S. 61A or S. 61C or S. 61D shall not prevent the infliction of any punishment under the Act or any other law. The Cattle Trespass Act. 1871 is applied to certain cattle trespass in a reserved forest by S. 70 of the Act which permits seizure and impounding of cattle by any Forest Officer or Police Officer. By Section 71, fines fixed under the Cattle Trespass Act is altered.
The learned Counsel for the petitioners, contended that power of confiscation of cattle under S. 61A is confined only to cases where they are used for carrying timber, sandalwood, firewood, charcoal or any other notified forest produce and that the cattle instrumental in the commission of offence under S. 26(1)(d) or (f) are not intended to be brought in the net of confiscatory power. We find it extremely difficult to accept this contention, taking into consideration the plain language used in S. 52 and S. 61A and so also the object behind the Act No. VII of 1985. Section 25 refers to all varieties of forest offences and admits of no exception. So is the case with S. 55 and S. 61A. Object behind the Act No. VII of 1985 is to more efficiently curb the ever increasing exploitation of our forest wealth by unscrupulous persons in various ways. Machinery of criminal Act was found to be ineffective to stop the menace and hence one more separate and independent forum has been provided for and that is of a forest authority which in appropriates cases is empowered to order confiscation of a forest authority which in appropriate cases is empowered to order confiscation of property used in the commission of forest offence. Such officer performs quasi-judicial function. Procedure for enquiry into the relevant facets is contemplated and the order is subjected to revision or appeal. Thus S. 61A takes care of civil liability of the owners of cattle, who generally do not commit such forest offences themselves and employ servants for the same. Servants who are on the spot are caught and the masters can in many cases escape the criminal liability. Section 61A begins with a non obstante clause which means it contains additional and independent power of confiscation. Section 61A refers to the property seized under subsection (1) of S. 52. Damage to forest wealth in any form is covered by S. 26 and there is no reason to draw distinction between damage due to theft by carrying the property outside the forest and the damage due to eating or otherwise spoiling by the cattle on the spot itself. After all unauthorisedly grazing the cattle is nothing but theft of the forest produce.
In this connection two precedents - though in different context - may be noticed (i) The case of AIR 1938 365 (Nagpur) , wherein occasion arose to consider whether the cattle instrumental in eating the grass and damaging the property could attract the power of their confiscation contained in S. 55 of the Act as it then stood. It was held :
"While tools, boats, carts and cattle may be instrumental in cases of theft of forest produce, it cannot be disputed that cattle are also instrumental in the theft of grass which they eat and in the damage to grass and young trees while they cause in grazing; and an offence under S. 26(d) is as such an offence as the illicit removal of timber, and cattle used in committing such an offence are as much liable to confiscation as cattle drawing a cart containing illicitly felled timber."
(ii) The case of State of Maharashtra v. Arjun Tahadu Mahajan 1988 MhLJ 191, wherein it was held that'' cattle used in committing forest offences under S. 26(1)(d) is liable to forfeiture under S. 55 by the convicting Court.
Undoubtedly S. 61B(2) does not specifically refer to the cattle trespass and refers to the cattle as carrier, but merely from that, a conclusion cannot be drawn that forest offences under S. 26(1)(d) and (f) were intended to be kept beyond the reach of confiscatory power under S. 61A. All provisions are to be harmoniously construed and no provision can be read in isolation. Added to this is the specific purpose with which change in law is brought about.
It is contended that since Section 70 specifically deals with the cattle trespass and no change is brought about in the said provision, it should be held that legislative intent was to exclude the forest offence of cattle trespass from the operation of S. 61A. Answer to this submission will also be the same viz. S. 61A is additional and independent power. Contrary answer will make the cattle trespass a profitable business considering the extent of the fine imposable under S. 71 of the Act, and would defeat the purpose of the Act.
Our attention was drawn to several decisions relating to the manner of construction of penal statutes in case of doubt. Principle is well-settled and it is interpretation beneficial to the subject has to be preferred. We do not have any doubt about the interpretation of S. 61A and, therefore, detailed reference to those cases is unnecessary.
Our attention was invited to the cases of (i) Saiyyad Rahim v. Emperor AIR 1915 Nag 2 : 1915 Cri LJ 485; (ii) AIR 1926 73 (Nagpur) and (iii) Queen Empress v. Krishtnayyan ILR (1892) Mad 156, which deal with a subject of criminal liability of the owner for the acts of servant under the Act. We are not concerned with that aspect of the matter in the instant case.
Finding of facts upon which belief about commission of forest offences referred to in S. 61A is based were also challenged before us. The learned Assistant Government Pleader is right when he contends that this is impermissible in writ jurisdiction since there is no perversity in appreciating the evidence.
It was also contended that the forest is not reserved. This contention was not raised before the second respondent. Moreover we, see no reason to doubt the correctness of the stand of the respondents that Compartment No. 345 was a reserved forest. Relying on the second proviso to sub-section (2) of S. 52 it is contended that the offence in respect of which property is seized is neither notified produce nor the property of the State Government. Apart from the fact that this point is raised for the first time in the course of arguments before us, we are unable to see how that proviso is relevant to the controversy before us.
Under the circumstances, we see no merit in this petition. It is dismissed and rule discharged.
At the request of the learned Counsel for the petitioner, interim order of stay granted by this Court shall continue to operate for a period of six weeks to enable the petitioners to move the Supreme Court.
Petition dismissed.