Mukesh Kumar Jaiswal, Partner M/s Jaiswal Saw Mill vs State of M.P.

A.K. Patnaik, C.J.

This is an appeal against the order dated 12.4.2005 passed by the learned single Judge in W.P. No. 2436 of 1998.

Relevant facts for disposal of the appeal briefly are that the appellant owns a Saw Mill at Pipariya. On 31.10.1991, the Divisional Forest Officer (General) Hoshangabad (DFO) with staff inspected the Saw Mill of the appellant and having found some teak-wood suspected to have been obtained illegally seized the same. Thereafter, an enquiry was made and an order dated 23.4.1992 was passed by the DFO, who is the licensing officer confiscating the Saw Mill of the appellant. Against the order of confiscation, the appellant filed an appeal before the Conservator of Forests. Hoshangabad Circle, but by order dated 3.10.1992, the Conservator of Forests dismissed the appeal. Aggrieved, the appellant filed Miscellaneous Civil Appeal No. 30 of 1992 before the learned District Judge, Hoshangabad but by order dated 7.3.1998, the District Judge also dismissed the appeal. The appellant then filed Writ Petition No. 2436 of 1998 before this Court and the learned single Judge dismissed the writ petition by the impugned order dated 12.4.2005. Aggrieved, the appellant has filed this Writ Appeal.

Mr. K.K. Pandey, learned counsel for the appellant submitted that the teak-wood that was seized in the Saw Mill of the appellant belonged to one Prem Shankar and in fact the Conservator of Forests in his appellate order dated 3.10.1992 has observed that the claim that the wood which was seized from the Saw Mill belonged to the land owner seems to be legitimate but no paper was produced in support of the claim. He further submitted that in view of this finding of the Conservator of Forests, the seized wood was returned to the appellant. He submitted that the only finding of the Conservator of Forests in the appellate order against the appellant was that the appellant had sawn the illicit forest wood without obtaining requisite documents and receipts as per rules to confirm the validity of the seized forest wood and the appellant had violated the provisions of the M.P. Kastha Chiran (Viniyaman) Adhiniyam, 1984 (for short Adhiniyam of 1984).

Mr. Ashok Agrawal, learned Government Advocate on the other hand submitted that it would be clear from the orders passed by the DFO, the Conservator of Forests and the District Judge that the teak wood stored in the Saw Mill of the appellant had been obtained illegally and in contravention of the provisions of the Adhiniyam of 1984.

Sections 9,12 (1) and 13 (1) of the Adhiniyam of 1984, which are relevant for purposes of deciding this appeal, are quoted herein below:

Keeping of account of stock of wood in saw mill and saw pit - AH wood whether sawn or not, found in or brought to the saw mill or saw pit or at the site of sawing at any time or during any period by any person in any manner or by any means for purpose of sawing or for any other purpose shall always be properly accounted for and all relevant evidence documents, receipts, order and certificate as are necessary to show that the wood is legally obtained shall be maintained and made available at the time of inspection. It shall be presumed in respect of the stock of wood which is not accounted for satisfactorily that the same has been obtained unlawfully and the stock of wood which is not accounted for satisfactorily that the same has been obtained unlawfully and the stock of wood shall be liable for confiscation.

Confiscation of saw mill, etc. - (1) Save as provided in clause (b) of Section 4 -

(a) where a saw mill or saw pit is established or operated in an area declared to be a prohibited area under sub-section (1) of Section 5; or

(b) Where a saw mill or saw pit is established or operated without a licence or without renewal of licence under sub-sections (2) and (4) respectively of Section 6; or

(c) where the saw mill or saw pit is operated after suspension or revocation of a licence under sub-section (5) of Section 6; or

(d) where saw mill or saw pit is operated with the aid of electrical energy or electrical installation in contravention of the provision of sub-section (1) of Section 10; or

(e) unaccounted wood is stored in the saw mill or saw pit.

The licensing officer may order confiscation of the stock of wood unlawfully stored with whole or portion of the plants and machinery, implements and equipments which have been used in the commission of the offence.

Penalties: (1) If any person contravenes or attempt to contravene or abets the contravention of any of the provisions of this Act or rules made thereunder he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both and in the case of a continuing contravention, with an additional fine which may extend to two hundred rupees for every day during which such contravention continues after conviction for the first such conviction: Provided that (i) where such contravention, attempt or abetment relates to section 4, or (ii) when unlawful wood involved in the contravention is more than 5 cubic metres in volume, for the second or subsequence offence the minimum imprisonment in either case shall be three months and minimum fine in either case shall be three thousand rupees.

Section 9 of the Adhiniyam of 1984 quoted above provide that all wood, whether sawn or not, found in or brought to the saw mill shall always be properly accounted for and all relevant evidence, documents, receipts, order and certificate as are necessary to show that the wood is legally obtained shall be maintained and made available at the time of inspection. Wood found in possession of a person for which no plausible explanation is given by such person is wood which is not properly accounted for. The section further provides that a stock of wood which is not accounted for satisfactorily shall be liable for confiscation. A stock of wood can be held to be obtained unlawfully if it has come to the possession of a person unlawfully. Thus, if a stock of wood has been obtained from its true owner, it cannot be held to have been unlawfully obtained. For the purpose of showing that such stock of wood has been obtained lawfully, all relevant evidence such as documents, receipts, orders or certificates will have to be produced. If on the basis of such evidence, it is established that the stock of wood has been obtained from the owner of the wood, either the Government or a private person, it cannot be held that the stock of wood has been obtained unlawfully and in such a case, it cannot also be held that the wood has not been accounted for satisfactorily. Section 9 further provides that if the stock of wood is not accounted for satisfactorily, a presumption can be drawn by the authorities that the wood has been obtained unlawfully. Hence, whether a stock of wood has been obtained from its lawful owner or not is a matter to be decided by the authorities under the Adhiniyam of 1984 on the basis of whatever evidence is produced before them by the Saw Mill owner or any other party.

A reading of Section 12 (1) of the Adhiniyam of 1984 makes it clear that a saw mill can be confiscated for any of the defaults mentioned in clauses (a), (b), (c), (d) and (e) of sub-section (1). Admittedly, clauses (a) to (d) are not attracted in the present case as the appellant held a valid licence of the saw mill at the time of seizure of the teak-wood on 31.10.1991. Clause (e) of Section 12(1) provides that where unaccounted wood is stored in the,, saw mill, the licensing officer may order confiscation of the stock of wood unlawfully stored together with whole or portion of the plant and machinery, implements and equipments which have been used in the commission of the offence. Section 12 (1), however, does not provide that for contravention of the provisions of the Act and the Rules the saw mill can be confiscated by the licensing authority. For contravention of the provisions of the Act and the Rules, a person is liable for imprisonment or fine as provided in Section 13 of the Adhiniyam of 1984. In fact, the proviso to Section 13 (1) makes a distinction between contravention of the provisions of the Act and the Rules and ''unlawful wood'' and provides that when ''unlawful wood'' involved in the contravention of the provisions of the Act and the Rules is more than 5 cubic meters, then what would be the minimum imprisonment and minimum fine.

Coming now to the facts of the case, we find that no clear finding has been recorded by the District Judge in Civil Appeal No. 30 of 1992 whether the stock of wood found in the saw mill of the appellant belonged to Prem Shankar or belonged to the Government. On the other hand, the Conservator of Forests'' appellate order dated 3.9.1992 appears to have, held that the appellant''s claim that the wood seized from the saw mill was obtained from the owner thereof was legitimate although no paper has.been produced to prove such claim. As held above, in case, it is found by the authorities that the wood seized belonged to Prem Shankar and was obtained from Prem Shankar, the wood cannot be held to be unaccounted wood. But in case there was no evidence before the authorities to establish that the wood belonged to Prem Shankar, then on the basis of presumption as in Section 9 of the Adhiniyam of 1984, the authorities can hold that the wood has been obtained unlawfully and could confiscate the stock of wood along with the saw mill. In the absence of any clear finding on these relevant aspects, the matter will have to be remanded to the District Judge to decide the appeal afresh.

We therefore set aside the impugned order dated 12.4.2005 of the learned Single Judge in W.P. No. 2436 of 1998 and the appellate order dated 7.3.1998 of the learned District Judge, Hoshangabad passed in Misc. Civil Appeal No. 30 of 1992 and remand the matter back to the learned District Judge for recording a clear finding on the basis of evidence collected in the case whether the stock of wood seized from the saw mill of the appellant belongs to Prem Shankar and was lawfully obtained from him. In case, the learned District Judge finds on the basis of evidence on record that the wood belongs to Prem shankar and has been lawfully obtained by the appellant and is accounted for, them obviously the saw mill of the appellant would not be confiscated, but in case the evidence collected in the case does not establish that the wood belongs to Prem shankar and that the wood was obtained from him lawfully, then obviously the presumption would be drawn u/s 9 of the Adhiniyam of 1984 that the wood was obtained unlawfully and has not been satisfactorily accounted for and the saw mill would be liable to be confiscated. The District Judge will pass fresh order in accordance with law and in accordance with the observations made in this judgment within three months from the date of filing of the certified copy of this order.

The appeal is allowed to the extent stated above. Considering the facts and circumstances of the case, the parties to bear their respective costs.