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Judgment
R.P. Dholakia, J.—This petition has been filed by the State of Gujarat challenging the order passed by the Learned District Sessions Judge, Vadodara dated 30.05.1998 in Criminal Appeal No. 43/1996, whereby the appeal preferred by the respondent herein against the order passed by the Deputy Conservator of Forest was partly allowed and quashed and set aside the order dated 09.10.1996 qua confiscation of the truck bearing Registration No. GJ-7X-4260 and in lieu of that directed the respondents herein to pay Rs. 10,000/- to the Deputy Conservator of Forest within 15 days.
The short facts leading to the filing of the present petition are that on 02.07.1996, the Range Forest Officer, District : Vadodara was on patrolling duty at Kesharpura to Kashipura road, at that time, he intercepted truck bearing Registration No. GJ-7-X-4260 and with a reasonable apprehension carrying forest produce. Upon making search, it was found that the driver of the truck was loaded with teakwood logs and which was not having any pass or permit and, therefore, the offence was registered as Office No. 9/96/97 and teakwood logs along with the vehicle were seized by the Competent Officer. Thereafter, a show cause notice was issued to the concerned person and after giving opportunity to the respective parties, the Deputy Conservator of Forest has passed an order on 09.10.1996 and confiscated of teakwood logs as well as truck bearing Registration No. GJ-7-X-4260.
The present respondent-original appellants, being aggrieved and dissatisfied with the order passed by the Deputy Conservator of Forest, filed the Criminal Appeal in the Court of Learned District & Sessions Judge, Vadodara u/s 61(b) of the Indian Forest Act.
The Learned District Sessions Judge by Judgment and Order dated 30.05.1998 partly allowed the Appeal and quashed and set aside the order of Deputy Conservator of Forest of confiscating Truck bearing Registration No. GJ-7-X-4260 and in lieu of that, the respondent of said Appeal was directed to pay Rs. 10,000/- within a period of 15 days.
Being aggrieved and dissatisfied with the aforesaid order, the present petition has been filed.
I have heard learned A.P.P. for the petitioner-State of Gujarat, Ms. Falguni Patel and learned Counsel for the respondent, Mr. Y.M. Thakkar. Though the respondent No. 2 has been duly served, he has chosen not to appear either personally or through advocate.
It is submitted by the Learned Additional Public Prosecutor, Ms. Patel that while passing the impugned order, the Court has ignored the material aspect of the matter mainly that the respondent herein-original appellant is a habitual offender and during the pendency of the above inquiry, again he has committed an offence on 18.09.1996 and thereby committed breach of the undertaking given by him before the Executive Magistrate on 04.09.1996, more particularly, Condition No. 10, which shows that he has involved himself in another offence on 18.09.1996 and offence has been registered against him by the P.S.I., Halol Police Station for transporting illegal forest produce i.e. teakwood logs. It is, therefore, submitted that from the evidence on record as well as impugned order, more particularly on page Nos. 18 and 19, it is established that the respondent herein is a habitual offender and, hence, while using discretionary power, the Court ought to have taken into consideration the above aspect of the matter and restrained himself from using discretionary power in favour of the habitual offender. It is, therefore, requested that the present petition may be allowed and the impugned order may be quashed and set aside.
Learned Counsel, Mr. Thakkar has mainly argued that the learned Sessions Judge has got power to modify the order u/s 61(2)(b) of the Forest Act. He has also argued that the Sessions Court derived the power u/s 68 of the Forest Act to modify the order passed by the authority. Taking me through paragraph 10 of the judgment delivered by the learned District and Sessions Judge, Baroda, in Criminal Appeal No. 43 of 1996, it is argued that the order passed by the learned Sessions Judge was practically a consent order.
It appears from paragraph 11 of the judgment and order of the learned District and Sessions Judge that the learned APP at the court below has argued that the price of teak wood which was transported was Rs. 15,000/- and, therefore, the penalty ranging between Rs. 10,000/- and Rs. 15,000/- will meet the end of justice.
Considering the above submission made by the learned APP at the court below, the court below has passed the order fixing an amount of Rs. 10,000/- u/s 68 of the Forest Act and the truck was ordered to be handed over on payment of Rs. 10,000/-.
Though much have been argued by the learned APP at the court below, it is a concurrent judgment and order and nothing has been argued in the court below. On the contrary, learned APP has given consent to that effect and now here in the High Court, learned APP tried to raise the contentions which have not been raised in the court below. Almost all the contentions are factual in nature.
In view of the above, order passed by the authority and modified by the learned District and Sessions Judge is required to be confirmed and is hereby confirmed. This Special Criminal Application is rejected. Rule discharged. Interim relief stands vacated.