1. This is a petition under Article 226 of the Constitution of India.
2. Material facts giving rise to this petition briefly are as follows:--
The petitioner carries on business at Dhamnod of transporting goods by road and is the owner of truck bearing registration No. MPO 9493. On 4th October 1982. the aforesaid truck was seized by the officers of the Forest Department on the allegation that. the truck was involved in an offence under the M. P, Van Upai (Vya-par Viniyaman) Adhiniyam 1969 (hereinafter referred to as 'the State Act'). At that time, the truck was being driven by driver Bhuwan son of Mansingh an employee of the petitioner, and the truck was in the custody of the driver. The allegation of the Forest Officers was that 22 logs of teak wood were being unauthorisedly transported in the truck. The petitioner averred that according to the Forest Officers the driver of the truck had compounded the offence and respondent No. 3. the Divisional Forest Officer had therefore, passed an order (Annexure A1 directing that Rs. 1000 be recovered by way of compensation from Bhuwan son of Mansingh for the offences under Sections 5. 11 and 13 of the State Act. It was further directed by respondent No. 3 in that order that the value of the truck which was seized and was liable to confiscation was estimated to be Rs. 70.000 and that on payment of that sum, the truck would be released under Section 19 (l) (b) of the State Act The petitioner contends that before passing the aforesaid order, the petitioner, the owner of the truck, was not heard and given any opportunity of hearing and the appeal against that order preferred by the petitioner before the Conservatorof Forest 'was dismissed. Hence the petitioner has filed this petition.
3. In the return filed on behalf of the respondent it was stated that on the date of the incident, 22 logs of teak wood which is a. specified forest produce within the meaning of Section 2 (g) (b) of the State Act. were being transported without any transit pass, that the said logs did not bear any hammer mark as provided by the Transit Rules and when interrogated, the driver of the truck did not produce any authority or transit pass. It was. therefore, contended that as the driver of the truck hari committed offences under Sections. 5. 11 and 13 of the State Act a panchnama was drawn up and the truck was seized. It was further stated that the statement of the driver was recorded on that day in which he admitted that he was illegally transporting the specified forest produce. It was further contended that on 5th Oct. 1982, the driver of the truck offered to compound the offences and he signed a Razi-nama agreeing to pay such compensation as would be determined by the Divisional Forest Officer. It was. therefore contended that the composition of the offences under the State Act. was completed and respondent No. 3 thereafter proceeded to determine the amount payable by the driver of the truck by way Of compensation as required by Section 19 (1) (a) of the State Act. It was further stated that since under the provisions of the State Act. once composition was complete, the property seized could be returned only on payment of the value determined under Section 19 (l) (b) of the State Act: the Divisional Forest Officer had determined the value of the truck at Rs. 70,000. It was contended that the provisions of Section 55 of the Forest Act Were applicable and the truck was liable to confiscation which could be released only after payment of Rs. 70.000.
4. Shri Chaphekar. learned counsel for the petitioner contended that respondent No. 1 had no authority to confiscate the truck or to take any action under Secton 19 (11 (b) of the State Act. It wag urged that by virtue of the provisions of Section 22 of the State Act. the provisions of the Forest Act (hereinafter referred to as 'the Central Act') were not applicable in the instant case, as it was undisputed that 22 logs of teak wood which were seized were specified forest produce under the State Act. Learned counsel, therefore contended that as the provisions of the Central Act were notapplicable and as there was no provision under the State Act empowering the respondents to confiscate the truck, the petitioner's truck was illegally detained by the respondent. It was. therefore urged that the respondents be directed to deliver the possession of the truck which was seized bv them to the peti-tioner.
5. In reply. Shri Kulshrestha. learned Deputy Government Advocate contended that words and expressions not defined in the State Act had to be given the same meaning as was assigned to them in the Central Act by virtue of Section 2 (a) of the State Act and hence the expression 'liable to confiscation' was to be understood by resorting to the provisions of Section 55(1) of the Central Act. It was further contended that the impugned order passed by the Divisional Forest Officer and the detention of truck was legal and the petition was liable to be dismissed.
6. Before we proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of law. It is admitted that 'Teak Wood' is notified aa a 'specified forest produce' in relation to the area in question. Purchase or transport of teak wood except in accordance with the provisions of Section 5 of the State Act is prohibited. Section 15 of the State Act permits the officers mentioned in that provision to stop and search anv vehicle used for the transport of specified forest produce and seize the specified forest produce in respect of which the officer suspects that any provision of the State Act or the rules made thereunder is being contravened along with the vehicle used in carrying such produce. Section 16 of the State Act deals with penalties which could be imposed by a Court and Section 18 of the State Act deals with cognizance of offences under the State Act by a Court. Section 19 deals with composition of offences and that provision reads as under:--
'Section 19. Composition of offences:--
(1) The State Government may, by notification empower a Forest Officer.-
(a) to accept from any person against whom a reasonable suspicion exists that he had committed an offence punishable under this Act a sum of money by way of compensation for the offence which such person is suspected to have committed: and
(b) when any property other - than , a specified forest produce has been seizedas liable to confiscation, to release the same On payment of the value thereof as estimated by such officer.
(21) On the payment of such sum of money, or such value or both as the case may be. to such officer, the suspected persons shall be discharged, the property, other than the specified forest produce, if any, seized shall be released and no further proceedings shall be taken against such person or property.
(3) A Forest Officer shall not be empowered under this section unless he is a Forest Officer of a rank not inferior to that of a Divisional Forest Officer and the sum of money accepted as compensation under clause fa) of Sub-section (l) shall in no case exceed the sum of one thousand rupees:'
Section 22 of the State Act provides that nothing contained in the Central Act would apply to specified forest produce in respect of matters for which provisions are contained in the State Act.
7. It is thus clear that the respondents had authority to seize the truck OK 4-10-1982 as specified forest produce was being transported in that truck. However, neither any charge-sheet has been filed in respect of the offences alleged to have been committed by the petitioner or his driver, nor the truck has been produced before a Court by the respondents. The contention advanced on behalf of the respondents is that the truck being liable to confiscation, it could be released only on payment of its value as estimated bv respondent No, 3. as provided by Section 19 (1) (b) of the State Act.
8. The short question for consideration, therefore, is whether the truck of the petitioner which was seized, is liable to confiscation. No provision in the State Act was brought to our notice which provides that a vehicle used for transporting specified forest produce without a permit is liable to confiscation. Reliance was however placed on behalf of the respondents on Section 55(1) of the Central Act as amended in the State of M. P. which reads as under:--
'Section 55. Forest produce, tools etc. when liable to confiscation- (1) All timber or forest produce which is not the property of Government and in respect of which a forest offence has been committed, and all tools-boats, vehicles and cattle used in _ committing anv forest offence shall be liable to confiscation.'
Now. in respect of transit or sale of specified forest produce, provisions are made in the State Act. Section 22 of the State Act provides that the provisions of the Central Act would not apply to specified .forest produce in respect of the matters for which provisions are contained in the State Act. Therefore, in respect of transit or sale of specified forest produce, the provisions of the Central Act arc not applicable. 'Forest Offence1 under Section 55(1) of the Central Act is defined by Section 2(3) of the Central Act to mean an offence punishable under the Central Act or any rule made thereunder. No 'Forest Offence' as contemplated by Section 55(1) of the Central Act can be held to have been committed in the instant case and hence the truck in question cannot be held to be liable to confiscation under Section 55(1) of the Central Act.
9. On behalf of the respondents, reliance was placed on the provisions of Section 2 (a) of the State Act which reads as under:--
'Section 2 (a): Words and expressions used but not defined in this Act and denned in the Indian Forest Act. 1927 (16 of 1927) shall have the meaninff assigned to them in that. Act.' Now. the Central Act does not contain any definition of the expression 'property liable to confiscation'. Section 55(1) of the Central Act provides in what cases property is liable to confiscation. As we have already observed, that provision is inapplicable in the instant case. The respondents want us to introduce a provision in the State Act similar to one found in Section 55(1) of the Central Act. But the Courts however have no power to legislate. The conclusion is inescapable that there is no provision of law under which the truck in question can be confiscated by the respondents. The question of exercising powers under Section 19(11) (M of the State Act does not. therefore, arise. The order in that behalf passed by respondent No. 3 deserves to be quashed.
10. The learned counsel for the respondents referred to a decision of a learned single Judge of this Court, reported in 1983 (1) Crimes 295: (1983 Cri LJ 1378) (Santosh Kumar Mishra v. State of M. P.). but that decision is distinguishable on facts. The question in that case was whether a criminal Court exercising jurisdiction under Section 457. Cr, P. C. could sit in judgment over the orders of (.he Divisional Forest Officer u/s. 19 (1) (b) of the Act even jf the orderwas not in accordance with law. Moreover, the following observations in that decision are pertinent;--
'It. does appear that there is a lacuna in the Act as has been pointed out by the learned counsel for the appellant. There is no provision for confiscation of any property other than specified forest produce, though Section 19 (1) (b) provides that any property other than specified forest produce which has been seized as liable to confiscation. the same may be released on payment of the value thereof as estimated by the officer concerned, without there being any specified provision for confiscation. But this matter cannot be agitated in a proceeding under Section 457 and the remedy of the applicant is before some other forum.' It was admitted before us that the truck in question was not produced before a Court and no orders regarding its disposal have been passed by any criminal Court. Under these circumstances the detention of the truck in question by the respondents must be held to be without any authority of law.
11. As regards the question as to whether there was or was not composition of any offence by the driver of the truck and as to whether the Divisional Forest Officer could impose a fine on the driver of the truck, we express no opinion, as the driver of the truck has not raised anv question in that, behalf.
12. On behalf of the petitioner, an affidavit of driver Bhuwan. who was identified by Shri Kokje. the learned counsel for the petitioner was filed. In that affidavit, it has been stated that the truck bearing registration No. MPO 9493 which was seized by the Forest Officers on 4-10-82. belongs to the petitioner and the deponent was in possession of the truck on that day as a driver. It is further stated that the deponent has no right, title or interest in the said truck and he would have no objection if the said truck is returned to the petitioner. The fact that the truck belongs to the petitioner has not been disputed before us on behalf of the respondents. In these circumstances, the respondents can be directed to restore the possession of the truck to the petitioner.
13. For all these reasons, the petition is allowed. The order (Annex. Al passed by respondent No. 3 in so far as it holds that the truck is liable to be confiscated and would be returned only after payment of Rs, 70,000 is quashed,The respondents are directed to restore the possession of the truck to the petitioner within a fortnight from today. In the circumstances of the case, parties shall bear their own costs of this petition. Security amount, if any. be refunded to the petitioner.