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Karna Laxman Gawali And Others v. State Of Maharashtra And Another

Bombay High Court

Mar 27, 1989

Judgment

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Factual and Procedural Background

The petition arises from an incident on 25-6-1988 when herds of about 125 cattle belonging to the petitioners (nomadic graziers Karna Gawali, Hira Gawali and Pandu Wada) were found grazing deep inside Compartment No. 345 of a reserved forest in district Chandrapur. Three graziers looked after the cattle. Forest officers, assisted by labourers, attempted to catch the herds; on notice, the graziers ran away. Sixty-five cattle heads were caught in the forest and many others were chased to the village and caught. The cattle were seized.

A show cause notice under Section 61B was issued asking why the seized cattle should not be confiscated under Section 61A(3). The petitioners admitted absence of a grazing licence, admitted grazing in the forest, and expressed willingness to pay fine; one contention was that the cattle had strayed by animal instinct. The second respondent held an enquiry, found offences under Section 26(1)(d) (trespassing/pasturing cattle or permitting cattle to trespass) and Section 26(1)(f) (damaging trees), recorded belief that the cattle were instrumental in the commission of those offences and ordered confiscation under Section 61A. The petitioners appealed under Section 61D; the Sessions Judge remanded for fresh inquiry. After a fresh inquiry (seven persons examined, cross-examination and defence witnesses heard), the authorised officer again ordered confiscation. Appeal to the Sessions Judge failed and this writ petition followed.

Findings recorded by the authorised officer (as noted in the opinion) included: (i) unauthorised pasturing/permission to trespass by the petitioners with the help of graziers; (ii) the cattle ate and damaged forest produce (grass, young bamboo plants and other saplings) causing damage assessed at Rs. 4.68 lakhs; (iii) guilt was admitted; and (iv) the defence that cattle merely strayed despite precautions was rejected.

Legal Issues Presented

Whether cattle instrumental in the commission of forest offences under Section 26(1)(d) and/or Section 26(1)(f) of the Indian Forest Act, 1927 can be confiscated under Section 61A(3) of the Act.
Whether the confiscatory power under Section 61A is confined only to cases where cattle (or other items) are used for carrying timber, sandalwood, firewood, charcoal or any other notified forest produce (i.e., whether Section 61A applies only to carriers).
Whether findings of fact on which belief about commission of forest offences under Section 61A is based are open to challenge in writ jurisdiction (i.e., scope of judicial review of factual findings in this context).

Arguments of the Parties

Petitioners' Arguments

Section 61A's power to confiscate cattle is confined to cases where cattle are used for carrying timber, sandalwood, firewood, charcoal or other notified forest produce; it does not extend to cattle merely instrumental in trespass or in eating/damaging forest produce on the spot under Section 26(1)(d) or (f).
One factual defence argued was that the cattle strayed into the forest by animal instinct despite precautions taken by the owners.
It was also contended (late in arguments) that the forest was not reserved, which if accepted would affect application of certain provisions (argument raised before the Court but not before the authorised officer).

Respondents' / State's Arguments

The plain language of Section 52 and Section 61A and the object of the Indian Forest (Maharashtra Amendment) Act, 1984 (Act No. VII of 1985) indicate that Section 61A applies to all varieties of forest offences and permits confiscation of tools, boats, vehicles and cattle used in committing such offences, not confined only to carriers of produce.
Section 61A is an additional, independent power (it begins with a non-obstante clause) created to provide an effective remedy against exploitation of forest wealth and to reach civil liability of owners whose servants commit offences; it therefore covers cattle that cause damage on the spot by grazing.
Findings of fact reached by the authorised officer (and affirmed on appeal) should not be disturbed in writ jurisdiction unless perversity in appreciation of evidence is shown.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Emperor v. Mohammad Khan, AIR 1938 Nagpur 365	Held that cattle instrumental in eating grass and damaging forest property are liable to confiscation under Section 55 (as then framed); cattle used in grazing causing damage attract confiscation as much as cattle used in removal of timber.	The Court relied on this precedent to support the proposition that cattle which cause damage by grazing (offence under Section 26(d)) can be subject to confiscation; the precedent was treated as analogous and supportive of the enlarged view of confiscatory power.
State of Maharashtra v. Arun Tabadu Mahajan, 1988 Mh. L.J. 191	Held that cattle used in committing forest offences under Section 26(1)(d) are liable to forfeiture under Section 55 by a convicting court.	The Court cited this decision to demonstrate that prior authority had treated cattle used in cattle-trespass offences as subject to forfeiture/confiscation and used it to buttress the conclusion that Section 61A likewise reaches such cattle.
Saiyyad Rahim v. Emperor, AIR 1915 Nagpur 2	Decision dealing with criminal liability of the owner for acts of a servant under the Act.	The Court noted the case among others on the subject of owner’s criminal liability for servant's acts but expressly stated that the present case did not turn on that aspect; the precedent was not applied to decide the present issues.
Fakira Sambhaji Kunbi v. Emperor, AIR 1926 Nagpur 73	Decision dealing with criminal liability of the owner for acts of a servant under the Act.	Not applied substantively; mentioned as authority on owner’s criminal liability but the Court stated the present matter did not concern that particular aspect.
Queen-Empress v. Krishtnayyan, I.L.R. XV Madras 156	Decision addressing criminal liability issues under the Act (owner's liability for servant's acts).	Mentioned with the other owner-liability authorities; the Court said it was not concerned with that aspect in the instant case.

Court's Reasoning and Analysis

The Court's analysis proceeds from the language and object of the relevant statutory provisions and the legislative amendment that introduced Sections 61A–61G.

Statutory language and scope: The Court examined Section 52 (seizure of property liable to confiscation/forfeiture) and Section 61A (confiscation by an authorised officer). It noted that Section 61A begins with a non-obstante clause and refers to property seized under Section 52(1). Section 52 admits of all varieties of forest offences and contains no exception excluding offences like cattle trespass or damage by grazing.
Purpose of amendment: The Court emphasised the object behind Act No. VII of 1985 (the Maharashtra Amendment) — to more effectively curb exploitation of forest wealth because the existing machinery of criminal prosecution and forfeiture was found ineffective. The amendment created an independent civil-like forum (a forest authority) empowered to order confiscation of property used in commission of forest offences. This remedial/enforcement purpose favours a broad construction of confiscatory powers.
Nature of Section 61A: The Court reasoned that Section 61A provides an additional and independent power (covering civil liability) to reach owners whose servants or graziers commit forest offences (and who may escape criminal liability). The non-obstante clause underscores that the power is independent of criminal prosecution.
No textual basis for narrow construction: The Court rejected the petitioners' submission that Section 61A is confined to cattle used as carriers of notified produce. It observed that Section 61B(2) refers to cattle in the context of being carriers but that this selective reference does not imply that offences under Section 26(1)(d) and (f) were intended to be excluded from Section 61A. All provisions must be harmoniously construed.
Analogy and prior authority: The Court relied on earlier decisions (Emperor v. Mohammad Khan and State of Maharashtra v. Arun Tabadu Mahajan) which, in different contexts, recognised that cattle instrumental in grazing/damaging forest produce could attract confiscation/forfeiture. These precedents supported treating cattle that damage forest produce on the spot as subject to confiscation.
Policy consideration: The Court observed that a contrary interpretation (excluding cattle trespass from Section 61A) would make cattle trespass a potentially profitable enterprise, given limited fines under Section 71, and would defeat the legislative purpose of the amendment.
Challenge to factual findings and other points: The Court held that challenges to the factual findings underlying the authorised officer's belief are not permissible in writ jurisdiction absent perversity in appreciation of evidence. The contention that the forest was not reserved was not raised before the authorised officer and, on the material before the Court, there was no reason to doubt that the compartment was a reserved forest. The argument based on the proviso to sub-section (2) of Section 52 was raised late and was not seen as relevant to the controversy.

Holding and Implications

Holding: Petition dismissed and rule discharged.

Direct consequences:

The authorised officer's order of confiscation of the seized cattle under Section 61A was upheld by the Court insofar as the petition attacking that order was dismissed.
The Court affirmed the principle that cattle instrumental in committing offences under Section 26(1)(d) and/or Section 26(1)(f) may be confiscated under Section 61A(3), applying the plain language of the Act, the purpose of the 1985 amendment and the supporting precedents cited in the opinion.
The Court maintained that factual findings made by the authorised officer (and on appeal) are not to be disturbed in writ jurisdiction unless perversity is shown.
The Court granted an interim indulgence: the interim stay previously granted by the High Court was continued for six weeks to enable the petitioners to move the Supreme Court.

Broader implications: The opinion construes Section 61A broadly to include cattle that cause damage by grazing/trespass (not limited to cattle functioning as carriers of removed produce). The decision rests on statutory language, legislative purpose and existing authorities; the Court did not purport to lay down a novel precedent beyond applying those texts and precedents to the facts.

Petition dismissed.

Show all summary ...

V.A Mohta, J.:— Can the cattle instrumental in the commission of forest offence under Section 26(1)(d) and/or (f) of the Indian Forest Act, 1927 (the Act) be confiscated under Section 61A(3) of the Act, is a point of some importance raised in this petition.

Factual background is:

2. 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 were 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 Section 61(B) was issued to the petitioners as to why the cattle seized should not be confiscated under Section 61A(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 Section 26(1)(d) and damaging the trees under Section 26(1)(f) were committed and the said cattle were instrumental in the commission of those offences. He, therefore, ordered the cattle seized under Section 52(1) to be confiscated under Section 61A. The said order was challenged in appeal under Section 61D 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 defence 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.

3. A brief resume 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 bums any tree or strips off the bark or leaves from, or otherwise damages, the same.

…………………”

4. Section 52 deals with the subject of seizure of property liable to confiscation and 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:

“61A. (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 section 52 shall without my unreasonable delay produce it, together with all tools, boats, 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 section 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 of the tools, boats, vehicles and cattle are sole as aforesaid, he 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 section 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 warring to the person from whom it is seized and considering his objections, if any:

Provided that no order confiscating a motor vehicle shail 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.

(2) Without prejudice to the provisions of sub-section (1), no order confiscating any tool, boat, vehicle or cattle shall be made under Section 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.”

5. Section 61C deals with the revisional power and section 61D with the appellate power. Section 61E clarifies that the award of any confiscation under Section 61A or Section 61C or Section 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 Section 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.

6. The learned counsel for the petitioners, contended that power of confiscation of cattle under Section 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 Section 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 Section 52 and Section 61A and so also the object behind the Act No. VII of 1985. Section 52 refers to all varieties of forest offences and admits of no exception. So is the case with section 55 and section 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 prosecution and forfeiture contained in the 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 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 Section 61A takes care of civil liability of the owners of cattle, who generaly 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 sub-section (1) of section 52. Damage to forest wealth in any form is covered by Section 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 the 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.

7. In this connection two precedents — though in different context — may be noticed (i) The case of Emperor v. Mohammad Khan, AIR 1938 Nagpur 365 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 Section 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 Section 26(d) is as much 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.”

8. (ii) The case of State of Maharashtra v. Arun Tabadu Mahajan, 1988 Mh. L.J 191 wherein it was held that cattle used in committing forest offences under Section 26(1)(d) is liable to forfeiture under section 55 by the convicting Court.

9. Undoubtedly section 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 Section 26(1)(d) and (f) were intended to be kept beyond the reach of confiscatory power under Section 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.

10. 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 Section 61A. Answer to this submission will also be the same viz. Section 61A is additional and independent power. Contrary answer will make the cattle trespass a profitable business, considering the extent of the fine imposable under section 71 of the Act, and would defeat the purpose of the Act.

11. 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 Section 61A and, therefore, detailed reference to those cases is unnecessary.

12. Our attention was invited to the cases of (i) Saiyyad Rahim v. Emperor, AIR 1915 Nagpur 2, (ii) Fakira Sambhaji Kunbi v. Emperor, AIR 1926 Nagpur 73 and (iii) Queen-Empress v. Krishtnayyan, I.L.R XV Madras 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.

13. Findings of facts upon which belief about commission of forest offences referred to in Section 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 preversity in appreciating the evidence.

14. 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 section 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.

15. 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.