ORDER
Arun Mishra, J.
1. Petitioners have filed the present writ petition for issue of writ of certiorari for quashing the order (Annexure-I) dt. 6-10-1990 passed by the Divisional Forest Officer, the order (Annexure-J) passed by the Conservator of Forest on 6-10-1990 and the order (Annexure-K) passed by the learned Sessions Judge on 4-4-1991 and also the seizure memo of truck No. CPQ-5990.
2. Petitioner No. 1 is a manufacturer of Bidi. Petitioner No. 2 Shri Munna Khan is the owner of the Truck No. CPQ-5990 and is a transporter. Tendu leave being forest produce, the State of Madhya Pradesh has framed Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964 (hereinafter referred to as the 'Adhiniyam'). Similar Acts are enacted in other States. Petitioner submits that the operation of the Act is confined to the particular State concerned. Adhiniyam of Madhya Pradesh is a complete Code in itself. Section 5 put restriction on purchase or transport of tendu leaves except in the manner prescribed therein. Sections 14 to 16 prescribe for seizure of property liable to confiscation and proceeding therefor and for other matters thereunder including jurisdiction, penalty and confiscation. Section 20 prescribes that provisions of Indian Forest Act, 1927, not to apply to the tendu leaves for the purposes covered under the Act.
2A. The State Legislature has also enacted Indian Forest (Madhya Pradesh) Amendment Act, 1983. Section 52 has been substituted. Section 52 provides for the property liable to confiscation and produce. Petitioner No. 1 purchases tendu leaves from neighbouring State and imports the tendu leaves so purchased in accordance with the conditions and restrictions imposed by the respective statutory provisions. Maharashtra Government had issued a tender notice for disposal of tendu leave on 5-12-1989 for 1990 season. The petitioner No. 1 company got registered as manufacturer of Bidis and submitted tender. Petitioner No. 1 was appointed as purchaser. Petitioner No. 1 company has its manufacture units in Damoh and Sagar Districts of Madhya Pradesh State. Petitioner No. 1 company contacted transport company at Pandharbawela in Yeotmal District of State of Maharashtra for requisitioning two trucks to carry the tendu leaves. The transport company supplied one truck No. CPQ-5990 belonging to petitioner No. 2, having 22 ft. length box and another truck No. CPV-7011 having 18 ft. length box. for transport of tendu leaves under two transport permits No. 501563 dated 10-7-1990 and No. 501564 dated 10-7-1990. Since the box of truck No. CPV-7011 was smaller in size, it could not accommodate the total quantity of tendu leaves covered by T.P. No. 501564, the balance of tendu leaves quantity of 31 actual bags were loaded in the other truck No. CPQ-5990 which was transporting the tendu leaves covered by the T.P. No. 501563. Both the trucks were accompanied with the respective transport permits. Consignment was allotted on 10-7-1990. When the trucks entered in M.P. State at Khawasa check-post at the border, at Sagar barrier, checking staff refused to look into the accompanying letter and found that the truck No. CPQ-5990 containing excess stock of 31 actual bags of tendu leaves, prepared seizure memo (Annexure-B). The SDO, South Sagar Forest Division, prepared a P.O.R. Annexure-C for assumed violation of Rules 19, 20, 25 and Rule 9 of the M.P. Transit (Forest Produce) Rules, 1961 on 13-7-1990. A show-cause notice was issued. Reply (Annexure-E) was submitted. It was contended that the M.P. Transit (Forest Produce) Rules, 1961 do not apply. An affidavit of Shri Dineshbhai was also filed as to the smaller size of the box of truck No. CPV-7011 and ultimately loading of left out quantity of 31 actual bags in CPQ-5990.
3. Divisional Forest Officer as per order (Annexure-I) dated 6-10-1990 ordered confiscation of the truck. An appeal was preferred before the Conservator of Forest, which stands dismissed as per order (Annexure-J) dated 11-3-1991. Revision preferred before the Sessions Judge stands dismissed as per order (Annexure-I) on 4-4-1991. Hence, the present writ petition has been filed before this Court.
4. It is submitted by the petitioners that the M.P. Adhiniyam is not applicable and also the M.P. Transit (Forest Produce) Rules, 1961. The explanation furnished by the petitioners ought to have been accepted that the box of the truck No. CPV-7011 was smaller in size which led to loading of 31 actual bags in Truck No. CPQ-5990. The forest produce was not illegally brought within the State of Madhya Pradesh. Affidavit and the accompanying letters (Annexure-A1 and A2) with truck ought to have been accepted and acted upon.
5. No return has been filed by the respondents.
6. Shri A. G. Dhande, Senior Advocate appearing for the petitioner has submitted that the document (Annexure-A, A/1 and A/2) have not been taken into consideration which accompanied the truck in question. Thus, the order of confiscation in the facts of the case is bad in law and deserves to be quashed.
7. Shri B. N. Mishra, learned Govt. Advocate has supported the order of confiscation and contends that the M.P. Transit (Forest Produce) Rules, 1961 are clearly applicable. It is necessary as per Rule 3 to possess the valid transit pass for forest produce brought in the State of Madhya Pradesh, otherwise same is an offence and such produce along with vehicle is liable for confiscation Under Section 52 of Forest Act as inserted by M.P. Amendment Act, 1983.
8. The first submission raised by learned senior counsel for the petitioner is about inapplicability of Adhiniyam of Madhya Pradesh. He has relied upon the decision of this Court in Chhotabhai Jethabhai Patel and Co. v. State of Madhya Pradesh, Bhopal, AIR 1968 MP 127 : 1968 Cri LJ 941 and the decision of the Apex Court in appeal. The State of Madhya Pradesh v. Chhotabhai Jethabhai Patel and Co., AIR 1972 SC 971.
9. Section 5 of the Adhiniyam is quoted below :--
5. Restriction on purchase or transport of tendu leaves.-- (1) On the issue of a notification under Sub-section (3) of Section 1 in any area, no person other than,--
(a) the State Government;
(b) An Officer of State Government authorized in writing in that behalf; or
(c) An agent in respect of the unit in which the leaves have grown;
shall purchase or transport tendu leaves.
Explanation 1.-- Purchase of tendu leaves from the State Government or the aforesaid Government Officer or agent or purchase under Section 12-A shall not be deemed to be a purchase in contravention of the provisions of this Act.
Explanation II.-- A person having no interest in the holding who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the provisions of this Act.
(2) Notwithstanding anything contained in Sub-section (1),--
(a) A grower of tendu leaves may transport his leaves from any place within the unit wherein such leaves have grown to any other place in that unit; and
(b) Tendu leaves purchased from the State Government or any officer or agent specified in said sub-section by any person for manufacturer of bidis within the State or by any person for sale-outside the State may be transported by such person outside the unit in accordance with the terms and conditions of a permit to be issued in that behalf by such authority in such manner and on payment of such fee as may be prescribed. Different rates of fee may be prescribed for different types of transport vehicles.
(3) Any person desiring to sell tendu leaves may sell them to the aforesaid Government Officer or agent at any depot situated within the said unit.'
10. Section 5 of the Adhiniyam came for consideration in M/s. Chhotabhai Jethabhai (supra). M/s. Chhotabhai Jethabhai imported tendu leaves and informed the DFO that the tendu leaves Imported into Bihar were transported to factory at Sagar, Jabalpur, Damoh and Sihora Road and sought permission for transport of the leaves and to utilize he said leaves for manufacture of bidis in their factories. The DFO asked the petitioner to furnish particulars of the imported tendu leaves. The contention of the petitioner in M/s. Chhotabhai Jethabhai (supra) that the Adhiniyam does not prohibit to import the tendu leaves outside the State nor was there any restriction on a manufactured importing such leaves with the express object of consumption of the same in his factory for the manufacturer of bidis and in any event the Act or the Rules made thereunder did not purport to regulate the transport of tendu leaves imported from places outside the State. Section 5 of the Act and Rule 9 of the rules put a restriction on transport of tendu leaves grown in the State of M.P. only. This Court held that the Adhiniyam and the rules do not restrict or prohibit the import of Tendu leaves by a manufacturer from a State outside the State of Madhya Pradesh, nor do they prohibit the consumption of Tendu leaves imported by a manufacturer for purposes of manufacturing bidis in his own factory. The violation of M P. Transit (Forest Produce) Rules, 1961 was not in question either before this Court or before the apex Court in M/s. Chhotabhai Jethabhai (supra). The apex Court has affirmed the decision of this Court. The decision has different field to operate.
11. The question in the instant case is whether the petitioner has committed violation of M.P. Transit (Forest Produce) Rules, 1961 i.e. Rules 3, 19, 20 r/w Section 52 of the Forest Act as inserted by M.P. Amendment Act, 1983. Forest Produce Rules, 1961 Rule 3 requires that the forest produce moved into or from or within the State of Madhya Pradesh can only by means of valid transit pass in the form annexed to the rules. It is clear that the rules are applicable even with respect to forest produce imported into Madhya Pradesh. Same must carry valid transit pass. Rule 19 deals with Foreign Pass which requires all forest produce imported into the State of Madhya Pradesh shall be covered by a foreign pass registered under Rule 23 and in the case of a timber by a foreign property mark registered under Rule 20. The provision of Act and Rules are applicable and submission raised by petitioner is liable to be rejected.
12. On merits Truck No. CPQ-5990 admittedly was carrying 30 actual bags of tendu leaves in addition to what it was authorized to carry as per the transit pass issued. There is nothing on record to show that the truck No. CPV-7011 was checked carried lesser quantity and it was not mentioned in the reply that these two trucks were together at the time of checking of Truck CPQ-5990. In any case it has been consistently found on facts that the Truck No. CPQ-5990 was carrying unauthorized quantity of forest produce to the extent of 31 actual bags of tendu leaves and the defence that the CPV-7011 carried lesser quantity, has been rejected by the DFO. Conservator of Forest and the learned Sessions Judge on elaborate consideration of the facts and circumstances of the case. Truck No. CPQ-5990 was for destination 'Bansa' whereas CPV-7011 was for 'Garhakota', district Damoh. There is no clinching evidence on record to show that truck No. CPV-7011 carried lesser quantity. There is no endorsement found on document (Annexure-A) that additional quantity was loaded in truck No. CPQ-5990. Thus, the finding arrived at in original order, appeal and revision with respect to commission of offence is proper and is based on proper appreciation of evidence. Finding is not shown to be perverse or as such it could be arrived at in the facts and circumstances of the case.
13. Resultantly, the writ petition is held to be devoid of merit and is dismissed. No order as to costs. Security, if deposited, be refunded to the petitioner.