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1992 DIGILAW 315 (GUJ)

NAVINCHANDRA K. CHAVDA v. RANGE FOREST OFFICER

1992-09-29

M.S.PARIKH

body1992
PARIKH, J. ( 1 ) BY this petition under Art. 227 of the Constitution of India owner of the vehicle in question has prayed for quashing and setting aside the judgment and order passed by the learned Additional Sessions judge, Valsad at Navsari, in Criminal Appeal No. 7 of 1988, on 13/04/1992, whereby the learned Additional Sessions Judge confirmed the order of the Deputy Conservator of Forest bearing No. K/prch/11/2374/ 87-88 dated 8-3-1988 and dismissed the appeal of the owner. The owner has thus prayed for quashing and setting aside the confiscation order of the vehicle in question, which is a truck bearing Registration No. GRP 3866. Brief facts : ( 2 ) ON 22-6-1987 the petitioner sent the truck with the driver from Gondal to Valsad. On its way back from Valsad the driver gave truck without the knowledge of the petitioner (owner) to one Mr. Rameshbhai for transporting the wood to Navsari at the rate of Rs. 1300. 00 by way of hire charges. The truck was confiscated from a place near Sara Reserve Forest by the authorities alongwith four pieces of Sag wood worth about Rs. 4,000. 00. The petitioner preferred aforesaid appeal under Sec. 61 (D) of the Indian Forest Act, 1927 as amended by Indian Forest (Gujarat Amendment) Act, 1983, hereinafter referred to as the Act. That appeal was rejected by order dated 23-1-1990, resulting in filing of a Special Criminal Application No. 819 of 1990 before this Court. That application was allowed and the matter was remanded to the learned Additional Sessions Judge to hear the same afresh, as it was decided in the absence of the petitioners learned Advocate. The appeal was heard afresh and again decided against the petitioner (owner of the truck) as stated above. Point No. 2 framed by the learned Additional Sessions Judge would read as under: whether the appellant has been able to show that the driver had transported the sag wood in the truck in question without the knowledge and connivance of the owner of the truck as per Sec. 61 (B) (2) of the Indian Forest Act ? the learned Addl. Sessions Judge replied the question in the affirmative in so far as the petitioner-Truck owner was concerned, but held that the driver could not show that the Sag wood was transported in the truck in question without his (drivers) knowledge and connivance. the learned Addl. Sessions Judge replied the question in the affirmative in so far as the petitioner-Truck owner was concerned, but held that the driver could not show that the Sag wood was transported in the truck in question without his (drivers) knowledge and connivance. ( 3 ) IN this connection the learned Addl. Sessions Judge observed and held as under with regard to the provision contained in Sec. 61 (B) of the act : when the raid was laid the petitioner being the owner of the truck was not personally present. It also appeared from the record that the truck was not used for transportation of wood when it started from Gondal and that it was also not meant for such use. On the contrary, it has been observed by the learned judge, the truck was loaded with the goods being transported and after the trip for such transportation was over, the driver had entered into a transaction of earning some rent by permitting the truck to be used for transporting wood. Under such circumstances, the learned Addl. Sessions Judge held that the transportation of wood in the truck in question was neither with knowledge nor connivance of the owner. He, however, interpreted the provision contained in Sec. 61 (B) (1) and (2) of the Act. He held that since the driver could not show want of his knowledge or want of his connivance for the transportation of wood, the truck was liable to be confiscated even qua the owner of the truck, i. e. , the petitioner. Thus, according to the learned Judge the drivers knowledge and connivance was referable to the owners right under the said provision. This precisely is the question which requires consideration and which would determine the fate of this petition. ( 4 ) IT has been submitted by Miss Sangita Thakkar, learned Advocate for the petitioner that the provision contained in sub-sec. (1), proviso thereto in particular, of Sec. 61b of the Act confers a specific right to the registered owner of a motor vehicle of being heard and sub-sec. (2) thereof cannot be construed as to withdraw such right. In reply, Mr. Bukhari, learned A. P. P. for the State submitted that sub-sec. (2) refers not only to the owner, but his agent as also the person in-charge of the vehicle. (2) thereof cannot be construed as to withdraw such right. In reply, Mr. Bukhari, learned A. P. P. for the State submitted that sub-sec. (2) refers not only to the owner, but his agent as also the person in-charge of the vehicle. It would, therefore, be necessary to set-out the provision contained in Sec. 61b (1) and (2) of the act, which reads as under :"sec. 61b (I): issue of show cause notice before confiscation under Sec. 61a (1 ). No order confiscating any forest produce or tools, ropes, chains, boats, vehicles or cattle shall be made under Sec. 61 A except after notice in writing to the person from whom it is seized informing him of the grounds on which it is proposed to confiscate it and considering his objections, if any : provided that no order confiscating a motor vehicle shall 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-see. (1) no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Sec. 61a if the owner of the tool, rope, chain, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying forest produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in-charge of the tool, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use. " ( 5 ) ON a plain reading of the proviso to Sec. 61b (1), it clearly appears that registered owner of a motor vehicle has been conferred with a right of being heard before confiscation of his motor vehicle. Conferment of such right cannot be in futility for, sub-sec. (2) immediately says that no order of confiscation of a vehicle is to be made, if it is proved to the satisfaction of the Forest Officer that the vehicle was used in carrying forest produce without the knowledge or connivance of the owner himself, his agent if any, and the person in-charge of the vehicle and that each of them has taken all necessary and reasonable precautions against such use. The protection so conferred upon the owner of the vehicle, both under the proviso as well as sub-sec. (2) quoted above read together would have to be read referable to the owner or to his agent including person in-charge of the vehicle acting within authority. Now when a motor vehicle is used for a regular and lawful transport of goods, the driver who might be the agent or the person in-charge of such vehicle might divert the vehicle for its unlawful use for carrying forest produce without the knowledge or connivance of the owner and the owner could not be said to have foreseen such an unlawful use. Can in such a case the provision be construed so as to attribute knowledge and connivance of driver to an innocent unwary owner of the vehicle ? The answer would be in the negative, since if an innocent unwary owner is to be attributed drivers knowledge or connivance in carrying forest produce, (in which case he obviously acts beyond his authority) the very provision would be rendered nugatory and perhaps void. The rule of construction, therefore, in suet cases should be such as would make the provision effective or operative. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam and Ors. , air 1990 SC 123 the rule has been succinctly stated by the Honble Supreme court in following terms in para 49 (p. 152) as under :"the Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle "us res majis valeat quam periat". It is, no doubt, true that if a Statute is absolutely vague and its language wholly intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under art. 14; but what a Court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester racecourse Co. This is not in judicial review by testing the law for arbitrariness or unreasonableness under art. 14; but what a Court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester racecourse Co. , (1900) 2 Ch 352, Farwell, J. said :"unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty. "in Fawcett Properties v. Buckingham County Council, (1960) 3 All ER 503, Lord denning approving the dictum of Farwell, J. said :"but when a Statute has some meaning, even though it is obscure, or several meanings, even though it is little to choose between them, the Courts have to say what meaning the Statute has to bear rather than reject it as a nullity. "it is, therefore, the Courts duty to make what it can of the Statute, knowing that the Statutes are meant to be operative and not inept and that nothing short of impossibility should allow a Court to declare a Statute unworkable. In Whit/ley v. Inland Revenue Commissioner, 1926 AC 37, Lord Dunedin said :"a Statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. " ( 6 ) IN view of the above rule of construction, it appears plain to me that the decision of the learned Additional Sessions Judge suffers from nonapplication of mind on the aforesaid true construction of the aforesaid provision. ( 7 ) LEARNED A. P. P. Mr. Bukhari placed reliance on a decision of this court in the case of State of Gujarat v. Luhana Prabhudas Vrajlal reported in 1990 (2) GLH 360 : ( 1990 (2) GLR 1300 ), where the principal contention of the respondent was that the High Court cannot interfere usually to correct the error of law in the decision of Sessions Court. It was held in that regard that the Additional Sessions Judge failed to consider the provisions of Sec. 61b of the Act. Miss Sangita Thakkar, learned Advocate for the petitioner drew my attention to para 9 of the citation. It was held in that regard that the Additional Sessions Judge failed to consider the provisions of Sec. 61b of the Act. Miss Sangita Thakkar, learned Advocate for the petitioner drew my attention to para 9 of the citation. There it has been observed that if the owner of the vehicle proves to the satisfaction of the Authorised Officer that it was used in carrying forest produce, without knowledge or connivance of the owner himself, no order confiscating any vehicle shall be made under Sec. 61a of the Act. It was held that, to this there was non-application of mind. It can be seen that the decision to an extent lends support to the aforesaid view of the provision contained in Sec, 61b (2) of the Act. ( 8 ) IN the result, the present petition deserves to be allowed and the impugned order of confiscation of the vehicle in question is hereby quashed and set aside, setting aside the judgments and orders of the authority as well as the learned Additional Sessions Judge. Rule made absolute accordingly. .