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2003 DIGILAW 81 (GAU)

Gopeshwar Saha v. State of Tripura

2003-02-21

B.B.DEB

body2003
B.B. DEB, J.— The Order Of Learned District Judge, West Tripura, Agartala Passed Under Sub-Section (5) Of Section 52A Of Indian Forest (Tripura Second Amendment) Act, 1986 Upholding The Order Of Confiscation Of The Vehicle (Lorry) Belonging To The Petitioner Passed By The Authorised Officer (Divisional Forest Officer) In Exercise Of Power Under Sub-Section (2) Of Section 52 A Of The Said Act, Has Been Put Under Challenge In This Writ Petition. 2. The Facts Leading To The Present Petition Under Article 226 Of The Constitution Of India Could Be Summarised Thus:- The Vehicle Bearing No. AXA-3587 Belonging To The Petitioner Was Seized By The Authorised Officials On 10.5.1993 While It Was Carrying Some Wooden Timbers Without Any Permit On Assam-Agartala Road. The Petitioner Received Two Successive Notices Dated 12th & 17th July, 1993 Issued By The Authorised Officer (Divisional Forest Officer, Teliamura) Requiring Him To Show-Cause As To Why The Said Vehicle Should Not Be Confiscated As It Carried 78 Pieces Of "Illegal Gamair Swan Timoer" Unauthorisedly. The Petitioner Furnished His Reply On 24.7.1993 Staling, Inter Alia, That The Driver Of The Vehicle Might Have Carried The Said Wooden Timbers Without His Knowledge And Consent And, As Such, He Claimed His Vehicle To Be Released Without Resorting To Confiscation Proceeding. After Recording The Statements Of The Petitioner And The Forest Beat Officer Who Seized The Vehicle With Timber, The Authorised Officer Confiscated The Vehicle Vide Impugned Order Dated 3.9.1993 In Exercise Of His Power Under Section 51A(2) Of The Act. The Petitioner Carried Futile Statutory Appeal Under Sub­section (5) Of Section 52A Of The Act As Mentioned Above. 3. The State Respondent Contested The Case By Filing Counter-Affidavit, Recitals Of Which Go To Show That The Vehicle Was Intercepted And Seized By The Forest Authorised Official While It Was Carrying Contraband Forest Produce On Assam-Agartala Road. The Driver And Assistant Of The Vehicle Were Apprehended But Any How The Driver Managed To Flee Away. The Designated Authorised Officer Issued Show-Cause Notice, Considered Reply Furnished By The Owner And After Affording Opportunity Of Being Heard Passed The Impugned Order In Exercise Of Statutory Power. The Owner Failed To Prove That The Vehicle Carried The Illicit Timber Without His Knowledge And Thus The Order Of Confiscation Requires No Interference. 4. The Crux Of The Attack Made By The Learned Counsel For The Petitioner Appears To Be Three Folds Viz. The Owner Failed To Prove That The Vehicle Carried The Illicit Timber Without His Knowledge And Thus The Order Of Confiscation Requires No Interference. 4. The Crux Of The Attack Made By The Learned Counsel For The Petitioner Appears To Be Three Folds Viz. The Seizure Was Made Contrary To The Provision Of Section 52(1) Of The Indian Forest Act (Central Act), The Confiscation Proceeding Under Sub-Section (2) Of Section 52A Of Tripura Amendment Is Not Obligatory But Conditional And Discretionary, And The Findings Of The Authorised Officer Confiscating The Vehicle Is Perverse. 5. In Developing His Argument Mr. Biswas, Learned Counsel For The Petitioner Submits That The Provision Of Section 52( 1) Of The Principal Act Does Not Contemplate Of 'Vehicle' Td Be Seized And Confiscated. The Aforesaid Provision Of The Central Act Is Reproduced Below: "S.52( 1) When There Is Reason To Believe That A Forest-Offence Has Been Committed In Respect Of Any Forest Produce, Such Produce, Together With All Tools, Boats, Carts Or Cattle Used In Committing Any Such Offence, Maybe Seized By Any Forest Officer Or Police Office." 6. The Aforesaid Challenge Requires No Decision In View Of Section 5 Of The Indian Forest (Tripura Amendment) Act, 1984 Which Includes Among Others .'Vehicle' Also. The Said Provision Of Tripura Amendment Act Is Reproduced Below: "5. In Sub-Section (1) Of Section 52 Of The Principal Act, For The Words "Carts Or Cattle," The Words Mark 'Carts, Vehicles Or Cattle' Shall Be Substituted." 7. Mr Biswas, Learned Counsel For The Petitioner Submits That The Discretionary Power Of Confiscating A Seized Vehicle Could Be Exercised Only After Launching A Criminal Prosecution For Commission Of Any Forest Offence Under Sub-Section (2) Of Section 52A Of The Indian Forest (Tripura Second Amendment) Act, 1986. For Convenience Sake The Said Provision Is Reproduced Below: "52A. (2) Where The Authorised Officer Seizes Under Sub-Section (1) Of Section 52 Any Forest Produce Or Where Any Such Property Is Produced Before The Authorised Officer After Seizure By Any Forest Officer 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 Instituted For The Commission Of Such Forest Offence, Order Confiscation Of The Property So Seized Together With All Tools, Equipments, Ropes, Chains, Boats, Carts, Vehicles And Cattle Used In Committing Such Offence." 8. According To Mr Biswas, Since No Criminal Prosecution Was Launched Against Anybody For The Commission Of Forest Offence In Carrying The Illicit Forest Timbers. No Confiscation Proceeding Could Lawfully Be Initiated. To Controvert, The Learned Advocate General Relying Upon A Decision Of The Hon'ble Apex Court In The State Of West Bengal- Vs-Gopal Sarkar, Reported In (2002)1 SCC 495 , Submits That The Lodging Of Any Criminal Prosecution For The Commission Of Any Forest Offence Is Not A Condition Precedent To Initiate Confiscation Proceeding. In View Of The Sub-Section (2) Of Section 52A Of The Act (Supra) It Reveals That The Authorised Officer May Order Confiscation Of The Property Seized Notwithstanding Institution Of Any Criminal Prosecution For The Commission Of Any Forest Offence And The Aforesaid Proposition Has Been Approved By The Hon'ble Apex Court In The Case Of Gopal Sarkar (Supra). Before The Initiation Of Confiscation Proceeding, The Authorised Officer Is To Be Satisfied That A Forest Offence Has Been Committed. In The Present Case, Undoubtedly By Carrying Illicit Timber Without Authority Of Law A Forest Offence Has Been Committed And That Satisfaction Of The Authorised Officer Is Very Much Traceable From The Show-Cause Notice Served Upon The Petitioner. Mr Biswas, Learned Counsel For The Petitioner Submits That In View Of Sub-Section (2) Of Section 52A Of The Act, Confiscation Is Discretionary As The Said Provision Envisaged That "Such Authorised Officer 'May'.... Order Confiscation Of The Property" (Emphasis Supplied). The Learned Advocate General Vehemently Argues That The Order 'May' Used In The Aforesaid Sub-Section, Having Regard To The Object To Be Achieved By Tripura Amendment Act Is To Be Construed As 'Must' And, As Such, Confiscation Of The Seized Property Is Obligatory Upon The Unauthorised Officer. On Perusal Of The Said Provision Already Quoted Above, In My Considered Opinion, The Initiation Of The Proceeding For Confiscation Of Seized Property Is Obligatory Upon The Authorised Officer But To Pass A Final Order Of Confiscation Is Discretionary Subject To Satisfaction Of The Authority As To The Awareness Of The Owner Of The Vehicle About Carrying Of Contraband Forest Produce.a 10. Learned Counsel Mr Biswas Submits That There Is No Evidence On Record That The Owner Having Full Consent And Knowledge Allowed The Illicit Timber To Be Carried In His Vehicle By The Driver. Learned Counsel Mr Biswas Submits That There Is No Evidence On Record That The Owner Having Full Consent And Knowledge Allowed The Illicit Timber To Be Carried In His Vehicle By The Driver. Rather, According To Mr Biswas, The Owner Petitioner Instructed His Driver To Carry Consignments Booked By The Truck Owners Syndicate, An Association Of Truck Owners And In Case The Driver Carried Contraband Forest Produce The Owner Can Not Be Held Responsible. 11. On The Other Hand, The Learned Advocate General Submits That During The Confiscation Proceeding All Sorts Of Opportunities Have Been Allowed To The Owner Petitioner To Discharge His Burden As To His Unawareness But He Failed, And Thus, According To The Learned Advocate General, In Absence Of Any Provision To The Contrary Available Under The Indian Forest-Act Or Rules Made Thereunder, The General Provision Of Section 102 Of The Evidence Act As Reproduced Is Squarely Applicable:- "102. On Whom Burden Of Proof Lies. - The Burden Of Proof In A Suit Or Proceeding Lies On That Person Who Would Fail If No Evidence At All Were Given On Either Side." 12. Having Placed Strong Reliance On A Decision Of Hon'ble Apex Court In Assistant Forest Conservator And Others- Vs- Sharad Ramchandra Kale, Reported In AIR 1998 SC 2927 , Learned Advocate General Submits That In Case The Owner Could Successfully Prove That The Vehicle Was Used For Carrying Forest Produces In Contravention Of The Forest Act Without The Knowledge Of The Owner, No Order Of Confiscation Is Called For. On Perusal, It Appears That If The Owner Could Prove By Convincing Evidence That The Driver Carried Contraband Forest Produces Without His Consent And In Absence Of His Knowledge His Vehicle Cannot Be Confiscated. In The Present Case, It Appears That Despite Reasonable Opportunities Have Been Allowed, The Owner Could Not Produce Any Evidence Oral Or Documentary Establishing The Fact That The Instructed The Driver Not To Carry Any Contraband Forest Produce. In The Present Case, It Appears That Despite Reasonable Opportunities Have Been Allowed, The Owner Could Not Produce Any Evidence Oral Or Documentary Establishing The Fact That The Instructed The Driver Not To Carry Any Contraband Forest Produce. The Petitioner Has Not Even Produced The Copy Of The Appointment Letter Of His Driver Showing Any Clause Forbidding The Driver From Carrying Any Illicit/Contraband Forest Produce In The Vehicle And He Did Not Even Examine The Assistant Who Accompanied The Vehicle And, As Such, In My Considered Opinion In Absence Of Any Such Evidence Produced By The Owner-Petitioner, It Cannot Be Presumed That The Driver Carried The Illicit Timber Without His Consent And As Such In My Considered Opinion, The Finding Arrived At By The Authorised Officer Confiscating The Vehicle Cannot Be Held To Be Perverse. That Aspect Of The Matter Has Also Been Examined By The Learned District Judge In Deciding The Appeal Under Sub-Section (5) Of Section 52 A Of The Act. 13. In A Proceeding Like One In Hand, The Court Is Called Upon To Examine The Decision Making Process And Not The Decision Itself. 14. Another Question Has Been Raised By The Learned Counsel For The Petitioner As To Whether The Entire Confiscated Amount Should Be Credited To The Government Or Instead Of Confiscation Of The Vehicle Some Amount Being Part Of Confiscation Could Be Realised From The Owner-Petitioner. The Matter Pertaining To Confiscation In Entirety Or Part Thereof Would Depend Upon The Facts And Circumstances Of A Particular Case. In Case, It Is Found That The Vehicle Carried Contraband Forest Produce With The Explicit Consent And/Or Conscious Knowledge Of The Owner, The Vehicle Must Be Confiscated In Entirety But While The Constructive Consent Of The Owner Is Only Inferred From The Facts And Circumstances Of The Case Confiscation Should Be Done Partly. Admittedly, In The Present Case The Owner-Petitioner Did Not Accompany The Vehicle And No Expressed Consent Could Be Inferred From The Materials Available Though The Owner Cannot Absolve His Liability Of "Constructive Consent" In Indulging The Carrying Of Contraband Forest Produce And, As Such, In My Considered Opinion, Confiscation In Entirety Is Not Called For, Because His Explicit Consent Or Conscious Knowledge Cannot Be Inferred. In That Circumstances, For Fair Ends Of Justice 25% Of The Confiscated Amount Would Be Appropriate In Addition Of Cost Of Confiscating Proceeding Roughly Quantified At Rs. In That Circumstances, For Fair Ends Of Justice 25% Of The Confiscated Amount Would Be Appropriate In Addition Of Cost Of Confiscating Proceeding Roughly Quantified At Rs. 1,0007-Would Be Just And Reasonable In The Present Case. In Case Of Disposal Of Vehicle Having Already Been Done, 25% Of The Sale Proceeds Be Credited To The Government With Additional Cost Of Rs. 1,0007- And The Rest Be Refunded To The Petitioner. If The Vehicle Has Not Yet Been Sold In Auction After Confiscation, The Authority Is To Assess The Present Market Value Of The Vehicle And Realise 25% Of The Same In Addition To Rs. 1000/-. With This Observation And Direction, The Writ Petition Is Partly Allowed To The Extent Indicated Above.