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Madhya Pradesh High Court · body

2006 DIGILAW 1337 (MP)

DHANARAM GOLHANI v. STATE OF M. P.

2006-11-24

ABHAY M.NAIK

body2006
ORDER Abhay M. Naik, J. This writ petition has been preferred against the order of confiscation vide Annexure/P-15 confirmed vide Annexures/P-16, P-17 and P-18. Short facts leading to the writ petition are that the Petitioner was the owner of the truck bearing Registration Number MBE-2386 which was being used for transportation. The said truck was hired by one Tejilal Suryavanshi on 8-4-1991 for transportation of sawn wood from Laknadon to Barghat. The truck was loaded from Shikharchand Jain Saw Mill, Lakhnadon. It is stated that the relevant papers were checked by the forest authorities at Lakhnadon and by the Police at Barghat. As soon as the truck was unloaded, the police again arrived on the spot. The truck was again loaded with the sawn wood and was seized by the Barghat Police. A seizure memo was also prepared. The police handed over the truck with material to the forest authorities to further seize the truck and material and also the POR No. 24038/20 dated 9-4-1991. A copy of the seizure memo issued by the forest authorities at Barghat is on record as Annexure/P-5. Petitioner filed an application for release of the vehicle which was not accepted. Meanwhile, the Respondent No. 3 passed an order of confiscation of the truck without following the procedure. Ultimately, the Respondent No. 3 released the truck on supurdaginama and the possession of the truck was received by the Petitioner on 10-7-1991. Respondent No. 3 made an enquiry and after recording the evidence, an order of confiscation of the vehicle was passed vide order dated 22-9-1994 contained in Annexure/P-16. An appeal preferred against the same was dismissed vide Annexure/P-17 dated 8-5-1998. Petitioner preferred a Criminal Revision No. 26/98 which, too, has been dismissed by the Court of Sessions Judge, Seoni on 24th August, 1998 vide Annexure/P-18. This has given rise to the present writ petition. It is contended by Shri Dixit, Learned Counsel appearing for the Petitioner that the Petitioner is the owner of the vehicle in question and is proved to be ignorant of the commission of offence. It has been further contended that the Petitioner is innocent and there was no deliberate act or wilful action on his part in allowing transportation of any goods in contravention of forest laws. In such a situation, it is contended that the confiscation of the vehicle is totally illegal and arbitrary. It has been further contended that the Petitioner is innocent and there was no deliberate act or wilful action on his part in allowing transportation of any goods in contravention of forest laws. In such a situation, it is contended that the confiscation of the vehicle is totally illegal and arbitrary. A procedure for search and seizure of the property liable to confiscation is provided u/s 15 of the M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. Sub-section (6) of the same is reproduced below for convenience: (6) No order of confiscation under Sub-section (4) of any tools, vehicles, boats, ropes, chains or any other articles (other than specified forest: produce seized) shall be made if any person referred to in Clause (b) of Sub-section (5) proves to the satisfaction of authorised officer that any such tools, vehicles boats, ropes, chains or other articles were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of objects aforesaid for commission of an offence under this Act. Shri Dixit, Learned Counsel for the Petitioner relying on the decision of this Court in the case of State of M.P. v. Ram Gopal Sharma reported as 1991 (1) MPWN 66 urged that the involvement of the Petitioner is not established at all. Shri Dixit, Learned Counsel also placed reliance on an unreported decision of this Court dated 29-11-2005 passed in the case of Sarjoo Prasad v. State of M.P. and others [W.P. No. 848/1996 since reported in 2006 (2) MPLJ 65 ]. In the case of Sarjoo Prasad (supra), it was found that there was concurrent finding of fact recorded by the authorised officer as well as appellate authority that the subject tractor and trolley were used in the forest offence without the knowledge of the Petitioner and there was no connivance. In the present case, it is found that the Petitioner and his driver did not take reasonable and necessary precautions to ensure that the requisite transit pass was available and in this view of the matter the decisions rendered in the cases of Ramgopal (supra) and Sarjoo Prasad (supra) are not applicable at all. Shri Samdarshi Tiwari, learned Govt. Advocate relying upon the Apex Court decision in the case of State of M.P. Vs. Shri Samdarshi Tiwari, learned Govt. Advocate relying upon the Apex Court decision in the case of State of M.P. Vs. Suresh Kumar, contended that the burden is on the owner of the truck to prove that his truck was used in illegal activities without his knowledge or connivance. This burden having not been discharged, it has been contended that the reasons assigned for order of confiscation are valid and the impugned orders do not call for any interference. Considered the submissions and perused the record. Shri Dixit, Learned Counsel drew attention of this Court to the affidavit of the driver contained in Annexure/P-11. It may be seen that in paragraph-3 of this affidavit the driver has clearly stated that he has parked the truck as per the directions of its owner. In paragraph-4 the driver has stated on oath that he was shown the papers and was told that the same were in order. Thus, from the affidavit of the driver, it is quite clear that the driver did not care to ensure that there were complete and valid papers for transportation of the sawn wood. It is clear from Clause 3:13:1 of Annexure/P-16 that the transit pass in respect of sawn wood under transportation was not obtained at all. On the contrary, the sale letter issued by the Saw Mill was requested to be treated as transit pass. Sub-section (6) of the M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 made it obligatory that all reasonable necessary precautions must have been taken. It is clear from the record that the transit pass was neither available nor obtained in respect of transportation of the disputed wood. Transportation of the sawn wood without transit pass is obviously an offence under the provisions of the said Act. The Petitioner and/or his driver have failed to ensure that the transit pass was issued for the transportation of the disputed wood and have thus, failed to take all sorts of reasonable and necessary precautions while transporting the goods. In the case of State of M.P. v. Ram Gopal Sharma (supra), it was found that the owner of the vehicle was unaware of the commission of the offence. In the case in hands, the Petitioner and driver are found to have not taken all reasonable and necessary precautions. In the case of State of M.P. v. Ram Gopal Sharma (supra), it was found that the owner of the vehicle was unaware of the commission of the offence. In the case in hands, the Petitioner and driver are found to have not taken all reasonable and necessary precautions. If the transportation was made without reasonable and necessary precautions, it cannot be said that the order of confiscation is in contravention of Section 15 of the said Act. Hon'ble Supreme Court of India in the case of State of M.P. v. Suresh Kumar (supra) has held in paragraph-9: A bare reading of Sub-section (6) of Section 15 of the Adhiniyam quoted hereinabove shows that the burden is on the owner to prove to the satisfaction of the authorised officer that his vehicle was used without his knowledge or connivance and that all reasonable and necessary precautions were taken by him against use of his truck for the commission of an offence under this Adhiniyam. During confiscation proceedings, the competent authority recorded the statements of various forest employees including the officers and permitted the Respondent to cross-examine them but the opportunity was not availed. The forest employees when tried to stop the truck, one of the inmates of the truck tried to scare the forest employees by firing a shot from the firearm and thereafter escaped from the truck to avoid being caught. This would unmistakably show that the truck driver and other inmates were involved in illegal activities forbidden by the Adhiniyam. It also cannot be overlooked that the concealment of 120 logs of teak wood was arranged perfectly by putting tarpaulin over the logs to avoid its detection. These facts were held proved by the Forest Authorities and on these proved facts, the Forest Authorities concluded that the driver of the truck in connivance with the other inmates of the truck was carrying the wooden logs illegally. Under Sub-section (6) burden is cast upon the owner of the truck to prove that his truck was used for illegal activities without his knowledge and not with his connivance. The statement of the owner of the truck was recorded by the competent authority and the explanation sought to be given by him did not find favour with the said authority. The Respondent owner did not produce any other material on record to discharge the burden under Sub-section (6). The statement of the owner of the truck was recorded by the competent authority and the explanation sought to be given by him did not find favour with the said authority. The Respondent owner did not produce any other material on record to discharge the burden under Sub-section (6). If this be so, it cannot be said that the competent authority and the appellate authority committed any error in coming to the conclusion that the Respondent owner has failed to satisfy the authorised officer that the illegal activity committed by the driver of the truck was without his knowledge or connivance. Mere ipse dixit of the Respondent owner cannot be said to be sufficient evidence to discharge burden u/s 15(6) of the Adhiniyam. In our opinion, the High Court has totally misread and misinterpreted provisions of Section 15(6). We, therefore, cannot sustain the reasoning of the High Court and the Sessions Court as regards interpretation of Section 15(6). Considering the aforesaid, it is found from the material on record that' the finding that the Petitioner and his driver did not take the reasonable and necessary precautions does not suffer from any kind of perversity and the order of confiscation being in consonance with law is not liable to be interfered with. In the result, the petition is dismissed, however, without costs. Final Result : Dismissed