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2006 DIGILAW 214 (ORI)

STATE OF ORISSA v. NIRMAL DAS

2006-03-22

A.K.PARICHHA, P.K.TRIPATHY

body2006
( 1 ) ON the request of the parties, both the writ petitions are heard and disposed of analogously. ( 2 ) O. R. Case No. 34 of 2001-2002 was initiated under Section 56 (2-a) of Orissa forest Act, 1972 (in short 'the Act') for confiscation of a Mini Truck bearing Registration No. OR-01-6151 and the timber and woods seized from that truck in transit on 19-2-2002 on National Highway No. 5 near r. M. C. Check gate, Balasore. The owner of the truck advanced the plea that the aforesaid transportation was made without his knowledge and consent and as against his instruction and, therefore, he is not liable for the mistake committed by the driver. He further stated that the driver of the truck was misled by the owner of the timber that said person had the authority to carry/ transport such articles. ( 3 ) BEFORE the authorized officer, department examined two witnesses to prove the factum of detection and seizure and absence of any valid permit or order from competent authority to transport the seized logs and wood. The owner of the truck on the other hand examined three witnesses, i. e. himself as O. P. W. No. 1, the driver O. P. W. No. 2 and the owner of the seized goods O. P. W. No. 3. O. P. W. No. 1 stated that he was ignorant about the act of the driver loading and transporting the illegal timbers. O. P. W. No. 2 stated in his evidence that because of ignorance of law by him relating to requirement of Timber Transport Permit, he transported the logs on the statement of O. P. W. No. 3 that such logs were cut and removed from his recorded holding O. P. W. No. 3 stated in his evidence that the seized logs and wood were from the free belonging to him and felled for sale to meet the marriage expenses of his sister and that he was carrying the same to Balasore for the purpose of sale. On appreciation of such evidence, the Authorized Officer found breach of Rules 4, 12 and 14 of the Orissa Timber and Other forest Produce Transit Rules, 1980 (in short 'the Rules') constituting Forest Offence and accordingly passed order for confiscation of the seized logs equivalent to 55. 39 Cft. and the aforesaid Mini Truck. On appreciation of such evidence, the Authorized Officer found breach of Rules 4, 12 and 14 of the Orissa Timber and Other forest Produce Transit Rules, 1980 (in short 'the Rules') constituting Forest Offence and accordingly passed order for confiscation of the seized logs equivalent to 55. 39 Cft. and the aforesaid Mini Truck. Owner of the truck challenged that order of confiscation in the court of District Judge, Balasore in Misc. Appeal No. 50 of 2002. In the impugned judgment delivered on 11-7-2002, learned district Judge, Balasore set aside the order of confiscation on the grounds that : (i) A case of vicarious liability of the owner has not been made out. (ii) Evidence of O. P. W. Nos. 2 and 3 indicates that the driver was also not responsible for carrying the logs; (iii) No forest offence was committed in carrying the logs in the aforesaid manner; and above all (iv) The seized goods and the truck being not produced before the authorized officer, there has been a breach of the provision in section 56 (2) (a) and, therefore, there could not be an order of confiscation. ( 4 ) THE aforesaid order of learned District Judge is under challenge before us by the State in W. P. (C) No. 47 98 of 2002. On the other hand when the Forest Officials did not release the truck pursuant to the aforesaid order of the District Judge, the owner of the truck has filed W. P. (C) No. 4444 of 2002 to issue a direction for release of the truck. ( 5 ) IT is rightly stated at the Bar that result in w. P. (C) No. 4798 of 2002 will abide the result in W. P. (C) No. 4444 of 2002. ( 6 ) WHILE challenging to the judgment of learned District Judge, Balasore, learned standing Counsel submits that plea of vicarious liability was not properly considered on the basis of the sound principle of law and the ratio in the cases of State of Orissa represented through the Range Officer, khurda Forest Range v. Kiran Sankar panda, (1991) 71 CLT 157 and Malatilata samal v. State of Orissa, 2002 (2) OLR 216 : (2002 Cri LJ 3913 ). In the said context, he argues that the case of Assistant Forest Conservator v. Sharad Ramchandra Kale, (1998)14 (OCR) (SC) 185 : ( AIR 1998 SC 2927 ) is not applicable because of distinguishing fact. Learned Standing Counsel further argues that the admitted fact situation about the seizure of the vehicle along with the logs clearly makes out a case of commission of forest Offence in breach of Rule 4 of the rules 1980 and, therefore, a Forest Offence has been committed. When the seizure was made and the fact was reported to the authorized Officer, the requirement of law in section 56 (2) (a) is complied with. Learned standing Counsel in that context relies on the view of the Apex Court in the case of state of Karnataka v. K. Krishnan, AIR 2000 sc 2729 : (2000 Cri LJ 3971), that liberal approach should be avoided in such matters. ( 7 ) MR. G. K. Mishra, learned counsel appearing for the owner of the seized truck advances argument supporting the impugned judgment of learned District Judge and states that evidence on record was appreciated by learned District Judge to record factual finding about proof of bona fide with the owner in the matter of no conspiracy for illegal transportation and that the driver was also innocent in the said transaction. In the absence of any illegality or perversity that factual finding should not be interfered with, when this Court is in seisin of the matter under Art. 227 of the Constitution. He further argues that when the seized goods were not produced before the authorized Officer, therefore, the Confiscation Proceeding was not maintainable as per the decision of this court in the case of State of Orissa represented through Forest Range Officer, bolongir v. P. P. Agrawala, (1998) 85 CLT 179 : (AIR 1998 Orissa 54 ). He states that narration of facts discussed on relevant sequences and reference to the relevant statutory provision in the Forest Law impliedly gives rise to such a proposition of law. Accordingly he prays to maintain the order passed by learned District Judge and consequentially to issue direction to the state to release the seized truck in his favour. He states that narration of facts discussed on relevant sequences and reference to the relevant statutory provision in the Forest Law impliedly gives rise to such a proposition of law. Accordingly he prays to maintain the order passed by learned District Judge and consequentially to issue direction to the state to release the seized truck in his favour. ( 8 ) POSITION of law is clear that while exercising supervisory jurisdiction under article 227 of the Constitution of India, High court may peruse the evidence on record to see if the Courts below have appreciated the evidence and decided the case correctly and legally. A mere error in that respect committed by the Court before may not be sufficient to interfere with the impugned order, but when the approach of the Court below together with its decision suffers from illegality, then the writ Court may interfere with the factual finding and/or the result of the case. It has already been indicated that fact of detaining and seizure of the seized truck with the seized logs and wood by the forest officials is the admitted fact. The Authorized officer did not find bona fide in the evidence of O. P. W. Nos. 1, 2 and 3 (owner and driver of the truck and the owner of the seized logs respectively) so as to release the trucks in favour of the owner. Learned District Judge adopted the logic that owner had not directed the driver to cause transportation of the seized logs and wood and, therefore, the owner is not liable, and similarly since the owner of the logs and wood persuaded the driver to carry it being belonging to him, therefore the driver innocently transported the logs and wood and they cannot be held to be indulged in any forest offence resulting in confiscation of the mini truck. ( 9 ) IN the above context, learned District judge failed to understand and import the meaning of "vicarious liability" so also he failed to notice the well settled principle propounded by this Court in the cases reported in 71 (1991) CLT 157 and 2002 (2) OLR216 : (2002 Cri LJ 3913) (supra ). ( 9 ) IN the above context, learned District judge failed to understand and import the meaning of "vicarious liability" so also he failed to notice the well settled principle propounded by this Court in the cases reported in 71 (1991) CLT 157 and 2002 (2) OLR216 : (2002 Cri LJ 3913) (supra ). In the above noted first citation, a Division Bench presided by hon'ble Chief Justice (as His Lordship then was) held that,"so far as confiscation of any tool, rope, chain, boat, vehicle or cattle is concerned, Section 56 (2-c) has excluded the conception of mens rea by necessary implication. "analysing the principle of vicarious liability, their Lordships further held that,"if the forest offence is committed even with the knowledge or connivance of the driver of the vehicle, the same would be liable to confiscation even though the owner might not have any knowledge or connivance in the matter. The view taken by the district Judge that connivance of the driver would be a separate matter to be decided in a separate proceeding, as observed in paragraph 4 of the impugned order is not correct. "similarly, view has also been expressed in the case of Malatilata Samal (2002 Cri LJ 3913) (supra ). Evidence of the O. P. Ws. also does not exonerate the owner of the truck from the vicarious liability of illegal transportation of the logs and wood. Learned District Judge committed the aforesaid illegality because of casual approach to the evidence on record and not property following the provision of law on 'vicarious liability'. Decision of the Apex Court in Sharad ramachandra Kale ( AIR 1998 SC 2927 ) (supra) is distinguishable because of failure to prove on record knowledge of the owner to attract vicarious liability. We thus find that the factual finding and the conclusion recorded by learned District Judge is non-sustainable. ( 10 ) LEARNED District Judge held that the authorized Officer did not state that any forest offence was committed. Such finding suffers from perversity in as much as the authorized Officer has clearly noted in the order of confiscation that,"so beyond any doubt, it is proved that the Mini Truck has committed a forest offence by loading and transporting the illegal timbers without any T. T. permit as per provision of law. So it violated the Sections 4, 12 and 14 of T. T. Rule 1980. So it violated the Sections 4, 12 and 14 of T. T. Rule 1980. "in the above context, Section 2 (e) defines 'forest offence' by stating that,"forest offence means an offence punishable under this Act or under the Rules and includes abetment of forest offence. "there is no dispute at the Bar to the above quoted finding recorded by the Authorized officer regarding violation of the provision in Rules 4, 12 and 14 in the context of transportation of the seized logs and wood in the seized truck. Rule 21 of the said Rules provides that,"21. Penalties - Whoever contravenes any of the provisions of these rules shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to rupees one thousand or with both : provided that double the amount of penalty as aforesaid may be inflicted in cases where the offence is committed after 10 p. m. and before 5 p. m. or after making preparation for resistance to lawful authority or where the offender has been previously convicted for a similar offence. "therefore, on a plain reading of the statutory provision and on the given facts, there cannot be any doubt that a forest offence was committed while cutting and transporting the logs and the wood in the alleged manner. Thus, the finding of learned District Judge in that respect is also set aside. ( 11 ) LEARNED counsel for the opposite parties argues that the seized articles were not produced before the Authorized Officer in accordance with the provision in Section 56 (2-a) of the Act and, therefore, on that account alone the order of confiscation is liable to be set aside. Section 56 (2-a) of the Act reads as hereunder :-"56. Seizure of Property Liable to Confiscation :- (1) and (2) (2-a) Where an authorized officer seizes any forest produce under sub-section (1) or where any such forest produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, lie may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence. "in the order of the Authorised Officer nowhere it has been stated that the seized articles were not produced before him. "in the order of the Authorised Officer nowhere it has been stated that the seized articles were not produced before him. Learned district Judge has also not stated in his judgment that on verification of record he found that the articles were not produced before the Authorized Officer. Learned District Judge made only a sweeping remark in the following manner :-"in the present case, admittedly, the Authorized Officer has not seized the forest produce. There is no material to show that the seized forest produce was produced before him. "in the present case, opposite party members complains of breach of the statutory provision by the Forest Department. The opposite party members relied on the ratio in the case of P. P. Agrawala (AIR 1998 Orissa 54) (supra ). On perusal of the said citation, we find that no ratio was laid down therein interpreting the term "produce" employed in section 56 (2-a ). Be that as it may, in the context of the aforesaid provision, 'produce' means the seized articles being made available to the Authorized Officer for the purpose of consideration of the matter relating to confiscation or release of the seized articles in favour of a bona fide claimant. In the case of K. Krishnan (2000 Cri LJ 3971) (supra) it has been emphasized that,"liberal approach in the matter with respect to the properties seized which is liable to confiscation, is uncalled for, as the same is likely to protect the Act. ""the liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The Courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. " ( 12 ) IN this case there is no dispute on the factual aspect of illegal felling and transportation of logs and wood without a valid timber Transit Permit. There is also no dispute by the opposite party members relating to seizure of the said articles while in transit. " ( 12 ) IN this case there is no dispute on the factual aspect of illegal felling and transportation of logs and wood without a valid timber Transit Permit. There is also no dispute by the opposite party members relating to seizure of the said articles while in transit. When that Is an admitted position of fact and the Authorized Officer considered the same on the basis of the report submitted by the Forest Officials and verifying the article seized, the requirement of law in Section 56 (2-a) is found duly complied and therefore learned District Judge was wrong in deciding it in a contrary manner. ( 13 ) MR. G. K. Mishra, learned counsel advances an alternative argument with the prayer to impose fine in lieu of confiscation in view of the ratio in the case of Gurudev singh Rat v. Authorized Officer-cum-Asst. Conservator of Forests, Rairakhol Division, 1992 (1) OLR 305 : (AIR 1992 Orissa 287 ). We do not find any force in that submission in as much as the view expressed by the division Bench of this Court in the above cited decision has been impliedly over-ruled by the decision of the Apex Court in the case of State of Jharkhand v. Govind Singh, AIR 2005 SC 294 . Their Lordships of the Apex court have been pleased to propound to give a plain meaning on its face value to a statutory provision and not to impose fine in lieu of confiscation when the relevant provision of law relating to confiscation does not specifically authorize to impose fine in lieu of confiscation. Thus, contention of the opposite party members in the above aspect is not acceptable. ( 14 ) FOR the reasons stated above, the order of learned District Judge is set aside and the order of confiscation passed by the authorized Officer is restored. Accordingly, w. P. (C) No. 4798 of 2002 is allowed. Consequentially, the writ petition, i. e. W. P. (C)No. 4444 of 2002 is dismissed, because the relief claimed therein cannot be granted in view of the order of confiscation of the truck. No costs. Petition dismissed.