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2006 DIGILAW 377 (MP)

Prakash Rai v. State of M. P.

2006-03-10

SHUBHADA R.WAGHMARE

body2006
Judgment ( 1. ) BY this petition, the petitioner Prakash Rai has challenged order dated 8-4-2002 passed by the respondent No. 3 Deputy Forest Officer (Annexure P-l) confiscating dumber bearing No. UDT 5934 as carrying; contraband under the Indian Forest Act, he has also challenged Annexure P-3, dated 14-2-2001 passed in Appeal No. 741/2000 by respondent No. 2 Conservator of Forest and order dated 29-12-2001 passed by the IVth Additional Sessions Judge, Chhatarpur in Cr. R. No. 197/2001. ( 2. ) THE brief facts of the case are that on 10-12-1999 the respondents seized Dumper No. UTD 5934 containing sand and 10 bags of teak wood of 1. 391 sq. meter hidden under the sand. The driver of the dumber was one Ratanlal and after completing the investigation, the forest authorities registered offence under the Forest Act and confiscated the vehicle vide order dated 8-4-2000 (Annexure P-1) under Section 52 of the Indian Forest Act, 1927 read with M. P. Amendment Act, 1983. The Appellate Authority also upheld the order vide Annexure P-3, dated 14-2-2001 and the revision filed by the petitioner was also dismissed by the IVth Additional Sessions Judge, Chhatarpur vide Annexure P-4 on 29-12-2001 and hence the present petition. ( 3. ) ACCORDING to the petitioner the driver of the vehicle Ratanlal respondent No. 4 was arrested with Anil the Supervisor, Bandu Chowdhri the Cleaner, Hallu Lodhi, Pappu Dhimar. Challan was filed in the Court of Chief Judicial Magistrate, Chhatarpur on 28-12-1999. That the Divisional Forest Officer examined the witnesses as well as the petitioner Prakash Rai who stated that as owner his vehicle was only sent for the transportation of sand whereas the accused persons had lifted the prohibited forest produce that is teak wood and he was not in any way concerned with the said act as it was done on the instance of Anil the Supervisor, who had already admitted to the theft with the help of Hallu Lodhi and also deposed that the owner was not involved in it in any manner. The witnesses examined by the prosecution also did not implicate the petitioner/owner of the vehicle in any manner whereas the Enquiry Officer in his report (Annexure P-1) has clearly exonerated the petitioner/owner in Par a "ra" of the enquiry report despite which order of confiscation of the dumper was passed by the Competent Authority. The witnesses examined by the prosecution also did not implicate the petitioner/owner of the vehicle in any manner whereas the Enquiry Officer in his report (Annexure P-1) has clearly exonerated the petitioner/owner in Par a "ra" of the enquiry report despite which order of confiscation of the dumper was passed by the Competent Authority. In appeal, the Appellate Authority also rejected the same and did not release the vehicle. On filing of revision the same was dismissed by the IVth Additional Sessions Judge, Chhatarpur on the ground that the master must have knowledge of the activities of the servant and the offence must have been committed with the tacit consent of the owner. ( 4. ) COUNSEL for the petitioner has stated that the impugned orders are based on surmises. Drawing attention to Section 52 (2) of the Indian Forest Act, 1927 stated that the property which could be seized under Section 52 (2) was pertaining to the forest produce or the goods which had to be immediately produced before the officer not below the rank of an Extra Assistant Conservator of forest authorised by the State Government and specifically drawing the attention to Sub-section 4 (5) to Section 52 which reads thus: No order of confiscation under Sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than timber or forest-produce seized) shall be made if any person referred to in Clause (b) of Sub-section (4) proves to the satisfaction of authorised officer that any such tools, vehicles, boats, ropers, 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 forest offence. Counsel for the petitioner stated that the very language of the provision casts a duty on the Forest Officer to make investigation that the said vehicle or material used by the agent or servant was not within the knowledge of the owner and when the report of the Investigating Officer completely exonerated the owner regarding the same the respondents were estopped from confiscating the vehicle. Relying on Laxaman Kisan Mundhe v. Conservator of Forest, Thana, 1999 Cri. Relying on Laxaman Kisan Mundhe v. Conservator of Forest, Thana, 1999 Cri. LJ 553, whereby the Bombay High Court while considering the question held that: Under Section 52, the validity of confiscating the truck carrying the forest property without permission and the direct involvement of the truck owner in the commission of the offence was not proved whereas the owner had employed the truck driver only eight days before the commission of the offence the fact of knowledge of the offender cannot be attributed to the truck owner and the confiscation was not valid. Further relying on State of M. P. v. Ram Gopal Sharma, 1991 MPWN S. Note 66, referring to the said amendment whereby this Court held thus: That confiscation of the vehicle under Section 15 of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 as amended by the Act of 1987, although authorises the officer to confiscate the vehicle for carrying the forest produce. The Officer could not order confiscation of the vehicle if the owner thereof proves that he was not aware of the commission of the offence and the burden of proving that the vehicle was used for the commission of the offence the burden was on the owner to satisfy the authorised officer. However, the officer cannot arbitrarily refuse to be satisfied and if the owner proved ignorance of forest offence the vehicle could not be confiscated. Counsel for the petitioner finally drew the attention of the Court to the order passed by this Court in Writ Petition No. 848/1996 where under identical circumstances the Court held thus: The authorised officer constituted under the Act (respondent No. 4) has categorically held that the seizure memo of the alleged forest produce is doubtful. In that regard the authorised officer has placed reliance on Annexures P-1 and P-2. Annexure P-l is the seizure memo wherein the seizure of wet fuel wood, Jarwa (thorns) and the impugned tractor and trolley has been shown. While as per show-cause notice issued by the authorised officer dated 23-1-1995 (Annexure P-2) Ballis, 7 bamboos and two stacks of fuel wood were seized along with the impugned tractor and trolley. Thus, according to the authority seizure memo of the forest produce is doubtful. While as per show-cause notice issued by the authorised officer dated 23-1-1995 (Annexure P-2) Ballis, 7 bamboos and two stacks of fuel wood were seized along with the impugned tractor and trolley. Thus, according to the authority seizure memo of the forest produce is doubtful. The authorised officer further came to hold that it was not within the knowledge of the petitioner that his tractor and trolley is being used in some forest offence. At this juncture, it would be marginalized and blinked away wherein it has been categorically held that it was not in the knowledge of the petitioner, who is owner of the impugned tractor and trolley, that his vehicle is being used for any forest offence. Thus, there is concurrent finding of fact that it was not in the knowledge of the petitioner that his tractor and trolley was being used to commit any forest offence. Surprisingly, after recording such a finding in favour of the petitioner, ultimately authorised officer as well as the Appellate Authority constituted under the Act passed the order confiscating the impugned tractor and trolley. The decision of learned Additional Sessions Judge (Annexure P-7) is silent on the crucial point whether the petitioner was aware about the fact that his vehicle, i. e. , tractor and trolley is being used to commit any forest offence. Thus, when there is concurrent finding of act recorded by the authorised officer as well as Appellate Authority under the Act that impugned tractor and trolley was used in the forest offence was not in the knowledge or connivance of the petitioner, the impugned tractor and trolley cannot be confiscated. Since there is no finding at all against the petitioner, I am of the view that the petitioner is entitled to the protection provided to him under Section 52 (5) of the Act. And the Court had quashed the impugned orders passed by the Conservator of Forest and the Additional Sessions Judge. The Counsel prayed for similar relief. ( 5. ) COUNSEL for the respondent/state on the other hand stated that the seized dumper was carrying forest produce without proper authority. The case was registered and proceedings for confiscation were initiated. And the Court had quashed the impugned orders passed by the Conservator of Forest and the Additional Sessions Judge. The Counsel prayed for similar relief. ( 5. ) COUNSEL for the respondent/state on the other hand stated that the seized dumper was carrying forest produce without proper authority. The case was registered and proceedings for confiscation were initiated. The petitioner was afforded proper opportunity of hearing and drawing the attention to the proceedings stated that the petitioner had admitted that the dumper was involved in transporting teak wood (Annexures R-1, R- 2, R-3, R-4 and R-5) and on considering the entire material and evidence on record the Competent Authority as well as the Appellate Authority had passed the orders in accordance with law and relying on Khimji Vidhu v. Premier High School (1999 )9 SCC264 , the Apex Court had held that the jurisdiction of the High Court under Article 227 must be sparingly exercised. It could be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which fall in the domain of Appellate Court only and it had held that the High Court exceeded the jurisdiction vested under Article 227 and the order passed setting aside the eviction and upsetting the findings of fact reached by the Trial and First Appellate Court suffered from jurisdictional error prayed that since both the Courts below had come to a conclusion that the petitioner was liable for the acts of his servant had properly confiscated the said dumper. Counsel for the respondent/state further relied on Mohan Amba Prasad Agnihotri and Ors. v. Bhaskar Balwant Aher AIR2000 SC 931 , 2000 (2 )ALT26 (SC ), JT2000 (2 )SC 558 , 2000 (2 )SCALE186 , (2000 )3 SCC190 , 2000 (1 ) UJ746 (SC ), whereby the same proposition was reiterated that jurisdiction of the High Court under Article 227 was supervisory and not appellate. It could not interfere with the Lower Courts finding of fact unless the same was perverse or there was no evidence to support it. Further relying on Subramaniam Shanmugham v. M. L. Rajendran and Ors. It could not interfere with the Lower Courts finding of fact unless the same was perverse or there was no evidence to support it. Further relying on Subramaniam Shanmugham v. M. L. Rajendran and Ors. AIR1987 SC 2166 , JT1987 (3 )SC 515 , 1987 (2 )SCALE423 , (1987 )4 SCC215 , [1987 ]3 SCR1146 , 1987 (2 )UJ759 (SC ), Counsel for the respondent/state drew attention to the expression "as the case may be" as discussed in the said judgment reads as follows: Justice Morris in Bluston and Bramley v. Leigh (1950) 2 All ER 29 at p. 35 explained that the phrase "as the case may be" meant in the events that have happened. Our attention was also drawn to the expression "as the case may be" as appearing in the Words and Phrases Permanent Edition 4 Page 596. The meaning of the expression "as the case may be" is what the expression says, Le. , as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly. Where, however, there is no such separate and distinct unit, it has no significance. The expression "as the case may be" has been properly construed in the judgment mentioned hereinabove. Thus, relying on State of Jharkhand and Anr. v. Pradeep Kumar Ray and Anr. AIR 2005 NOC 53 (Jharkhand), Counsel for the respondent stated that the Apex Court while considering Section 52 of the Indian Forest Act to be read with the Bihar Amendment Act (9 of 1990) held that: Forests Act (16 of 1927), Section 52 (Bihar Amendment Act 9 of 1990) Illegal carrying of timber Confiscation of truck Driver of truck admitting timber was illegally purchased No valid papers for transit produced Once vehicle is found transporting illicit timber Presumption arises that it was with connivance of owner Driver is agent of owner and acts on behest of owner Statute gives opportunity to owner to establish that in spite of taking precaution, illicit timber was transported, without his knowledge Owner not establishing the same Confiscation proper. and further relying on State of M. P. v. Suresh Kumar AIR1997 SC 1017 , 1997 (1 )Crimes277 (SC ), JT1997 (2 )SC 451 , 1997 (2 )SCALE5 , (1997 )9 SCC647 , 1997 (1 )UJ578 (SC ), the Apex Court while considering the case under M. P. Van Upaj (Vyapar Viniya-man) Adhiniyam, 1969, and the confiscation proceedings thereunder held that the burden of proof was on the owner of the vehicle to prove that his truck was used for illegal activities without his knowledge and in the said case the burden was not discharged in the said case since when the forest officers tried to stop the disputed vehicle one of the inmates of the truck tried to scare them by firing shot and thereafter escaped from the truck to avoid being caught and 120 logs were found concealed. Then the conclusion by the Competent Authority as well as the Appellate Authority that the owner had failed to satisfy that illegal activity was carried on by the driver without his knowledge was justified prayed that since there was concurrent finding of two Courts regarding the satisfaction, the petition ought to be dismissed. ( 6. ) CONSIDERING the above submissions, the Counsel for the petitioner categorically stated that both the Courts below had failed to consider the report of the Investigating Officer exonerating the owner. If the Competent Authority required it could proceed against the driver and the supervisor Anil. When there is a categoric finding of the Investigating Officer that when the owner had no knowledge then the respondents cannot ignore the finding given by their own officer and thus confiscation of the vehicle was not justified. This Court has in the matter of Kunjilal Gupta and Anr. v. State of M. P. and Ors. W. P. No. 472 of 1997, decided on 25-1-2006, held relying on Madhukar Rao v. State of Madhya Pradesh and Ors. This Court has in the matter of Kunjilal Gupta and Anr. v. State of M. P. and Ors. W. P. No. 472 of 1997, decided on 25-1-2006, held relying on Madhukar Rao v. State of Madhya Pradesh and Ors. 2001 (1) MPLJ 289 : 2000 (2) M. P. H. T. 445 (FB), whereby under similar circumstances when property was seized under Section 50 from the alleged offender, the Full Bench had held that such property cannot become the property of the State unless there is a trial and finding is reached by the Competent Court that the property seized was used for committing the offence and pending trial the vehicle was released in accordance with Section 50 (4) read with Section 451 of the Code of Criminal Procedure. Although the Counsel for the State has stated that the matter has been stayed by the Apex Court he has not filed any copy to demonstrate the same nor any statement regarding the same made in the reply filed. Hence, in the interest of justice and considering the facts on the anvil of the two judgments passed by this Court in Writ Petition No. 848/1996 (Sarjoo Prasad v. State of M. P.), decided on 29-11-2005 and Writ Petition No. 472/1997 (Kunjilal Gupta and Anr. v. State of M. P. and Ors.), decided on 25-1-2006, the petition is allowed. Considering the totality of the circumstances, the impugned orders dated 8-4-2000 (Annexure P-l), 14-2-2001 (Annexure P-3) and 29-12-2001 (Annexure P-5) are hereby quashed and the respondents are directed to release the dumper bearing registration No. UTD 5934 on supurdginama to the petitioner Prakash Rai and for all practical purposes the dumper shall stand released from confiscation.