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Gauhati High Court · body

2008 DIGILAW 217 (GAU)

State of Assam v. Pradip Chandra Pathak

2008-03-13

I.A.ANSARI

body2008
1. By means of this writ application, made under article 226 of the Constitution of India, the petitioner, who is an authorized officer within the meaning of regulation 49 of the Assam Forest Regulation, 1891 (in short, 'the Regulation'), has put to challenge the order, dated 21.6.2002, passed by the learned Additional Sessions Judge (Ad hoc) No. 2, Kamrup, Guwahati, whereby the order, dated 23.7.2001, passed by the present petitioner, as authorized officer, confiscated the vehicle (TATA Sumo), bearing registration number AS 25B-7108, along with the timber, which the said vehicle was, allegedly carrying. 2. I have heard Mr. A. K. Thakuria, learned Government advocate, Assam, appearing on behalf of the petitioner, and Mr. B. N. Sarma, learned counsel, appearing on behalf of the respondent. 3. The material facts, which are not in dispute, may, in brief, be described as follows :- On 3.6.2001, the vehicle aforementioned was, allegedly, intercepted by forest officials at Jorabat Check gate, Jorabat, Assam. Though the person, who was driving the vehicle, fled away, the forest officials took into custody the vehicle and, on examination of the same, they found some sawn teak timber lying inside the vehicle. The vehicle as well as the timber, so found, were seized. The respondent herein appeared, as the registered owner of the said vehicle, in the office of the authorised officer concerned, and sought custody of the vehicle, but his request for the custody of the vehicle was declined. A proceeding for confiscation of the vehicle was, then, started in terms of regulation 49 of the Regulation. The respondent herein appeared in the said confiscation proceeding and resisted the same by claiming, inter alia, that the vehicle had not been carrying the said allegedly illegal timber with his consent or connivance. In the confiscation proceeding, nothing could be produced by the respondent herein to show that the timber, which were found in the said vehicle, were being carried under any authority of law. In such circumstance, an order was made, on 23.7.2001, by the present petitioner, as authorised officer, confiscating not only the timber, in question, but also the vehicle aforementioned. Aggrieved by this order of confiscation, the respondent herein preferred an appeal, which came to be registered as Misc. Appeal No. 5/2002. In such circumstance, an order was made, on 23.7.2001, by the present petitioner, as authorised officer, confiscating not only the timber, in question, but also the vehicle aforementioned. Aggrieved by this order of confiscation, the respondent herein preferred an appeal, which came to be registered as Misc. Appeal No. 5/2002. By the impugned order, dated 21.6.2002, as the learned Additional Sessions Judge has set aside the order of confiscation, dated 23.7.2001, the petitioner, feeling aggrieved by the said order passed by the Additional Sessions Judge, has impugned the same in this writ petition. 4. As the controversy, in this writ petition, revolves around the interpretation of the provisions of regulation 49 of the Regulation, which prescribe the penalties and procedure in respect of forest offence, including confiscation, a careful analysis of the provisions of regulation 49 of the Regulation is imperative. With this end in view, regulation 49 of the Regulation is reproduced hereinbelow :- "49. Seizure of property liable to confiscation. - (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, motorised boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implements, articles or materials used in the commission of such offence may be seized by any Forest Officer not below the rank of a Forester or any Police Officer not below the rank of a Sub-Inspector of Police. (4) Subject to the provisions of sub-sections (5) and (6), where the authorized. Officer upon production before him of the property seized or upon receipt of a report about seizure as the case may be, and after such personal inspection of verification as he may deem fit and necessary, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded therein, confiscate the forest produce so seized together with all tools, vehicles, cattle, trucks, motorised boats, boats, carts, machineries, rafts, vessels, ropes chains or any other implements or articles used in committing such offence. A copy of the order of confiscation shall, without any undue delay, be forwarded to the Circle Conservator of Forests of the Circle in which the forest produce has been seized and the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. A copy of the order of confiscation shall, without any undue delay, be forwarded to the Circle Conservator of Forests of the Circle in which the forest produce has been seized and the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. (5) No order confiscating any property shall be made under the preceding provisions unless the authorized officer :- (a) sends an intimation in the prescribed form about the initiation of the proceeding for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :-(b) issue a notice in writing to the person from whom the property is seized and to any other person who may appear to the authorized officer to have some interest in such property and in cases of motorized boats, vessels, vehicle trucks, etc., having a registered number to the registered owner thereof; (c) affords to the persons referred to in clause (b) above a reasonable opportunity of making a representation within such reasonable time as may be specified in the notice, against the proposed confiscation; and (d) gives to the officer effecting the seizure and the person or persons referred to in clause (b) or (c) above, a reasonable opportunity or being heard on a date or dates to be fixed for the purpose. (6) Notwithstanding anything contained in the foregoing provisions, no order of confiscation under sub-section (4) of any tools, boats, motorized boats, vessels cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implements, articles (other than timber or forest produce shall be made if any person referred to in clause fb) of sub­section (5) proves to the satisfaction of the authorized officer that such tools, vehicles, machinery, trucks, vessel boats, motorized boats, rafts, carts, cattle, ropes, chain or any other implements or articles were used without his knowledge or connivance or abetment or as the case may be, without the knowledge or connivance or abetment of his servant or agent and that all reasonable and due precautions had been taken against the use of the object aforesaid for the commission of forest offence." 5. A careful reading of section 49(1) shows that when there is reason to believe that a 'forest offence* has been committed in respect of any forest produce, then, a forest officer, not below the rank of a Forester, is empowered to seize not only the forest produce, but also, amongst others, all the tools, the vehicle, etc., which may have been used in the commission of such 'forest offence*. Section 49(6) shows that an order of confiscation cannot be made if the person, proceeded against in a confiscation proceeding, proves, to the satisfaction of the forest officer, that such tools, vehicle, etc., were used without his knowledge or connivance or abetment or, as the case may be, and without the knowledge or connivance or abetment of his servant or agent and that all reasonable and due precautions had been taken against the use of the object(s) aforesaid for the commission of forest offence, no order of confiscation of such tools, vehicles, etc., shall be made. 6. From a minute reading of section 49(6), it becomes clear that : in order to avoid confiscation of a vehicle, it is not enough for the owner of a vehicle to show that the vehicle was used in the commission of'forest offence' without his knowledge or connivance or abetment, rather, the owner of the vehicle must also show that all reasonable and due precautions had been taken against the use of his vehicle for the commission of any forest offence. In the present case, it would not be enough for the owner of the vehicle, i.e., the present respondent, to show that his vehicle was used for commission of forest offence without his knowledge or connivance or abetment, rather, he must also prove that he took all reasonable and due precautions to ensure that his vehicle was not used for commission of such forest offence. 7. In the present writ petition, though it has been the case of the respondent that the timber, in question, were carried in his vehicle without his knowledge or connivance or abetment, what is of utmost importance to note is that nothing could be produced by the respondent herein, in the confiscation proceeding, to show that the timber, which had been found in the said vehicle, were being carried under any authority of law. There is neither any assertion in this regard nor any evidence, direct or indirect, showing that the respondent herein took all reasonable and due precautions to ensure that his vehicle was not used for carrying 'forest produce'. Nowhere, in the said confiscation proceeding, the respondent, as owner of the vehicle, had contended that, he had given clear instructions to the person, who was, admittedly, driving the vehicle, that his said vehicle must not be used for carrying any 'forest produce' without requisite transit permit. 8. Considered, thus, it becomes abundantly clear that the respondent, as owner of the vehicle, in question, could not show that his vehicle was used for carrying 'forest produce' without authority of law despite the fact that he, as owner of the vehicle, had taken, all reasonable and due precautions to ensure that his vehicle was not used for carrying 'forest produce*. The learned appellate court has, however, set aside the order of confiscation only on the ground that the respondent had no knowledge that 'forest produce' was being carried in his vehicle. There is no finding that the respondent had shown that all reasonable and due precautions, which were necessary to ensure that the vehicle was not used for carrying 'forest produce', had been taken by the respondent. In the face of the failure of the respondent to bring on record any material indicating that he had taken all reasonable and due precautions to ensure that his vehicle was not used for carrying 'forest produce', the order of confiscation was wholly justified and in conformity with law. Such an order ought not to have been interfered with. 9. Because of what have been discussed and pointed out above, the impugned order, dated 21.6.2001, is hereby set aside. The writ petition shall accordingly stand allowed. 10. With the above observations and directions, this writ petition shall stand disposed of. No order as to cost. 11. Send back the LCR.