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Jharkhand High Court · body

2009 DIGILAW 1183 (JHR)

Murli Manohar Rai v. State of Jharkhand

2009-08-25

D.G.R.PATNAIK

body2009
JUDGMENT: Heard learned counsel for the petitioner and the learned counsel for the respondents. 2 Challenge in this writ petition is to the order dated 27.11.2004 passed by the respondent no. 2 in revision case no. 15 of 2004, whereby the Revision filed by the petitioner against the order dated 13.12.2003 ( Annexure-4) passed by the Divisional Forest Officer (respondent 4) in Confiscation Case No. 20 of 2003, under which the petitioner’s vehicle was confiscated, was dismissed. Further challenge has also been made to the order dated 21.6.2004 ( Annexure 5) passed by the collector, Dhanbad ( respondent no.3) whereby the confiscation appeal no. 7 of 2003 filed by the petitioner against the order of confiscation dated 13.12.2003 was dismissed. 3 Facts of the case, in brief, is that the petitioner is the owner of the Trekker bearing registration no. JH 01C 6169 which was used for commercial purpose for carrying passengers and was entrusted to the driver for the purpose of plying. In the morning on 15.12.2003, the vehicle was intercepted at GT Road by the officials of the Forest Department and 70 pieces of bamboos were found loaded on the vehicle. On the ground that the bamboos were forest produce which was transported on the aforesaid vehicle, for which the driver did not produce any documents or valid permit, the vehicle along with the bamboos were seized and the driver as well as one person who was a passenger of the vehicle was arrested and a criminal proceeding was initiated against them. The petitioner, who was the owner of the vehicle, was also cited as an accused and he was also prosecuted for the offences under the Indian Forest Act for commission of theft of the forest produce. It is informed by the petitioner that he had submitted his defence in the criminal proceedings as also in the confiscation proceedings initiated for the purpose of confiscation of his vehicle raising the following grounds : (i) that the vehicle was a commercial vehicle and admittedly at the time of its interception by the forest officials, it was plying on the road carrying passengers and their luggage . (ii) that one of the passengers who was arrested had declared himself to be the owner of the bamboos and had also claimed that the bamboos were felled from his raiyati land and it was not forest produce; (iii) that the petitioner was not aware that the bamboos were loaded on the vehicle , nor had he given any instruction to the driver to transport any forest produce; (iv) that considering the fact that a passenger of vehicle had claimed himself to be owner of bamboos, the driver had bona fidely allowed the passenger to load the bamboos on the seized vehicle and the petitioner had no knowledge whatsoever with regard to the connivance, if any, of the driver under the forest Act . Petitioner’s further contention is that in the criminal proceedings, the petitioner, the driver of his vehicle and also the passenger who claimed to be owner of the bamboos, have been acquitted. It is further stated that in the confiscation proceeding, the petitioner had adduced evidence in support of his defence , but in spite of adducing evidence to prove that the bamboos were not loaded on the vehicle with his connivance or knowledge, the confiscating authority had brushed aside the evidence adduced on behalf of the petitioner holding the same to be false and misleading merely on the basis of the statement of the Forest Guard that the type of bamboos seized from the petitioner’s vehicle were forest produce, grown in the Topchanchi Forest Area. Learned counsel for the petitioner argues that the Confiscating Authority had erred in rejecting the evidence adduced by the petitioner, on the basis of conjecture and surmises and without verifying the statement of the owner of the bamboos that the bamboos were felled from his raiyati land. Referring to the provisions of Section 52 of the Indian Forest Area, the learned counsel submits that the petitioner having discharged his onus of proof that the bamboos were not loaded on the vehicle with his knowledge or connivance, the order of confiscation of the seized vehicle is illegal and without application of judicial mind and could not have been passed. Learned counsel submits further that the petitioner’s vehicle has not been released notwithstanding the order for release which was made subject to deposit of rupees five lakhs by the petitioner who has not been able to deposit the amount for release of the vehicle. 5 It is further argued that the appellate authority and the revisional authority have committed a serious error in ignoring this aspect of the petitioner’s case and the fact that the petitioner had adduced the necessary evidence to discharge his onus in terms of the requirement of Rule 52(5) of the Indian Forest Act . 6 Learned counsel for the respondents by referring to the statements contained in the counter affidavit would argue that the petitioner’ vehicle was intercepted while transporting seized goods and the facts and circumstances amply demonstrate that the petitioner had allowed his vehicle to be used for transportation of the forest produce. 7 Having heard the rival submissions of the learned counsel for the parties, and having gone through the impugned order of confiscation, I find that the petitioner had taken a definite stand that the bamboos were loaded on the vehicle while it was plying on the road and that one of the passengers claimed himself to be the owner of the seized goods, which were grown on his raiyati land. Further more, it appears that the statement of the owner of the bamboos was adduced by way of evidence on behalf of the petitioner. Such evidence would suggest that even if the bamboos were loaded on the vehicle of the petitioner, it was under the bona fide belief that it was not the forest produce. It further appears that this part of the evidence of the petitioner was rejected merely on the basis of the report of the Forest Guard that such type of bamboos seized were available only within the Topchanchi Forest Area and as such they were presumably forest produce. No verification on this aspect of the matter has been made and as it appears, the evidence adduced on behalf of the petitioner has been rejected only on the basis of the conjecture and surmises without there being any definite evidence to disprove the statement of the purported owner of the bamboos which were seized by the forest officials. No verification on this aspect of the matter has been made and as it appears, the evidence adduced on behalf of the petitioner has been rejected only on the basis of the conjecture and surmises without there being any definite evidence to disprove the statement of the purported owner of the bamboos which were seized by the forest officials. As such the finding recorded by the confiscating authority rejecting the evidence adduced by the petitioner is perverse and against the weight of evidence on record. It also appears that both the Appellate Authority as well as the Revisional Authority, have not considered the issues in proper perspective and have merely adopted the findings of the confiscating authority without application of judicial mind and therefore, the impugned order of confiscation and the impugned orders passed by the revisional authority and the appellate authority being perverse are fit to be quashed. 9 Accordingly, this application is allowed and the impugned orders of confiscation and those of the Appellate Authority and the Revisional Authority, are hereby set aside. The concerned authority of the respondents, are directed to release the vehicle forthwith to the petitioner on proper verification. Let a copy of this order be given to the learned counsel for the respondents.