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Jharkhand High Court · body

2009 DIGILAW 122 (JHR)

Satrughan Singhal v. State of Jharkhand

2009-01-27

N.N.TIWARI, PRADEEP KUMAR

body2009
JUDGMENT Sunil Kumar Arora is the owner of the truck, bearing Registration No.DL-1GB-2311. The appellant is the constituted attorney of the said owner. 2. The said truck with the consignment of iron wool and cotton was on the way from Jamshedpur to Delhi. On 2nd June, 1998, the said truck was checked at Chhatarpur Forest Check, Naka in Plamau district, now in Jharkhand State. In the said consignment, 210 K.G. of Katha was also concealed and seized from the truck. The driver and one Gouri Shankar Prasad, who is said to be owner of the said Katha, were arrested. The statements of the driver and said Gouri Shankar Prasad were taken at the spot. According to the driver, he had stopped the truck near a line hotel for taking meal over Manika on Ranchi-Daltonganj Road. Said Gouri Shankar Prasad insisted to load Katha on assurance of paying fare for transporting the same to Varanasi. 3. Prosecution report was prepared on that basis. It was alleged that Gouri Shankar Prasad is a habitual trader of illegal Katha and he in connivance of the truck driver loaded the same on the truck fixing fare of Rs.3,500/-. The illegal trading of Katha caused revenue loss to the Government. In the said report, it was clearly mentioned that in the said illegal act, the truck owner-Sunil Kumar Arora has got no concern at all. The Hindi version of the report is reproduced herein below: “IS APRADH ME TRUCK MALIK SHRI SUNIL ARORA KA KISI PRAKAR KA SAMBANDH NAHI HAI.” 4. After the seizure of the truck along with the consignment, the truck driver and said Gauri Shankar Prasad were arrested and a criminal case was registered against them. 5. Under the provisions of the Bihar Forest Act, a confiscation proceeding was separately initiated being CF Case No.134 of 1998. The appellant was also arrayed as a party. On notice he had appeared and filed reply, stating, inter alia, that he is the owner of the truck and he had no complicity in the incident. He had neither any knowledge nor connivance in the said illegal deal. The driver has made clear statement that he had loaded Katha on the way on insistence of Gauri Shankar when he had stopped at a line hotel near Manka. He had neither any knowledge nor connivance in the said illegal deal. The driver has made clear statement that he had loaded Katha on the way on insistence of Gauri Shankar when he had stopped at a line hotel near Manka. The statement was made by the driver before the Authorised Officer-cum-Divisional Forest Officer, but he included the name of the owner stating that though the owner was not present he cannot be absolved from the consequence of illegal act of his servant and agent. He, therefore, passed order for confiscation of the Katha as also the said truck, bearing Registration No.DL-1GB-2311. 6. The appellant preferred appeal against the said order before the Deputy Commissioner, Plamau, being Confiscation Appeal No.XV/62 of 1998-99. After hearing the parties and taking into consideration the statement of the truck driver and other materials on record as also the decision of the Hon’ble Apex Court in the case of Assistant Forest Conservator & Ors. Vs. Sharad Ramchandra Kale [1998(1) PLJR 21 (SC)], the Deputy Commissioner held that the owner of the truck was not at fault. He cannot be made to suffer for the fault of the driver, if he has committed an offence without his knowledge and consent. He further held that there is no evidence to prove the knowledge and consent of the owner in the crime. He, therefore, allowed the appeal and set aside the order of the confiscation passed by the Authorised Officer-cum-Divisional Forest Officer, North Division, and directed to release the truck on furnishing security bond of Rs.2.00 lacs and on condition to produce the vehicle, in question, as and when directed. 7. The forest official preferred revision against the said order of the Deputy Commissioner. The revisional authority set aside the order of the Deputy Commissioner and restored the order of the Authorised Officer-cum-Divisional Forest Officer. 8. The appellant, aggrieved by the order of the revisional authority, challenged the order before this Court in writ petition, being W.P.(C) No.2703 of 2001. 9. The said writ petition has been disposed of by the impugned order dated 6th January, 2004. 10. Learned Single Judge, taking up a point of objection regarding search and seizure, held that the objection of the appellant that the seizure was not by Authorised Officer is devoid of any merit in view of the decision of the Full Bench in the case of Bijay Krishna Sahay Vs. 10. Learned Single Judge, taking up a point of objection regarding search and seizure, held that the objection of the appellant that the seizure was not by Authorised Officer is devoid of any merit in view of the decision of the Full Bench in the case of Bijay Krishna Sahay Vs. State of Bihar & Ors. [1998(2) East Cr. C 359 (Pat)]. On that ground he dismissed the writ petition. 11. In this appeal, the appellant has taken the following grounds: (i)Learned Single Judge has not considered the main point taken in the writ petition regarding illegality of the order of confiscation of the appellant’s truck in spite of his innocence and in absence of any proof. The materials on record clearly go to show that illegal Katha was loaded in the mid way by Gauri Shankar Prasad in the connivance of the driver. The statements regarding the same were recorded by the Divisional Forest Officer himself, in which it was clearly mentioned that the appellant had no complicity. He has also himself noted that the owner of the truck was not at fault. (ii)The appellate authority, taking consideration of the same, held that the owner was not at fault. (iii) The appellate authority is the final statutory authority for deciding the factual issue. (iv) Revisional authority has upset the order of the appellate authority without meeting the reasons recorded for allowing the appeal. There is no legal basis for reversing the appellate order. (v) Learned Single Judge without going into the said aspect decided the writ petition taking up only one technical ground of objection regarding legality of the seizure of the truck by Forest Guard. (vi) In view of the decision of the Hon’ble Apex Court and without clear evidence on record to establish his knowledge and connivance, the confiscation order is wholly illegal and bad in law. 12. Mr. Manoj Tondon, learned S.C.II, appearing on behalf of the State, contested the appeal on the following grounds:- (i)Section 52 of the Indian Forest Act (Bihar Amendment), which is applicable in the State of Jharkhand, imposes onus on the owner of the truck to prove his innocence and to prove that the vehicle was used without his knowledge and connivance and all reasonable and necessary precautions were taken against the use of the vehicle. (ii)In the instant case, the owner has failed to prove that the vehicle was used without his knowledge and connivance and that he has taken all reasonable and necessary precaution against the use of the vehicle for commission of his vehicle forest offence. (iii)As the offence has been committed with the connivance of the driver, being the agent of the owner, the petitioner-owner cannot be absolved from the legal liability and consequences. The prosecution report should not have been in the way, which has been filed, be it although, it is on the owner to prove his innocence in spite of the prosecution report that the owner was not at fault and he has no concern with illegal Katha. (iv) The Supreme Court in the case of State of West Bengal & Anr. Vs. Mahua Sarkar [ AIR 2008 SC 1591 ] has taken a very serious view against the forest offence and held that the owner has also to prove that all reasonable and necessary precaution against the use of the vehicle was taken by him. (v)Learned Single Judge has rightly dismissed the writ petition holding that the whole confiscation proceeding cannot be said to be vitiated only on the ground that the seizure of the truck was not made by the Authorised Officer and he has rightly relied on the decision of the Full Bench in the case of Bijay Krishna Sahay (Supra). (vi)In view of the above, the appeal is liable to be dismissed. 13. We have heard learned counsel for the parties and considered the facts and materials on record. We have also considered their submissions as also the case laws referred to and relied upon by them. 14. In the case of Assistant Forest Conservator (Supra), Hon’ble Supreme Court has held that there was no evidence showing that the owner of the truck had any knowledge that his truck was likely to be used for carrying forest produce in contravention of the provision of the Forest Act. The confiscation of the vehicle was held to be bad and the order of the High Court was upheld. Appeal filed by the State was dismissed. 15. In this case, the very prosecution report prepared on the basis of the statement taken by the concerned authority specifically mentions that the owner had no knowledge and he was not at fault. The confiscation of the vehicle was held to be bad and the order of the High Court was upheld. Appeal filed by the State was dismissed. 15. In this case, the very prosecution report prepared on the basis of the statement taken by the concerned authority specifically mentions that the owner had no knowledge and he was not at fault. The alleged illegality was committed by the driver at the instance of Gouri Shankar Prasad, who had loaded Katha in the mid way for transporting the same to Varanasi. The driver in his statement has confessed the said fact. There is no other material on record to attach knowledge of the illegal act to the owner or his connivance in using the truck for illegal purpose. The appellate authority has considered all relevant aspects, facts and material on record and had come to the finding that the owner had no connivance and he was not at fault. He set aside the order of the confiscating authority. The appellate authority is the statutory authority to decide and record finding of facts. The revisional authority without any basis and without meeting the reasons of the appellate authority reversed the order of the appellate authority and restored the order of the Divisional Forest Officer, who on mere assumption held that since the driver has knowledge, the owner cannot be absolved on the ground that he had no knowledge. 16. Article 300A of the Constitution of India mandates that no person shall be deprived of his property save by authority of law. There is no authority of law to confiscate the property without any cogent material on record to establish the knowledge of the truck owner regarding commission of the forest offence. 17. 16. Article 300A of the Constitution of India mandates that no person shall be deprived of his property save by authority of law. There is no authority of law to confiscate the property without any cogent material on record to establish the knowledge of the truck owner regarding commission of the forest offence. 17. Sub-section 5 of Section 52 of the Indian Forest Act (Bihar Amendment) also makes similar provision and reads thus: “(5) No order of confiscation under sub-section (3) of any tools, arms, boats, vehicles, ropes, chains or any other article (other than the 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, arms, boats, vehicles, ropes, chains or other article 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 the objects aforesaid for commission of forest offence.” 18. Learned S.C.II submitted that the onus is on the appellant to prove that he had no knowledge or connivance of committing the forest offence of the driver and that all necessary and reasonable precautions had been taken against use of the truck in transporting incriminating material. 19. As discussed above, the very basis of the prosecution and confiscation i.e. prosecution report of the Forest Range Officer in clear words mentions that the owner has not committed forest offence and he had no knowledge or connivance in the same. Incriminating Katha was loaded in the mid way with the connivance of the driver. The appellant had also pointed out the statement of truck driver, which supports the said report of the Forest Officer. The driver confessed before the authority that the Katha was loaded by Gouri Shankar Prasad in the mid way, when the truck was stopped near a line Hotel. In view of the said admitted position that the Katha was loaded behind his back and without his connivance it cannot be said that there was absence of necessary and reasonable precaution on the part of the owner, who was totally ignorant about the said illegal step of the driver. In view of the said admitted position that the Katha was loaded behind his back and without his connivance it cannot be said that there was absence of necessary and reasonable precaution on the part of the owner, who was totally ignorant about the said illegal step of the driver. We find no basis or iota of evidence and material to attach knowledge of the owner-appellant regarding use of the vehicle for said illegal purpose. 20. The decision of the Supreme Court referred to by learned S.C.II in State of West Bengal & Anr. (Supra) is based on different facts. In the said decision, similar provision of the State of West Bengal was under consideration. The Forest Officer as well as the Appellate Authority had categorically held in that case that the lack of knowledge as asserted by the owner was not established. Hon’ble Apex Court on that basis held that the High Court was in error in interfering with the said decision. In the instant case, the very prosecution report discloses that the owner was not at the fault. The appellate authority after through discussion of the material on record came to the conclusion that the owner had no knowledge and connivance. The revisional authority interfered with the order of the appellate authority without recording any reason for disbelieving the said finding. It has been held on mere conjecture and assumption that the owner cannot be absolved, if the truck driver has accepted his guilt. Learned Single Judge has not taken into consideration the said vital legal aspect and disposed of the writ petition only on the ground of appellant’s objection that seizure was by an unauthorised office devoid of any merit in view of Full Bench decision in the case of Bijay Krishna Sahay (Supra). So far the said finding arrived at by the learned Single Judge is concerned, we have no difference of opinion. However, learned Single Judge has not taken into consideration appellant’s assertion that he had no knowledge and connivance with the forest offence and that he, being the owner of the truck, cannot be faulted and his commercial vehicle cannot be confiscated in law. 21. In view of the above discussion, we find and hold that the order passed by the Authorised Officer-cum-Divisional Forest Officer, being based on no cogent material and valid reason, had been rightly set aside by the appellate authority. 21. In view of the above discussion, we find and hold that the order passed by the Authorised Officer-cum-Divisional Forest Officer, being based on no cogent material and valid reason, had been rightly set aside by the appellate authority. The revisional authority has committed serious error in law in upsetting the said order of the appellate authority. We, therefore, set aside the order of the revisional authority as also the impugned order passed by learned Single Judge, confirming the order of the revisional authority. The order of the appellate authority is restored and this appeal is allowed. 22. However, there is no order as to costs.