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2012 DIGILAW 1149 (JHR)

Amiya Kumar Maji v. State of Jharkhand

2012-08-03

ALOK SINGH

body2012
ORDER Petitioners are assailing impugned order dated 04.11.2010 passed by Respondent No. 3 in Confiscation Case No. 22 of 2009 and order dated 19.08.2011 passed by Respondent No. 2, whereby Respondent No. 3 has passed order, for confiscation of the truck No. WMH6869 and 260 pieces of woods loaded therein, while exercising power under Section 52(3) of the Indian Forest Act (as amended and applicable in the State of Bihar and Jharkhand) and dismissing the confiscation appeal by the appellate authorityRespondent No. 2respectively. 2. Brief facts of the present case, inter alia, are that petitioner No. 1 is the registered owner of the truck, bearing registration No. WMH6869 whereas petitioner No. 2 is the proprietor of M/s Woodland Timber, alleged owner of the piece of woods seized and confiscated. At Baliyapur, truck No. WMH6869 carrying 260 pieces of woods was intercepted by the patrolling party of the forest department. During the checking, it was noticed that in licence No. 1200909 Book No. 19010 it was shown to have (10 – 12 ft. x 3040 cm.) 300 pieces of Eucalyptus, Sal and Ekeshia, while in the challan Nos. 2009/24 and 2009/25 there were shown 100 pieces and 235 pieces respectively. However, total pieces found in the truck were 260 pieces. That way, there was total contradiction in the pieces shown in the licence, in the challans and actual number of pieces found in the truck. Pieces of wood found in the truck were not having sign of Hammer of the Forest Department, therefore, it was noticed that there is a violation of Section 41 and 42, read with Rule 5(6) of Jharkhand Timber and other Forest Produce Regulation of Transit Rules 2004. Truck as well as 260 pieces of woods were seized and Confiscation Case No. 22/2009 was registered and information thereof was sent to the C.J.M., Dhanbad. 3. Notices were issued to the petitioners, General Manager, IISCO, Chasnala Project Officer, Jitpupur Colliery. 4. Petitioner No. 2 has contended that Project Officer ISP Sale Colliery, Jitpur had placed order telephonically to supply 335 pieces of woods measuring 10 – 12 ft. x 3040 cm., therefore, Petitioner No. 2 had purchased 300 pieces of woods from M/s Bankura Timber Traders for supplying the same for mining purposes to Jitpur Colliery (IISCO) on 24.12.2009 and obtained permit Nos. x 3040 cm., therefore, Petitioner No. 2 had purchased 300 pieces of woods from M/s Bankura Timber Traders for supplying the same for mining purposes to Jitpur Colliery (IISCO) on 24.12.2009 and obtained permit Nos. 1200909, Book No. 19010 valid with effect from 24.12.2009, 4.45 p.m. to 26.12.2009, 6 p.m. to transport the same from Bankura to Jitpur Colliery. Having obtained licence and preparing the challan, it was being transported to Jitpur Colliery. 5. Petitioner No. 1, owner of the truck, has contended before the Forest Officer that truck was given to transport the woods from Bankura to Jitpur Colliery. Petitioner No. 1 has no knowledge about the antecedent of petitioner No. 2. Petitioner No. 1, therefore, is not responsible for any violation of forest Rules. 6. Project Manager, Jitpur Colliery has contended that no order was placed to the petitioner no. 2 for supplying the 335 pieces of woods measuring 10 – 12 ft. x 3040 cm., as alleged by petitioner no. 2. 7. Prescribed authority has observed that in the licence No. 1200909 Book No. 19010, 10 – 12 ft. x 3040 cm., 300 pieces are mentioned while in the challan No. 2009/24 and 2009/25, total 335 pieces are mentioned while in the truck 260 pieces were found, therefore, total number of pieces found in the truck were not matching with the challans as well as with the licence. Moreover, all the pieces of wood found in the truck were not having sign of Hammer of the forest department and Project Officer, Jitpur Colliery has contended before him that he has never placed order for the same and material so loaded in the truck was not for the purpose of supply to the Jitpur Colliery. He has further observed that all the documents viz. License, challans were shown by driver of the truck, who is the agent/servant of the petitioner No. 1, therefore, it can be inferred that petitioner no. 1 was having full knowledge that forest woods were illegally transported. 8. I have heard Mr. Manoj Tandon and Mr. Pratush Lala, learned counsel for the petitioners as well as Mr. Ajit Kumar, A.A.G. and Mr. Vikash Kumar, J.C. to A.A.G. for the respondents. 9. Mr. 1 was having full knowledge that forest woods were illegally transported. 8. I have heard Mr. Manoj Tandon and Mr. Pratush Lala, learned counsel for the petitioners as well as Mr. Ajit Kumar, A.A.G. and Mr. Vikash Kumar, J.C. to A.A.G. for the respondents. 9. Mr. Tandon, learned counsel for the petitioners, has vehemently argued that without any cogent material and record to establish the knowledge of the truck owner regarding commission of the forest offence, truck cannot be confiscated. Mr. Tandon has further argued that if ultimately in a criminal trial, even if no offence is found to have been made out, truck of the petitioners once confiscated shall not return to the petitioners. Therefore, confiscation proceedings should have been stayed awaiting the decision in criminal case. 10. Hon'ble Apex Court, in the matter of State of Madhya Pradesh Vs. S.P. Sales Agencies & Ors. reported in (2004) 4 SCC 448 , para10 has observed as under: “The power of confiscation, exercisable under Section 52 of the Act, cannot be said to be in any manner dependent upon launching of criminal prosecution as it has nowhere been provided therein that the forest produce seized can be confiscated only after criminal prosecution is launched, but the condition precedent for initiating a confiscation proceeding is commission of forest offence, which, in the case on hand, is alleged to have been committed. Reference in this connection may be made to a decision of this Court in the case of Divisional Forest Officer & Anr. Vs. G.V. Sudhakar Rao and others, (1985) 4 SCC 573 , wherein it has been clearly laid down that the two proceedings are quite separate and distinct and initiation of confiscation proceeding is not dependent upon launching of criminal prosecution.” 11. In view of the dictum of the Apex Court in the case of State of Madhya Pradesh (supra), it is, thus, clear that two proceedings are quite separate and distinct and initiation of confiscation proceeding is not dependent upon launching of criminal prosecution. 12. Learned single Judge of this Court, in the case of Ram Awadh Pandey Vs. the State of Jharkhand & Ors. reported in 2012 (3) JLJR 33 , in Paragraph16, 17, 18, 19 and 20 has observed as under: “16. 12. Learned single Judge of this Court, in the case of Ram Awadh Pandey Vs. the State of Jharkhand & Ors. reported in 2012 (3) JLJR 33 , in Paragraph16, 17, 18, 19 and 20 has observed as under: “16. SubSection 5 of Section 52 of the Indian Forest Act (Bihar Amendment) clearly mandates as under : “(5) No order of confiscation under subsection (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 subsection (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.” 17. Thus, any property cannot be confiscated under Section 52 without any cogent material or record to establish the knowledge of the truck owner regarding commission of the forest offence. 18. In the instant case the authorised officer passed the order of confiscation of the petitioner's vehicle on the assumption that once the vehicle is found loaded with planks, no further enquiry was required for the purpose of confiscating the petitioner's vehicle. 19. The finding of learned Authorised Officer, is not based on any evidence on record. Assumption or suspicion howsoever strong is not a substitute for legal evidence. The appellate authority and the revisional authority casually and mechanically dealt with the matter and upheld the order of the Authorised Officer without applying their mind on the material on record as well as the relevant principles of law. 20. Even before this Court the respondents have not been able to point out any evidence on record to prove that the petitioner had knowledge that his vehicle is likely to be used for carrying forest produce and the vehicle was used voluntarily and was not taken under control by force by the accused Nos. 8 and 9.” 13. Hon'ble Apex Court, in the case of State of West Bengal & Anr. Vs. Mahua Sarkar, reported in (2008) 12 SCC 763 , having noticed Section 59B of the Forest Act (as amended and applicable in West Bengal) in paragraph Nos. 8 and 9.” 13. Hon'ble Apex Court, in the case of State of West Bengal & Anr. Vs. Mahua Sarkar, reported in (2008) 12 SCC 763 , having noticed Section 59B of the Forest Act (as amended and applicable in West Bengal) in paragraph Nos. 8, 9, 10, 11 and 12, has held as under: “8. At this juncture, it will be relevant to quote Sections 59A and 59B of the Act as inserted by the Amendment Act. The provisions read as follows: 59A. Confiscation by Forest Officer of Forest Produce in the case of forest offence believed to have been committed. 59B. Issue of notice before confiscation.(1) No order confiscating any property or tools, ropes, chains, boards, vehicles or cattle shall be made under Section 59A except after giving a notice in writing to the owner of, or the person from whom, such property or tools, ropes, chains, boards, vehicles or cattle have been seized for showing cause as to why the same should not be confiscated and considering his objections, if any: Provided that no order confiscating any motor vehicle shall be made except after giving a notice in writing to the registered owner thereof if, in the opinion of the authorised officer, it is practicable to do so and considering his objections, if any. 9. A bare reading of subsection (2) of Section 59B makes the position clear that no order confiscating any tools, ropes, chains, boards, vehicles or cattle shall be made under Section 59A if the owner thereof proves to the satisfaction of the authorised officer that such tools, ropes, chains, boards, vehicles or cattle was used in carrying the timber or other forest produce without the knowledge or connivance of the owner himself or his agent, if any, or the person in charge thereof and that each of them had taken all reasonable and necessary precautions against such use. 10. The language used is very clear. It is the owner who has to prove that the vehicle was used in carrying timber or other forest produce without his knowledge or connivance or that of his agent. 11. The requirement is mandatory that the owner has to prove that he had no knowledge or had not connived. It is a matter which is within his knowledge. Mere assertion without anything else will not suffice. 11. The requirement is mandatory that the owner has to prove that he had no knowledge or had not connived. It is a matter which is within his knowledge. Mere assertion without anything else will not suffice. There is another requirement that either he or his agent, if any, or the person in charge thereof had taken all reasonable and necessary precaution against such use. This aspect has to be established by the person concerned by sufficient material. As noted above, mere assertion in that regard could not be sufficient. 12. The forest officer and the appellate authority clearly noted that the owner failed to establish his alleged lack of knowledge or connivance or taking necessary precaution. The High Court came to an abrupt conclusion and held that without knowledge of the owner of the vehicle, the driver was carrying forest produce illegally.” 14. Having perused Section 52(5) (as amended and applicable in the State of Bihar and Jharkhand) and Section 59B (as applicable in the State of West Bengal), I find that languages of both two provisions are pari materia. It seems judgment of the Apex Court was not cited at the Bar therefore, it could not be noticed by learned single Judge of this Court, in the case of Ram Awadh Pandey (supra). 15. In the firm opinion of this Court, in view of the judgment of the Apex Court in the case of State of West Bengal & Anr. (supra), view of the learned single Judge in the case of Ram Awadh Pandey (supra) is per incuriam and shall not be treated as precedent. 16. In the firm opinion of this court , if view taken by this court is contrary to the view taken by the Supreme Court then view of the Supreme Court shall be treated as precedent in the facts and circumstances of the case and the contrary view of this court shall not be treated as precedent. 17. In view of the dictum of the Apex Court, it is, thus, clear owner has to prove that the vehicle was used in carrying the forest produce without his knowledge or connivance or that of his agent/servant. 18. Undisputedly, truck in question belongs to petitioner No. 1 and his agent/servant (driver) was found driving the truck and he was found in possession of license issued by the Government of West Bengal and challans. 18. Undisputedly, truck in question belongs to petitioner No. 1 and his agent/servant (driver) was found driving the truck and he was found in possession of license issued by the Government of West Bengal and challans. Therefore, petitioner no. 1 as well as his agent (Driver) were fully aware. Moreover, truck ownerpetitioner No. 1 could not successfully prove either before the authorities below or before this Court that woods so found in his truck were being carried without the knowledge or connivance of the petitioner or his agent/servant. 16. Learned counsel for the parties do not dispute that forest produce permitted for transportation out side the forest area always contains sign of Forest Hammer and it is always shown in the licence and the transit pass. 20. On being asked repeatedly, learned counsel for the petitioners could not furnish any reliable explanation as to why pieces of wood found in the truck were not having mark of forest department Hammer. 21. In view of the fact that pieces of woods found in the truck were not having mark of forest department Hammer and there was variation in the number of pieces of wood in the licence issued by the Government of West Bengal, challans and actual numbers found in the truck, I do not find any fault in the impugned judgment. 22. Therefore, there is no justification to interfere with the impugned orders. Present petition is devoid of merit, hence, is dismissed. Petition dismissed.