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2013 DIGILAW 43 (JHR)

Bibi Amna Khatoon v. State of Jharkhand

2013-01-08

JAYA ROY, PRAKASH TATIA

body2013
JUDGMENT Heard learned counsel for the parties. 2. The petitioner-appellant's vehicle, a truck bearing registration no. UHP – 695, was seized under section 52 of the Indian Forest Act, 1927, while carrying hard coal from the possession of the driver of the petitioner. In the confication proceeding, after giving full opportunity to the petitioner, the Authorized Officer passed the detailed order on 14th March, 2007 and ordered confiscation of the vehicle under section 52(3). The petitioner challenged the said order by preferring an appeal before the Deputy Commissioner, Sahebganj. The petitioner's said appeal was dismissed, vide order dated 3rd October, 2008 and thereafter petitioner's revision was also dismissed by the revisional authority, vide order dated 13th September, 2011. The petitioner, aggrieved against the aforesaid orders, approached this Court by filing writ petition, being W.P (C) No.6523/2011, which has been dismissed by the learned Single Judge, vide order dated 24th February, 2012 and hence, this Letters Patent Appeal. 3. Learned counsel for the petitioner-appellant, Shri Saibal Mitra, vehemently submitted that it was the burden upon prosecution to prove that the prohibited goods were carried in the petitioner's truck in the knowledge of the petitioner, whereas there is no such allegation in the complaint and therefore, in view of the judgment of Hon'ble Supreme Court delivered in the case of Assistant Forest Conservator & Ors. Vs. Sharad Ramchandra Kale reported in 1998(1) PLJR 21 (SC), all the authorities below as well as learned Single Judge have committed serious error of law in ordering the confiscation of the vehicle of the petitioner and in dismissing the appeal, revision and writ of the writ petitioner. Learned counsel for the petitioner though sought to read section 52 as amended by the Bihar Act 9 of 1990 containing subsection (5) in support of his plea yet submitted that it is the burden of the State to prove that the forest produce carried in the vehicle were put and carried in the vehicle in the knowledge of the owner of the vehicle and therefore, relied upon the judgment of Hon'ble Supreme Court delivered in the case of Sharad Ramchandra Kale (supra). 4. 4. Learned counsel for the petitioner-appellant further vehemently submitted that the coal in question, which is admittedly though a mineral being a commodity lying as mineral under the land, does not fall under the definition of forest produce because it is not the allegation of the prosecution that such coal was brought from forest. In that situation, if the driver of the vehicle has put any coal in the petitioner's vehicle, then firstly it was without knowledge of the petitioner and secondly there is no allegation that the said mineral was brought from the forest. Learned counsel for the petitioner-appellant also relied upon Division Bench judgment of this Court delivered in the case of Satrughan Singhal Vs. State of Jharkhand & Ors. reported in 2009(2) AIR Jhar R 986, wherein this Court has held that the knowledge cannot be inferred on mere assumption in a situation where specific case of the prosecution was that the prohibited articles were taken into the truck by the driver when he was on way to his destination. 5. Learned counsel for the petitioner-appellant also relied upon section 111A of the Indian Evidence Act, 1872 and submitted that where a person is accused of having committed an offence, then certain presumption is required to be drawn only in accordance with section 111A and since the prosecution in this case miserably failed to make out ground for drawing any presumption against the accused and failed to plead and prove the basic ingredients of the commission of offence by the petitioner and failed to impute knowledge of the petitioner, on all these grounds all orders are liable to be set aside. 6. We considered the submissions of the counsel for the parties as the argument of the learned counsel for the petitioner-appellant has been vehemently opposed by the learned A.A.G, Mr.Ajit Kumar and also considered the relevant provision of law and the judgment cited by the learned counsel for the parties. 7. It is not in dispute that the vehicle in question was seized by the authority by exercising section 52 of the Indian Forest Act, 1927. The seizure is not under challenge but the order of confiscation of the vehicle in question is under challenge, which has been passed by the original authority and upheld by the appellate authority and revisional authority as well as by learned Single Judge of this Court in writ jurisdiction. 8. The seizure is not under challenge but the order of confiscation of the vehicle in question is under challenge, which has been passed by the original authority and upheld by the appellate authority and revisional authority as well as by learned Single Judge of this Court in writ jurisdiction. 8. Coming to the argument of the learned counsel for the petitioner-appellant, irrespective of the fact whether all these grounds were taken before the authorities below or before the learned Single Judge, if we look at the language of subsection (5) of section 52 as amended by State Amendment by Bihar Act 9 of 1990. It will be absolutely clear from subsection (5) that in a matter of confiscation of vehicle, a duty has been cast upon a person, who claims release of the vehicle and objects the confiscation of the vehicle, to prove that such articles in the vehicle were put without his knowledge or connivance and further he took reasonable and necessary precaution against use of his vehicle for commission of forest offence. Subsection (5) of section 52 is as under: “52(5) No order of confiscation under subsection (3) of any tools, arms, boats, vehicles, ropes, chains or any other articles (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 authorized officer that any such tools, arms, vehicles, ropes, 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 the objects aforesaid for commission of forest offence.” 9. Before the Hon'ble Supreme Court in the case of Sharad Ramchandra Kale (supra), subsection (5) of section 52 as applicable in the State of Bihar and now in the State of Jharkhand was not under consideration. The Division Bench of this Court in the case of Satrughan Singhal (supra), on the basis of the statement of the truck driver and available materials on record as well as finding of the Deputy Commissioner holding that the owner of the truck was not at fault, accepted the plea of the owner of the vehicle. The Division Bench of this Court in the case of Satrughan Singhal (supra), on the basis of the statement of the truck driver and available materials on record as well as finding of the Deputy Commissioner holding that the owner of the truck was not at fault, accepted the plea of the owner of the vehicle. In that context, it has been observed by the Division Bench of this Court that the owner cannot be made liable for the fault of the driver, if he (Driver) has committed an offence without knowledge and consent of the owner. Here in this case, findings of all three authorities and of the learned Single Judge are against the writ petitioner-appellant. In that fact situation, learned A.A.G, Mr.Ajit Kumar, was right in relying upon the judgment of the Division Bench of this Court delivered in the case of State of Jharkhand & Ano. Vs Pradeep Kumar Dey & Ano. reported in [2004] (2) JCR 499 (JHR)], which has been delivered after considering the judgment of Hon'ble Supreme Court rendered in the case of Sharad Ramchandra Kale (supra), wherein subsection (5) of section 52 of the Indian Forest Act as amended by State Act has been considered. We are of the view that once a vehicle is found to be transporting prohibited articles, a presumption arises that it was with the connivance of owner of the vehicle and the driver is an agent of the owner and normally a driver acts only at the behest of the owner and since it is a presumption only, the statute has given opportunity to the owner to establish that he had taken all precautions against such acts, while giving his vehicle to an agent, the driver, and the transportation was without his knowledge and in spite of such precautions, the contraband were transported. Therefore, when some contraband is found in a vehicle and such vehicle is seized, a presumption can be drawn that contraband were carried in the vehicle in full knowledge of the owner of the vehicle and also there is a statutory opportunity to the owner of the vehicle to rebut such presumption. In this case, the petitionerappellant failed to produce any evidence to rebut the presumption. Therefore, the findings of all authorities below as well as of the learned Single Judge was fully justified. 10. In this case, the petitionerappellant failed to produce any evidence to rebut the presumption. Therefore, the findings of all authorities below as well as of the learned Single Judge was fully justified. 10. So far as applicability of section 111A of the Indian Evidence Act, 1872 is concerned, section 111A has application to the offence under sections 121, 121A, 122 or 123 I.P.C as well as to the criminal conspiracy or attempt to commit or abatement of an offence under section 122 or 123 I.P.C. The said section has no application to the present case in any manner. Not only this, there is a basic principle of law that “person who alleges must prove” and exception to it is by statutory provision of law in various Acts. Such proposition has also limited application when there is negative burden. Subsection (5) of section 52 is a statutory provision and puts burden upon the owner of the vehicle and rightly has put burden upon the owner of the vehicle because of the reason that he is the person in whose personal knowledge only facts can be, which may be relevant for the purpose of showing that the contraband in the vehicle were loaded without his knowledge and even after his taking due precaution. In that situation also, it was the burden upon the petitioner-appellant only, who failed to discharge his burden and therefore, his vehicle was rightly ordered to be confiscated. 11. Learned counsel for the petitioner-appellant further submitted that it may be true that the commodity in the vehicle was a forest produce, being coal extracted from earth but there was no allegation that the said coal was brought from any forest. Such a plea is also having no factual foundation because of the reason that once a contraband was found in the vehicle of the petitioner, then he could have taken all sorts of pleas to save his vehicle by specifically pleading that the commodity in the truck was not brought from the forest. However, in this case, plea of the petitioner appears to be self-contradictory, inasmuch as that the petitioner took the plea that he had no knowledge about the loading of the coal in the vehicle and at the same time, he wants to say that the commodity was not loaded and brought from forest. However, in this case, plea of the petitioner appears to be self-contradictory, inasmuch as that the petitioner took the plea that he had no knowledge about the loading of the coal in the vehicle and at the same time, he wants to say that the commodity was not loaded and brought from forest. Therefore, at this belated stage, this plea, which has no factual foundation, cannot be examined and there is no basis for such plea in view of the finding of facts recorded by the fact finding authorities. 12. Therefore, this L.P.A has no merit and is hereby dismissed. However, we are making it clear that so far as prayer of the learned counsel for the petitioner-appellant that the State has power to compound the offence is concerned, we may observe here that for that purpose, the State is free to pass appropriate order under section 68, if any case is made out by the petitioner-appellant. Appeal dismissed.