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2014 DIGILAW 132 (CHH)

SUKHAM BAI v. STATE OF C. G.

2014-03-24

MANINDRA MOHAN SHRIVASTAVA

body2014
ORAL ORDER 1. Heard. 2. This petition under Article 227 of the Constitution of India is preferred against order dated 4th September, 2004 passed by the 1st Additional Sessions Judge, Kanker, by which revision of the petitioner against appellate order, confirming order of confiscation of vehicle, has been dismissed. 3. Facts giving rise to this petition are that the vehicle of which the petitioner undisputedly is the owner was found carrying forest produce without any valid authority of possession, which led to initiation of confiscation proceedings. Vide order dated 11.2.2004, the Authorized Officer held that vehicle was used for commission of forest offence and passed an order of confiscation. An appeal against the order of confiscation was also preferred, which was also dismissed on 27.5.2004. The petitioner, thereafter, availed the remedy of revision available to him under Section 52-B of the Indian Forest Act, 1927 (hereinafter referred to as "the Act of 1927"). There visional Court, however, dismissed the revision against the appellate order, giving rise to this petition. 4. Learned counsel for the petitioner has raised twofold submissions. Firstly, it is submitted that during the pendency of this petition, the accused who were alleged carrying forest produce including the driver have been acquitted vide judgment of acquittal dated 16.9.2008 passed in Criminal Case No. 1713/03 by the Chief Judicial Magistrate, North Bastar, Kanker. In view of this subsequent development, when no forest offence has been found to be committed and accused alleged to have committed offence have been acquitted, the order of confiscation is liable to be cancelled and the vehicle also be directed to be released in favour of the petitioner. Secondly, it is submitted that the petitioner had led cogent, reliable and trustworthy evidence to prove that the forest offence, if any, was committed and the vehicle owned by the petitioner was used without her knowledge and/or connivance and even without knowledge or connivance of her son Ramakant and that all reasonable and necessary precautions had been taken against use of vehicle for commission of forest offence. Despite this overwhelming evidence led by the petitioner in her defence, the Prescribed Authority acted perversely in ordering confiscation. This relevant aspect of the matter was not properly appreciated by the Appellate and Revisional Authority. 5. Despite this overwhelming evidence led by the petitioner in her defence, the Prescribed Authority acted perversely in ordering confiscation. This relevant aspect of the matter was not properly appreciated by the Appellate and Revisional Authority. 5. On the other hand, learned counsel for the State submits that the confiscation proceedings drawn under the provision of the Act of 1927 are independent of the criminal proceedings. If there is admissible evidence on record to sustain the finding of confiscation, the confiscation cannot be subsequently recalled merely because the accused have been acquitted. He further submits that the defence raised by the petitioner, oral evidence led in that regard was appreciated by the Confiscating Authority as well as the Appellate Authority in detail and after considering the entire evidence on record, finding of fact has been recorded. This has been further considered by the revisional Court also. Therefore, in these circumstances, no jurisdictional illegality or perversity appears from record so as to warrant exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. I have considered the rival submissions made by learned counsel for the parties and perused the records. 7. In so far as first submission with regard to interplay of confiscation and criminal proceedings are concerned, the legislative scheme engrafted in Chapter-IX of the Act of 1927, as amended vide State amendment, is explicitly clear. 8. Under sub-section (1) of Section 52 of the Act of 1927, it has been provided that when there is reason to believe that a forest offence has been committed in respect of any forest produce, such forest produce along with all tools, boats, vehicle, ropes, chains or any other article used in committing any such offence may be seized by any Forest Officer or Police Officer. Under sub-section (3) of Section 52 of the Act of 1927, the authorized officer has been empowered to confiscate forest produce together with all such tools, boats, vehicles, ropes, chains etc, if he is satisfied that a forest offence has been committed in respect thereof. True it is that he is not competent to convict any person who is involved in the commission of forest offence, at the same time, the legislature confers upon him an authority to confiscate the forest produce, vehicle and other articles mentioned in the provision upon reaching satisfaction with regard to commission of forest offence. True it is that he is not competent to convict any person who is involved in the commission of forest offence, at the same time, the legislature confers upon him an authority to confiscate the forest produce, vehicle and other articles mentioned in the provision upon reaching satisfaction with regard to commission of forest offence. This satisfaction is required only for the limited purpose of confiscation and not for holding a person guilty of commission of forest offence. Present is not a case where this Court is called upon to examine the constitutional validity of the legislative scheme contained in Section 52 of the Act of 1927. In the light of the aforesaid scheme, whether or not a conviction on allegation of commission of forest offence results, on the basis of satisfaction envisaged under Section 52 (3) of the Act of 1927, an authorized officer is empowered under the law to confiscate the vehicle which he found having been used in commission of forest offence. 9. Section 55 of the Act of 1927 provides that forest timber or forest produce along with all tools, boats, vehicles, ropes, chains or any other article used in committing any forest offence shall be liable to confiscation upon conviction of the offender for such offence. This provision empowers the Magistrate trying the offence to order confiscation of the vehicle. Sub-section (2) of Section 55 of the Act of 1927 clarifies that such confiscation may be in addition to any other punishment prescribed for such offence. Though there exists general provision under the Code of Criminal Procedure, empowering a Magistrate to pass appropriate orders with regard to disposal of property at the end of trial, the purpose and object of making such provision under Section 55 of the Act of 1927 seems to make it obligatory on the Court to confiscate forest produce, vehicles, chains etc. once an offence has been committed. Moreover, this power is subject to provision contained under Section 52-A, 52-B and 52-C of the Act of 1927. A logical and fair interpretation of this provision would only mean that any confiscation under Section 55 of the Act of 1927, in the event of conviction of the offender, will remain subject to the orders that may be passed in confiscation proceedings. A logical and fair interpretation of this provision would only mean that any confiscation under Section 55 of the Act of 1927, in the event of conviction of the offender, will remain subject to the orders that may be passed in confiscation proceedings. However, the converse proposition as contended by learned counsel for the petitioner does not flow from conjoint reading of provision contained in Section 52-A, 52-B and 52-C of the Act of 1927. Therefore, even in a case where ultimately accused are acquitted of commission of forest offence, confiscation of vehicle upon satisfaction of the authorized officer that a forest offence has been committed, shall stand and would not be nullified for the reason that in the criminal case the accused have been ultimately acquitted. Therefore, in the considered opinion of this Court, first submission of learned counsel for the petitioner is liable to be rejected. 10. In order to appreciate the second submission of learned counsel for the petitioner, it is relevant to examine the statutory scheme engrafted in sub-section (5) of Section 52 of the Act of 1927, which being relevant, is extracted herein-below : "52. (5) No order of confiscation under sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than timber or forest-produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorized officer that any such tools, vehicles, boats, 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 objects aforesaid for commission of forest offence" 11. The provision carves out an exception when a vehicle, even though found used in commission of forest offence, may not be confiscated. It provides that if any person referred to in clause (b) of sub-section (4) of Section 52 of the Act, proves to the satisfaction of authorized officer that the vehicle was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of vehicle, confiscation may not entail. If this provision is read conjointly with the provision relating to confiscation contained in sub-section (3) of Section 52 of the Act of 1927, it follows that once a vehicle is found to use in commission of forest offence, it is liable to be confiscated and the burden would lie on the person from whom the vehicle is seized or any other person who may appear to be interested in such vehicle, to prove that the vehicle was used without his knowledge and connivance. But that is not an end. This defence would be available against confiscation only when such person proves to the satisfaction of the Authorized Officer that he had taken all reasonable and necessary precautions against use of vehicle for commission of forest offence. This twin requirement has to be proved to the satisfaction of the Authorized Officer to save the vehicle from confiscation. 12. If the orders passed by the Authorized Officer, Appellate Authority and Revisional Court are scrutinized in the light of aforesaid statutory scheme, it is found that the Prescribed Authority has taken into consideration the evidence on record, the circumstances in which the vehicle was seized as also the evidence led in defence by the petitioner, to come to the conclusion that the petitioner has failed to prove that the vehicle was used without knowledge and connivance of petitioner's son Ramakant who has stated before the Authority that he was there in the vehicle and was also driving. 13. Though learned counsel for the petitioner vehemently urged to convince this Court that the standards of reasonable and necessary precautions have to be assessed by taking into consideration the rural background of the petitioner and her son, referring to the evidence led by the petitioner, it is fervently urged by learned counsel for the State that there is evidence that when the person, taking the bags containing forest produce was asked, he gave a false explanation that he was carrying tamarinds, whereas, in fact, he was not carrying tamarinds, but a forest produce. 14. Thus, it cannot be accepted that there was a bona-fide belief on the part of petitioner's son that the bag must be carrying tamarinds and was sufficient in the circumstances of the case, to record a finding that he had taken reasonable and necessary precautions. 15. 14. Thus, it cannot be accepted that there was a bona-fide belief on the part of petitioner's son that the bag must be carrying tamarinds and was sufficient in the circumstances of the case, to record a finding that he had taken reasonable and necessary precautions. 15. May be that the submissions of learned counsel for the petitioner, upon examination of evidence and re-assessment thereof, may result in another view, however, that does not satisfy the test of jurisdictional error or perversity to warrant interference in exercise of supervisory jurisdiction. The explanation in the form of evidence of defence was taken into consideration by the Prescribed Authority, but looking to the conduct of the petitioner and another person who attempted to run away from the spot instead of submitted themselves for checking by Police Forest Authorities has been taken into consideration to reject their explanation and deny benefit of provision contained in sub-section (5) of Section 52 of the Act of 1927. The finding has been recorded based on confiscation which cannot be said to be irrelevant or extraneous, much less inadmissible. Thus, when two views are possible, one as propounded by the petitioner and the other taken by the Prescribed Authority, affirmed in appeal and revision, it would not be open for this Court exercising jurisdiction under Article 227 of the Constitution of India to again re-assess the evidence and bank upon either of the views placed before this Court. 16. In the result, no case of interference under Article 227 of the Constitution of India is made out warranting interference with' the order of revisional Court. 17. The petition is accordingly dismissed. Petition Dismissed.