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Madhya Pradesh High Court · body

2015 DIGILAW 850 (MP)

VIJAY KANWDE v. SUB DIVISIONAL OFFICER

2015-08-14

N.K.GUPTA

body2015
JUDGMENT : 1. The Authorized Officer and Up Van Mandal Adhikari, Balaghat vide order dated 3-11-2008 in Forest Crime No. 5624/2013 confiscated a Max Jeep bearing Registration No. MP-022-T/0227. The Conservator of Forest and Appellate Authority vide order dated 16-4-2009 confirmed the order passed by the authorized officer and confiscating authority. The Second Additional Sessions Judge, Balaghat in Criminal Revision No. 52/2005 vide order dated 29-6-2009 confirmed the order passed by the Forest Officer and the Appellate Authority. Being aggrieved with the aforesaid orders the applicant has preferred this present petition under section 482 of the Criminal Procedure Code to get the vehicle released. 2. Facts of the case in short are that on 30-9-2007 at about 11.45 p.m. driver Dilip Vankhede transported 25 bags of manganese ore which was quantified to be 1203 kgs. by vehicle No. MP-022-T/0227 from Reserve Forest Beat No. 580. On inspection, the jeep was stopped and it was taken to Mahekepar Rest House and Dilip Vankhede could not produce any permit etc. of that transportation and therefore, a forest case was registered and an Authorized Officer as well as Deputy Forest Divisional Officer, Balaghat was informed to initiate the confiscation proceedings. A notice was given to the applicant who was owner of the vehicle. 3. The applicant took a defence that he was not made an accused in concerned POR (FIR) of forest crime. Vehicle was given to driver Dilip Vankhede to carry passengers in the vehicle and ply it as a taxi. He was not permitted to transport any illegal substance. The applicant went to Korba and he was not present at his residence at Village Piparwani, District Seoni on the date of incident and therefore, it was pleaded that vehicle be released. The authorized officer vide order dated 3-11-2008 confiscated the vehicle. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the applicant has invited the attention of this Court to the order passed by the single Bench of this Court in the case of Mittanlal Mishra vs. State of M. P. and another, 1997(2) MPLJ 216 . However, that order relates to a matter in which owner of the vehicle was not given an opportunity to participate in confiscating proceedings and therefore, matter was remanded to decide it again by giving an opportunity of hearing to the owner of the vehicle. However, that order relates to a matter in which owner of the vehicle was not given an opportunity to participate in confiscating proceedings and therefore, matter was remanded to decide it again by giving an opportunity of hearing to the owner of the vehicle. In the present case the applicant was given an appropriate opportunity to contest and he himself has examined before the authorized officer as witness. 6-7. The learned counsel for the applicant also placed his reliance upon the judgment passed by the Apex Court in the case of State of Madhya Pradesh vs. Madhukar Rao, (2008) 14 SCC 624 to show that such proceedings could not be initiated against the applicant in the matter before conclusion of criminal case, as the provision was not applicable and it was beyond jurisdiction. In this connection it is clear that in the matter of Madhukar Rao (supra) vehicle was seized under the provisions of Wild Life (Protection) Act, 1972 in which no parallel enquiry is provided. In the case of Madhukar Rao (supra) where the Supreme Court has confirmed the order passed by the Full Bench of this Court dated 28-10-1999 in W.P. No. 4421/1997, the Full Bench in its order distinguished between the provisions of Forest Act under section 52 and Wild Life (Protection) Act. A parallel enquiry is provided in that Act and therefore, the order passed by the Full Bench shall govern the case in which the vehicle or other article is seized under Wild Life (Protection) Act, 1972. Hence, the judgment passed by the Apex Court in the case of Madhukar Rao (supra) cannot be applied in the present case because it does not deal with the provisions of Wild Life (Protection) Act and it deals with the provisions of section 52 of the Indian Forest Act. In this connection judgment passed by the Division Bench of this Court in case of National Road Transport Service vs. State of M.P., 1995 (1) MPWN Note 199 may be referred, in which it is held that provisions of sections 52, 52-A and 52-B of Indian Forest Act are not ultravires. Hence, proceeding done of Authorized officer is not barred. 8. If contention of the applicant is examined on merits then it would be apparent that the decision given by the Authorized Officer was confirmed by the Appellate Authority and also by the Revisionary Court. Hence, proceeding done of Authorized officer is not barred. 8. If contention of the applicant is examined on merits then it would be apparent that the decision given by the Authorized Officer was confirmed by the Appellate Authority and also by the Revisionary Court. Hence, there are concurrent findings on facts given by all the three below functionaries and appreciation of evidence can be done in the petition afresh in an exceptional case. After considering the evidence adduced by the prosecution as well as the defence, it appears that it is a good case in which appreciation of evidence should be done by this Court against the concurrent findings of the authorities below. 9. In the present case, it is the plea of the applicant that he gave his vehicle to driver Prakash to carry the passengers in the vehicle as a taxi. The authorized officer took the photographs of vehicle from front and back and if those photographs are examined then the vehicle was registered as a taxi having some seats and therefore, it was meant for plying of passengers. It was not a Goods Vehicle. Hence, owner of the vehicle prima facie cannot authorize his driver to use the vehicle as a loading vehicle.Secondly, the prosecution has collected the evidence that the driver Prakash was often purchasing bags of manganese ore from various villagers and he was often in habit in taking such bags from such villagers. However, no evidence was adduced to show that he had permission of the applicant in doing so. It is settled view of the Apex Court that consent of owner about the overt act of the drivers is to be prima facidely proved by the prosecution and thereafter, it would be the duty of the owner to rebut such presumption. The owner/applicant is resident of a Village in District Seoni and it is not established that driver was dropping the vehicle at his house every day and therefore, if driver would have transported some mineral in a taxi which is not a loaded vehicle then it cannot be presumed that the applicant authorized the driver to transport such minerals in contravention of the various provisions of the Indian Forest Act. Thirdly, when the mineral was recovered, it was found that approximately it was 1203 kgs. and its cost was Rs. 2000/-. Hence for a mineral costing Rs. Thirdly, when the mineral was recovered, it was found that approximately it was 1203 kgs. and its cost was Rs. 2000/-. Hence for a mineral costing Rs. 2000/- the applicant would not have kept his vehicle having value in lakhs at stake for smuggling of minerals. In a taxi meant for passengers no such mineral could be transported and therefore, it was not possible for the applicant to permit his driver to smuggle mineral worth Rs. 2000/- in a taxi having its cost in lakhs. It would be inequitable if the amount of smuggled articles is much less in comparison to the cost of vehicle and for such meagre amount of smuggled articles the owner of the vehicle was punished severely and his vehicle has been confiscated. 10. On the basis of the aforesaid discussion, evidence collected by the prosecution did not prove that the applicant gave any consent to driver Prakash to transport the mineral containing manganese. However, in a taxi meant for carrying passengers, he could not permit his driver to transport sand or mud otherwise, various seats of the vehicle would spoil for the passengers. In such a taxi passengers could not be transported. The authorized officer recorded statement of Prakash. He had stated that one Ramphal offered to purchase some manganese ore and since he had to go to Tumsar for personal work he contacted with Ramphal for purchase of manganese at the rate of Rs. 2/- per kg. and thereafter, he transported the same. He has accepted in his statement that he took the vehicle on rent from its owner. Hence by statement of Prakash it would be apparent that he took the vehicle on rent and he was depositing monthly rent to the applicant and therefore, he was not required to drop the vehicle at the house of the applicant every day. This is the fourth ground to show that the applicant who was owner of the vehicle could not give any consent to transport any mineral in a passenger taxi, on the contrary he had no knowledge of the deeds of driver who was transporting bags of manganese ore in the passenger vehicle. 11. On the basis of the aforesaid discussion, it would be apparent that it is a case of ex prte appreciation of evidence. 11. On the basis of the aforesaid discussion, it would be apparent that it is a case of ex prte appreciation of evidence. It appears that the forest officers were bent upon to confiscate the vehicle valued in lakhs for transportation of manganese ore with its value to be a sum of Rs. 2000/-. The authorized officer ignored the statement given by the driver Prakash. If the applicant would have given his consent to transport such mineral in the passenger vehicle then he should also have been made accused along with the driver Prakash in a criminal case under the provisions of section 34 or 120-B of Indian Penal Code. 12. The learned Panel Lawyer has submitted that it is the duty of the owner whose vehicle is involved in the forest offence to prove that it was used by his driver without his knowledge and information and that he had no connivance with the offender at any stage of commission of offence. It is true that such a burden is on the owner. In this connection order passed by the single Bench of this Court in the case of Sarjooprasad vs. State of M.P. and others, 2006(2) MPLJ 65 may be referred in which it is held that when it was not in the knowledge of the owner of the vehicle that it was used in a forest crime then confiscation is not justified. In the present case when the driver Prakash took the vehicle on rent from the applicant then the applicant could not know that the driver had used a passenger taxi vehicle for loading manganese ore. 13. On the basis of the aforesaid discussion and appreciating the evidence again it is apparent that order of confiscation passed by authorized officer has no basis and the appellate authority as well as Additional Sessions Judge has committed an error in confirming the order of authorized officer. It is fit case in which the inherent powers of this Court may be invoked in favour of the applicant. Consequently, the petition under section 482 of the Criminal Procedure Code filed by the applicant Vijay Kanwde is hereby allowed. All the impugned orders passed by authorized officer, appellate authority and revisionary Court are hereby set aside. It is directed that the seized truck No. MP-022-T/0227 be released and handed over to the applicant without any delay. 14. Consequently, the petition under section 482 of the Criminal Procedure Code filed by the applicant Vijay Kanwde is hereby allowed. All the impugned orders passed by authorized officer, appellate authority and revisionary Court are hereby set aside. It is directed that the seized truck No. MP-022-T/0227 be released and handed over to the applicant without any delay. 14. Copy of the order be sent to the Second Additional Sessions Judge, Balaghat and the forest authorities below along with their respective records for information and compliance.