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2016 DIGILAW 1093 (HP)

Balbir Singh v. State of Himachal Pradesh

2016-06-17

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant petition stands directed against the impugned order rendered by the learned Additional Sessions Judge, Kinnaur at Rampur Bushahr whereby he affirmed the order rendered by the Authorised Officer-cum-Divisional Forest Officer, Kotgarh Forest Division, Himachal Pradesh, (hereinafter referred in short as the Authorised Officer) under Sections 41, 42 and 52 A of the Indian Forest (H.P. Second Amendment) Act, 1991 read with Section 69 of the Indian Forest Act, 1927. 2. The brief facts of the case are that police apprehended the vehicle Mahindra Pick Up No. HR-68-0285 at Bhuti Kenchi on 5.9.2005 which was coming towards Bithal and in which three persons namely Satya Prakash, Karan Kumar and Sher Singh Nepali were found at the spot and were arrested by the police and they were released on bail by SDJM Rampur on 6.9.2005. On checking the vehicle in question by the police 16 Nos. of Deodar sleepers of different size were found at the spot in vehicle in question which was covered by blue tarpaulin for which they have failed to produce any legal documents relating to carriage of the timber e.g. export permit etc. The timber itself was not having any hammer or property mark or khudan mark etc. During the course of enquiry, the police has established that the vehicle in question was allegedly used for transporting the forest produce i.e. timber 16 Nos. of Deodar sleepers of different sizes in contravention of the Indian Forest Act 1927 where after a case under Sections 41/42 of the Act and 379 of the IPC came to be registered vide FIR No. 82 P.S. Kumarsain. SHO Police Station Kumarsain produced the said vehicle along with 16 deodar sleepers for further action before the Authorised Officer Kotgarh where after a show cause notice to the appellant Balbir Singh was issued under Section 52-B of the Act, he being the real owner of the vehicle in question. The appellant filed reply to the said show cause notice and pointed out that he deputed Karan Kumar as driver in the vehicle which was used for transportation for horticulture and agricultural goods in different places. It was pointed out that the said driver had been deputed in the area of District Shimla so as to transport apple boxes in the said vehicle. It was pointed out that the said driver had been deputed in the area of District Shimla so as to transport apple boxes in the said vehicle. On coming to know that his vehicle has been impounded by the police an application for release of the same was filed in October, 2005. It was claimed that the driver had been instructed by him specifically to transport horticultural goods only but he used the vehicle without his knowledge or connivance to carry the timber. He had not been accompanying the vehicle for the last three months and was under the belief that driver might be transporting horticultural and agricultural goods as per his direction and had been making inquiry of such performance of the driver from the locals of the area concerned. 3. The petitioner is the owner of vehicle bearing No.HR-68-A-0285 qua whose confiscation the impugned renditions stood pronounced. Before initiation of the apposite proceedings by the Authorized Officer concerned exercising powers under the afore referred provisions of the Act, he had served a show cause notice upon the owner. In pursuance to the petitioner herein, owner of the apposite vehicle receiving a show cause notice from the Authorised Officer, he purveyed a reply thereto, wherein he emphatically voiced the factum of his holding no knowledge qua the prime factum of the driver of the vehicle aforesaid carrying illicit timber in the vehicle owned by him also he therein articulated the factum of his holding no connivance with either the driver of the apposite vehicle or with the one Satya Prakash who with the complicity of the driver engaged on the apposite vehicle by the owner loaded illicit logs of Deodar thereon. Furthermore, in his reply he projected the factum of his injuncting the driver against his using the vehicle for any purpose other than for horticultural and agricultural produce being carried thereon. The Authorized Officer had received evidence qua the allegations constituted in the apposite F.I.R. lodged with the Police Station concerned. The relevant and germane evidence adduced before the Authorised Officer for validating the seizure of the vehicle owned by the petitioner herein besides for empowering the Authorised Officer to render an order for its confiscation stands comprised in the testimony of Ved Prakash. The relevant and germane evidence adduced before the Authorised Officer for validating the seizure of the vehicle owned by the petitioner herein besides for empowering the Authorised Officer to render an order for its confiscation stands comprised in the testimony of Ved Prakash. He while answering the apposite questions put to him during his cross-examination held there before by the learned counsel for the petitioner herein qua the owner injuncting the driver against his using the vehicle for illegal purpose has not rendered a befitting affirmative unequivocal response thereto rather in his answers thereto he echoes of his failing memory deterring him to render a categorical affirmative response. Furthermore to the question put there before to him by the learned counsel for the owner qua the latter holding no incriminatory role in the offences constituted in the F.I.R. concerned, he has furnished an answer in the affirmative. However, he has deposed of yet Satya Prakash who at the relevant time was driving the vehicle and the petitioner herein holding complicity in the offences embedded in the F.I.R on the score of the apposite RC of the vehicle pertaining to the year 2003 whereat Satya Praksh held ownership of the vehicle, displaying the address of the aforesaid Satya Prakesh as C/o Balbir Singh R/o House No. 208, Kuradi Mohalla, Ward No. 17, Kalka, where after it stood alienated to Shri Balbir Singh in the year 2004. The Authorised Officer exercising powers under the aforesaid provisions of the Act provisions whereof comprised in Sections 52-A & B of the Act stand extracted hereinafter: “52-A. Confiscation by Forest Officers in certain cases- (1) Notwithstanding anything contained in this Chapter, where a forest offence is believed to have been committed in respect of timber (excluding fuelwood), resin, khair wood and Katha, which is the property of the State Government, the Officer seizing the property under sub-section (1) of Section 52 without any unreasonable delay produce it, together with all tools, ropes chains, boats or vehicles used in committing such offence before an Officer, authorized by the State Government in this behalf by notification published in the Official Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer). ……. ……. 52-B Issue of show cause notice before confiscation under Section 52-A (1) No order confiscating any timber (excluding fuelwood), resin, khair wood and katha, ropes chains, boats or vehicles shall be made under Section 52- A except after notice in writing to the person from whom it is seized and considering his objections, if any; Provided that no order confiscating a motor vehicle shall be made except, after giving 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. (2) Without prejudice to the provisions of sub-section (1), no order confiscating any tool, rope, chain boat or vehicle shall be made under Section 52-A if the owner of the tool, rope, chain, boat or vehicle proves to the satisfaction of the authorized officer that it was used in carrying the timber (excluding fuelwood), resin, khair wood and katha without the knowledge or connivance of the owner himself, his agent, if any and the person in charge of the tool, rope, chain boat or vehicle and that each of them had taken all reasonable and necessary precaution against such use.” Has rendered an interpretation thereupon of with the petitioner herein holding ownership qua the vehicle, he stood enjoined to adduce proof for dispelling the factum of his holding no knowledge or connivance with either Satya Prakash who was driving the vehicle at the relevant time or with his lawfully engaged driver thereon who at the relevant time was sitting beside him in the apposite vehicle also his standing enjoined to adduce evidence in depiction of his having taken all reasonable and necessary precautions against any misuser of the vehicle. Consequently, the authorized officer had outweighed the strength of the answers aforesaid meted by constable Amar Singh to the aforesaid questions put there before by the learned counsel for the petitioner herein while holding him to cross-examination. Consequently, the authorized officer had outweighed the strength of the answers aforesaid meted by constable Amar Singh to the aforesaid questions put there before by the learned counsel for the petitioner herein while holding him to cross-examination. Even if the owner of the vehicle is enjoined to display besides adduce cogent proof qua his holding no knowledge or connivance with his driver or any other person occupying the vehicle whereon illicit timber stood loaded nonetheless when the material prosecution witness Amar Singh when meteing answers to the apposite questions aforesaid put there before to him by the learned defence counsel while holding him to cross-examination was enjoined to mete or purvey firm unequivocal and affirmative answers thereto for hence benumbing the espousal of the owner comprised in his reply to the apposite show cause notice qua his holding no knowledge or connivance with any of the occupants of the apposite vehicle whereon illicit timber stood carried whereas with PW Amar Singh meteing equivocatory, loose and nebulous answers to the apposite questions put to him by the learned defene counsel while holding him to cross-examination, is connotative of his acquiescing to the owner injuncting the driver against his using the apposite vehicle for any unlawful purpose also is communicative of his acquiescing to the question put to him there before by the learned defence counsel for the petitioner qua the latter holding no inculpatory role in the offences constituted in the F.I.R. The aforesaid endeavour there before of the learned defence counsel to exculpate his vicarious liability alongwith the occupants of the vehicle, on the anvil of his holding no knowledge or connivance with any of them qua the factum of truck at the relevant time occupied by them holding any illicit timber, was a tenable concert qua the facet of exculpation of the petitioner in the offences alleged. Moreover the aforesaid concert was a sufficient manner of discharge of burden cast upon the petitioner qua his hence holding no knowledge or connivance qua the occupants of the vehicle owned by him at the relevant time carrying illicit timber thereon. Moreover the aforesaid concert was a sufficient manner of discharge of burden cast upon the petitioner qua his hence holding no knowledge or connivance qua the occupants of the vehicle owned by him at the relevant time carrying illicit timber thereon. In sequel, it was wholly inapt for the authorized officer to despite in the manner aforesaid the accused discharging the apposite burden or onus cast upon him, outweigh its relevance also it was grossly inappropriate for him to discard its probative tenacity only on the factum of the owner not proving the aforesaid prime factum by his leading affirmative evidence. Even otherwise, the apposite elicitations aforesaid from the prime prosecution witness on his standing subjected to cross-examination there before by the learned counsel for the petitioner were dependable for ascertaining the truth of the allegations constituted qua the owner in the F.I.R. besides for de-establishing the allegations constituted therein qua the owner. The vigour of the answers meted by PW-2 to the apposite questions aforesaid put there before to him by the learned defence counsel while holding him to cross-examination when vividly display of no incriminatory role being fastenable upon the owner nor any ingredient constituted in the apposite penal provisions standing satiated vis-a-vis. the owner warranted theirs not being undermined by the authorized officer merely on his insisting upon discharge by the petitioner qua the apposite onus or burden by his there before adducing cogent evidence thereat in display of his holding no knowledge or connivance with any of the occupants of the vehicle whereon illicit timber stood carried at the relevant time, imperatively when for reasons aforesaid the owner had led apposite evidence for dispelling his holding any knowledge or connivance with any of the occupants of the vehicle. Since the effect of the aforesaid nebulous answers meted by the prime prosecution witness to the apposite questions put there before by the learned defence counsel on his holding him to cross-examination impinges upon the factum of the petitioner holding no knowledge or connivance with any of the occupants of the vehicle wherein timber stood illicitly carried, is of hence the crucial apposite incriminatory role ascribed by the prosecution to the owner standing negatived. Consequently, both the impugned renditions while repulsing their apposite effect have strayed into legal wilderness hence committed a gross illegality besides impropriety. 4. Consequently, both the impugned renditions while repulsing their apposite effect have strayed into legal wilderness hence committed a gross illegality besides impropriety. 4. The learned Deputy Advocate General has contended with much vigour before this Court of even if assumingly the factum of the owner holding no connivance or knowledge qua the vehicle owned by him standing at the relevant time subjected to misuse by any of its occupants yet the owner was also peremptorily enjoined to adduce cogent proof there before of his taking all reasonable and necessary precautions against misuse of the vehicle by any of the occupants thereon. He proceeds to contend with the reply to the apposite show cause notice furnished by the owner displaying the factum of his not accompanying the vehicle for the last three months constitutes his not taking all reasonable and necessary precautions against the misuser of the apposite vehicle by its occupants whereupon he contends of an incriminatory role being fastenable upon the owner. He also contends of the lawfully engaged driver thereon also being enjoined by law to obviate its misuse. On the edifice of the aforesaid contention he makes an espousal before this Court of hence the impugned rendition warranting vindication by this Court. However, the aforesaid submissions addressed before this Court is acceptable only to the extent of the owner standing enjoined to adduce cogent proof qua his taking all reasonable and necessary precautions for obviating its misuser also his lawfully engaged driver thereon standing enjoined to obviate its misuser. Nonetheless, the mere factum of a display occurring in the reply furnished by the petitioner to the apposite show cause notice, of his not accompanying the driver engaged by him in the vehicle for the last three months would not warrant any conclusion from this Court of hence his not taking all reasonable and necessary precautions against the apposite vehicle standing misused at the instance of its occupants thereon at the relevant time predominantly when their occurs even in the examination in chief of the owner a communication of his injuncting his lawfully engaged driver thereon against his using it for any unlawful purpose rather his injuncting his driver to use it only for transporting horticultural and agricultural produce thereon. Now, the effect of the aforesaid injunction or command of the owner to his lawfully engaged driver in the apposite vehicle when construed in tandem with its seizure occurring in the month of September whereat it is to be presumed of the apple harvesting season being in progress at the location whereat it stood seized given no evidence standing adduced by the prosecution to repel the aforesaid factum is of hence its evincing an inference of its coalescing with his reply to the show cause notice besides with his apposite communications comprised in his examination in chief whereupon a further inference stands filliped of the vehicle which stood seized in the locality whereat apple harvesting operations were underway proceeding thereto for no purpose other than for collecting apple boxes, for theirs standing loaded for transportation in the apposite vehicle. Contrarily also an inference stands engendered of its not plying thereat for its standing used for any unlawful purpose, necessarily hence the owner of the vehicle is to be held to have proved his ensuring his taking all reasonable and necessary precautions against its misuser at the relevant time by any of its occupants. Accentuation to the aforesaid inference stands succored by the prime prosecution witness while purveying answers to the afore-referred apposite questions put to him there before by the learned defence counsel while holding him to cross-examination especially the one of the owner injuncting his driver against his misusing the apposite vehicle, his not responding affirmatively rather his displaying for lack of memory his inability to answer it affirmatively whereupon an inference stands recorded hereinabove of hence his acquiescing to the factum of the owner injuncting his driver against his using the vehicle owned by him for unlawful purpose also gives momentum to a deduction of the aforesaid command of the owner to his driver being a perennial diktat upon him for obviating its misuser by him. Consequently, the said command handed by the owner to his lawfully engaged driver in the apposite vehicle is a sufficient compliance by the owner qua his taking all reasonable and necessary precautions against misuser of the vehicle by his lawful engaged driver in the vehicle owned by him whereupon no inculpatory role is fastenable upon the petitioner arising from his lawfully engaged driver in the apposite vehicle subjecting it to unlawful use with complicity of one Satya Prakash. 5. 5. The learned Deputy Advocate General also contends of the lawfully engaged driver by the petitioner in the apposite vehicle while his being its “person-in-charge” within the ambit of Section 52-B(2) of the Indian Forest Act, 1927, hence, evidence was also enjoined to exist on record for dispelling his knowledge or connivance in the offences constituted in the F.I.R whereas his occupying the apposite vehicle alongwith one Satya Prakash who at the relevant time was driving it yet fastens alongwith the driver of the apposite vehicle a vicarious incriminatory liability even qua the owner. However, the aforesaid submission holds no vigour, as the learned Deputy Advocate General has embarked upon an interpretation of the relevant underlined phrase “knowledge or connivance of the owner himself, his agent, if any and the person in charge of the tool, rope, chain, boat or vehicle and that each of them had taken all reasonable and necessary precautions against such use” existing in sub section 2 of Section 52-B of the Act bereft of its holding no connectivity vis-a-vis the knowledge or connivance of the petitioner herein who is the owner of the vehicle especially when the earlier and latter part thereof stands segregated by the disjunctive “and”. The effect of the disjunctive “and” is of its severing connectivity inter se the earlier and latter portion of the afore-referred apposite provisions besides also the effect of its occurrence therein is of it also hence severing the knowledge or connivance of the owner vis-a-vis the knowledge or connivance of his driver occupying the apposite vehicle at the relevant time. Consequently even if the driver was in-charge of the vehicle at the relevant time his omitting to obviate the commission of the offence does not take within its ambit qua the owner of the vehicle yet holding any vicarious knowledge or connivance with him in the alleged offences. 6. In view of the aforesaid discussion the instant petition is allowed and the impugned annexures are quashed and set-aside.