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2020 DIGILAW 153 (JHR)

Rajendra Prasad v. State of Jharkhand

2020-01-23

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition has been filed for quashing the order dated 09.04.2014 (Annexure-9 to the writ petition), whereby the respondent no. 3 – the Authorised Officer-cum-Divisional Forest Officer, Saranda Forest Division, Chaibasa, West Singhbhum has passed an order of confiscation of the petitioner’s vehicle having Chassis No. MAT466386B2G17661 in Confiscation Case No. 03/2013. Further prayer has been made for quashing the order dated 27.01.2015 in connection with Confiscation Appeal No. 01/2014-15, whereby respondent No. 2 – the Deputy Commissioner, West Singhbhum, Chaibasa (Appellate Authority) has upheld the order passed by the respondent no. 3. The petitioner has also prayed for quashing the order dated 11.01.2016 passed by the respondent no. 1 – the Revisional Authority-cum-Principal Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi in Revision Case No. 43 of 2015, whereby the said revisional authority has dismissed the revision petition preferred by the petitioner and has affirmed the order passed by the Appellate Authority as well as the Authorised Officer. 2. The factual background of the case as stated in the writ petition is that the petitioner is the owner of two trucks bearing registration nos. JH-05AK-0540 (Chassis No. MAT466386B3G20917) and JH-05AK-0543 (Chassis No. MAT466386B2G17661) and plies the said trucks throughout the territory of India mainly for transporting mines produce. The petitioner’s vehicle (truck) bearing registration no. JH-05AK-0540 was checked at Baraiburu Forest Check Post on 23.03.2013 and it was found that the said truck was carrying iron ore fines from the mines of M/s Usha Martin Ltd. and was going towards Gamharia. The truck was having a Mining Transit Challan (‘D’ Form) No. A10108399 dated 23.03.2013. On investigation, it was found that the said truck was bearing a number plate which displayed a different registration number than its actual registration number. It further surfaced that the said truck was not having a valid transit permit. As such, on the basis of suspicion, the vehicle was seized and its driver and conductor were arrested. Subsequently, an offence report was lodged by the Ranger of Gua Forest Area and the same was forwarded to the respondent no. 3 for necessary action. The Forest Beat Officer, Gua vide letter no. 16 dated 25.03.2013 addressed to the Chief Judicial Magistrate, Chaibasa informed about the aforesaid occurrence and requested to take cognizance of the offence. Subsequently, an offence report was lodged by the Ranger of Gua Forest Area and the same was forwarded to the respondent no. 3 for necessary action. The Forest Beat Officer, Gua vide letter no. 16 dated 25.03.2013 addressed to the Chief Judicial Magistrate, Chaibasa informed about the aforesaid occurrence and requested to take cognizance of the offence. The Chief Judicial Magistrate registered a complaint being C/3 Case No. 17 of 2013. Subsequently, the petitioner as well as the driver and cleaner of the truck were granted bail in the said criminal case. The petitioner filed a petition for release of the truck, however, on getting the report from the respondent no. 3 that a confiscation proceeding being Confiscation Case No. 3 of 2013 had been initiated under Section 52 of the Indian Forest Act, 1927 (hereinafter referred to as “the Act, 1927”) for not having the valid transit permit to move within the forest limits as required under Section 41 of the said Act, the said petition was rejected. Thereafter, the petitioner appeared in the confiscating proceeding and submitted his reply to the show cause notice stating that the truck against which the confiscation proceeding was initiated had a valid forest permit to ply on forest roads and annexed the forest permit of both the vehicles owned by him i.e., JH-05AK-0540 and JH-05AK-0543. It was further stated by the petitioner therein that both the vehicles were recently repaired in a garage together and due to mistake/inadvertence, the number plates of the trucks got interchanged. The respondent no. 3 vide order dated 09.04.2014 confiscated the petitioner’s vehicle bearing Chasis No. MAT466386B2G17661. Being aggrieved by the said order, the petitioner preferred appeal before the respondent no. 2 by filing Confiscation Appeal No. 01/2014-15. When the said Appellate Authority was not taking any action in the said appeal, the petitioner preferred W.P.(Cr.) No. 249 of 2014 before this Court. However, in the meantime, the Appellate Authority disposed of the said appeal vide order dated 27.01.2015 and affirmed the order of the Confiscating Authority. Thereafter, the petitioner filed a revision petition before the respondent no. 1 which was registered as Revision Case No. 43 of 2015, however, the same was also dismissed vide order dated 11.01.2016. During filing of the writ petition, the petitioner came to know that a notice has been published in the newspaper for putting the said truck in auction. 3. Thereafter, the petitioner filed a revision petition before the respondent no. 1 which was registered as Revision Case No. 43 of 2015, however, the same was also dismissed vide order dated 11.01.2016. During filing of the writ petition, the petitioner came to know that a notice has been published in the newspaper for putting the said truck in auction. 3. The learned counsel for the petitioner submits that the Authorised Officer, Appellate as well as Revisional Authority miserably failed to appreciate that the petitioner’s vehicle had a valid permit while it was caught and seized by the forest officials and as such, there was no ground for confiscating the said vehicle. The impugned orders have been passed on the basis of ipse dixit as also on mere conjecture and surmises. All respondent authorities did not appreciate the exhibited documents and thus, committed manifest error in law by passing the impugned orders overlooking the vital documents brought on record. The Authorised Officer/Confiscating Authority did not provide the petitioner a reasonable opportunity of being heard and as such, the order passed by the respondent no. 3 is otherwise arbitrary. All the respondent authorities failed to take consideration that both the vehicles of the petitioner had valid permits and as such, there was no reason to initiate a confiscation proceeding under the forest law. It is further submitted that the criminal case instituted vide C/3 Case No. 17/2013 has ended in acquittal of the petitioner as well as the driver and cleaner of the truck vide judgment dated 09.08.2018. The respondent no. 3 has mentioned in the impugned order dated 09.04.2014 that the seized truck was used in commission of the forest offence punishable under Section 42 of the Act, 1927 and accordingly, the same has been ordered to be confiscated. However, the petitioner, the driver and cleaner of the truck have already been acquitted in the criminal case in connection with T.R. No. 351/2018, arising out of C/3 Case No. 17/2013. So far as the petitioner is concerned, no charge against him was even framed for the offence under Section 42 of the Act, 1927. Section 41 of the Act, 1927 provides for framing of rules to regulate transit of forest produce and for contravention of any rule made under Section 41 of the Act, 1927, there is a provision of penalty under Section 42 of the said Act. Section 41 of the Act, 1927 provides for framing of rules to regulate transit of forest produce and for contravention of any rule made under Section 41 of the Act, 1927, there is a provision of penalty under Section 42 of the said Act. However, none of the respondent authorities have mentioned in the impugned orders that under which provision of law the petitioner was alleged to have violated transit rules so as to initiate a proceeding for confiscation of the petitioner’s truck. The learned counsel for the petitioner further submits that the petitioner has not admitted the commission of forest offence at his instance while submitting his show cause affidavit before the respondent no. 3. The iron ore fines cannot be treated as forest produce as the government had given mining lease for excavation of mining iron ore to M/s Usha Martin Ltd. and, therefore, any transportation of the iron ore taken out from the leasehold area of M/s Usha Martin Ltd. cannot be treated as forest produce. The provision of presumption under Section 69 of the Act, 1927 regarding forest produce is not applicable in the facts of the present case as the seized iron ore fines cannot be treated as forest produce particularly in view of the admitted position that the seized truck was loaded with iron ore fines which was being transported from the leasehold area of M/s Usha Martin Ltd. granted under the Government’s order. The petitioner’s vehicle was duly registered for transportation of iron ore fines from the said mines. It is also submitted that the engine number of the truck was not defaced and the same cannot be defaced. Admittedly, both the trucks were authorized to transport iron ore fines and as such, it can be presumed that both the trucks were authorized to transport the iron ore fines. As such, there was no reason to change the number plates of the trucks as the same would have given no benefit to the petitioner. 4. Per contra, Mr. Abhay Prakash, the learned AC to AAG-I appearing on behalf of the respondents, submits that the truck in question has been confiscated on the proved allegation of committing forest offence. As such, there was no reason to change the number plates of the trucks as the same would have given no benefit to the petitioner. 4. Per contra, Mr. Abhay Prakash, the learned AC to AAG-I appearing on behalf of the respondents, submits that the truck in question has been confiscated on the proved allegation of committing forest offence. The petitioner has admitted his involvement in commission of the said offence by filing his show cause affidavit dated 07.06.2013 and supplementary show cause affidavit dated 03.09.2013 in the confiscation case by using the word “mistake” committed in changing the number plates of trucks. It is further submitted that the iron ore fines is a forest produce as defined under Section 2(4)(b)(iv) of the Act, 1927. Moreover, as per Section 69 of the Act, 1927, there is a presumption that forest produce belongs to the Government. When in any proceeding initiated under the Act, or in consequences of anything done under the said Act, if a question arises as to whether any forest produce is the property of the Government, such produce shall be presumed to be the Government property until the contrary is proved. It is further submitted that after filing of the offence report, a detailed investigation was made by the Forest Beat Officer, Gua and the allegation was prima facie found to be true. Accordingly, the prosecution report was prepared. The defence taken in the criminal case is of no relevance since valid transit permit was granted for another truck bearing registration no. JH-05AK-0540. The petitioner has failed to show any valid reason as to why the engine number of the truck was defaced in order to mislead the identification of the actual number of the truck. The petitioner has admitted that some mistakes occurred in fixing the number plates in both the trucks. Though the petitioner has claimed that his truck bearing registration no. JH-05AK-0540 had met with an accident on 19.03.2013, however, no document was filed in the confiscation proceeding in support of the said claim. Neither the owner nor the mechanic of the garage has been examined to prove that the number plates of the trucks got interchanged during repair. It is also submitted that the transportation route for truck no. JH-05AK-0540 had met with an accident on 19.03.2013, however, no document was filed in the confiscation proceeding in support of the said claim. Neither the owner nor the mechanic of the garage has been examined to prove that the number plates of the trucks got interchanged during repair. It is also submitted that the transportation route for truck no. JH-05AK-0540 was from Ghatkuri Vijay-II to Bokna Plant, Gua, Gua Railway Siding, Barajamda Railway Siding, M/s Usha Martin Ltd., Gamharia and the permit was valid upto 18.12.2013. The truck bearing registration no. JH-05AK-0543 was shown to be transported in favour of M/s Nirmal Kumar, Pradeep Kumar mines and the route was shown as Ghatkuri Mines to Hathi Chowk Baraiburu Checknaka Road till the period March, 2013. M/s Usha Martin Ltd. who had deployed the truck JH-04AK/0540 for transporting iron ore fines from Ghatkuri Mines to Gamharia plant of M/s Usha Martin Ltd. under Forest Transit permit stated in his reply that the said vehicle was deployed for transporting iron ore fines from mines area to Gamharia Plant through forest road and on enquiry, it was found that the owner of the seized vehicle and transporting company i.e., M/s Badoda Transport were in fault and for the said reason, both have been blacklisted by M/s Usha Martin Ltd. The learned counsel for the respondents further submits that if the truck was under repair on 21.03.2013, in that event the owner could have produced this defence on the very next date of the seizure of the vehicle, but the petitioner kept complete silence from 23.03.2013 to 07.06.2013 which clearly suggests that during the said period, he was engaged in manufacturing the documents for the purpose of his defence in the confiscation case. A valid transit permit was issued with respect to another truck bearing registration no. JH-05AK-0540, whereas the truck bearing registration no. JH-05AK-0543 was illegally transporting iron ore fines. 5. Heard the learned counsel for the parties and perused the materials available on record. The allegation against the petitioner is that one of his trucks having Chassis No. MAT466386B2G17661 was checked on 23.03.2013 at Baraiburu Check Post and it was found that iron ore fines were being carried by the said vehicle by fixing wrong registration plates i.e., JH-05AK-0540 in place of his actual registration no. JH-05-AK-0543. 6. The allegation against the petitioner is that one of his trucks having Chassis No. MAT466386B2G17661 was checked on 23.03.2013 at Baraiburu Check Post and it was found that iron ore fines were being carried by the said vehicle by fixing wrong registration plates i.e., JH-05AK-0540 in place of his actual registration no. JH-05-AK-0543. 6. It is evident from the record that by virtue of the order dated 09.08.2018 passed by a criminal court in T.R. No. 351/2018, arising out of complaint being C/3 Case No. 17 of 2013, the petitioner as well as the driver and cleaner of the truck have been acquitted. The learned Chief Judicial Magistrate, West Singhbhum at Chaibasa while passing the judgment has specifically recorded that PW-1 himself admitted during the evidence that challan with regard to the seized iron ore fines was valid. It has also been held that as per the prosecution story, the accused persons were plying the vehicle with forged documents, however, no material was produced on behalf of the prosecution to support or corroborate the said allegation. The learned Chief Judicial Magistrate has also observed that nothing was produced before the said court to show that any query was made by the prosecution from the Transport Department so as to find out veracity of the documents kept in the vehicle. It has thus been held by the learned Chief Judicial Magistrate that the charge against the petitioner and other co-accused persons for running the said vehicle with false document was not proved beyond the shadow of reasonable doubt. 7. Apart from the criminal case, a confiscation proceeding was started for confiscation of the said truck. Section 52(5) of the Indian Forest Act, 1927 (by Section 5 of Bihar Act 9 of 1990) specifically provides that no order of confiscation of any tools, arms, boats, vehicles, ropes, chains or any other articles (other than the forest produce seized) shall be made if the person from whom the property is seized or any other person who may appear to the authorized officer having some interest in such property, proves to the satisfaction of the said authority that the vehicles or the articles were used without his knowledge or convenience or without the knowledge or convenience of his servant or agent and all necessary precaution had been taken by him against the use of aforesaid objects for commission of the forest offence. 8. 8. The petitioner in the confiscation proceeding has taken the defence that he had no knowledge of the changing of the number plates of both the vehicles. The case before the Authorised Officer/Confiscating Authority was that the petitioner had two trucks bearing registration nos. JH-05AK-0540 and JH-05AK-0543 and both the trucks were repaired in a garage on 21.03.2013 where due to mistake, the number plates of both the vehicles got interchanged. In support of the said contention, the petitioner produced a photocopy of the garage bill of both the trucks (a copy of which has been annexed as Annexure-8 to the writ petition). The specific stand of the petitioner is that he had valid transit permit for both the vehicles to ply through the forest area and the said truck was carrying iron ore fines from the mines for which mining lease was granted to M/s Usha Martin Ltd. by the Government. The said fact has not been controverted by the respondents. 9. Now, the question arises as to why the petitioner would have changed the number plates when his truck having registration number JH-05-AK-0540 had valid permit to transport iron ore fines from Ghatkuri Mines to Bokna Plant, Gua, Gua Railway Siding, Barajamda Railway Siding and Gamharia Plant of M/s Usha Martin Ltd. The respondents have also not answered this question satisfactorily. Thus, I find substance in the argument of the learned counsel for the petitioner that the said vehicle was being run with a wrong registration number plate without his knowledge or connivance which is a primary requirement for confiscating a vehicle for committing a forest offence. 10. The respondents in their counter affidavit have also not stated that the vehicle/truck in question has already been auctioned. Thus, this Court presumes that the said truck is still under the custody of the respondent no. 3 i.e., the Divisional Forest Officer, Saranda Forest Division, Chaibasa, West Singhbhum. 11. In view of the aforesaid facts and circumstance, the present writ petition is allowed. The impugned orders dated 09.04.2014, 27.1.2015 and 11.01.2016 passed by the respondent no. 3 – the Authorised Officer-cum-Divisional Forest Officer, Saranda Forest Division, Chaibasa, West Singhbhum, the respondent no. 2 – the Deputy Commissioner (Appellate Authority), West Singhbhum and the respondent no. 1 – the Revisional Authority-cum-Principal Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi respectively are hereby quashed. The respondent no. 3 – the Authorised Officer-cum-Divisional Forest Officer, Saranda Forest Division, Chaibasa, West Singhbhum, the respondent no. 2 – the Deputy Commissioner (Appellate Authority), West Singhbhum and the respondent no. 1 – the Revisional Authority-cum-Principal Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi respectively are hereby quashed. The respondent no. 3 is directed to release the truck in question in favour of the petitioner.