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2024 DIGILAW 193 (CAL)

Basheer Ahmed v. State of West Bengal

2024-01-30

PARTHA SARATHI SEN

body2024
JUDGMENT : Partha Sarathi Sen, J. 1. In this revisional application which is treated as an application under Article 227 of the Constitution of India, the judgment and order dated 14th March, 2023 as passed by Learned Additional Sessions Judge, 3rd (Special) Court, Jalpaiguri in Criminal Appeal no.02 of 2021 has been impugned. By the impugned judgment the Learned Appellate Court affirmed the order of confiscation dated 07.04.2021 as passed by Authorized Officer/ Deputy Field Director, Buxa Tiger Reserve (West) Alipurduar in connection with the seizure of the vehicle of the present revisionist vide OR No.11/WD of 2019-20 dated 26.04.2019. 2. From the materials as placed before this Court it reveals that on the relevant day i.e.; on 26.04.2019 the vehicle of the appellant bearing registration no. HR-74A-9058 was intercepted by the concerned Range Officer, West Damanpur Range and on search a huge quantity of tick-block timber was found having no government hammer mark and that the driver could not produce any valid documents regarding the possession of the said timber. 3. The Authorized Officer/Deputy Field Director thereafter proceeded with the provisions of Section 59A and Section 59B of the Indian Forest Act, 1927 (hereinafter referred to as ‘the said Act’) and ordered for confiscation of the vehicle of the present appellant. The appellant felt aggrieved and preferred an appeal before the Appellate Court. However, by the impugned judgment and order such appeal was dismissed affirming the order dated 07.04.2021 as passed by the Authorized Officer/Deputy Field Director of the aforesaid reserve forest. 4. In support of the instant revisional application, Ms. Suman Sehanabis (Mandal), learned advocate for the revisionist at the very outset submits before this Court that both the impugned orders as passed by the Authorized Officer/ Deputy Field Director and the Appellate Court are contrary to the provisions of Section 59B of the said Act. It is contended by her that while passing the impugned orders both the Appellate Court and the said Authorized officer proceeded in wrong directions in imposing a presumption of guilt upon the present appellant which is not permissible in the eye of law. In support of her contention learned advocate for the revisionist relied upon the two reported decisions namely; Sundarvai Ambala Desai vs State of Gujarat reported in AIR 2003 SC 638 and General Insurance Counsel and Ors. VS. State of Andhra Pradesh and Ors. reported in (2010) AIR SCW 2967. In support of her contention learned advocate for the revisionist relied upon the two reported decisions namely; Sundarvai Ambala Desai vs State of Gujarat reported in AIR 2003 SC 638 and General Insurance Counsel and Ors. VS. State of Andhra Pradesh and Ors. reported in (2010) AIR SCW 2967. 5. Per contra, Mr. Subhasish Misra, learned counsel for the State duly led by Mr. Aditi Shankar Chakraborty, Ld. Additional PP contended that both the impugned orders as passed by Learned Additional Sessions Judge, 3rd (Special) Court, Jalpaiguri and Authorized Officer/ Deputy Field Director are in accordance with the provisions as embodied in Section 59A and Section 59B of the said Act. It is contended on behalf of the State that in view of no illegality in the impugned orders as passed by Learned Additional Sessions Judge, 3rd (Special) Court, Jalpaiguri and Authorized Officer/Deputy Field Director no interference on the part of this Court is necessary. Learned advocates for the State thus submits that it is a fit case for dismissal of the instant revisional application . 6. For effective disposal of the instant revisional application the provisions of Section 59A and Section 59B of the said Act (West Bengal Amendment) are required to be looked into:- “Section 59A. Confiscation by Forest Officer of forest -produce in the case of forest-offence believed to have been committed.- 1. Notwithstanding anything contained in the foregoing provisions of this Chapter or in any other law for the time being in force, where a forest-offence is believed to have been committed in respect of the timber or other forest-produce which is the property of the State Government the Forest-officer or the Police-officer the timber or other forest-produce under subsection (1) of Section 52 shall, without any unreasonable delay, produce the same, together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence before an officer of a rank not inferior to that of an Assistant Conservator of Forest authorised by the State Government in this behalf by notification in the Official Gazette (hereinafter referred to as the authorised officer). 2. The State Government may, for any local, area, authorise one or more officers under sub-section (1). 3. 2. The State Government may, for any local, area, authorise one or more officers under sub-section (1). 3. Where any timber or other forest-produce which is the property of the State Government is produced before authorised officer under sub-section (1) and the authorized officer is satisfied that a forest-offence has been committed in respect of such property, he may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence. 4. (a). Where the authorised officer, after passing the order of confiscation of the property together with all tools, ropes, chains, boats, vehicles, and cattle as aforesaid under sub-section (3), is of opinion that it is expedient in the public interest so to do, he may order such property or any part thereof and such tools, ropes, chains, boats, vehicles and cattle to be sold by public auction. (b) Where the order of confiscation of any property or tools, ropes, chains, boats, vehicles or cattle under sub-section(3) is set aside or annulled under Section 59C or Section 59D, the proceeds of sale by auction shall, after deduction of the expense of auction and all other incidental expenses relating thereto if any, be paid to the owner of such property or tools, ropes, chains, boats, vehicles or cattle or to the person from whom the same was seized as may be specified in the order under Section 59C or Section 59D.” “59B. Issue of notice before confiscation.- No order confiscating any property or tools, ropes, chains, boats, vehicles or cattle shall be made under Section 59A except after giving a notice in writing to the owner of, or the person from whom, such property or tools, ropes, chains, boats, vehicles or cattle have been seized, for showing cause as to why the same should not be confiscated and considering his objections if any: Provided that no order confiscating any motor vehicle shall be made except after giving a 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. Explanation.-”motor vehicle” shall have the same meaning as in the Motor Vehicles Act, 1939 (4 of 1939). Explanation.-”motor vehicle” shall have the same meaning as in the Motor Vehicles Act, 1939 (4 of 1939). (2) Without prejudice to the provisions of sub-section (1), no order connecting any tool, rope, chain, boat, vehicle or cattle shall be made under Section 59A if the owner thereof proves to the satisfaction of the authorized officer that such tool, rope, chain, boat, vehicle or cattle was used in carrying the timber or other forest produce without the knowledge or connivance of the owner himself or his agent, if any, or the person in charge thereof and that each of them had taken all reasonable and necessary precautions against such use.” 7. Keeping in mind the aforesaid legislative provisions if this Court looks to the impugned order dated 07.04.2023 and the impugned judgment and order dated 14.03.2023 as passed by Authorized Officer/Deputy Field Director and Learned Additional Sessions Judge, 3rd (Special) Court, Jalpaiguri respectively it reveals that both the Authority and the Appellate Court while disposing the said proceeding as well as the appeal came to a finding that since the present appellant being the owner of the vehicle in question was not at all diligent with regard to the fate/whereabouts of his vehicle when his vehicle did not reach its destination within a reasonable time, it clearly indicates that the owner of the vehicle has definite knowledge with regard to the transportation of illegal forest-produce. In the impugned judgment and order dated 14.03.2023 the Appellate Court though rightly observed that under Section 59B of the said Act (West Bengal Amendment) the onus falls completely upon the owner of the vehicle to establish that he has no knowledge of such illegal transportation but the learned Appellate Court has failed to visualize the true spirit of Section 59B of the said Act that for drawing such adverse presumption a reasonable opportunity should be given to the present appellant to dispel such adverse presumption. From the impugned order dated 07.04.2021 as passed by the Authorized Officer/ Deputy Field Director in OR 11/WD/2019-20 it reveals that the present appellant who is the owner of the vehicle in question has not been given proper opportunity to prove either by adducing oral evidence or documentary evidence that such illegal transportation of forest produce was done without the knowledge and connivance of the said owner or of his agent. In the event of failure to dispel such adverse presumption by the appellant even after availing such an opportunity by him, the Authorized Officer/ Deputy Field Director may draw an adverse presumption as embodied in Section 59B (2) of the said Act as against the present appellant. 8. The reported decision of Sundarvai Ambala Desai (supra) and General Insurance Counsel and Ors.(supra) as cited from the side of the revisionist, in considered view of this Court, have been passed in different perspectives and thus have no got bearing to the facts and circumstances as involved in the instant revisional application. 9. In view of the discussion made supra; this Court thus finds sufficient merit in the instant revisional application. 10. Accordingly, the impugned judgment and order dated 07.04.2023 as passed by Authorized Officer/ Deputy Field Director and the impugned judgment and order dated 14.03.2023 as passed by Learned Additional Sessions Judge, 3rd (Special) Court, Jalpaiguri are hereby set aside. 11. In view of such the Authorized Officer/ Deputy Field Director, Buxa Tiger Reserve (West) Alipurduar is directed to initiate the proceedings of OR-11/WD/2019-20 afresh after giving the present appellant sufficient opportunity to produce evidence, either oral or documentary as indicated in the foregoing paragraphs and thereafter shall pass a reasoned order in the said case within three months from the date of communication of this order. 12. The present revisionist is directed to appear before Authorized Officer/ Deputy Field Director, Buxa Tiger Reserve (West) Alipurduar positively on 19.02.2024 in connection with OR-11/WD/2019-20 and thus there is no further requirement on the part of the Authorized Officer/ Deputy Field Director, Buxa Tiger Reserve (West) Alipurduar to serve notice upon the present revisionist in connection with the said case. 13. With the aforesaid observations the instant revisional application is allowed and disposed of on contest. 14. Parties to act on the server copies of this judgment. 15. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.