Madhya Pradesh High Court
Gaffar Kha vs The State Of Madhya Pradesh on 16 May, 2017
WP No. 18432/2015
1
HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR
Single Bench: Hon'bleShri Justice SubodhAbhyankar, J
W.P. No. 18432/2015
Gaffar Kha
Vs.
State of M.P. & Ors
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Shri A.D. Mishra, Learned counsel for the petitioner.
Shri Piyush Jain, Learned PL for the respondent/ State.
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ORDER
(Passed on the 16th day of May, 2017)
1. With the consent of learned counsel for the parties, the matter is heard finally.
2. Petitioner before this Court is a transporter and is aggrieved by the order dated 07.09.2015 passed by the Second Additional Sessions Judge, Seoni, in Criminal Revision No. 103/2014 arising out of order dated 26.09.2014 passed in Appeal No. 09/2014 by the Appellate Authority & Officiating Conservator of Forest, Seoni Circle, Seoni, which has again arisen from the order dated 12.06.2014 passed in the case No.Shi.LI/2/20 by the respondent No.2 whereby the vehicle owned by the petitioner has been confiscated under s.52 the Indian Forest Act, 1927.
3. In brief the facts of the case are that the petitioner owns Mahendra Max Pick Up vehicle bearing registration No. M.P.202G/1874 and had engaged one Safique as its driver. It is further alleged by the petitioner that the driver was engaged only for transporting the goods in the surrounding area. The aforesaid driver was a regular driver of the said vehicle since last more than three years but on 25.01.2014, the aforesaid vehicle was detained near railway crossing road, Chhindwara road and was found to be transporting 11 quintals (30 bags) of coal mix. The said vehicle was being driven by Shafique. A Case was registered under Sections 41 and 42 of the Indian Forests Act, 1972 as also under the provisions of Madhya Pradesh Abhivahan (Vanopaj) Niyam, 2000 and WP No. 18432/2015 2 crime No. 1240/24 dated 25.01.2014 was registered against the petitioner. Thereafter, as per the provisions of the Forests Act, proceedings were initiated for the confiscation of the vehicle u/s.52 of the Forest Act. The petitioner also filed his reply, wherein the petitioner has stated that the aforesaid offence took place without the knowledge of the petitioner and there was no connivance of the petitioner with the driver of the vehicle, hence the vehicle may be released and should not be confiscated. After the statements of the witnesses, the prescribed officer i.e. the SDO vide its order dated 12.06.2014 held that the vehicle was being used in contravention of the provisions of the Forests Act and coal was being sent to Chhindwara and the same is liable to be confiscated as the petitioner had the knowledge and had also accorded his consent for transportation of the aforesaid forest produce. The appeal filed by the petitioner was also dismissed vide order dated 26.09.2014 and the revision preferred by the petitioner under Section 52(B) of the Forests Act, 1927 was dismissed by Second Additional Sessions Judge, Seoni, upholding the orders passed by the Courts below and now the petitioner is before this Court assailing the correctness of the order. Learned counsel for the petitioner has submitted that the petitioner had no knowledge of the aforesaid offence and had no connivance with the co-accused, hence the vehicle is not liable to be confiscated as per the provisions of Rule 9 of the Indian Forests Act.
4. On the other hand, the respondents have submitted that the impugned order has been passed after due appreciation of evidence and it cannot be said that the petitioner had no knowledge of the offence being committed and also that the petitioner had consented to the aforesaid plying of the vehicle with the forest produce in violation of the provisions of the Forests Act.
5. Heard the learned counsel for the parties and perused the record.
6. From the original impugned order dated 12.06.2014 passed by the Competent Officer it is apparent that the same has been passed on the basis of the statements given by defence witnesses viz. the vehicle owner D.W.1 Gaffar Khan, Charcoal owner D.W.2 Mannan Khan and D.W.3 Shafiq Khan as also D.W.4 Abdul Samad who are the brothers of Mannan Khan. The Competent Authority has held that the forest produce was being transported with the consent of the owner Gaffar Khan and he had connived with the vehicle driver Shafiq Khan. The aforesaid finding has WP No. 18432/2015 3 been maintained by both the Appellate Authority and the Revisional Court. Thus, there is concurrent finding of facts. The question before this court is whether the same is liable to be interfered with or not. Since the case revolves around S.52(5) of the Forest Act, it would be relevant to quote the same as under:-
"(5) No order of confiscation under subsection (3) of any tools, vehicles, boats, ropes, chains or any other article (other than the 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 authorised 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 the objects aforesaid for commission."
7. Thus, from the aforesaid section it is imperative for an owner whose vehicle has been seized and is liable to be confiscate, to prove that the vehicle was 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 the objects aforesaid for commission.
8. It is a trite law that High Court cannot interfere in a case of concurrent finding of fact unless the same is perverse or is based on no evidence. In a recent decision of the Hon'ble Apex Court in the case of Jagdish v. State of Haryana, (2016) 13 SCC 148, while discussing the scope of interference in a case of concurrent finding of facts, the following observations have been made in para 16 of the judgement:-
"16. It is a settled principle of law that this Court cannot appreciate the entire evidence de novo in a routine manner while hearing the criminal appeal and that too when the conviction is based on concurrent findings of the two courts. It is only when this Court comes to a conclusion that the impugned finding though concurrent in nature is wholly arbitrary, unreasonable or/and perverse to the extent that no judicial mind of average capacity can ever record such conclusion, the Court may in appropriate case undertake the exercise of appreciating the evidence to the extent necessary to find out the error."
(emphasis supplied)
9. The present case appears to be the one of the same nature as WP No. 18432/2015 4 pointed out by the hon'ble Apex Court.
10. In the present case it is an admitted case that the vehicle of the petitioner was seized by the forest officers while charcoal was being transported in it. The vehicle was being driven by one Shafiq Khan.. In his deposition, the owner Dw/1 Gaffar khan has stated that he is a disabled person, having his right leg amputed and a rod is inserted in it and he walks with the help of crutches only and the vehicle is the only source of his income which was driven by Shafiq Khan. He has further stated that he had no knowledge of forest produce being transported in the vehicle. He has also stated that due to lack of parking space, the vehicle is not parked in front of his house and is parked at Shahid ward every night.
11. In the cross examination of this witness not even a single question is put to him by the Forest Circle Officer regarding his consent and connivance to the transportation of the forest produce, and no suggestion has been made to this witness that he was aware of the transportation of the forest produce right from the beginning or that he connived and acquiesced with the driver of the vehicle Safiqui Khan to transport the forest produce/charcoal. Similarly from the defence witnesses DW-2, DW- 3 and DW-4 who are also the owners of the forest produce i.e. Charcoal, no question is asked that they had in fact asked for arranging the vehicle from the present petitioner, who owns the vehicle for transportation of the forest produce, and the question, which have been put to these persons that they did not have any license or that the forest produce was to be transported to Chhindwara from Seoni, in the considered opinion of this court were inconsequential for the purpose of the present case as it was the petitioner who was being tried and his defence was to be tested on the anvil of s. 52 of the Indian Forest Act which mandates that an owner is required to prove that the vehicle was 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 the objects aforesaid for commission.
12. The learned Authorized Officer, who passed the impugned order initially has held that the petitioner has made contradictory statement regarding the intimation of the incident to him on 25.1.2014 because at one place he stated that at 9 O'clock he was informed by the driver regarding the incident and subsequently he submits that his elder son was informed by the driver at 9 O'clock. In the considered opinion of this Court, WP No. 18432/2015 5 merely on this basis, no adverse inference can be drawn, as it has no relevancy to the facts of the case, since the relevant time the vehicle was seized was 6 a.m. and not at 9 am onward. There is nothing on record to show that the petitioner was aware of the transportation of the forest produce prior to the seizure of the vehicle at around 6:00 AM in the morning. The prosecution witnesses have also narrated the story after the vehicle was seized and thus the defence set up by the petitioner that he was not aware of the transportation of the forest produce cannot be said to be demolished by the depositions of the prosecution witnesses as also the defence witnesses. Thus, the impugned order certainly suffers from mis-reading of material evidence available on record, which is also apparent from the facts that the Authorized Officer has failed to notice the statement made by the petitioner that he is a disabled person having his right leg amputated. Under these circumstances, it cannot be said that the petitioner has not taken due care of his vehicle and hence it cannot be said that the petitioner has failed to establish that he has no part to play in transportation of the forest produce.
13 In the result, the order passed by the Authorized Officer which has been confirmed by the Appellate Authority i.e. the Divisional Forest Officer, Seoni as also the learned District Judge in Criminal Revision No.103/2014 on 7.9.2015 are liable to be set aside.
14. Resultantly, the impugned orders dated 07.09.2015, 26.09.2014 and 12.06.2014 being perverse are hereby quashed and the petition filed by the petitioner is allowed. The respondents are directed to handover the vehicle in question to the petitioner within a period of three weeks from the date of receipt of certified copy of this order.
15. No costs.
(SubodhAbhyankar) Judge Vikram