Uttarakhand High Court
Sibte Hasan vs State Of Uttarakhand And Others on 28 March, 2019
Equivalent citations: AIRONLINE 2019 UTR 56, 2020 CRI LJ (NOC) 138
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1935 of 2013 (M/S)
Sibte Hasan .....Petitioner.
Versus
State of Uttarakhand and others ....Respondents
Present :
Mr. Narayan Har Gupta, Advocate for the petitioner.
Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand.
Dated: 28th March, 2019
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
The petitioner is the owner of the vehicle, which is a Truck, bearing Registration No. UP-22-T-3002. The said Truck is shown to have been seized by the police on account of the fact that it was carrying Biroja and the documents in relation to the permit for carriage of the said article, which was possessed by the Driver of the vehicle Nazim Ali was later on found to be the fraudulent and manipulated documents and thus this amounted to be the reason for seizure of the truck for offence under the Indian Forest Act and the allegation was the manufacturing of fraudulent documents. In relation to it, which, the petitioner contends that he has got no role to play for the reasons being that according to the case as pleaded by him in the writ petition as well as before the Courts below was that when the truck was returning empty, the driver of the vehicle had sought permission from the owner/petitioner on telephone seeking permission on phone for carrying the Biroja, which was granted to him on the telephone by the petitioner.
2. The argument of the learned counsel for the petitioner is that the act of carrying the Biroja is not legally barred under any law. The only action which has been taken by virtue of the lodging of the F.I.R No. 73/2013, it was under Sections 420, 468, 467 and 471 of the 2 IPC lodged at Police Station Lalkuan, District Nainital, it was on account of the alleged fraudulent permits and ravana, which the driver produced and which were found in possession of the driver, which, according to him, these were the documents which were handed over to him by the owner of the articles, which was being sought to be transported by the truck, in question. Either the driver or the petitioner were not at all instrumental in the manufacturing of the documents, which were later on found to be fraudulent document and the reason for seizure of truck.
3. Ever since, the seizure of the truck, the petitioner had filed several applications for release of the vehicle before the Prescribed Authority/ Divisional Forest Officer, Tarai Eastern Forest Division, Haldwani, District Nainital, which was registered as Case No. 25/42/Doli/2012-13. The application, thus filed by the petitioner for release of the vehicle was rejected by the Prescribed Authority for the alleged involvement of the vehicle, in question, for commission of the offence under the Indian Forest Act, 1927 for the offences as contemplated under Sections 26, 41, 42 and 52 of the said Act. On an appeal preferred by the petitioner as against the order of rejection dated 3rd June, 2013 by respondent No.3, the same stood affirmed and appeal of the petitioner, being Appeal No. 3 of 2013/Terai Poorvi Van Prabhag, Haldwani preferred under the provisions of Indian Forest Act, 1927 was dismissed by the impugned judgment dated 19th July, 2013. Consequently, the present Writ Petition, challenging the two judgments and other reliefs. The petitioner sought the following reliefs in the Writ Petition :
"1. To issue the Writ, Order or Direction in the nature of Certiorari quashing the judgments and orders dated 03-06- 2013 & 19.07-2013 delivered by respondent no. 3 & 4 respectively. (Annexure No.1 and 2)
2. To issue the Writ Order or Direction in the nature of Mandamus directing respondent no.3 & 4 to release the truck belonging to the petitioner number being U.P.-22-T-3002, 3 which has been confiscated by the orders dated 03-06-20013 & 19-07-2013 passed by respondent no. 3 & 4 respectively.
3. To issue any other suitable Order or Direction as this Hon'ble Court may deem fit & proper under the facts & circumstances of the case.
4. To award the cost of the petition to the petitioner."
4. In support of his contention, the learned counsel for the petitioner has questioned the impugned orders on the ground that for the purposes of seizing of the vehicle for the alleged commission of the aforesaid offences under the Forest Act, it was necessary that the seizure ought to have been conducted in consonance to the provisions contained under Section 52-A of the Indian Forest Act as amended and made applicable in the State of Uttarakhand by the Amendment of 2001.
5. The said Act has undergone an amendment as made by the State Government, by virtue of the Uttarakhand Amending Act, 2001, being Act No. 10 of 2002, wherein Section 52-A, was inserted as far in its applicability in the State and in accordance with Sub- section (5) of Section 52-A of the Act, for the purposes of confiscation of any vehicle involved in the commission of any forest offence there are certain parameters which are required to be satisfied as per the provisions of Sub-section 5 of Section 52-A of the Act, prior to its seizure which was not complied with, which is quoted hereunder:-
"(5) No order of confiscation of any tool, boat, vehicle, cattle, ropes, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorized officer that any such tool, boat, vehicle, cattle, rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable 4 precautions had been taken against use of the objects aforesaid for the commission of the forest offence."
6. The argument of the learned counsel for the petitioner is that in view of the aforesaid provisions, the 'knowledge' of carrying the goods as narrated in the Writ Petition, which was conveyed to the petitioner on telephone by the driver is not disputed but the knowledge here as used under Sub-section 5 of Section 52-A of the Act, would not have to be read in relation to the alleged fraudulent documents which was shown to have been carried by the driver while carrying Biroja, which were handed over to him by the owner of the goods transported. As far as this knowledge is concerned, this is the foundation for seizure of the vehicle which cannot be attributed to be knowledge to the petitioner who is the owner of the vehicle with regard to the genuineness of the documents, which was supplied to the driver by the owner of the goods carried by the truck.
7. In that view of the matter, since for the aforesaid reasons that the petitioner cannot be directly attributed for commission of an offence of carrying the goods in contravention to the provisions contained under Sub-section (5) of Section 52-A of the Act, as referred above and, hence, in view of Sub-section (5) of Section 52-A of the Act, his vehicle could not have been seized, being in violation of the procedure provided under Section 52-A of the Act.
8. Considering the aforesaid arguments, this Court after perusal of the impugned orders, in question, is of the view that the interpretation given by both the Courts below pertaining to the knowledge attributed to the owner of the vehicle, it was on account of the knowledge, which is presumed that he is said to have carried with regard to the transportation of the goods ought not to have been read as to be a knowledge pertaining to the genuineness of the documents, which was in custody of the driver given by the owner of the goods, 5 hence, the petitioner who is the owner cannot be said to directly instrumental in commission of the alleged offence.
9. Hence, in view of the aforesaid reasons, this Writ Petition is allowed and the impugned orders dated 03.06.2013, as passed by the Prescribed Authority / Divisional Forest Officer, Tarai Western Circle, Haldwani in Case No. 25/42/Dolly/2012-13 as well as the appellate judgment dated 19.07.2013, passed by the Appellate Authority / Conservator of Forest, Western Circle, Uttarakhand, Haldwani in Appeal No. 3/2013/Tarai Western Forest Division, Haldwani, Sibte Hasan Vs. State are hereby quashed. The respondent No. 3 is directed to release the truck, i.e. Truck No. UP-22-T-3002 forthwith to the petitioner on the production of the certified copy of this judgment.
10. However, there would be no order as to costs.
(Sharad Kumar Sharma, J.) 28.03.2019 Shiv