Bombay High Court
State Of Maharashtra & 2 Ors vs Sunil S/O.Banwarilal Lohia on 19 December, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 sa191.05.J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.191 OF 2005
1] State of Maharashtra, through
Ministry of Forest, Mantralaya,
Madam Cama Road, Mumbai-400 032.
2] Range Forest Officer,
Ramtek Range, Tq. Ramtek,
Dist. Nagpur.
3] Kailash s/o Namdeo Kuduple,
Aged 38 years, Occ: Service,
As RFO, Ramtek Range, Ramtek,
Dist. Nagpur. ....... APPELLANTS
...V E R S U S...
Sunil s/o Banwarilal Lohia,
Aged 38 years, Occ: Business,
R/o Taj Bhavan, Kamptee,
Tq. & Dist. Nagpur. ....... RESPONDENT
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Smt. H.N. Prabhu, AGP for Appellants.
Shri A.A. Naik with Shri Amit A. Coube, Advocate for
Respondent
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CORAM: ROHIT B. DEO, J.
DATE: 19th DECEMBER, 2018.
ORAL JUDGMENT
1] Heard Smt. H.N. Prabhu, the learned Assistant Government Pleader for the appellants and Shri Amit Chaube, the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 2 sa191.05.J.odt learned Counsel for the respondent.
2] The defendants in Special Civil Suit 738/1991, which claimed damages and is dismissed by the 2nd Joint Civil Judge, Senior Division, Nagpur by judgment and decree dated 14.08.1996 are challenging the judgment and decree of reversal dated 15.10.2004 rendered in Regular Civil Appeal 643/2000. 3] This appeal came to be admitted on the following substantial questions of law:
1. Whether the action of Seizure taken by the appellant was in good faith or not ?
2. Whether the provisions of Section 102 of Criminal Procedure Code could have been invoked in the facts and circumstances of the case ?
During the course of final hearing, the following additional question of law is framed:
Whether the State would be liable for the alleged acts of its Officer committed while discharging duty referable to exercise of sovereign power?::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 :::
3 sa191.05.J.odt Smt. Prabhu, the learned AGP, appearing for the appellants/State, who shall be referred to as the defendants hereinafter, and the learned counsel Shri Amit Chaube, appearing on behalf of the respondent - who shall be referred to as the plaintiff hereinafter are heard on the three substantial questions of law formulated.
4] The plaintiff instituted Special Civil Suit 738/1991 for damages. The case of the plaintiff is thus. The plaintiff is a businessman of repute engaged in manufacture and sale of bidis and in advertising of bidis and delivery of goods. The plaintiff owns a matador delivery van bearing registration number MWY 5304 which is registered as a Public Carrier which is mainly given on hire. The said vehicle is also used by the plaintiff to deliver the bidis manufactured and for the purpose of advertising.
Defendant 3 Kailash Kuduple was posted as Range Forest Officer, Ramtek Range, Ramtek in July, 1990 and he seized the said vehicle on 19.07.1990 in colourable exercise of powers and on the allegation that the vehicle was transporting tendu leaves. The defendant 3 was statutorily required, by the provisions of the Maharashtra Minor Forest Produce (Regulation of Trade) Act, 1969 ('Act' for short) and sections 102 and 103 of the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 4 sa191.05.J.odt Criminal Procedure Code, 1973 (Cr.P.C. for short) to prepare a panchnama and seizure memo and to handover copies thereof to the plaintiff, which the defendant 3 failed to do. The seizure was also not reported to the Magistrate and the vehicle was detained in the office of the defendant 3 for more than 40 days, which constrained the plaintiff to approach this Court. By order dated 14.09.1990 in Criminal Application 892/1990 this Court directed release of the vehicle, and pursuant to the said order the vehicle was released on 15.09.1990.
The plaintiff was prosecuted. This Court quashed the prosecution by allowing Criminal Application 1049/1990. The plaintiff contends that the allegations levelled against him were false and the seizure illegal.
The plaintiff contends that the defendant 3 acted in colourable exercise of powers under the Act and did not act bona fide and caused financial loss which the plaintiff categorized into loss of income from vehicle, loss of advertising, loss in business due to lack of transport, and loss of reputation. The plaintiff contends that he is entitled to be compensated for the damages suffered and that the defendant 1 State is vicariously liable for the loss caused due to the illegal actions of defendant 3. ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 :::
5 sa191.05.J.odt 5] The defendant 3 filed written statement Exh.24 which is adopted by the defendant 1 State of Maharashtra. Every material averment in the suit plaint is denied. It is specifically denied that the defendant acted in colourable exercise of statutory powers. It is denied that the defendant 3 did not prepare a panchnama and seizure memo or that copies thereof were not handed over to the plaintiff. The defendant claims that the plaintiff was not present at the time of seizure and the driver of the vehicle refused to accept the copy of the panchnama. The averment that the plaintiff failed to report the seizure of the vehicle is denied. The defendants denied that any loss, much less as is alleged in the suit plaint, was caused to the plaintiff. The defendants pleaded that in view of the provisions of section 18 of the Act the suit is not maintainable. In paragraph 23 of the written statement, the plea is that the defendant 3 acted in good faith in pursuance of the provisions of the Act and on the basis of the report of the subordinates and the investigation papers placed before the defendant 3.
6] The Trial Court framed eight issues and answered them as follows:
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6 sa191.05.J.odt Issues Findings
1. Does plaintiff prove that the defts.
illegally seized the vehicle of the plaintiff ? .. No
2. Does he further prove that due to illegal act of the defendants he suffer a loss of Rs.51,000/- ? .. No
3. Does he further prove that the deft.
kept his vehicle in their compound for the period of 59 days ? .. Yes
4. Is plaintiff entitled to recover an interest at the rate of Rs.18% per annum ? .. No
5. Do defendants prove that in view of the provisions of section 18 of Maharashtra Minor Forest Produce (Regulation of Trade) Act 1969, the suit of the plaintiff is not tenable ? .. Yes
6. Do they further prove that there were some bundle of Tendu leaves in the vehicle of the plaintiff ? .. does not survive.
7. Is plaintiff entitled to recover total amount of Rs.51,000/- including loss of income of the vehicle seized, loss of account of advertisement, damages, loss of reputation and loss in business due to non-availability of transport and loss towards mental agony and inconvenience ? does not survive.
8. What decree, relief and costs ? .. As per final order.
::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 7 sa191.05.J.odt 7] While dealing with issue 1 the Trial Court noted that the plaintiff was not present when the vehicle was seized by the Forest Guards and his evidence is hear say. The Trial Court then considered the evidence adduced by the defendants who examined the forest staff who actually seized the vehicle and recorded a finding that the vehicle was transporting tendu leaves illegally and the tendu leaves were unloaded from the vehicle prior to the seizure. The Trial Court observes that the plaintiff failed to examine the driver, who alone could have thrown light on the incident of seizure, nor did the plaintiff examined one Dashrath who was travelling in the vehicle along with the driver Kisan. The Trial Court then noted that this Court directed release of the vehicle on the ground that the prosecution was not initiated by the Divisional Forest Officer (DFO) and the legality or otherwise of the seizure did not fall for consideration in the application seeking quahsment of the prosecution.
The Trial Court, after holding that the plaintiff failed to prove that the seizure of the vehicle was illegal, proceeded to consider whether the suit is tenable in view of section 18 of the Act. The finding recorded by the Trial Court is that the plaintiff failed to prove that the seizure of the vehicle was not in good faith. The Trial Court held that even if it is assumed arguendo that ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 8 sa191.05.J.odt the defendant 3 did not comply with the provisions of the Forest Act and the provisions of section 102 and 103 of Cr.P.C., such non-compliance would not ipso facto make the defendants liable to pay damages since the seizure was in good faith. The Trial Court dismissed the suit on merits, and as untenable in view of the provisions of section 18 of the Act.
8] The first Appellate Court, in the judgment of reversal framed the following points for determination:
POINTS FINDINGS
1. Whether the respondents are entitled .. No
to get protection of Sec. 18 of Forest
Produce Act ?
2A Whether the appellant is entitled for .. Yes
damages?
2B If yes to what amount? .. Rs.7000/-
2C If yes from whom the appellant is From all the
entitled to recover the amount? respondents
3. Whether the judgment and decree call .. Yes
for interference?
4. What order? As per final order
9] The first Appellate Court held that the plaintiff has
proved that the seizure was not reported to the Magistrate, as is the mandate of section 102 (3) of Cr.P.C., which provisions are ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 9 sa191.05.J.odt attracted in view of section 14 (2) of the Act, and the seizure is therefore, illegal. Perusal of paragraph 8 of the judgment in appeal would reveal that the first Appellate Court was persuaded to record the said finding since in reply affidavit in Criminal Application 892/1990 the State took the stand that it was not necessary to sent any report to the Judicial Magistrate. The first Appellate Court, on the basis of the finding that the seizure was not reported to the Judicial Magistrate, found the seizure of the vehicle illegal.
The first Appellate Court then observes that even if it is assumed that at the inception the seizure of the matador van was not illegal, due to non-compliance of sub-section 3 of section 102 of the Cr.P.C. the seizure was rendered illegal. Considering the scope and ambit of section 18 of the Act, the first Appellate Court held that the sine qua non is that the Act is done or intended to be done in pursuance of "the Act", which would imply that the provisions of "the Act" are followed. The first Appellate Court relied on the decision of the Hon'ble Apex Court in State of Gujrat v. Kansara Manilal Bhikalal reported in AIR 1964 SC 1983 to hold that protection of section 18 would not be available since the act of seizure of the vehicle is contrary to the provisions of the act. The first Appellate Court then considered the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 10 sa191.05.J.odt quantum of damages and on appreciation of the material on record scaled the quantum down to Rs.7000/- and allowed the appeal partly.
10] Mrs. Prabhu, the learned AGP would urge that the findings that the provisions of section 102 and 103 of the Cr.P.C. were breached since the seizure report was not forwarded to the Judicial Magistrate, is contrary to the material on record. Smt. Prabhu, the learned AGP would submit that the said finding rests on the stand taken by the State in the reply filed in the quashment proceeding that it is not necessary to submit report to the Judicial Magistrate, which is not the inference which could have been drawn by the first Appellate Court. The State was justified in contending before this Court in the quashment proceeding that the provisions of section 102 and 103 cannot be bodily incorporated into the act and the stand that it was not necessary to forward report to the Judicial Magistrate could not have been treated as an admission that such report was not as a fact forwarded. Smt. Prabhu, the learned AGP invites my attention to the testimony of the plaintiff to emphasize that the plaintiff has not even whispered that the seizure report was not forwarded to the Judicial Magistrate. Au contraire, the plaintiff has deposed that ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 11 sa191.05.J.odt the copy of the seizure panchnama was not given to the plaintiff and that the vehicle was not transporting forest goods and therefore, the seizure of the vehicle was illegal. Mrs. Prabhu would then submit that while the certified copy of the affidavit-in-reply in the quashment proceedings is exhibited (Exh.42) in the evidence of the plaintiff, the said affidavit-in-reply was not put to the witnesses examined on behalf of the defendant which included the defendant 3 Kailash Kuduple. In the cross-examination of the defendant 3 it is not even suggested that the seizure report was not forwarded to the Judicial Magistrate. Such a suggestion is further not given to D.W.2 Baban Wade and D.W.3 Devidas. Smt. Prabhu, the learned AGP would submit, that the first Appellate Court committed a serious error of law in recording a finding that the seizure of the vehicle was illegal since the report of the seizure was not forwarded to the learned Magistrate, only on the basis of the stand taken in affidavit-in-reply Exh.42 in the quashment proceedings which stand was that it is not necessary in law to forward such report. 11] Smt. Prabhu, the learned AGP is justified in the submission that the finding recorded by the first Appellate Court that the seizure of the vehicle is illegal is contrary to record and ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 ::: 12 sa191.05.J.odt militates against established principles governing appreciation of evidence. The Trial Court held that the plaintiff did not prove that the seizure is illegal. The Trial Court considered the case of the plaintiff that the seizure was illegal since copies of the panchnama and the seizure memo were not supplied to the plaintiff and that the vehicle was not transporting forest goods. This finding is reversed by the first Appellate Court only on the basis of the statement in the affidavit-in-reply (Exh.42) with which the defence witnesses were not confronted. The Trial Court clearly erred in drawing an inference from the statement in the affidavit-in-reply that the report was not as a fact forwarded to the Judicial Magistrate, particularly since the plaintiff did not discharge the initial burden by stating on oath that the report was not forwarded to the Judicial Magistrate. Be it noted, that the plaintiff was well aware of the prosecution and the relevant documents and was successful in having the prosecution quashed on the ground that the prosecution was not initiated by the DFO. In the light of the evidence on record, it would have to be held that the plaintiff failed to prove that the seizure was in contravention of section 102 and 103 of the Cr.PC. or was otherwise illegal or that the seizure was not in good faith and substantial questions of law (1) and (2) are answered accordingly. ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 :::
13 sa191.05.J.odt 12] In view of the discussion supra and the answers to the two substantial questions of law framed by this Court while admitting the second appeal, it would not be necessary to consider the additional substantial question of law which is whether the State would be liable for the alleged acts of its officer committed while discharging duty referable to exercise of sovereign power. Since this Court has found that the seizure was in good faith and was certainly not illegal as is erroneously held by the first Appellate Court, the question of the liability of the State to pay damages would not arise and the additional substantial question of law is therefore not involved in this appeal. 13] The judgment and decree of First Appellate Court dated 15.10.2004 is set aside and that of the Trial Court restored. 14] The appeal is allowed with no order as to costs.
JUDGE NSN ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 21:41:12 :::