Orissa High Court
Malatilata Samal And Ors. vs State Of Orissa And Ors. on 10 July, 2002
Equivalent citations: 2002CRILJ3913, 2002(II)OLR216
Author: A.S. Naidu
Bench: Chief Justice, A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The confirming order passed in a proceeding initiated under Section 56 of the Orissa Forest Act, 1982 (as amended by Orissa Act 9/83) (hereinafter referred to as the "Act") directing confiscation of the offending truck which was used in an offence of carrying unauthorised timber is challenged in this Writ Petition filed under Articles 226 and 227 of the Constitution of India.
2. The short facts as revealed from the prosecution case are that on September 25, 1992, the Forester of Balugaon Range while patrolling on National Highway No. V along with his staff intercepted a truck bearing registration number OR-04-8197 near Balugaon. The truck was being driven by driver engaged by the owner Surendra Kumar Samal (who has died in the meanwhile and the petitioners are his legal heirs). The Helper of the truck and another person were also on board the truck. On search, the Forester found ninety two pieces of sawn Teak planks which were illegally transported in the truck. On demand, neither the Driver, the Helper or the other person could produce the required Transit Permit. The Forester seized the truck and the illegally transported timber and produced the same before the Range Officer concerned along with the First Information Report and the seizure-list, who in turn produced the materials before the concerned Authorised Officer for taking appropriate action under Section 56 of the Act. The Authorised Officer conducted enquiry in the manner set forth under Section 56 of the Act and issued notice to show cause to the original owner of the truck, i.e. the predecessor of the petitioners, under Sub-section (2) of Section 56 of the Act. After receipt of the reply to the show-cause notice, hearing commenced. In course of hearing of the proceeding, the Authorised Officer examined two witnesses on behalf of the State, being the Forest Range Officer and the Forester, who proved the seizure-list and other relevant materials and gave vivid description of the entire episode as to how the alleged offending truck was intercepted and seized. They were cross-examined at length on behalf of the owner of the truck, but nothing could be elicited to disprove the prosecution case. The owner, to substantiate his case, examined himself as a witness. Apart from proving that he was the owner of the offending truck, he took the plea that he had no knowledge about the transport of timber. He also stated that he had instructed the driver not to carry any contraband goods and that he had no knowledge if the driver had loaded the truck with timber. On cross-examination the owner admitted that he had no direct knowledge about the incident as he did not accompany the vehicle and that the driver of the truck was managing the affairs of the vehicle. He also admitted that he had not gone to the spot of loading nor did he enquire about the fact as to who had loaded the timber and he came to know about the incident from the Helper. Surprisingly, neither Driver nor the Helper nor the passenger has been examined in the case. The Authorised Officer, after a vivid discussion of the evidence and other materials, by his order dated 24.12.94 directed that the offending truck together with all its accessories and the seized illegal Teak planks were confiscated to Government.
3. Being aggrieved by the said order, the petitioner preferred an appeal before the District Judge, Khurda. Before the appellate Court it was reiterated by the Petitioners that the Original owner of the truck had absolutely no knowledge about the transport of the Forest produce. Alternatively it was submitted that the value of the illegally transported timber would be maximum Rs. 60,000.00;
whereas the value of the vehicle involved in the offence was more than Rs, 4,00,000.00 and in that view of the matter it was a fit case where the order of confiscation should be substituted by imposition of fine. The learned District Judge after discussion of and facts, the evidence on record, both oral and documentary, and after taking note of the relevant provisions of the Act, by his judgment dated March 16, 2002 held that the order of confiscation passed by the Authorised Officer could not be faulted with on any score and dismissed the appeal. The said judgment/order of the District Judge is impugned in this Writ Petition.
4. Mr. Panda, learned counsel for the petitioners, forcefully submitted that the truck was the only source of income for the family and that in the meanwhile the original owner of the truck having expired, unless the truck is released, irreparable loss would be caused to the destitute family. It was further reiterated that the owner had absolutely no knowledge regarding the illegal transportation of the timber and that he had cautioned the driver not to transport any contraband goods. Thus he would not be liable for any overt-act committed by the Driver and it is a fit case where the truck should be released and the order of confiscation should be substituted by fine.
5. In support of his case, Mr. Panda relied upon the decisions reported in :
1994 (I) OLR 276 (Gopinath Sahoo v. State of Orissa and Ors.), 1998 (I) OLR 482 (State of Orissa v. Jagadish Ch. Jena and Anr.), 1992 (I) OLR 305 (Gurudev Singh Rai v. Authorised Officer), and 71 (1991) CLT 157 (Sfafe of Orissa v. Kiran Shankar Panda).
6. We have carefully gone through the aforesaid decisions. Section 56 of the Act stipulates that when there is reason to believe that a Forest offence has been committed in respect of any Forest produce, such produce together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer. Sub-section (2-a) of the said Section stipulates that when the Authorised Officer is satisfied that a Forest offence has been committed, he may order confiscation of the Forest produce seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence. The expression "Forest produce" has been defined under Section 2(g) of the Act and includes "timber".
7. The Legislature in its prudence has enacted the Act relating to Forest and Forest produce in the State of Orissa with the main object of preserving and protecting the Forests and their produce in the State. The provisions of the Act are aimed to be strictly followed for the purpose of achieving the object for which the Act was enacted. In the case of State of Karnataka v. K. Krishnan, AIR 2000 SC 2729, the Supreme Court observed that any liberal approach in the matter with respect to property seized which is liable to confiscation is uncalled for as the same is likely to frustrate the provisions of the Act. Generally, therefore, any Forest produce and the tools, boats, vehicles, cattle, etc. used in the commission of the Forest offence are liable for forfeiture. The Supreme Court has further observed that any liberal approach in the matter would perpetuate commission of more offences with respect to Forest and its produce, which, if not protected, is surely to affect the mother earth and the atmosphere surrounding it, and that the Courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both Forests and their produce. The Forests are not only the natural wealth of the country, but also protector of human life by providing a clean and unpolluted atmosphere.
8. Mr. Panda strenuously submitted that as would be evident from the evidence, the owner had absolutely no role to play in the alleged offence and the truck therefore should not be confiscated. To appreciate the said argument a cursery glance at the Section itself would be very much necessary. Section 56(2-c), according to us, has put an embargo so far as means rea is concerned. The Section provides that in cases of confiscation of the tools or the vehicles used for the offence, it is the owner who has to prove that the same has been used without his knowledge or connivance, or the knowledge or connivance of his agent, if any, or the person in charge of the article in question. Thus, it would be clear that the knowledge and connivance, so far as Section 56(2-c) are concerned, are not confined to the owner alone, but take within their fold, the knowledge and connivance of the agent, if any, or the person in charge of the vehicle. A closer reading of the Section further reveals that it also stipulates that to escape the order of confiscation it must be further proved that each of the concerned persons had taken all reasonable any necessary precautions against use of the vehicle in question in respect of commission of Forest offence. The view expressed by us is fortified by the decision of this Court reported in 71 (1991) CLT 157 (supra).
9. Law is well settled that the master is vicariously liable for any act committed by his agent or servant. In the present case, the owner has clearly admitted that the vehicle was managed by the driver. Thus the owner would be liable for any act or omission committed by the driver. The fact that forest produce was being clandestinely transported in the vehicle is not disputed. The only plea taken by the owner is that he had no knowledge about such illegal transportation and that he had instructed the Driver not to carry any contraband goods. Surprisingly, neither the Driver nor the Helper, nor the person who was travelling in the truck, has been examined in the case. There is not an iota of evidence to reveal that the Driver or the Helper had no knowledge regarding illegal transport of the Forest produce. Discussing the evidence, both oral and documentary, the Authorised Officer came to a categorical conclusion that Forest produce was illegally transported in the truck and such transportation was within the knowledge of the Driver and Helper. The petitioners have totally failed to draw our attention to any evidence to counter the said finding. The learned District Judge also confirmed the conclusion arrived at by the Authorised Officer. The decisions cited by Mr. Panda are clearly distinguishable on facts and are of no help so far as the legal position is concerned. After going through the records and other materials available, we are not in a position to agree with the submission advanced by Mr. Panda. We find no justifiable reasons to differ from the findings arrived at by the Authorised Officer, confirmed by the District Judge in the impugned order, and decline to interfere with the concurrent findings, in exercise of our extraordinary jurisdiction under Article 226 of the Constitution and have no hesitation to dismiss the Writ Petition.
10. We find no merit in the Writ Petition which is, accordingly, dismissed.
P.K. Balasubramanyan, C.J.
11. I agree.