Calcutta High Court (Appellete Side)
Santi Ranjan Sarkar vs The State Of West Bengal & Ors on 3 September, 2015
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1 In the High Court At Calcutta Civil Revisional Jurisdiction Present:
The Hon'ble Mr. Justice Ashoke Kumar Dasadhikari C.O. 1693 of 2010 Santi Ranjan Sarkar vs. The State of West Bengal & ors.
Mr. Rana Mukherjee ... for the petitioner. Mr. Lalit Mohan Mahata Mr. Prasanta Behari Mahata ... for the opposite parties Heard on: Judgment on: 03.09.2015 Ashoke Kumar Dasadhikari, J:-
Order impugned dated 26th November, 2009 passed by the learned District Judge, Uttardinajpur at Raiganj in Misc. Appeal No.6 of 2008 arising out of confiscation order passed by the learned Authorised Officer of Uttar and Dakshin District on 13th March, 2008 in connection with Confiscation Case No.4 of 2008 under Section 59A(3) of the Indian Forest Act, 1927 is under challenge in this revisional application.
Mr. Mukherjee, learned Counsel appearing for the petitioner submits that learned Court below failed to appreciate that the petitioner has laid evidence before the authorised officer and the petitioner through his learned Advocate submitted that petitioner being owner of the truck was in no way involved in this matter. The truck driver being pressurised by some people was compelled to carry forest produce i.e. timber trunks but 2 unfortunately the learned Appellate Court as well as the authorised officer passed an order for seizure of the truck.
Mr. Mukherjee submits that there are several decisions of this Hon'ble Court wherein this Court exercised power under Section 482 of the Code of Criminal Procedure, 1973 imposed fine in lieu of confiscation of the vehicle.
Mr. Mukherjee cited the following decisions (i) Pijush Kanti Mondal Vs. State of West Bengal, reported in 1993 C Cr. LR (Cal) 242; (ii) Prem Singh Vs. The State, reported in 1994 C Cr LR (Cal) 340; (iii) Omraomal Goyel Vs. State of West Bengal & ors., reported in 1994 C Cr LR (Cal) 348; (iv) Smt. Krishna Sarkar Vs. Authorised Officer, Jalpaiguri Division & ors., reported in 1999 C Cr LR (Cal) 94.
Mr. Mukherjee submits that the ratio of the aforementioned judgements clearly laid down the law that in lieu of confiscation of vehicle fine could be imposed. He submits that the order passed by the authorised officer as well as the learned Appellate Court is erroneous in law and should be set aside.
Mr. Mahata, learned Counsel appearing for the State submits that 120 pieces Sal and Teak Swan timber as well as Sal Guttka measuring 4.598 Cu.m. so seized along with the vehicle did not bear any Government hammer impression or having any Transit Pass which is mandatory in Transit of any Forest Produce as per Rules 4(2), 4(3) under W.B. Forest Produce Transit Pass Rule, 1959. Produce is however collected illicitly and as there is no demander of the Forest Produce it is 3 presumed that the forest produce belong to Government as per Section 69 of the Indian Forest (West Bengal Amendment) Act, 1988.
Mr. Mahata submits that vehicle was seized on National Highway No.31 and the seized lorry was carrying the timber trunks towards Malda with full knowledge of him and owner.
The timber was taken illicitly from the forest for immediate financial gain. The vehicle helped to such illegal activities. Such carry is prohibitive and punitive as per Rule 11(1) of West Bengal Forest Produce Transit Pass Rule, 1959 and Sections 4(2) and (3) of the said Rule.
Mr. Mahata submits that both the authorities have passed appropriate order in terms of Section 59 and 59(A) of the Indian Forest (West Bengal Amendment) Act, 1988.
Mr. Mahata submits that as per Section 71(B)(2) of Karnataka Forest Act, 1963 burden is on owner to prove that vehicle had been used without the knowledge or connivance of himself, his agent and person in charge of vehicle. He submits owner is bound to take all steps so that the persons who was allowed to ply had taken all reasonable and necessary precaution against the misuse. He submits that the learned Appellate Court has carefully considered the matter and has come to a definite conclusion that the petitioner/owner of the vehicle failed to prove that the vehicle was carrying the goods without his knowledge. Moreover, he has also failed to prove that he including the driver and other person in charge of the 4 vehicle had taken all reasonable and necessary precaution against misuse.
Mr. Mahata submits there is nothing wrong in the order passed by both the authorities. Therefore, the revisional application is of no merit and as such the same should be dismissed.
Considered the submissions made by the learned Counsel appearing for the parties. It appears from records that both sides laid evidence at the initial stage and the authorised officer passed order of confiscation of the vehicle on the ground of violation of the provisions mentioned hereinbefore. The appellate authority also considered the matter. Indisputably the vehicle (truck) was carrying forest produce for which there was no valid transit pass or hammer impression. In view of Section 69 of Indian Forest (West Bengal Amendment) Act all the forest produce belong to Government of West Bengal. However, the learned Court below have considered three relevant provisions which are applicable in the instant case. The relevant portion of the order wherein the present case was considered reads as follows :-
"Section 59 A(1) and Section 59 A(3) of Indian Forest Act, (West Bengal Amendment) Act, 1988 says :-
59-A 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 Govt. the Forest Officer or the Police Officer seizing the timber or other produce under Sub-Section (1) of Section 52 shall, without 5 any unreasonable delay, produce the same together with all tools, ropes, claims, boats vehicles and cattle used in committing the offence before an officer of a rank not inferior to that of an Assistant Conservator of Forests authorized by the State Government in this behalf by notification in the Official Gazette (hereinafter referred to as the Authorized Officer).
2) Where any Timber or Timber Forest Produce which is the property of the State Government is produced before an authorized 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 or order confiscation of the property together with all tools, ropes, chain, boats, vehicles and cattle used in committing the offence.
Explanation - 'Motor Vehicle' shall have the same meaning as in the Motor Vehicle Act, 1939 (4 of 1939) As per Section 2(4) of Indian Forest Act 1927 'Forest Produce' includes - (a) the following whether found in or brought from a forest or not, that is to say Timber, charcoal, .........., ..... wood-nut, resin, natural varnish, bark lac, mahua flowers, mahua seeds, ..... and myrabolams, and Again it was beyond doubt that the Sal & Teak Timber have been collected from the Government Forest which are of illicit in nature.
Now, to discuss the provision of Section 59-B(2) of Indian Forest (West Bengal Amendment) Act, 1988, which is read as, ' without prejudice to the provisions of Sub-Section (4) no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 59-A 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'.
This Section of Indian Forest (West Bengal Amendment) Act, 1988 is similar to the Section 71(B)(2) Karnataka Forest 6 Act, 1963 and the same has been interpreted by Hon'ble Karnataka High Court in Ramesh N. Dixit Vs. State of Karnataka and has been reported in Indian law reports 1985 Karnataka 2571.
The Hon'ble Court has held Section 71(B)(2) burden on owner to prove that Vehicle had been used without the knowledge or connivance of himself, his agent and person in charge of vehicle further owner bound to that each of them had taken all reasonable and necessary precautions against misuse. All that owner is required to show under Sub-Section (2) of Section 71(B) is that he or his agent, if any and person in charge of the vehicle and each had taken all reasonable and necessary precautions against misuse of the vehicle and that this offence had been committed without the knowledge or connivance of any of them. How does the Truck owner show that he had taken all reasonable and necessary precautions to see that his truck is not misused in this way? Did he accompany the truck? If it was not possible for him to accompany the truck, had he sent any person in this trust with truck or had entrusted the truck to drive of his confidence. It is not merely enough if the truck owner says that his truck had been misused without his knowledge or connivance but in addition, he is bound to show that he had taken all reasonable and necessary precautions against such misuse.
In the instant case neither the registered owner of the truck bearing No.WB-23 1378 nor the person to whom he had given the Vehicle and driver had taken any reasonable precautions against the misuse of the Vehicle. Therefore, their contention that the Forest offence has been committed in respect of illegal Forest Produces without the knowledge or connivance of each of them is not admitted by the undersigned. Therefore, it is concluded that the petition for release of said vehicle is liable to be rejected and the case is thus disposed of.
Keeping above facts in view, the undersigned is satisfied that Sal & Teak timbers which are the Forest Produce in respect of which forest offence has been committed is the property of the State Government and also satisfied that the truck bearing No.WB-23/1378 was used in commission of Forest offence is evident from the recorded evidence of the owner of the vehicle at the time of seizure on 06.11.2006 and 7 subsequent hearing for the accused and witnesses by the Authorized Officer & the Divisional Forest Officer Raiganj Social Forestry Division.
Thus the vehicle No.WB-25/1378 is liable for confiscation to the State of West Bengal as per Section 59-A(3) of Indian Forest (West Bengal Amendment) Act, 1988.
Before making an order for confiscation every opportunity was given to the registered owner of the Vehicle No.WB-23/1378 to prove the legal ownership of the Forest produces and submission of Transit Pass. In the light of the above facts and after examining all records and evidences so recorded at the time of deposition of witnesses and so submitted it is concluded that the vehicle was involved in connivance with the timber mafia to carry Forest produces collected illicitly from the adjoining reserve Forest areas near Bagrakotte (Mal) and hence any claim for release of the vehicle by the registered owner of the vehicle is liable to be rejected and therefore disposed of. Since the offence was involved with 120 pieces (4.598 cu.m.) of Sal & Teak timber which was proved to be Government property and the register owner failed to prove that he has taken all precaution measures against such fraudulent use of vehicle, the undersigned as authorized officer & Divisional Forest Officer, Raiganj Social Forestry Division on the strength of power conferred upon him vide Government of West Bengal's notification No.133-For, dated 10-01-97 hereby order to the confiscation of the vehicle No.WB-23/1378 along with all tools and Forest produces seized to the State of West Bengal under Section 59(A) of Indian Forest (West Bengal Amendment) Act, 1988.
Range officer, Chopra Range is directed to take over the charge of Vehicle No.WB-23/1378 along with all tools and Forest produces as per Section 56 of Indian Forest (West Bengal Amendment) Act, 1988 and he will submit POR against the offenders."
Learned Appellate Court while considering the appeal has considered the judgement delivered by Karnataka High Court in Ramesh N. Dixit Vs. State of Karnataka, reported in Indian Law Reports 1985 Karnataka 257. In that case it was held that 8 burden is on the owner to prove that vehicle had been used without the knowledge or connivance of himself, his agent and person in charge of vehicle. Further, owner is bound to prove that each of them had taken all reasonable and necessary precaution against misuse. The provisions under Section 71(B)(2) of Karnataka Forest Act is similar to Section 59B(2) of Indian Forest (West Bengal Amendment) Act, 1988. Learned Appellate Court found that in the instant case the petitioner being the owner of the vehicle failed to show that he had taken all reasonable and necessary precaution so that this truck is not misused in any way. It may not be possible for the truck owner to accompany the truck but he had to entrust the driver of his confidence or any other person to take the same.
Learned Appellate Court correctly held that it would not be enough for the owner, saying that truck was misused without his knowledge or connivance, but in addition he is bound to show that he had taken all reasonable and necessary precaution against such misuse. Therefore, the truck owner has failed on both counts. He has failed to prove that he or his authorised person was not in connivance and is authorised person took all measures to prevent misuse of the truck.
The learned Court below have elaborately discussed the entire matter and passed the following order :-
" that the Misc. appeal No.06/2008 be and the same is hereby dismissed on contest but in the circumstances without cost.
The impugned order dated 13.3.2008, passed by the Authorised Officer, Uttar & Dakshin Dinajpur District & 9 Divisional Forest Officer, Raiganj Social Forestry is hereby affirmed.
Let the L.C.R. along with a copy of this judgement be sent back to the concerned authority at once."
In my considered opinion, there is nothing wrong in the order passed by the appellate authority or the authorised officer.
Therefore, there is no merit in this revisional application.
Revisional application is, thus, dismissed.
(Ashoke Kumar Dasadhikari, J.)