Jharkhand High Court
Pawan Kumar Sharma vs The State Of Jharkhand on 21 February, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2580 of 2013
Pawan Kumar Sharma, S/o-Ashok Sharma, Resident of village LS 100,
Azad Chowk, Harmu Housing Coloney, P.O. & P.S. Argora, District-Ranchi
....... Petitioner
Versus
1.The State of Jharkhand
2. The Authorised Revisional Officer cum Principal Secretary, Forest and
Environment Department, Jharkhand, Ranchi.
3.The Deputy Commissioner, Ranchi.
4.The Authorised Officer cum Divisional Forest Officer, Ranchi East Forest
Division, Ranchi, Nepal House, P.O. + P.S-Doranda, Ranchi.
5.The Range Officer of Forest, Timber Depot Range, Nepal House, P.O. +
P.S-Doranda, Ranchi. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Alok Anand, Advocate
For the Respondents : Mr. Navneet Toppo, A.C to S.C-V
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st
6/Dated: 21 February, 2022
1. The writ petition under Article 226 of the Constitution of India is preferred for quashing of the order dated 26.12.2005 passed by the Authorised Officer-cum-Divisional Forest Officer in Confiscation Case No.45 of 2004, by which, the truck of the writ petitioner bearing no.B.R.14A-0971, has been confiscated. For quashing the order dated 26.07.2008 passed by the appellate authority i.e. the Deputy Commissioner, in Case No.94 R 15/05-06 by which the order passed by the confiscating authority in Confiscation Case No.45 of 2004, has been affirmed. Further for quashing the order dated 17.04.2012, passed by the Authorised Revisional Officer cum Principal Secretary, in Revision Petition Case No.93 of 2011, whereby, the order passed by the original authority as also the appellate authority has been confirmed.
2. The brief facts of the case as per the pleading made in the writ petition, reads hereunder as:
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It is the case of the writ petitioner, that the truck bearing Registration no.B.R.14A-0971 was used to be given on hire for the transportation of goods from one place to another. The said truck, was apprehended at Kantatoli crossing, Ranchi, when carrying out 'Sal wood', a forest produce, without any mark of the Forest Department or any transit permit. The Range Officer of Forest, Timber Depot Range, Ranchi seized the aforesaid truck in exercise of power conferred under Section 52 of the Indian Forest Act, 1927 (hereinafter referred to as ' Act, 1927') for alleged contravention of the provisions of Sections 33, 41 and 42 of the Act, 1927. Altogether six persons namely, Aftab of Murhu, Arif of Murhu, Changaza Khans of Murhu, owner of the truck, driver, khalashi were the accused against whom a Forest Case bearing no.F 57 of 2004 was instituted in the court of Chief Judicial Magistrate, Ranchi. The confiscation proceeding was initiated by the Authorised Officer cum Divisional Forest Officer, Ranchi in pursuance to Section 52(3) of the Act, 1927. The Authorised Officer vide order dated 26.12.2005 passed order of confiscation of the vehicle finding the vehicle to be involved in illegal transportation of 'Sal Wood' without any valid transit permit. The petitioner, aggrieved with the order passed by the confiscating authority, has preferred an appeal before the Deputy Commissioner, Ranchi being Appeal no. No.94 R 15/05-06. The appellate authority vide order dated 26.07.2008 has confirmed the order passed by the confiscating authority. The writ petitioner approaches to the revisional authority assailing the order passed by the appellate authority, being Revision Petition Case No.93 of 2011 but the aforesaid revision has also been dismissed by the revisional court. The writ petitioner, in consequence of confirmation of the order passed by the original authority, the appellate authority as also the revisional authority, has challenged all the three orders dated 26.12.2005, 3 26.07.2008 and 17.04.2012 passed by the Authorised Officer-cum-
Confiscating Authority, the Deputy Commissioner-cum-appellate authority and Authorised Revisional Officer-cum- revisional authority respectively by invoking the jurisdiction conferred under Article 226 of the Constitution of India being W.P.(C) No.2580 of 2013, the instant writ petition.
3. Mr. Alok Anand, learned counsel appearing for the petitioner has taken the ground in assailing the entire confiscating proceeding, i.e., the lack of knowledge of transportation of the aforesaid vehicle bearing no.B.R.14A- 0971 with the owner of the truck, the writ petitioner, but the aforesaid plea has not been taken into consideration by the appellate as also the revisional authority. Therefore, according to the learned counsel appearing for the petitioner, since the owner of the truck was having no knowledge about the alleged illegal transportation of 'Sal Wood' upon the aforesaid vehicle, the entire confiscation proceeding, is bad in the eye of law. He, in furtherance to such ground, has submitted that although, the aforesaid ground has been agitated before the appellate as also the revisional authority but without taking into its consideration both the authorities have confirmed the order passed by the Authorised Officer-cum-Confiscating Authority, therefore, the present writ petition.
Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court rendered in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale reported in 1998 (1) PLJR 21 (SC). By putting reliance upon the said judgment it is the contention of the learned counsel for the petitioner that it is onus upon the confiscating authority to prove the involvement of the owner of the vehicle but it would be evident from the impugned orders that the accountability of the owner of the vehicle could not have been proved, therefore, these orders are not sustainable. 4
4. Per contra, Mr. Navneet Toppo, learned A.C to S.C-V appearing for the State of Jharkhand has submitted that the ground which has been raised in assailing the order passed by the authorities required no interference by this Court so far as the ground pertaining to lack of knowledge with the owner of the vehicle. According to the learned counsel appearing for the State, the same issue has already been dealt with by a Division Bench of this Court in L.P.A. No.188 of 2012 (Bibi Amna Khatoon vs. The State of Jharkhand & Ors.) decided on 08.01.2013. According to him, the Co- ordinate Division Bench of this Court, after taking into consideration the order passed by this Court in State of Jharkhand and another vs. Pradeep Kumar Dey and another, [2004 (2) JCR 499 (Jhr)], which has been delivered after considering the judgment of the Hon'ble Supreme Court rendered in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra) wherein the similar issue i.e., the consideration of provision of Section 52(5) of the Act, 1927 has been considered and thereafter it has been laid down that under the provision of sub-section (5) of Section 52, which is statutory provision and puts burden upon the owner of the vehicle because of the reason that he is the person in whose personal knowledge only facts can be, which may be relevant for the purpose of showing that the contraband in the vehicle were loaded without his knowledge and even after his taking due precaution. In that situation also, it was the burden upon the petitioner-appellant only, who failed to discharge his burden and therefore, his vehicle was rightly ordered to be confiscated. Learned counsel in the backdrop of the aforesaid proposition, submits, that the ground upon which the entire confiscation proceeding as also the order passed by the appellate authority and the revisional authority, requires no interference.
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Learned counsel for the State, submits, in response to the applicability of the judgment rendered in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra) by making submission that the aforesaid proposition laid down in the said case by the Hon'ble Apex Court is not applicable since the said judgment has been passed without taking into consideration the provision as contained under Section 52(5) of the Act, 1927.
5. Heard learned counsel for the parties and perused the documents available on record as also the impugned orders passed by the authorities.
Learned counsel for the petitioner, since, has taken the sole ground in assailing the entire confiscation proceeding about the lack of knowledge of the owner of the vehicle by drawing attention of this Court towards the provision of Section 52 (5) of the Act, 1927. Therefore, it would be relevant for this Court to refer the provision of Section 52(5) of the Act, 1927, which reads hereunder as:
"52(5) No order of confiscation under sub-section (3) of any tools, arms, boats, vehicles, ropes, chains or any other articles (other than the forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorized officer that any such tools, arms, 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 of forest offence."
However, the Hon'ble Apex Court has dealt with the issue, in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra) but it would be evident from the bare reading of the aforesaid judgment that the said judgment has been passed without considering the provision as under
Section 52(5) of the Act, 1927. It requires to refer herein that the order 6 passed by the Hon'ble Apex Court in the aforesaid case, which reads as under:
"(1) This appeal is filed against the judgment and order of the Bombay High Court in Writ Petition No.104 of 1988. (2) The truck of the respondent was ordered to be confiscated by the Assistant Conservator of Forest, as it was found involved in commission of a forest offence. That order was confirmed by the Conservator of Forest. Against his order, the respondent preferred an appeal to the Sessions Court but it was dismissed. Therefore, he approached the High Court with a petition under Article 227 of the Constitution. The High Court set aside the order of confiscation on the ground that the authorities had failed to establish that the owner of the truck had any knowledge that his truck was likely to be used for carrying forest produce in contravention of the provision of the Forest Act. This finding was based upon the evidence on the record. Therefore, we do not consider it proper to interfere with such finding.
(3) We, therefore, dismiss this appeal. Appeal dismissed."
Therefore, according to the considered view, the judgment rendered in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra) will not be applicable in the facts and circumstances of the instant case, since the aforesaid judgment has been passed without taking into consideration the application of provision of Section 52(5) of the Act, 1927.
Thus, it is the considered view of this Court with due regards that the aforesaid judgment has been passed without considering the provision of sub-section (5) of Section 52 of the Indian Forest Act, 1927 and therefore, is having no binding precedence.
It further appears that the similar issue fell for consideration before the Co-ordinate Division Bench of this Court in the case of State of Jharkhand and another vs. Pradeep Kumar Dey and another, [2004 (2) JCR 499 (Jhr)], which has been delivered after considering the judgment of Hon'ble Supreme Court rendered in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra), wherein sub-section (5) 7 of section 52 of the Indian Forest Act as amended by State Act has been considered.
6. It is evident that the Co-ordinate Division Bench of this Court, while delving upon the issue, in the case of State of Jharkhand and another vs. Pradeep Kumar Dey and another (supra), is of the considered view that the Co-ordinate Division Bench while considering the issue about the knowledge of the vehicle, has considered the judgment passed by the Hon'ble Apex Court in the case of Assistant Forest Conservator vs. Sharad Ranchandra Kale (supra) but in the case of Sharad Ranchandra Kale, there was no consideration about the provision of sub-section (5) of Section 52 of the Indian Forest Act as amended by the State Act. Therefore, the judgment rendered by the Division Bench of this Court in State of Jharkhand and another vs. Pradeep Kumar Dey and another has an impact in the facts and circumstances of the instant case. Further, the other Co-ordinate Division Bench of this Court while delving upon the similar issue, the applicability of Section 52(5) of the Act, 1927, in L.P.A. No.188 of 2012 (Bibi Amna Khatoon vs. The State of Jharkhand & Ors.) has dealt with while considering the provision of Section 52(5) of the Act, 1927 has also considered the judgment rendered by Hon'ble Apex Court in the case of Sharad Ranchandra Kale (supra). In the said judgment the Co-ordinate Division Bench of this Court, has also considered the order passed by the Division Bench of this Court in the case of State of Jharkhand and another vs. Pradeep Kumar Dey and another (supra). The Co-ordinate Division Bench, while passing the order in L.P.A. No.188 of 2012, has come to conclusive finding to the effect that the judgment rendered in the case of Sharad Ranchandra Kale (supra) will not be applicable since there was no consideration of sub-section (5) of Section 52 of the Indian Forest Act, 8 rather, the judgment delivered by the Co-ordinate Division Bench of this Court in the case of State of Jharkhand and another vs. Pradeep Kumar Dey and another (supra) is having the applicability in the facts and circumstances of the case since in the said case i.e., State of Jharkhand and another vs. Pradeep Kumar Dey and another (supra) the conclusive finding has been arrived at after taking into consideration the provision of sub- section (5) of Section 52 of the Indian Forest Act.
7. So far as the fact of the instant case is considered, the similar plea has been taken by putting reliance upon the judgment rendered in the case of Sharad Ranchandra Kale (supra) by taking the plea that it was the onus upon the confiscating authority to prove the involvement of the writ petitioner but after taking into consideration the judgment rendered in the case of Sharad Ranchandra Kale (supra) as also in the case of Bibi Amna Khatoon vs. The State of Jharkhand & Ors. (supra), this Court is of the view that the plea which has been taken by the learned counsel for the writ petitioner in assailing the orders impugned to the effect that the writ petitioner was having no knowledge about the illegal transportation of contraband in his vehicle, is having no force on the ground of adjudication of the issue by the orders passed by Division Bench of this Court, as referred above.
8. Accordingly, the instant writ petition is dismissed.
(Sujit Narayan Prasad, J.) Saket/-
A.F.R