Calcutta High Court
Authorised Officer vs Susanta Banerjee And Anr. on 24 July, 1992
Equivalent citations: (1993)1CALLT289(HC), 96CWN1243
JUDGMENT Samir Kumar Mookherjee, J.
1. This Revisional application is directed against an order passed by the learned Additional District Judge, Second Court, Jalpaiguri in Misc. Appeal No. 48 of 1991 reversing the order passed by the Authorised Officer in Case No. 6/COB of 1989-90.
2. The case is one relating to confiscation and order for sale of a truck bearing No. WGA 4324 on the allegation that the same was used in commission of a Forest offence and as such became liable to confiscation in terms of Section 59B of the West Bengal Amendment of the Indian Forest Act, 1927.
3. Mr. Bhattacharjee has appeared in support of the Revisional application on behalf of the Authorised Officer, Cooch Behar Forest Division, Jalpaiguri who is the petitioner before this Court and Mr. Abhijit Banerjee has appeared on behalf of the contesting respondents, who claim to be owners of the involved truck.
4. The learned Additional District Judge based his order primarily on the ground that the facts and circumstances of the case show that the owners did not have any knowledge or connivance with the driver of the vehicle in respect of the illegal carriage of forest produce which constituted an offence. On the basis of an alleged letter of authorisation disclosed on behalf of the owners and the terms embodied therein, the learned Additional District Judge also found that the owners took reasonable and necessary precaution so that this vehicle might not be involved in carrying unlawful goods. On the basis of the aforesaid findings and applying the ratio laid down by a Division Bench of this Court in Criminal Revision No. 2289 of 1989 dated 17th of September, 1990, learned Additional District Judge quashed the order of confiscation and directed restoration of the motor vehicle to the owners on execution of a Bond.
5. Both the learned advocates have analysed the relevant section to justify their own submissions. Accordingly, we feel that it would be useful to quote Section 59B, sub-section (2) of the Indian Forest Act as applicable to West Bengal which we quote as hereinbelow :
"59B. Issue of notice before confiscation,-(1)........
(2) Without prejudice to the provisions of sub-section (1), no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 59A if the owner thereof proves to the satisfaction of the authorised 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." (Emphasis is ours)
6. Upon a reading of the said section, it appears to us that the approach adopted by the learned Additional District Judge, in passing the impugned appellate order is vitiated by a wrong conception, and wrong interpretation and construction of the section. We have purposely emphasized by underlining the relevant parts of the section in question a reading whereof clearly establishes that the owner, apart from proving the user of the offending article or vehicle without his knowledge or connivance must also prove to the satisfaction of the Authorised Officer that his agent or the person in charge of the vehicle or the article in question had also no knowledge nor had connived in the user of the same in commission of a Forest offence and further that each of them had taken all reasonable and necessary precautions against such use. The word 'or' preceding 'his agent' and the word 'each' preceding 'of them' clearly indicate that the owner's liability was not restricted in the manner as has been interpreted by the learned Additional District Judge. He has also to prove the statutory requisites as far as his agent or person in charge of the vehicle is concerned. In default of such proof, the vehicle could not enjoy exemption from confiscation. The Division Bench judgment of this Court, referred to earlier, as relied on by the learned Additional District Judge is distinguishable on facts as will be apparent from the observations made in the said judgment to the following effect :
"In our view, it will depend on the facts of each case whether the person who is found in possession of the vehicle is himself the owner or the agent of the owner or the person in charge of the vehicle. It is not the case of the State that the driver of the vehicle was in fact the agent of the owner or the person in charge of the vehicle............In our view, if an unauthorised act has been committed by the driver in course of his employment contrary to the terms of his employment while returning with the vehicle, such illegal act of the driver cannot saddle the owner with any liability, unless it is proved that the driver was the agent of the owner or he was the person in charge of the vehicle on,behalf of the owner............"
7. We keep it on record that no question about the legality of the statutory provision has been raised before us and as such, the validity of the section has to be presumed in applying the same to the facts of the present case.
8. We would like also to deal with another point raised by Mr. Banerjee on behalf of the respondents by making a reference to Section 52(3) of the Indian Forest Act as applicable to West Bengal. The said section uses the terms "the driver or other person in charge of such vehicle" and by referring to the said terms Mr. Banerjee has tried to argue that driver does not fall within the category of person in charge of the vehicle as mentioned in Section 59B(2) of the said Act. In our view, Section 52(3) aforesaid supports the conclusion that driver falls within the category of person in charge by following that up with the term "other" preceding the word "person".
9. In deciding a case as the present one, the liability ought not to be looked at as merely vicarious liability of the owner, but a liability created with regard to the vehicle fo,r the acts of the persons mentioned in the Statute in addition to other than the owner. It is necessary for us, in connection with this conclusion of ours, to indicate that the judgment of the other Division Bench of this Court dealing with the Criminal Revision case does not come in conflict with our conclusion as the question by the said Division Bench was decided in the facts of that case and not generally and it was observed in the said judgment that facts of each case would determine the status of the person, namely, as to whether he is the owner or the agent of the owner or the person in charge of the vehicle.
10. Since as we have already indicated that the learned Additional District Judge approached the case with reference to the owner alone, keeping excluded from his consideration the liability of the vehicle accruing out of the defaults of the person in charge or the agent as mentioned in the concerned section, the impugned appellate judgment cannot be sustained. Accordingly, we set aside the same, send the entire appeal back to the lower appellate Court for consideration afresh according to law and on merit on the lines of the observations and conclusions made by us hereinabove. The respondents are granted liberty to make appropriate application before the learned Additional District Judge, who will be in seisin of the appeal after remand, for release of the vehicle, if so advised, on appropriate condition and if the appeal cannot be disposed of as directed hereinafter within four weeks.
11. Since the maintenance of the vehicle is a vital factor, during its period of seizure, we direct that the learned Additional District Judge should endeavour to dispose of the appeal within a period of four weeks from the date of communication of this order to him.
The revisional application is thus allowed. There will be no order as to costs.
Let xerox copies of this order be delivered to the learned Advocate for the parties on their usual undertakings to apply for and obtain urgent certified copies.
S.K. Hazari, J.
I agree.