Orissa High Court
State Of Orissa vs Jagadish Chandra Jena And Anr. on 9 April, 1998
Equivalent citations: 1998CRILJ4771
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT P.C. Naik, J.
1. An order of confiscation passed by the Authorised Officer-cum-Divisional Forest Officer, Baripada Division, Baripada, having been set aside in appeal with a direction to release the vehicle bearing registration number WGB 6909, the State is before us for quashing the same and restoring the order of confiscation.
2. The impugned order (Annexure-1) is assailed by the petitioner-State, inter alia, on the ground that it proceeds on an erroneous interpretation of Section 55(2-c) of the Orissa Forest Act, 1972 (in short, 'the Act') and due to failure on the part of the learned District Judge, Balasore to take notice of the material on record. Elaborating the contention, Mr. Jairaj Behera, the learned Additional Government Advocate submitted that the learned District Judge has proceeded on an assumption that the burden to establish the guilt is on the prosecution whereas under Section 56(2-c), it is on the person who has been charged. It is further submitted that the finding that non-service of the notice to show cause on the person charged, is also erroneous as the Court has proceeded on an erroneous presumption that a notice in writing informing him of the grounds on which it is proposed to confiscate the vehicle in question was not served. Our attention is invited to Annexure-3, a memo dated 17-9-1990 wherein the action proposed and the grounds on which it is proposed find place. A seizure-list dated 20-1 -1990 was also enclosed to this memo which was sent by registered post with acknowledgment due. Accordingly, it is submitted that the impugned order cannot be sustained and is liable to be quashed.
3. While refuting the contentions advanced by the learned Additional Government Advocate, Mr. Mukherji, learned Senior Advocate appearing on behalf of the opposite party No. I, contends that the impugned order is proper and calls for no interference. By making a reference to Section 56(2-c) of the Act, the learned Counsel contends that before the vehicle in question can be confiscated, what is required to be proved is that the owner/his agent/the person charged against, either had the knowledge that the vehicle in question had been used for commission of the offence or there was connivance in the commission of the offence. It is submitted that in the case at hand, none of the statutory requirements is fulfilled.
4. The case of opposite party No. 1 is that on 19-1-1990 the vehicle in question was parked at Indian Oil Petrol Pump at Kantai of Midnapore district within the State of West Bengal wherefrom it was stolen and in spite of efforts, it could not be found out. An F.I.R. was lodged at Cantai Police Station regarding the theft of the vehicle and accordingly, P.S. Case No. 15/90 for an offence under Section 579, I.P.C. was registered giving rise to CM. Case No. 60/90 in the Court of the Sub-Divisional Judicial Magistrate, Midnapore in the State of West Bengal. It is, therefore, submitted that the person who had stolen the property might have been involved in forest offence for which the petitioner cannot, in any way, be held responsible. It is further submitted that as the vehicle in question had been stolen, the question of there being any connivance of the owner in the commission of the forest offence, is completely ruled out.
5. Mr. Mukherji has also drawn our attention to Annexure-A/2 which is an order passed by the Sub-Divisional Judicial Magistrate, Nilgiri. whereby the owner of the vehicle has been acquitted of the offence under Section 21 of the Orissa Timber and other Forest Produce Transit Rules, 1980 (in short, 'the Rules'). According to the learned Senior Advocate Mr. Mukherji, since in the impugned order it has been held that the owner was not present at the time of detection of the offence when the vehicle was seized, it goes to show that the owner is no way connected with the said offence and as such, the, proceedings under-Section 56(2-c) of the Act for confiscation of the vehicle are misconceived. The learned District Judge was right in quashing the order of confiscation. It is also submitted that as admittedly the owner was not found at the spot and has been acquitted, he cannot be vicariously held liable for any act or omission of a third person who did not act under his instructions, rather, about whose act, he (the owner) had no knowledge.
6. To begin with, it would be worthwhile to quote the provisions contained in Section 56 of the Act.
56. Seizure of property liable to confiscation :-
(1) 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 such offence may be seized by any Forest Officer or Police Officer.
(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall as soon as may be, except where the offender agrees in writing to get the offence compounded, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer.
(2-a) Where an authorised officer seizes any forest produce under Sub-section (1) or where any such forest produce is produced before him under Sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence.
(2-b) No order confiscating any property shall be made under Sub-section (2-a) unless the person from whom the property is seized is given-
(a) a notice in writing informing him of the ground on which it is proposed to confiscate such property;
(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and
(c) a reasonable opportunity of being heard in the matter.
(2-c) Without prejudice to the provisions of Sub-section (2-b) no order of confiscation under Sub-section (2-a) of any tool, rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used without his knowledge or connivance or the knowlege or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.
(2-d) Any Forest Officer not below the rank of a Conservator of Forests empowered by the Government in this behalf by notification, may. within thirty days from the date of the order of confiscation by the authorised officer under Sub-section (2-a), either suo motu or on application, call for and examine the records of the case and may make such inquiry or cause such inquiry to be made and pass such orders as he may think fit:
Provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard.
(2-e) Any person aggrieved by an order passed under Sub-section (2-c) or Sub-section (2-d) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized and the District Judge shall after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge as passed shall be final.
(3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received.
Explanation- For the purposes of this section and Section 59, cattle shall not include buffaloes, bulls, caws, calves and oxen.
7. From a reading of the provisions of Sub-section (2-c), it is apparent that unlike other penal provisions, the question of mens rea is foreign to this Sub-Section In other words, by the use of the express words in this Sub-section, the element of mens rea as an essential condition of an offence stands excluded. Thus, in order to get out of an order of confiscation, it is upon the owner to prove to the satisfaction of the Authorised Officer that in the commission of a forest offence any tool, rope, chain, boat, vehicle or cattle was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle in committing the offence. Not only this, it is further to be established that each of them had taken all reasonable and necessary precautions against such use. In view of the express words contained in the section, knowledge or connivance is presumed unless the contrary is proved. The provision is a special law which places the burden on the person charged and, therefore, the general principles of criminal law that a man is presumed to be innocent till he is proved guilty, are not attracted and have to step aside and give way to the presumption flowing from the special provision contained in the statute. The element of mens rea is, therefore, not a necessary ingredient for an order of confiscation, if the factum of seizure of forest produce under Sub-section (1) of Section 56 of the Act is established.
8. There is no doubt a presumption that mens rea or guilty intent is an essential ingredient but, it is now well settled that the legislature may enact a law creating an offence giving rise to strict liability where existence of mens rea as an essential element of it is not necessary. The question whether or not an offence created by a statute requires mens rea, guilty knowledge or intention, turns on the subject-matter and the language of the statute of the particular provision under consideration and this has to be considered in the light of the legislative purpose embodied in the Act. Thus, it becomes necessary to determine the proper construction of the provisions contained in Section 56. The necessary ingredients are, (i) there is reason to believe that a forest offence has been committed in respect of any forest produce, (ii) such forest produce together with any tool, chain, rope, vehicle or cattle used in the, commission of such offence is seized; (iii) on being satisfied that a forest offence has been committed, order of confiscation can be passed if the owner thereof fails to prove to the satisfaction of the authorised officer that the tool, chain, rope, boat, vehicle on cattle was used without his knowledge or connivance or that of his agent, if any, or the person in charge thereof; and (iv) each of them has taken all reasonable precautions against such use. Even, the absence of knowledge on the part of the owner by itself cannot get him out of the consequence flowing from the provisions contained in Sub-section (2-c) of Section 56 of the Act. In this view of the matter, the contention that no order of confiscation can be passed as the owner was acquitted on a finding that he was not present on the spot, cannot be accepted.
9. Much emphasis was laid by the learned Counsel for opposite party No. 1 in his submission that the forest offence was committed by person or persons unknown after he or they had stolen the vehicle which was parked near the Petrol Pum at Centai of Midnapore, we are not impressed with this argument, as the owner has neither examined himself nor has he examined the driver or the owner of the said Petrol Pump to establish that the vehicle in question was in fact parked at the Petrol Pump from where it was stolen. No effort was made even to summon the I.O. for examination or for production of police papers. The fact that the F.I.R. was lodged much after the alleged theft and after the vehicle was seized; figuratively speaking, lets the cat out of the bag. Had the vehicle really been stolen, immediate steps would have been taken to lodge a report as this is something which any reasonble person would have done. A truck is not something which can be taken away without anyone being aware or its removal from its place where it is parked. It is, therefore, difficult for us to accept that after parking the vehicle at the Petrol Pump, neither the owner nor the driver of the vehicle or the owner of the Petrol Pump had any knowledge that it was missing, but realised this only after the seizure. The lodging of the F.I.R. is, therefore, an afterthought - a creation of evidence to escape the order of confiscation - which cannot be of any assistance to the owner (O.P. No. 1).
10. Having considered the nature, scope and effect of the provisions contained in Section 56 of the Act, we shall now proceed to consider the contentions raised on behalf of opposite party No. 1. The order of confiscation has been reversed by the learned District Judge apparently on two grounds, namely, that notice in writing informing the owner the grounds on which it is proposed to confiscate the property has not been given and. therefore, there was non-compliance of the provisions contained in Section 56(2-b) (a); and that as the owner had been acquitted in the forest offence under Rule 21 of the Rules, it could not be said that he (O.P. No. 1) had committed any forest offence so as to make the vehicle liable for confiscation.
11. It is no doubt true that the owner was acquitted of the offence charged. From the certified copy of the Judgment (Annexure-A/2) it is clear that the accused was not present at the time when the offence was detected, i.e. when the vehicle was seized. Considering this and the fact that the prosecution had not proved the exact place from where the logs were removed and transported, the Court below was of the opinion, "The balance of benefit of doubt tilts in favour of the accused in the facts and circumstances of the case", he was acquitted. It is, however, clear from paragraph 6 of the judgment that the seizure of 19 pieces of sal logs, metals and the truck bearing registration number WGB 6908 was held by the Court below to have been proved. Consequent upon this finding, the seized metals and logs were ordered to be confiscated. No order was passed regarding the truck as a separate proceeding under Section 56 of the Act by the Authorised Officer had been initiated. In this view of the matter, the fact that the owner of the truck was acquitted by giving him benefit of doubt, cannot be a circumstance to get over an order of confiscation as the burden in this proceeding to establish that the offence was committed without his knowledge and connivance or that of his agent or any person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use, was on him. Thus, the observation of the learned District Judge that as the owner has been acquitted of the forest offence, the vehicle was not liable to confiscation, is not correct. However, the learned District Judge has lost sight of the fact that for the purpose of Section 56 of the Act what is to be seen is, whether or not any forest offence has been committed in respect of any forest produce and whether or not any tool, rope, chain, boat, vehicle or cattle which was seized in connection with forest offence is liable to be confiscated. The owner of the vehicle may have been acquitted by the Criminal Court, but the same will have not any bearing in a proceeding under Section 56 of the Act when admittedly even the Criminal Court has held the seizure of the vehicle for carrying timber without transit permit to have been proved.
12. The finding of the learned District Judge that there was a breach of the provisions contained in Section 56(2-b)(a), is not correct. Annexure-3 is the notice that was carved on the owner of the vehicle, relevant portions whereof are extracted hereunder:
...You Shri Jagdish Chandra Jena.... Therefore, hereby give a show-cause under Section 56(2-b) that why not your vehicle (Truck No. W.G.B. 6908) should not be confiscated under Section 56(2-a) of Orissa Forest Act, 1972 for commission of forest offence in connection with transport of 19 pieces of timber as per copy of seizure list enclosed herewith for the violation of Rule 4 of Orissa Timber and Other Forest Produce Transit Rules, 1980 and punishable under Rule 21 of the same....
From the above, it is clear that the owner was called upon to show cause as to why the vehicle in question should not be confiscated for being involved in connection with transport of 19 pieces of timber as mentioned in the seizure list, copy whereof was enclosed along with this notice. Thus, the ground on which confiscation proceeding was proposed was the transportation of 19 pieces of timbers in the vehicle. Therefore, it cannot be said that the owner of the vehicle though received the notice in question, was not aware of the ground on which confiscation proceedings were initiated. The word 'ground' is a term used in the sense of foundation, basis or support of something, which, in the case at hand, is the confiscation proceeding. The word 'ground' occurring in the said provision cannot be read as to mean, a reasoned order proposing confiscation of the vehicle. What the provision contemplates is issuance of a show-cause notice - something like in the nature of a charge-sheet - which would give the person concerned an indication as to what case he has to meet or, in other words. indicate the basis on which the proceedings are initiated. Therefore, the learned District Judge was in error in his finding that the mandatory provisions contained in Section 56(2-b)(a) of the Act were not complied with.
13. From a perusal of the impugned order, it appears that the learned District Judge proceeded on the basis as if the burden to prove was on the Department. As observed in the earlier part of our judgment, once the fact of seizure of the vehicle with timber without a transit permit was established and this fact is also found by the Criminal Court to be proved, the burden was on the owner to prove the contrary and in case he failed to do so, the presumption flowing from Sub-section (2-c) of Section 56 had to be given effect to. In the case at hand, the owner did not produce any defence witness though the Department produced six witnesses in support of its case. Thus, in the absence of any evidence of the owner to the contrary, the Authorised Officer, in our considered view, was justified in drawing a presumption flowing from Sub-section (2-c) of Section 56 of the Act and passing a confiscation order which does not suffer from any infirmity.
14. From the aforesaid discussion made by us, the following position emerges :
(a) The scope and purpose of Rule 21 of the Rules and that of Section 56 of the Act are totally different.
(b) Rule 21 of the Rules envisages an offence against the person who contravenes the provisions of the said Rules whereas Section 56 of the Act relates to confiscation of the properties used for committing a forest offence. In the latter case, the material considerations are :
(i) whether the property sought to be confiscated was used for committing a forest offence; and
(ii) where the owner has been able to establish that such use was without his or his agent's knowledge or connivance or that he took all reasonable and necessary precautions against such illegal use.
(c) Conviction under Rule 21 of the Rules cannot be imposed unless prosecution conclusively proves that the accused is guilty of transiting forest produce without necessary permit, whereas under Section 56 of the Act, once it is established that a vehicle or any property was in fact used for committing a forest offence, onus is on the owner to establish his lack of knowledge or involvement and further to establish that he had taken all reasonable and necessary precautions against such use.
(d) Acquittal in a case under Rule 21 of the Rules is not very much material in a confiscation proceeding which is an independent proceeding having totally different parameters for consideration.
(e) Absence of owner at the spot and time of seizure is not a material factor for the purpose of Section 56 of the Act as the responsibility contemplated therein is a vicarious one.
15. In view of the aforesaid position, we are of the view that the appellate authority has not approached the case from its proper perspective and has in fact misdirected itself in applying erroneous tests which vitiate the impugned judgment.
16. In the result, the writ application is allowed. The impugned judgment (Annexure-1) passed by the learned District Judge is set aside and the matter is remitted to the District Judge, Balasore, for re-hearing the appeal and passing a fresh order in the light of the observations made by us. The District Judge will do well to dispose of the appeal expeditiously, preferably within a period of four months from the date of receipt of this order. The conditions imposed by us in our order dated 3-1-1997 while ordering interim release of the vehicle shall remain in force during the pendency of the appeal.
There shall, however, be no orders as to costs.
Pradipta Ray, J.
17. I agree.