Orissa High Court
Gopal Dash vs State Of Orissa & Others .... Opp. ... on 7 December, 2018
Equivalent citations: AIRONLINE 2018 ORI 332
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.15423 of 2017
In the matter of an application under Article 226 of the Constitution of India.
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Gopal Dash .... Petitioner
versus
State of Orissa & others .... Opp. Parties
For Petitioner ... Dr. Sujata Dash, Adv.
For Opposite Parties ... Mr. Uttam Ku. Sahoo, ASC
1&2
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 01.12.2018 : Date of judgment: 07.12.2018
Dr. A.K.Rath, J By this petition under Article 226 of the Constitution, the
petitioner has challenged, inter alia, the judgment dated 14.03.2017 passed by the learned District Judge, Keonjhar in FAO No.07 of 2016. By the said judgment, learned District Judge dismissed the appeal; thereby confirmed the order dated 29.04.2016 passed by the learned Authorized Officer-cum-Asst. Conservator of Forests, Keonjhar Division, Keonjhar in OR Case No.102G of 2013-14 and confiscated the Bolero bearing registration number OR-09-P-0207 along with 42 pieces of sal sizes under Sec. 56 of the Orissa Forest Act, 1972 (in short, "the Act").
2. The issue involved in this appeal lies in a very narrow compass. The necessary facts of the case for deciding the issue are :
2On 19.10.2013, the Range Officer of Ghatagaon Range, upon receiving reliable information, conducted patrol duty along with his staff near village Bana Chakulia. At 3.30 A.M, they saw a Bolero bearing registration number OR-09-P-0207 moving towards Dhangardiha. They instructed the driver to stop the vehicle. But then, the driver did not stop the vehicle. The patrolling team chased it for about 200 meters and managed to stop it. There were four occupants. The patrolling staff nabbed three persons. One person escaped. The vehicle was found to be carrying 42 freshly cut sal sizes of 14.00 cft. The occupants of the vehicle could not produce any document for transporting the same. They confessed that they were carrying the timber for the purpose of sale. A forest case was registered for violation of Rules 4, 12, 13 and 14 of the Orissa Timber and other Forest Produce Transit Rules, 1980 (in short, "the Rules"). The vehicle was seized under Sec.56 of the Act. The accused persons were arrested and forwarded to judicial custody. Thereafter, an enquiry was conducted by the Range Officer as per Rule 4(2) of the Orissa Forest (Detection Enquiry and Disposal of Forest Offence) Rules 1980. During enquiry, it was found that the timber in question was being transported with the knowledge of the petitioner, owner of the vehicle and one Sankhali Mohakud, to whom the vehicle had been transferred by means of an agreement. Accordingly, a confiscation proceeding was initiated by the Authorised Officer-cum- Asst. Conservator of Forests, Keonjhar Division under Sec.56 of the Act.
3. Pursuant to issuance of notice, the petitioner entered appearance and filed a show cause stating that he is the registered owner of the vehicle. The vehicle was sold to one Sankhali Mohakud by means of an agreement dated 15.4.2013. The petitioner availed the loan. It was agreed upon between the parties that the balance 3 amount shall be paid to the financer by Sankhali Mohakud. The petitioner instructed Sankhali Mohakud not to use the vehicle for illegal transportation of timber or carry any contraband articles. It was further stated that he was not present at the spot. He had no knowledge about the commission of offence. In the confiscation proceeding, five witnesses were examined by the prosecution. The defence had examined four witnesses. The authorized officer came to hold that the forest offence had been committed. The owner of the vehicle had not taken any reasonable precaution against commission of forest offence. He had engaged the vehicle for illegal transportion of the timber. Held so, he directed that the vehicle bearing registration number OR-09-P-0207 and sal sizes 42 pcs. equivalent to 14.0 cft. be confiscated to Government of Odisha. Unsuccessfully petitioner filed FAO No.07 of 2016 before the learned District Judge, Keonjhar, which was eventually dismissed.
4. Heard Dr. Sujata Dash, learned counsel for the petitioner and Mr. Uttam Ku. Sahoo, learned Addl. Standing Counsel for the State.
5. Dr. Dash, learned counsel for the petitioner submitted that the vehicle was handed over to Sankhali Mohakud by means of an agreement to sale. The petitioner had instructed him and driver not to engage the vehicle for illegal transportation of the timber. The petitioner had no knowledge about the illegal transportation of the timber. She further submitted that the petitioner was not present at the spot. He had taken proper care to use the vehicle for legal activities. The learned appellate court has not considered the matter in its proper perspective. To buttress the submission, she relied on the decisions of this Court in the case of State of Orissa v. Pramod Kumar Sahu, 2012 (Supp.-I) OLR 539, Monoj Kumar Pattnaik v.
4State of Orissa and 5 others, 2010 (I) OLR 16 and Biswakesha Mohapatra v. Authorised Officer, 2003 (II) OLR 530.
6. Per contra, Mr. Sahoo, learned ASC for the State submitted that the learned appellate court held that the agreement to sale was a self-serving document. The driver has not been examined. It is not enough to discharge the burden cast upon the petitioner to escape the order of confiscation. It must be proved that the owner of the vehicle must have taken reasonable and necessary preparation against the use of the vehicle in respect of commission of forest offence. The petitioner cannot escape the liability of confiscation, since his driver who was the agent to use the vehicle knowingly for commission of forest offence. The driver has been deliberately withheld from the witness box. The judgment of the learned appellate court is perfectly legal and valid. He placed reliance on the decision of this Court in the case of Malatilata Samal and others v. State of Orissa and others, 2002 (II) OLR 216.
7. Sec. 56 (2-c) of the Act which is the hub of the issue reads as follows;
"(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 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 and that each of them had taken all reasonable and necessary precautions against such use."
8. Sub-Section (2-c) of Sec. 56 of the Act was the subject- matter of interpretation before a Division Bench of this Court in the case of State of Orissa represented through the Range Officer, Khurda, Forest Range v. Kiran Sankar Panda & others, 71 (1991) 5 CLT 157. A Bench of this Court speaking through Mr. B.L. Hansaria, Chief Justice (as he then was) held as follows;
".... so far as confiscation of any tool, rope, chain, boat, vehicle or cattle is concerned, section 56 (2-c) has excluded the conception of mens rea by necessary implication, as already noted. We have said so because this section states that in case of confiscation of such articles, it is the owner who has to prove that the same had 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. This would show that knowledge or connivance is assumed, unless contrary is proved. The knowledge or connivance about which section 56 (2-c) has spoken is not confined to the owner but takes within its fold the knowledge or connivance of the agent, if any, or of the person in charge of the article in question. Not only this, this section further states that to escape the order of confiscation, it must be further proved that each of the concerned persons had taken all reasonable and necessary precaution against the use of the article in question in respect of the commission of the forest offence."
9. In State of Karnataka v. K. Krishnan, AIR 2000 SC 2729, the apex Court held that liberal approach in the matter with respect to the property seized which is liable to confiscation is uncalled for as the same is likely to frustrate the provisions of the Act.
10. On the anvil of the decisions cited supra, the instant case may be examined.
11. Admittedly, the petitioner is the registered owner of the vehicle. Though the petitioner has taken a plea that the vehicle was sold, but the ownership thereof has not been changed. The petitioner has taken a plea that the vehicle has been sold to Sankhali Mohakud. But then, he contested the case. He assailed the order of confiscation dated 29.04.2016 passed by the Authorized Officer-cum- Asst. Conservator of Forests, Keonjhar Division, Keonjhar in OR Case No.102G of 2013-14 before the learned appellate court. Since the judgment was not palatable to him, he filed this writ application. The 6 petitioner has taken a prevaricating stand. His left hand doesn't know what the right hand is doing. The learned appellate court has rightly came to hold that the agreement to sale was a self-serving document prepared and projected by the petitioner only to escape the liability under law. Sankhali Mohakud has stated that the driver, namely, Bapun Behera was driving the vehicle. However, one Bapun Behera was driving the vehicle at the time of detention. The driver has not been examined in the case. Learned appellate court is quite justified in holding that the plea taken by the petitioner and the transferee is difficult to believe. It is not enough to discharge the burden cast upon the petitioner to escape the order of confiscation. The petitioner cannot escape the liability of confiscation since the driver who was the agent to use the vehicle knowingly committed the forest offence.
12. An identical matter came up for consideration before a Division Bench of this Court in the case of Sk. Ibrahim v. State of Orissa and others, 2010 (I) ILR - CUT 271. The Division Bench of this Court reiterated the same view taken in Kiran Sankar Panda (supra) and held thus;
"In the instant case, the petitioner had given the vehicle to his driver, who admittedly himself knowingly used the vehicle for commission of forest offence. Even assuming for the sake of argument that the petitioner instructed the driver not to use the vehicle for illegal purposes and that he had no knowledge of the illegal user of the vehicle by his driver, he cannot escape the liability of confiscation as his driver, who was the agent in-charge of the vehicle, knowingly used the same for commission of forest offence."
13. In Malatilata Samal (supra), this Court held that the master is vicariously liable for any act committed by his agent or servant. The owner would be liable for any act or omission committed by the driver.
714. The ratio laid down in Sk. Ibrahim and Malatilata Samal (supra) proprio vigore apply to the facts of the case.
15. In Pramod Kumar Sahu (supra), this Court set aside the order passed by the appellate authority holding that the order of confiscation was passed without reference to the evidence on record and the finding of fact recorded by the appellate authority is perverse. In the instant case, the authorised officer as well as the learned appellate court scanned the evidence on record and passed the order. The reason assigned by the learned appellate court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 226 of the Constitution.
16. In Manoj Kumar Pattnaik v. State of Orissa and 5 others, 2010 (1) OLR 16, this Court directed the R.T.O., Balasore to assess the value of the vehicle and send the same to the Divisional Forest Officer, Balasore. It was directed that the Divisional Forest Officer, Balasore shall release the vehicle to the petitioner on depositing the value of the vehicle as assessed by R.T.O. But then no reason has been assigned. In the facts and circumstances of the case, the order was passed. The same is distinguishable on facts. In Biswakesha Mohapatra (supra), the vehicle was released on the petitioner furnishing a cash security of rupees thirty thousand and property security of rupees seventy thousand to the satisfaction of the authorized officer. The order was passed on the facts and circumstances of the said case.
17. In the State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, the Constitution Bench of the apex Court held that a decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is 8 not a profitable task to extract a sentence here and there from a judgment and to build upon it.
18. No law has been laid down in Manoj Kumar Pattnaik and Biswakesha Mohapatra (supra). The orders are not binding precedent.
19. In the wake of the aforesaid, the petition, sans merit, is dismissed. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 7th December, 2018/PKS