Madras High Court
The State Of Tamil Nadu vs Subbulakshmi on 16 July, 2009
Author: S.Nagamuthu
Bench: S.Nagamuthu
In the High Court of Judicature at Madras
Dated: 16.07.2009
CORAM
THE HONOURABLE Mr. JUSTICE S.NAGAMUTHU
Writ Petition No.9237 of 1999
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The State of Tamil Nadu
rep. by its Secretary to Government
Environment and Forests Department
Fort St. George, Chennai 600009. .. Petitioner
vs
1. Subbulakshmi
2. The Additional Sessions Judge
Villupuram. .. Respondents
Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in Crl.A.No.27 of 1997 on the file of the Additional Sessions Judge, Villupuram and quash the same.
For Petitioner : Mr.S.N.Kirubhanandam
Spl. Govt. Pleader (Forest)
assisted by Mr.K.Rajasekar
Govt. Advocate (Forest)
For Respondents : No Appearance
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O R D E R
The lorry bearing Registration No.KED 8679 was seized on 08.12.1996, as the same was found carrying sandalwood in violation of the provisions of the Tamil Nadu Forest Act. The said vehicle was owned by one Mr.Nagendran. The first respondent purchased the said vehicle on 04.11.1996, but the registration was not transferred in the name of the first respondent. The first respondent made an application to the authority requesting for return of the vehicle to her contending thereby that she had no knowledge that the driver of the vehicle in whose charge the vehicle was entrusted would use the same for such an illegal purpose. Rejecting the said contention, the Authorised Officer viz. The District Forest Officer, Villupuram, by order dated 31.01.1997, ordered confiscating the said lorry in favour of the Government. Challenging the same, the first respondent preferred an appeal before the Sessions Judge, Villupuram in Crl.A.No.27 of 1997. By order dated 05.08.1998, the learned Sessions Judge allowed the appeal and set aside the order of the District Forest Officer. Challenging the said order, the State has forward with this writ petition come before this Court.
2. I have heard the learned counsel for the petitioner and perused the records. Despite the service of notice on the first respondent, she has not appeared.
3. When the writ petition was heard, a question arose as to whether this writ petition is maintainable and whether an alternative remedy is available under Section 397 Cr.P.C. by way of revision. A perusal of Section 49-D of the Tamil Nadu Forest Act (hereinafter referred to as "the Act") would show that as against an order under Section 49-B of the Act, an appeal lies to the Sessions Judge and the said order of the Sessions Judge is final. Sub section 2 to Section 49-D of the Act, provides that an order of Sessions Judge under sub section (1) shall be final and shall not be questioned in any Court of law. Since the order of the Sessions Judge has been declared to be final under the statue, the question is as to whether the said order can be challenged by way of revision under Section 397 Cr.P.C., as any order of inferior Criminal Court can be questioned by way of revision before the High Court.
4. The learned counsel appearing for the petitioner would submit that under Section 49-D(2) of the Act, the power of the High Court under Sections 397 and 401 as well as Section 482 of the Code of Criminal Procedure stands ousted. When a similar question arose before the Karnataka High Court in respect of a similar provision found in the Karnataka Forest Act, there were conflicting views expressed by two Division Benches. Therefore, the matter was referred to a Full Bench in A. Yadava vs. Authorised Officer (2006 Crl.L.J.1568). The Full Bench had taken note of the law laid down by the Hon'ble Supreme Court in the cases of State of West Bengal vs. Sujit Kumar Rana [(2004) 4 SCC 129], State of Himachal Pradesh vs. Dhanwant Singh [2005 SCC (Crl) 248) and also having taken note of the relevant provisions of the Code of Criminal Procedure as well as the Forest Act, ultimately held that the power of the High Court under Sections 397, 401 and 483 of Cr.P.C. stands ousted by the Forest Act. The Full Bench has held that the remedy available for an aggrieved against the order passed by the Session Judge is only under Articles 226 or 227 of the Constitution of India.
5. Section 71-D of the Karnataka Forest Act and Section 49-B and 49-D of the Act are in pari materia. Having regard to the specific bar contained in Section 49-D(2) of the act, I fully agree with the view taken by the Karnataka Full Bench in A.Yadhava's case (cited supra). Thus, I hold that the writ petition is maintainable and the order passed by the Sessions Judge under Section 49-D of the Act, cannot be called in question by way of revision either under Sections 397 and 401 of Cr.P.C. or under Section 482 Cr.P.C.
6. Now, coming back to the facts of the case, it is contented by the learned Special Government Pleader that the first respondent had full knowledge that the vehicle would be used for illegal purpose and therefore the order of the Sessions Judge is liable to be set aside. A perusal of Section 49-D(2) of the Act, would make manifestly clear that it is the duty of the owner of the vehicle to prove to the satisfaction of the Authorised Officer that the vehicle was used in carrying timber without the knowledge or connivance of her.
7. The learned counsel for the petitioner placed reliance on the decision of the Supreme Court in State of West Bengal Vs Mahua Sarkar (2008 (12) SCC 763) wherein while dealing with a similar provision in the West Bengal Forest Act, the Supreme Court has held as follows:
"So under Section 59-B(2), it is the owner, who has to prove that the vehicle was used in carrying timber or other forest produce without his knowledge or connivance or that of his agent. This requirement is mandatory. It is a matter which is within his knowledge. There is another requirement that either he or his agent, if any, person in charge thereof had taken all reasonable and necessary precaution against such use. These aspects have to be established by the person concerned by the sufficient materials Mere assertion without anything else will not be sufficient."
8. From the above judgement, it could be seen that the owner of the vehicle has got burden to prove not only the absence of knowledge, but also that he had taken all precautions against the illegal use of the vehicle.
9. Keeping in mind the above principle, if the facts are looked into, the claim statement made by the first respondent would show that she has only pleaded that the lorry was used for illegal purpose without her knowledge. She has not stated in the claim statement that she had taken all precautions to prevent the lorry being used for such illegal purpose. No evidence whatsoever is let in on behalf of the first respondent to discharge the above burden to prove both the aspects. Except mere assertion, no other material evidence, either oral or documentary, has been placed to prove the above aspects. But, the lower Court has considered only the burden in respect of absence of knowledge. A perusal of the order of the lower Court would reflect that the lower Court has not considered that the first respondent had not taken any such precaution to prevent the lorry from being used for such illegal purpose. Thus, the impugned order of the lower Court is not sustainable.
10. In the result, the writ petition is allowed. The order of the lower Court in Crl.A.No.27 of 97 is set aside and the order of confiscation passed by the Authorized Officer is restored. No costs.
ATR To
1. The Secretary to Government State of Tamil Nadu Environment and Forests Department Fort St. George, Chennai 600009.
2. The Additional Sessions Judge Villupuram