Orissa High Court
Asha Singh vs The Authorized Officer Cum Acf Nayagarh on 18 October, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 3815 OF 2009
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Asha Singh ........ Petitioner
-Versus-
The Authorized Officer-cum- ......... Opp. Party
ACF, Nayagarh
For petitioner : Mr. S.P. Mishra, Sr. Counsel
along with M/s S. Mishra,
S.S. Satpathy, S. Nanda,
B. Mohanty, S.S. Kashyap
and S.K. Sahoo, Advocates.
For opp. Party : Mr. P.K. Muduli,
Addl. Govt. Advocate.
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PRESENT:
THE HON'BLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 18.10.2017
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DR. B.R. SARANGI, J. The petitioner, who is a house wife and
owner of the vehicle (Ambassador Car) bearing registration
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No.OR-02L-9424, has filed this application to quash the order
dated 07.11.2003 passed by the Authorized Officer-cum-Asst.
Conservator of Forest, Nayagarh in O.R. Case No.27 of 2000-01,
which has been confirmed by the learned District Judge, Puri
vide order dated 30.01.2009 passed in FAO No.170 of 2003,
under Section 56 of the Orissa Forest Act, 1972 in confiscating
the seized vehicle along with 48 pieces of sal wood.
2. The factual matrix of the case is that petitioner, who
is a house wife and belongs to a family constituting eight
members, having not been able to meet the family necessity
with the little income, purchased a vehicle (Ambassador Car)
bearing registration No.OR-02L-9424. Initially, the said vehicle
was engaged in a travel agency on hire basis. As the same was
not profitable, she decided to engage a driver and use the
vehicle on her own. Accordingly, she engaged one Pratap Kumar
Sahu, son of Bidyadhar Sahu for plying the vehicle. On
12.09.2000, the driver took the vehicle informing the petitioner that he was proceeding with passengers to Puri on hire basis and would come back on the next day. As he did not return on the next day, the petitioner searched for and came to know that 3 the vehicle has been seized on 14.09.2000 by the Forest Range Officer, Odagaon in connection with forest offence. 2.1 The petitioner immediately went to Odagaon Forest Range Office and learnt that on 12.09.2000 at about 4.00 P.M., Forest Officer, Nayagarh Division, Nayagarh and Range Officer, Odagaon along with staff of Nayagarh Range and Ponchirida Section, while proceeding from Nayagarh to Hariharpur, found on Nayagarh and Odagaon P.W.D. road the Ambassador Car bearing registration No.OR-02L-9424 loaded with 48 pieces of sal wood in its back seat and dickey. On demand, the driver could not produce any timber transit permit authorizing transport of such forest produce nor could he produce any document as to ownership of those goods. As transportation of forest produce without permit is an offence under the Orissa Forest Act, 1972, the car was seized along with sal woods and OR Case No.27 of 2000-01 under Section 56(2-a) of Orissa Forest Act, 1972 was registered. When the petitioner asked for copy of the same, Authorized Officer informed that notice would be sent.
42.2 On 10.10.2000, Authorized Officer, Nayagarh issued notice under sub-sections (2-a) and (2-b) of Section 56 of Orissa Forest Act. 1972 to the petitioner to file her show cause within 15 days from its receipt as to why the forest produce together with the aforesaid vehicle should not be confiscated to the government as per law. In response to the same, the petitioner filed her reply on 14.02.2009 and specifically contended that the use of the vehicle in the commission of offence, as alleged, was without her knowledge or connivance, as the driver took the vehicle saying that he was taking passengers to Puri. It was further contended that the vehicle had never been involved in any such incident previously. As such, the benefit of sub-section (2-c) of Section 56 of the Act should be extended to the petitioner and her vehicle should not be confiscated.
2.3 On 30.09.2000, petitioner filed a petition under Section 57 of the Orissa Forest Act, 1972 before the Authorized Officer for interim release of the vehicle, but the same was rejected by order dated 30.10.2000. Petitioner challenged the said order in OJC No.10290 of 2000 and this Court by order 5 dated 18.12.2000 directed interim release of the vehicle subject to deposit of Rs.20,000/- in cash and furnishing property security worth Rs.1,30,000/-. As a result thereof, now the vehicle is on interim custody of the petitioner. 2.4 The Authorized Officer proceeded with the confiscation proceeding. In order to establish its case, prosecution examined four witnesses, whereas the petitioner in support of her plea examined herself as a witness. The Authorized Officer considering the materials available on record, by order dated 07.11.2003, directed for confiscation of the seized vehicle along with the forest produce to the government and further directed that the owner of the vehicle, namely, the present petitioner would produce the confiscated vehicle, failing which the cash security of Rs.20,000/- would be forfeited. Against the said order of confiscation dated 07.11.2003, the petitioner preferred appeal under Section 56 (2-a) before the learned District Judge, Puri in FAO No.170 of 2003, who in turn confirmed the order of the Authorized Officer vide order dated 30.01.2009. Hence this application.
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3. Learned counsel for the petitioner strenuously urged that neither the Authorized Officer, while passing the order of confiscation, nor the learned District Judge, while confirming the said order of confiscation, has taken into consideration the provisions contained in Section 56 (2-c) of the Orissa Forest Act, 1972, particularly when the driver was instructed by the owner of the vehicle, namely, the petitioner not to indulge in carrying on any contravene goods or forest produce in the vehicle at any time. More so, at the time of seizure of the vehicle admittedly petitioner was not present and transportation of such timber was done without knowledge of the petitioner and, as such, she has no connivance in the alleged commission of forest offence. Therefore, the order of confiscation passed by the Authorized Officer in Annexure-2, as well as the confirming order passed by the learned District Judge in Annexure-3 is liable to be quashed. It is further contended that the value of the forest produce, which has been seized, is about Rs.8000/-, whereas the cost of the seized vehicle is about Rs.1,60,000/- and, therefore, the Authorized Officer should have given opportunity to the petitioner to pay fine in lieu of confiscation of the vehicle.
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4. Mr. P.K. Muduli, learned Addl. Govt. Advocate contended that the finding arrived at by the fact finding courts should not be interfered with by this Court at this Stage and, as such, the contention raised by learned counsel for the petitioner has been considered by the Authorized Officer as well as the learned District Judge. Therefore, he seeks for dismissal of the writ petition.
5. In order to appreciate the contention raised by learned counsel for the petitioner, the provisions contained in Section 56 (2-c) are quoted below:-
"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 authorized 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".
6. Relying upon the aforementioned provisions, learned counsel for the petitioner strenuously urged that since the petitioner had neither any knowledge nor connivance with her driver and she had taken necessary precautions and care to prevent use of the vehicle from commission of any such forest 8 offence by imparting required instructions to the driver not to use the vehicle for any such purpose and the vehicle was taken by the driver unauthorizedly, the vehicle of the petitioner is not liable for confiscation. Needless to say, while the order of confiscation is to be passed under Section 56 (2-a) of the Orissa Forest Act, 1972 on account of use of a vehicle in commission of forest offence, the owner must not only show the absence of her knowledge or connivance but also of her agent or the person in- charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use of the vehicle in commission of such offence. However, the burden lies on the owner to prove the same. On careful perusal of the materials- both oral and documentary- available on record, at the most an inference can be drawn that the petitioner had taken reasonable and necessary precautions for preventing use of her vehicle from commission of any forest offence. But nothing has been produced before this Court to show that neither she had any knowledge or connivance, nor the driver so engaged by her had any knowledge or connivance in commission of forest office, and that they had taken reasonable 9 and necessary precautions against commission of any such forest offence.
7. In Bhaiga Pradhan @ Pahan v. Authorized Officer-cum-Divisional Forest Officer, Berhampur, 2012 (I) OLR 933, this Court held that the finding of fact arrived at in a confiscation proceeding, which has been confirmed by the appellate authority on examination of the oral and documentary evidence, cannot be disturbed unless it is proved that such finding is perverse and without any evidence to support the same.
8. The scope of Section 56 (2-c) directly came up for consideration before this Court in the case of State of Orissa represented through the Range Officer, Khurda, Forest Range v. Kiran Sankar Panda & others; 71 (1991) C.L.T.
157. In paragraph-3 of the aforesaid judgment this Court 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 10 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. The aforesaid decision has also been subsequently followed in the case of Malatilata Samal and others v. State of Orissa: 94 (2002) CLT 290. This Court also took note of the views of the Hon'ble Apex Court in the case of State of Karnataka v. K.Krishnan: AIR 2000 SC 2729, where it was 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.
Similar view has also been taken by this Court in a Division Bench considering the above judgments as well as the judgment of the apex Court in Sk. Ibrahim v. State of Orissa, 2010 (I) ILR-CUT-271
10. In the instant case, since the vehicle in question had been handed over by the petitioner to her driver, who admittedly used the vehicle for commission of forest offence, 11 even if for the sake of argument it is assumed that the petitioner instructed the driver not to use the vehicle for illegal purpose and that she had no knowledge with regard to illegal use of the vehicle by the driver, she cannot be escaped as her driver who was the agent in-charge of the vehicle knowingly used the same for commission of the forest offence.
11. In view of the above factual and legal analysis, this Court is of the considered opinion that the writ petition merits no consideration and the same deserves to be dismissed. Accordingly, the writ petition stands dismissed. However, there shall be no order as to cost.
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(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 18TH October, 2017/Ashok/GDS