Andhra HC (Pre-Telangana)
Sub-Divisional Forest Officer, ... vs Vijay B. Gulati And Ors. on 22 October, 1997
Equivalent citations: 1998(1)ALD117, 1997(6)ALT238, 1998 A I H C 5029, (1997) 2 LS 658, (1999) 2 RECCRIR 150, (1998) 1 ANDHLD 117, (1997) 6 ANDH LT 238, (1998) 1 APLJ 456
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, M.H.S. Ansari
ORDER B. Subhashan Reddy, J.
1. How a disabling legal provision confiscatory in nature has to be construed and what is the degree of disproof to be considered in such cases arises for consideration in this case, which came up by way of reference by a Division Bench doubting the proposition laid down by an earlier Division Bench in Forest Range Officer v. Pritam Singh, 1990 (1) ALT 156.
2. Few facts, which are indisputable, may be necessary to be stated.
3. The 1st Respondent is the owner of lorry bearing Registration No. MMP/1699. He is a resident of Bombay (now Mumbai) and the same was sent on hire for transporting ACC cement from Manchcrial of Adilabad district of Andhra Pradesh to Mumbai. The 1st Respondent was not accompanying the said vehicle and all the documents show that the said vehicle was engaged for transportation of cement from Manchcrial to Mumbai. The 2nd Respondent was the driver. The vehicle left Mumbai and was to pick up the cement at Mancherial in the second week of December, 1981. But, it seems that mere was some delay in loading the cement and the 2nd Respondent-driver on his own had accepted the transportation of timber, which is a forest produce within the meaning of the Andhra Pradesh Forest Act, 1967 (hereinafter referred to as 'the Act'), without there being a valid permit. Of course, it is the plea of the 2nd Respondent-driver that some papers were shown to him by the owner of the timber purporting to have been issued by the forest officials; but that is a question apart so far as this case is concerned. The Authorised Officer under the Act even while accepting that the 1st Respondent-owner was not having any knowledge about the transportation of timber illicit or otherwise and even without his consent, has curiously held mat the vehicle was liable to be confiscated for the forest offence and such order was passed in exercise of the powers under Section 44(2-C) of the Act. The same was appealed against and the Court of the District Judge, Adilabad, had reversed the confiscation order basing upon the judgment of a Division Bench of this Court in Forest Range Officer v. Pritam Singh, (supra). W.P. No.1819 of 1992 was filed by the Forest Range Officer challenging the said order. But, the learned single Judge, basing on the above Division Bench judgment, had dismissed the same, which resulted in filing of this writ appeal and the reference to the Full Bench came up as already stated above.
4. It is apt to extract the provision contained under Section 44 (2-C) of the Act.
"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 or vehicle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used in carrying the property 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 or vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use."
5. The said provision was considered by the said Division Bench to the effect that it confers only a right of defence and that when once it is proved that the vehicle was used in the commission of the offence under Section 44 (2-C) of the Act, the onus of proof shifts and it is for the owner to prove that it is used without his knowledge or the knowledge of his agent or the person incharge of the vehicle and that if he is able to prove that he or his agent or the person incharge has no knowledge and that he has taken necessary and reasonable precautions against such use, the vehicle cannot be confiscated. The above Division Bench has upheld the judgments rendered by the learned single Judges on the said point dated 15-12-1976 in Crl. RC No.326 of 1976 and dated 21-11-1983 in Crl. RC No.471 of 1983. The other judgment rendered by another learned single Judge under the Essential Commodities Act, 1955 was distinguished. While making reference, the Division Bench presided by M.N. Rao, J was of the opinion that the last limb of Section 44 (2-C) of the Act reading "and that each of them have taken all reasonable and necessary precautions against such use" has not been considered by the earlier Division Bench and that it is settled principle of interpretation that no part of a provision of law should be rendered nugatory or considered surplusage. Perhaps the above Division Bench consisting of M.N. Rao, J and N.D. Patnaik, J was of the view that not only the owner, but his agent and also person incharge of the vehicle should also prove collectively and that if even one of them had knowledge of the commission of forest offence in the transportation of timber, then the vehicle should be confiscated and it is of no consequence if the owner alone proves his want of knowledge or consent in the commission of forest offence.
6. Forfeiture of the vehicle under the Act is a penal provision. Such penal provision has to be strictly construed and wherever there is a doubt, the benefit should go to the owner of the vehicle. It would not be proper for us to extend the scope of that provision by reading into it words which are not there and thereby widen the scope of the provision relating to confiscation. The words referrable to the owner of the vehicle and the word 'or' used therein are all disjunctive and cannot be read in conjunction. They do not connote that all of them have to collectively prove their innocence with regard to want of knowledge or consent of commission of forest offence. They have to be understood in the context in which they are used having regard to the object and intendment of the Act. The owner may drive the vehicle and in that event he has to prove the want of knowledge and consent of the commission of the offence. If he is not accompanying the veliicle and his agent is accompanying, then the said agent has to prove his want of knowledge and innocence. If the owner or his agent are not accompanying the vehicle, but only the driver is there in the vehicle driving it, then the driver has to prove his want of knowledge or innocence. The words ".....that each of them have taken all reasonable and necessary precautions against such use" cannot be understood to mean that all of them have to prove their want of knowledge or innocence collectively, but individually in any manner indicated above. If the driver accompanying the vehicle proves his innocence, question of referring the matter to either the owner or his agent docs not arise at all. If the owner is not directly involved in the matter of consenting for transportation at the original point and entrusted,to his agent and if the agent does not have knowledge of the commission of forest offence or did not consent or connive, then also the vehicle cannot be confiscated regardless of the culpability of the driver. Even if both the driver and the agent are culpable, but the owner is innocent of the commission of the forest offence and if he did not consent or connive in the said offence, then also the vehicle cannot be confiscated. For criminal offence, anyhow the person incharge of the vehicle will be proceeded against, but in so far as civil consequences are concerned, it is the owner who loses the property and if the commission of forest offence taken place without his knowledge or consent and if he had no role to play in the said offence, then it would highly be unreasonable to punish him by confiscation of his vehicle, which would be arbitrary violating Article 14 of the Constitution of India and also will be an unreasonable restriction of his fundamental right guaranteed under Article 19(1)(g) of the Constitution and ultimately it may breach the constitutional guarantee under Article 300-A. Authority of law does not mean enactment of law providing for confiscation, but such enactment should conform to the fundamental rights guaranteed in Part III of the Constitution of India as also the constitutional guarantee under Article 300A, May be contextually the word 'or' may have to be read as 'and' and sometimes the word 'and' may have to be read 'or'. 'But the above legal provision involved for interpretation in the instant case can be given a plain meaning understanding 'or' as 'or' only and fastening liability of proving innocence on the owner, agent and driver not collectively but individually and even if there is a failure of proving innocence on the part of the driver or agent and if the owner proves innocence, his vehicle cannot be confiscated. It is too unreasonable to fasten liability to the owner to foresee all such events even illegal in the entire course of transportation miles and miles away from his place of residence of business where he may not have any semblance of control over his driver or agent. It is sufficient if the owner proves that at the time when the vehicle was entrusted to his agent or driver, if he was not accompanying, to see that all legal formalities for the transportation of the vehicle were complied with and he had entrusted the transportation to the agent or driver by taking all reasonable precautions and once such steps have been taken by the owner, his responsibility and liability ceases and when vehicle leaves his control and is in the control of the agent or the driver and if the said agent or driver commits any offence like the one in the instant case, then such owner cannot be made liable for confiscation of his vehicle. We are not unaware of the common law liabilities of the principal for the lapses of the agent or that of the master for the lapses of the servant. In no case, however, where the principal or the master, as the case may be, is innocent can be made liable for the lapses of the agent or the servant as the case may be. Unless it is shown that the owner of the vehicle shared the culpability of the agent or the servant, as the case may be, or that the agent or the servant indulged in culpable acts with the knowledge of the owner of the vehicle it would amount to punishing the innocent. Confiscation of a vehicle which is used for unlawful purposes in normal course can be ordered only if the owner connived or had the knowledge of the unlawful use of the veliicle or that his agent did only such things as the owner desired and thus agent's culpability was shared by the owner and in the case of the servant namely the driver in particular only when it is shown that he was carrying out the desires of the owner. This is the proposition we hold on this point to set at rest the controversy.
7. In view of what is stated supra, this writ appeal is dismissed upholding the release of the vehicle by the Court of the District Judge, Adilabad. No costs.