Gujarat High Court
Patel Kanjibhai Govindbhai vs State Of Gujarat And Ors. on 28 September, 1994
Equivalent citations: (1995)2GLR1346
JUDGMENT C.V. Jani, J.
1. This petition under Article 227 of the Constitution of India, is directed against the order dated 29-3-1986 passed by the Deputy Conservator of Forests, Vyara, in inquiry No. 20 of 1985-86 as confirmed by the learned Sessions Judge, Surat in Criminal Appeal No. 21 of 1986, regarding confiscation of Truck No. GTS 6727 belonging to the petitioner under Section 61A of the Indian Forests Act, 1927, on the ground that Teak wood valued at about Rs. 50,000/- was being carried in the truck without pass or permit in village Palasia.
2. It appears from the order passed by the Deputy Conservator of Forests, respondent No. 3 herein, that on 18-10-1985 the Range Forest Officer, Unai, noticed that 50 Teak trees were felled unauthorisedly from the Reserve Forest No. 11 of Amonia village by some miscreants, and the wood was converted into sawn sizes. He, therefore, drew a panchnama and started inquiring into the offence by recording statements. Meanwhile on 19-10-1985 the Range Forest Officer of Unai, found during night patrolling of Kelai-Vankla Road that one truck had gone to Palasia for transporting illegal timber. One person was found driving on a Rajdoot Motor Cycle in a suspicious manner and so he was intercepted and with the help of the said person, namely, Abdulkadar Razak Memon the truck No. GTS 6727 loaded with teak wood was traced in the village. After being satisfied that a forest offence had been committed the Range Forest Officer, Unai, seized the said truck with timber, and also the motor cycle under the relevant provisions of the Indian Forests Act, 1927 hereinafter referred to as the 'Act'. The Range Forest Officer recorded the statements of Abdulkadar Razak who was piloting the truck, Shri Vinodbhai Ratilal Dave who was driving the truck and Shri Ashok Popat who was the cleaner moving with him. These three persons were produced before the learned Magistrate of Vyara. The truck driver and the cleaner pleaded guilty and they were sentenced to two months' imprisonment by the learned Magistrate. So far as Abdulkadar Razak Memon was concerned, he came to be acquitted in Criminal Case No. 125 of 1986.
3. In the meantime the petitioner approached the High Court with an application praying to release the truck. His application was considered and interim relief was granted, and respondent No. 3 Deputy Conservator of Forests was directed to take a final decision about confiscation of the truck. It was the petitioner's case that he had given his truck to M/s. Umang Transport, Bhavnagar, for carrying vegetable oil from Bhavnagar to Vapi. The consignee was Gujarat Co-operative Oil Seeds Growers Federation. As the driver in regular service of the petitioner one Harishbhai was sick, the truck was entrusted to Vinodbhai Ratilal Dave, who went with the clearner Ashokbhai to Vapi for delivering 600 Tins of Edible oil. The consignment reached Vapi on 19th October, 1985 and the vehicle was expected to be brought back by the driver after loading some goods from Broach for being delivered at Bhavnagar. However, according to the petitioner, the said driver and the cleaner who came in contact with Abdulkadar Razak Memon of Unai, carried timber at his instance from Unai without any intimation to the petitioner or to M/s. Umang Transport of Bhavnagar. Thus, according to the petitioner the alleged forest offence that had been committed by the driver and the cleaner without any intimation to the petitioner and without his authority, and, therefore, his vehicle could not be confiscated.
4. No notice was issued to the person from whom the vehicle was seized before initiating the confiscation proceedings. Copies of the statements of the driver and the cleaner recorded by respondent No. 3 were not furnished to the petitioner. The respondent No. 3 took into consideration the panchnama drawn by the Forest Officer at Unai and the statements given by the accused and rendered the following finding. He found that the truck was loaded with 600 tins of vegetable oil from Bhavnagar on 17-10-1985 and after delivering consignment at Vapi on 19-10-1985, it was used for illegally transporting forest produce at Palasia village on 19-10-1985. It was found that the owner of the truck was not present when the offence was committed, but the truck was used for committing the offence with connivance of the driver and the cleaner of the vehicle, and the driver who was incharge of the vehicle has also fixed the transport charge for carrying the forest produce by bargaining with Abdulkadar. It was found that the owner was not directly involved in the offence and offence was committed without his connivance, but it was also found that the owner had not taken sufficient precaution to see that the vehicle was not used by the driver and the cleaner for committing any offence. As a result, respondent No. 3 passed an order of confiscating the truck under Section 61-A of the Act over and above the timber involved in the forest offence.
5. The aforesaid order of respondent No. 3 came to be challenged by the petitioner in Criminal Appeal No. 21 of 1986 before the Sessions Judge at Surat. The learned Sessions Judge accepted the finding that the driver Harishbhai had committed forest offence while returning from Vapi; "either voluntarily or due to some reason". The learned Judge further found that the driver Harishbhai had driven the truck as the petitioner's agent and, therefore, sufficient precaution had not been taken to see that such an agent does not use the vehicle for committing the offence under the Act. The learned Judge further observed that the grievance of the petitioner-appellant regarding non-supply of the statements of the driver and the cleaner, could not be sustained as such a demand had not been made before the Deputy Conservator of Forests. The appeal was, therefore, dismissed by the learned Session Judge, Surat. The said appellate order is being challenged in this petition.
6. Mr. P.V. Hathi learned Advocate appearing for the petitioner submits that, (i) the respondent No. 3 having found that the petitioner was not directly involved in the forest offence, nor it was committed with his connivance, he could not have passed the order for confiscation and the learned Sessions Judge also committed an error in confirming such an order; (ii) while holding that a forest offence had been committed with the connivance of the petitioner's agent, the respondent No. 3 assumed that the driver and the cleaner of the vehicle were the petitioner's agents authorised to commit a forest offence even though it is found that the offence had been committed without the petitioner's connivance; the learned Sessions Judge also similarly committed an error of law in holding that divergence of the truck by the driver for committing a forest offence would form part of his authority as an agent; (iii) that the respondent No. 3 had not followed the requisite procedure and had not given the petitioner sufficient opportunity of hearing before passing the order of confiscation, and the learned Sessions Judge also erroneously rejected this submission on the ground that such a demand had not been made before the respondent No. 3.
7. Mr. S.T. Mehta, learned A.P.P. on the other had, supports the judgment of the learned Sessions Judge by submitting that the misconduct or the offence committed by the driver of the vehicle would result in the confiscatory proceeding, and since the petitioner as the owner of the vehicle was heard by the respondent No. 3, there was no question of procedural irregularity or violation of the principles of natural justice. He further submits that if at all the procedure adopted by the respondent No. 3 is found to be defective, the matter can be remanded to him for proceeding in accordance with law.
8. Mr. P.V. Hathi, appearing for the petitioner has placed affidavits of the petitioner Kanjibhai G. Patel and his Advocate Shri H.R. Dayal on record to show that no inquiry was held by the respondent No. 3 by examining any person, that the copies of statements relied on by him were not supplied to him or to his Advocate, that the Advocate was not called upon to argue at the time of the hearing inasmuch as no date of hearing was fixed or communicated to the petitioner or to his Advocate, and that no notice had been issued to the driver or conductor from whom the truck was seized.
9. In view of these rival suubmissions the provision relating to confiscation of vehicles under Sections 61A & 61B of the Act will have to be examined. Section 61A empowers an authorised officer seizing forest produce in respect of which forest offence appears to have been committed to pass an order confiscating the forest produce as well as the vehicle used in committing the forest offence. Sub-section (2) of Section 61-A is the empowering provision which reads as under:
(2) Where the authorised officer seizes under Sub-section (1) of Section 52 any forest produce which is the property of the State Government or where any such property is produced before the authorised officer under Sub-section (1) and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, boats, vehicle and cattle used in committing such offence.
Such power has to be exercised by taking into consideration all the relevant facts including the role played by the owner of the vehicle, the value of the vehicle and conditions which can be imposed on the owner if it is decided not to confiscate the vehicle in order that such forest offence may not be repeated in future.
Confiscation of the vehicle involved in a forest offence is not always compulsory and sufficient latitude is given to the authorised officer to take appropriate decision after bearing in mind the relevant facts. That is why appeal is provided under Section 61-B of the Act giving jurisdiction to the Sessions Judge to confirm, modify, or annul the order of the authorised officer after giving an opportunity of hearing to all concerned. If the confiscation contemplated in Sub-section (2) of Section 61-A is assumed to be compulsory, which an authorised officer must pass, if the forest offence is detected, the Sessions Judge would not have been empowered to modify or annul his order. Section 61-D, therefore, impliedly makes it obligatory on the Sessions Judge to examine the order passed by the authorised officer in order to satisfy himself as to whether it was passed after taking into consideration all the relevant facts.
10. If the authorised officer finds that the owner of the vehicle is not directly or indirectly involved in the commission of the forest offence, he would not pass an order of confiscation, and if such an order is passed, it would be either annulled or modified by the Sessions Judge in appeal.
11. Section 61-B of the Act lays down the procedure to be followed if authorised officer takes prima facie decision to initiate confiscation proceeding. It reads as under:
61-B. (1) No order confiscating any forest produce or tools, ropes, chains, boats, vehicles or cattle shall be made under Section 61A except after notice in writing to the person from whom it is seized informing him of the grounds on which it is proposed to confiscate it and considering his objections, if any:
Provided that no order confiscating a motor vehicle shall be made except after giving notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so and considering his objections, if any.
(2) Without prejudice to the provisions of Sub-section (1), no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 61A if the owner of the tool, rope, chain, boat, vehicle or cattle proves to the staisfaction of the authorised officer that it was used in carrying forest produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use.
12. It is to be born in mind that the section is couched in negative terms restraining the authorised officer from passing any order of confiscation if certain procedure is not followed and certain satisfaction is not arrived at. We have noted that Section 61-A was couched in positive terms by empowering the authorised officer to exercise his power of confiscation, if he thinks it necessary, in case a forest offence is found to have been committed in respect of the vehicle. Thus, Section 61-B which is only a guiding provision for the authorised officer will have to be read subject to the governing provision of Section 61-A.
13. We shall, therefore, examine the requirement of Section 61-B which will have to be complied with before passing any order of confiscation:
(i) A notice in writing containing the grounds for the proposed confiscation has to be served on the person from whom the forest produce or the vehicle is seized, and his objections, if any, submitted by him have to be considered;
(ii) If the vehicle is a motor vehicle a notice in writing has to be issued to the registered owner thereof and his objections have to be heard;
(iii) If the owner of the vehicle proves to the satisfaction of the authorised officer that it was used in carrying forest produce without the knowledge or connivance of the owner himself, or his agent, and the person in charge of the vehicle, and that each of them had taken all reasonably and necessary precautions against such use, no order of confiscation can be passed.
14. The authorised officer has, therefore, to find whether any particular person is the agent of the owner of the vehicle and whether the owner or his agent was guilty of carrying the forest produce with full knowledge or connivance. Agency implies authority to do an act on behalf of the principal, and the moot question would be whether an authority given to an agent or driver to do a lawful act would also include an implied authority to do an unlawful act without the knowledge or connivance or consent of his principal, or the owner of the vehicle, so as to attract the penal provisions for the principal or confiscatory provisions for his property. The answer would be in the negative.
15. In the present case, the regular driver of the vehicle Harishbhai was sick and not in a position to drive the vehicle. It has not come on record as to whether the petitioner or Harishbhai authorised Vinodbhai Dave to drive the vehicle. Even if it is assumed that Vinodbhai was the petitioner's agent his authority was confined to carrying the vegetable oil tins from Bhavnagar to Vapi and to bring some goods from Bharuch to Bhavnagar. The statement of the driver showing that he had been given any authority in respect of forest produce has not come on record, nor a copy of his statement was furnished to the petitioner. Hence, there can be no presumption that the driver Vinodbhai was an agent of the petitioner authorised to commit an offence under the Forest Act. No doubt the purpose of this confiscatory provision is deterrent, and the power of confiscation or imposing very strict conditions on the owner of the vehicle have been conferred with laudable object of preventing repetition of such offences, but if the owner of the vehicle does not even know that the person driving the vehicle is going to commit an offence, and if he has taken reasonable and necessary precautions against use of the vehicle for commission of the offence, no order of confiscation to his prejudice can be passed. Hence, the negative provision of Section 61-B has to be applied subject to the empowering provision of Section 61-A.
16. In the context of a similar provision contained in Section 7(l)(b) of the Essential Commodities Act, empowering forfeiture of any vehicle used in carrying any property in respect of which the order passed under the Essential Commodities Act has been contravened, the Supreme Court has held in Sat Pal v. State of Haryana that the order of confiscation of a truck caught in an attempt to export prohibited cattle fodder by a hirer was bad in view of the fact that there was no indication to show any knowledge or concurrence on the part of the owner. Of course, the Supreme Court had rendered its decision under the confiscatory provision which did not contain a negative requirements contained in Section 61-B of the Act, but as stated above, the requirements of Section 61-B have to be read subject to the empowering Section 61-A(2), and such a power has to be exercised after taking into consideration all the relevant facts including the owner's direct or indirect involvement in the commission of the offence, the care and protection taken by him against illegal use of the vehicle for committing a forest offence, and the value of the vehicle proposed to be confiscated in the context of the value of the forest produce actually seized. Therefore, the latter part of Sub-section (2) of Section 61-B requiring the owner to satisfy the authorised officer that not only he but his agent and the person incharge of the vehicle also, had taken all necessary precautions against such use has to be read and interpreted in the context of his own knowldege or connivance and the precautions taken by him, since no owner of a vehicle can be expected to retain control over the driver or any other person incharge of the vehicle, or to take necessary precautions, after the vehicle is removed out of his control.
17. Ultimately, therefore, the decision of the authorised officer would depend upon several relevant facts which have to be examined by him after issuing the requisite notice to the owner as well as the person from whom the vehicle is seized, who can enlighten the authorised officer about the authority given to him by the owner. That is why the legislature in its wisdom has provided for a mandatory notice to a person from whom the vehicle is seized before passing any order of confiscation. Naturally, notice has to be served on the registered owner also who is likely to be affected adversely by an order that may be passed by the authorised officer under Section 61-A. In the present case, the authorised officer, namely, the respondent No. 3 has not complied with these requirements which give jurisdiction to the authorised officer to proceed with the confiscatory provision. The learned Session Judge, therefore, has clearly committed an error in holding that the petitioner has not made any such grievance before the authorised officer, and that the driver Vinodbhai had acted as an agent of the owner. The learned Sessions Judge overlooked the fact that the respondent No. 3 had relied upon certain statements, copies of which has not been supplied to the petitioner-appellant.
18. In the result, the petition is allowed. The order Annexure-A passed by the Deputy Conservator of Forests, Vyara relating to offence No. 20 of 1985-86 as well as the appellate order of the learned Sessions Judge, Surat, in Criminal Appeal No. 21 of 1986 are hereby set aside. The respondent No. 3 Deputy Conservator of Forests will decide the case under Section 61-A of the Indian Forests Act, 1927 afresh by serving a written notice containing the grounds of proposed confiscation on the person from whom Truck No. GTS-6727 was seized on 20th October, 1985, and also on the petitioner who was the registered owner thereof, and decide the same after taking into consideration the relevant provisions of law and the observations made hereinabove.
Rule is made absolute accordingly, with no order as to costs.