Selbester Kujur vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 2184 Chatt

                                                                             1


                                                                        NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                                                  Reserved on 26.07.2021
                                               Pronounced on 07-09-2021


                          CRMP No. 619 of 2014
    Selbester Kujur S/o Shri Gabrel Kujur Aged About 61 Years R/o
     Village Balua Bahar, Ps And Tah. Tapkara, Civil And Rev. Distt.
     Jashpur C.G.
                                                               ---- Petitioner
                                   Versus
   1. State Of Chhattisgarh Through The Collector, Distt. Surguja C.G.
   2. Rameshwar Ram S/o Sonsai Ram R/o Tapkara, Ps And Tah.
      Tapkara, Distt. Jashpur C.G.
   3. The Range Officer S/o Tapkara, Ps And Tah. Tapkara, Distt. Jashpur
      C.G.
   4. The Conservator Of Forest S/o Kunkuri Forest Surguja, Distt. Surguja
      C.G.
   5. The Forest Sub-Divisional Officer S/o Kunkuri, Distt. Jashpur C.G.
                                                           ---- Respondents

For Petitioner : Shri D.N. Prajapati, Advocate For State : Shri Vinod Tekam, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER

1. The petitioner has filed the present Cr.M.P. challenging the order dated 21.05.2014 passed by learned Third Additional Sessions Judge, Ambikapur, District - Surguja (C.G.) in Criminal Revision No. 97/2013 passed by which the learned Revisional Court has affirmed the order dated 20.08.2013 passed in Appeal No. Revenue /117/ Year 2013 by which Appellate Authority and Conservator of Forest, Surguja Forest Circle, Ambikapur has confirmed the order dated 18.03.2012 passed in Forest Criminal Case No. 5418/16 by which the learned Competent Authority and Sub-Divisional Officer (Forest), Kunkuri has passed order for confiscation of the vehicle Tractor and trolley bearing registration Nos. MP-26-E-6736 and MP-26-E-6737.

2. The brief facts as projected by the petitioner are that petitioner is the owner of the tractor and trolley bearing registration Nos. MP-26-E-

6736 and MP-26-E-6737 which was being driven by respondent No.2 the driver. It was alleged that on 18.03.2012 while patrolling near Farsabahar Triangle, National Highway Lawakera road the Range Officer, Kunkuri, Range Assistant and guards seized vehicle wherein 29 pieces Sal woods were loaded. The competent authority and Sub- Divisional Forest Officer, Kunkuri registered the case and recorded statement of witnesses namely S.D. Vaishnav, Ranger P.W.-1, Rajesh Choube, Forest Guard, P.W.-2, Virenra Bhagat, driver of Govt. Vehicel, P.W.-3 and Mahesh Ram, Daily Wager P.W.-4. They all supported the case of the prosecution. The petitioner examined Rameshwar Ram, D.W.-1 and recorded his own statement as D.W.-2 who have categorically stated that the alleged offence has been committed without knowledge of the owner, he has sent the driver to bring sanitary plates on 18.03.2012 to Kunkuri and thereafter on next day to transport 100 bags of cement from Tapkara to Baluabahar. He was informed about the incident at night by the Range Officer that the respondent No. 2 has been caught and has committed said offence. Learned Competent Authority and Sub-Divisional Forest Officer after appreciating the evidence started proceedings for confiscation of the tractor and trolley under Section 52 of the Indian Forest Act and vide order dated 25.03.2013 ordered for confiscation of the tractor and the trolley.

3. The petitioner preferred an appeal before the Appellate Authority and Conservator of Forest, Sarguja Circle Ambikapur bearing case No. /Revenue/117/Year 2013. The Appellate Authority and Conservator of Forest after appreciating the evidence, materials placed on record, dismissed the said appeal vide order dated 20.08.2013 and confirmed the confiscation proceedings. Thereafter, the petitioner preferred Criminal Revision No. 97/2013 before the revisional Court mainly contending that petitioner was unaware of the fact that the vehicle has been used by the driver of the vehicle for illegal transportation of forest woods. For the mistake committed by the driver, the owner is not responsible for the same as the same has been committed without knowledge of the owner and submitted that order passed by the Competent Authority as well as Appellate Authority may be quashed. The revisional Court, the Third Additional

Sessions Judge, Abmikapur vide order dated 21.05.2014 has dismissed the revision filed under Section 52-B of the Indian Forest Act, 1927 by recording findings that the petitioner has not taken care by issuing direction to the driver not to involve in the illegal act since driver works on the instruction of owner. Therefore, the petitioner cannot take defence of ignorance. Therefore, there is no illegality or irregularity in orders passed by the appellate Court as well as the competent Court and dismissed the revision. Against that order passed by the revisional Court, the present Cr.M.P. under Section 482 of the Cr.P.C. has been filed.

4. The State has filed their return wherein the State would submit that the orders passed by the Revisional Court, Appellate Authority as well as Competent Authority are legal and just. It has been contented that vehicle has been used without knowledge of the petitioner, but since the driver is an employee of the petitioner, it cannot be presumed that without his consent or knowledge vehicle can be used in illegal activities, therefore, the confiscation of the vehicle is just and proper and the orders passed by the Revisional Court, Appellate Authority and Competent Authority do not call for interference. The learned counsel for the State would submit that it is finding of facts recorded by the Competent Authority, affirmed by the Appellate and Revisional Authority which cannot be quashed by this Court exercising inherent power under Section 482 of the Cr.P.C. therefore, the present Cr.M.P. is liable to be dismissed with costs.

5. Learned counsel for the petitioner would submit that petitioner is not responsible for illegal act committed by the driver of the vehicle, therefore, the revisional Court, appellate authority as well as the competent authority have committed illegality in not considering the important issue raised by the petitioner with regard to his ignorance. In support of his contention he referred to judgment passed by Hon'ble Supreme Court in case of State of M.P. vs. Suresh Kumar 1, judgment passed by the Madhya Pradesh High Court in Prakash Rai vs. State of M.P. and others 2 and order dated 23.08.2017 passed by this Court in case of Girdhari Yadav vs.

AIR 1997 SC 1017

2006(4) M.P.H.T. 295

Specified Officer and Anr. in Cr.M.P. No. 675 of 2013.

6. Before adverting to the submissions made by the parties, it is necessary to examine relevant provisions of the Indian Forest Act, 1927 :-

"52. Seizure of property liable to confiscation.--

(1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest-officer or Police-officer.

(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made: Provided that, when the forest- produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. State Amendments.

Madhya Pradesh Amendment which has been adopted by the State of Chhattisgarh --For section 52 substituted the following section, namely:-- 52 Seizure of property liable to confiscation and procedure therefor.--

(1) When there is reason to believe a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles, ropes, chains or any other article used in committing any such offence may be seized by any Forest-officer or Police Officer.

(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, either produce the property seized before an officer not below the rank of an Extra Assistant Conservator of Forest authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer) or where it is, having regard to quantity of bulk or other genuine difficulty, not practicable to produce the property seized before the authorised officer, make a report about the seizure to the authorised officer or where it is intended to launch criminal proceedings against the offender immediately, make a report of such seizure to the magistrate having jurisdiction to try the offence on account of which the seizure has been made:

Provided that when the forest produce with respect to which offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

(3) Subject to sub-section (5), where the authorised officer upon production before him of property seized of upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded confiscate forest produce so seized together with all tools, vehicles, boats, ropes, chains or any other article used in committing such offence. A copy of order on confiscation shall be forwarded without any undue delay to the Conservator of Forests of the forest circle in which the timber or forest produce, as the case may be, has been seized.

(4) No order confiscating any property shall be made under sub-section (3) unless the authorised officer--

(a) sends an intimation in form prescribed about initiation of proceedings for confiscation of property to the magistrate having jurisdiction to try the offence on account of which the seizure has been made;

(b) issues a notice in writing to the person from whom the property is seizure, and to any other person who may appear to the authorised officer to have some interest in such property;

(c) affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation, and

(d) gives to the officer effecting the seizure and the person or persons to whom notice has been issued under clause (b), a hearing on date to be fixed for such purpose.

(5) No order of confiscation under sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than the timber or forest produce seized shall be made if any person referred to in clause (b) of sub- section (4) proves to the satisfaction of authorised officer that any such tools, vehicles, boats, ropes, chains or other articles were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been

taken against use of the objects aforesaid for commission of forest-offence."

7. The State of Chhattisgarh has adopted Madhya Pradesh Vanupaj Vyapar Vinimay Adhiniyam, 1969 (herein after referred to as 'Act of 1969') wherein Section 15(6) provides that any instrument, vehicle, article which will not be seized if as per Subsection 5 Clause B, it cannot be established from the vehicle has been seized, the said vehicle, instrument or any other article other than forest product is being involved without his permission and he has taken justifiable and necessary precautions to prevent the misuse of said instrument, vehicle or other article. Section 15(6) is extracted below:- "15¼6½ mi/kkjk ¼4½ ds v/khu fdUgha vkStkjksa] xkfM+;ksa] ukoksa] jLlksa] tathjksa ;k fdUgha vU; oLrqvksa ds ¼tks vfHkxzghr dh xbZ fofufnZ"V ou mit ls fHkUu gksa½vf/kgj.k dk dksbZ vkns'k ugha fd;k tkosxk ;fn mi/kkjk ¼5½ ds [k.M ¼[k½ esa fufnZ"V dksbZ O;fDr izkf/kd`r vkfQlj ds lek/kkuizn :i esa ;g lkfcr dj nsrk gS fd fdUgha ,sls vkStkjksa] xkfM+;ksa] ukoksa] jLlksa] tathjksa ;k vU; oLrqvksa dk mi;ksx mldh tkudkjh ;k ekSukuqdwyrk ds fcuk fd;k x;k Fkk vkSj ;g fd bl vf/kfu;e ds v/khu ds fdlh vijk/k ds fd;s tkus ds fy;s iwoksZDr oLrqvksa ds mi;ksx dks jksdus ds fy, leLr ;qfDr;qDr vkSj vko';d iwokZo/kkfu;kWa ¼precautions½ cjrh xbZ Fkh A"

8. From bare perusal of Section 52(5) of the Indian Forest Act, 1927 and Section 15(6) of Act of 1969 it is crystal clear that no order of confiscation of vehicle or any article which is used without the knowledge or connivance of the owner can be passed.

9. The petitioner was examined before the competent authority and he has specifically established by recording his evidence that vehicle was involved in the illegal transportation of forest goods without his consent directly or indirectly.

10. Record would also show that petitioner from the very initial stage is taking defence that vehicle has been used for illegal transportation without his knowledge. This finding remained unrebutted by the forest officers as no cross examination to this effect was done before the proceeding held before Competent Authority. The petitioner has also the same plea in the appeal filed before the Appellate Authority which has also not dealt with this stand of the petitioner and mechanically rejected the appeal. The petitioner has filed criminal revision before the Revisional Court, Additional Sessions Judge, Ambikapur wherein

he again categorically pleaded the facts that the vehicle was used in illegal transportation without his consent. The Revisional Court also committed irregularity by not giving any finding to this question raised by the petitioner and dismissed the revision. Thus Revisional Court has committed material irregularity and illegality which warrants interference by this Court. The Hon'ble Supreme Court in the case of State of M.P. vs. Suresh Kumar 3 in para-8 has held as under :-

"A bare reading of sub Section (6) of Section 15 of the Adhiniyam quoted hereinabove shows that the burden is on the owner to prove to the satisfaction of the authorised officer that his vehicle was used without his knowledge or connivance and that all reasonable and necessary precautions were taken by him against use of his truck for the commission of an offence under this Adhiniyam. During confiscation proceedings, the Competent Authority recorded the statements of various forest employees including the officers and permitted the respondent to cross-examine them but he failed to avail of the said opportunity. The forest employees when tried to stop the truck, one of the inmates of the truck tried to scare these forest employees by firing a shot from the fire arm and thereafter escaped from the truck to avoid being caught. This would unmistakably show that the truck driver and other inmates were involved in illegal activities forbidden by Adhiniyam. It also cannot be overlooked that the concealment of 120 longs of teak wood was arranged perfectly by putting tarpoline over the longs to avoid its detection. These facts were held proved by the forest authorities and on these proved facts, the forest Authorities concluded that the driver of the truck in connivance with the other inmates of the truck was carrying the wooden longs illegally. Under sub Section (6) burden is cast upon PDS of the truck to prove that his truck was used for illegal activities without his knowledge and not with his connivance. The statement of the owner of the truck was recorded by the Competent Authority and the explanation sought to be given by him did not find favour with the said authority. The respondent owner did not produce any other material on record to discharge the burden under sub Section (6). If this be so, it cannot be said that the Competent Authority and the Appellate Authority committed any error in coming to the conclusion that the respondent owner has failed to satisfy the authorised officer that the illegal activity committed by the driver of the truck was without his knowledge or connivance. Mere ipse dixit of the respondent owner cannot be said to be sufficient evidence to discharge burden under 15(6) of the

AIR 1997 SC 1017

Adhiniyam. In our opinion, the High Court has totally misread and misinterpreted provisions of Section 15(6). We, therefore, cannot sustain the reasoning of the High Court and the Sessions Court as regards interpretation of Section 15(6)."

11.Learned counsel for the petitioner relied on judgment of Hon'ble High Court of Madhya Pradesh in case of Prakash Rai vs. State of M.P. 4 wherein Hon'ble High Court has examined the provisions of the Indian Forest Act and held in para 4 as under:-

"4. Counsel for the petitioner has stated that the impugned orders are based on surmises. Drawing attention to Section 52(2) of the Indian Forest Act, 1927 stated that the property which could be seized under Section 52(2) was pertaining to the forest produce or the goods which had to be immediately produced before the officer not below the rank of an Extra Assistant Conservator of forest authorised by the State Government and specifically drawing the attention to Sub-section 4(5) to Section 52 which reads thus: -

"No order of confiscation under Sub-section (3) of any tools, vehicles, boats, ropes, chains or any other article (other than timber or forest-produce seized) shall be made if any person referred to in Clause (b) of Sub- section (4) proves to the satisfaction of authorised officer that any such tools, vehicles, boats, ropers, chains or other articles were used without his knowledge or connivance or, as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of objects aforesaid for commission of forest offence."

Counsel for the petitioner stated that the very language of the provision casts a duty on the Forest Officer to make investigation that the said vehicle or material used by the agent or servant was not within the knowledge of the owner and when the report of the Investigating Officer completely exonerated the owner regarding the same the respondents were estopped from confiscating the vehicle. Relying on Laxaman Kisan Mundhe v. Conservator of Forest, Thana, 1999 Cri.LJ 553, whereby the Bombay High Court while considering the question held that:-

"Under Section 52, the validity of confiscating the truck carrying the forest property without permission and the direct involvement of the truck owner in the commission of the offence was not proved whereas the owner had employed the truck driver only eight days before the

2006 (4) M.P.H.T. 295

commission of the offence the fact of knowledge of the offender cannot be attributed to the truck owner and the confiscation was not valid."

Further relying on State of M.P. v. Ram Gopal Sharma, 1991 MPWN S. Note 66, referring to the said amendment whereby this Court held thus:

"That confiscation of the vehicle under Section 15 of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 as amended by the Act of 1987, although authorises the officer to confiscate the vehicle for carrying the forest produce. The Officer could not order confiscation of the vehicle if the owner thereof proves that he was not aware of the commission of the offence and the burden of proving that the vehicle was used for the commission of the offence the burden was on the owner to satisfy the authorised officer. However, the officer cannot arbitrarily refuse to be satisfied and if the owner proved ignorance of forest offence the vehicle could not be confiscated."

Counsel for the petitioner finally drew the attention of the Court to the order passed by this Court in Writ Petition No. 848/1996 where under identical circumstances the Court held thus:

"The authorised officer constituted under the Act (respondent No. 4) has categorically held that the seizure memo of the alleged forest produce is doubtful. In that regard the authorised officer has placed reliance on Annexures P-1 and P-2. Annexure P-l is the seizure memo wherein the seizure of wet fuel wood, Jarwa (thorns) and the impugned tractor and trolley has been shown. While as per show-cause notice issued by the authorised officer dated 23-1-1995 (Annexure P-2) Ballis, 7 bamboos and two stacks of fuel wood were seized along with the impugned tractor and trolley. Thus, according to the authority seizure memo of the forest produce is doubtful. The authorised officer further came to hold that it was not within the knowledge of the petitioner that his tractor and trolley is being used in some forest offence. At this juncture, it would be marginalized and blinked away wherein it has been categorically held that it was not in the knowledge of the petitioner, who is owner of the impugned tractor and trolley, that his vehicle is being used for any forest offence. Thus, there is concurrent finding of fact that it was not in the knowledge of the petitioner that his tractor and trolley was being used to commit any forest offence. Surprisingly, after recording such a finding in favour of the petitioner, ultimately authorised officer as well as the Appellate Authority constituted under the Act passed the order confiscating the impugned tractor and trolley. The decision of learned Additional Sessions Judge (Annexure P-7) is silent on the crucial point whether the petitioner

was aware about the fact that his vehicle, i.e., tractor and trolley is being used to commit any forest offence. Thus, when there is concurrent finding of act recorded by the authorised officer as well as Appellate Authority under the Act that impugned tractor and trolley was used in the forest offence was not in the knowledge or connivance of the petitioner, the impugned tractor and trolley cannot be confiscated. Since there is no finding at all against the petitioner, I am of the view that the petitioner is entitled to the protection provided to him under Section 52(5) of the Act."

And the Court had quashed the impugned orders passed by the Conservator of Forest and the Additional Sessions Judge. The Counsel prayed for similar relief."

12. From the above discussion, considering the facts and records of the lower Courts including Competent Authority as well as Appellate Authority it is quite clear that the vehicle was used for transportation of forest products without knowledge of the petitioner. As such as per Section 52 of the Forest Act as well as Section 15 of Act of 1969 and law laid down by the Suresh Kumar (Supra) and Prakash Rai (Supra), it is incumbent upon the owner of the vehicle to establish that vehicle was being used for illegal transportation of forest woods without his knowledge which he has proved as reflected from the deposition. Thereafter, the burden was shifted to forest authority to rebut the same which they utterly failed. Therefore, it can be safely held that the vehicle has been used in illegal transportation of forest woods without knowledge of the petitioner.

13. Learned Competent Authority, learned Appellant Authority and learned Revisional Court have not examined the vital and important aspects of the matter and mechanically passed the orders which are liable to be quashed. Therefore, order dated 21.05.2014 in Criminal Revision No. 97/2013 passed by learned Third Additional Sessions Judge, Ambikapur, order dated 20.08.2013 in Appeal Case No. /Revenue/117/Year 2013 passed by Appellate Authority and Conservator of Forest, Suruguja Forest Circle and order dated 25.03.2013 passed by the Competent Authority and Sub-Divisional Forest Officer by which confiscation of vehicle was ordered are hereby quashed.

14. Accordingly, the confiscation proceeding is also quashed. The Tractor

and Trolley bearing registration No. M.P.-36-E-6736 and M.P.-36-E- 6737 are directed to be returned to the petitioner.

15. With aforesaid observations, the present Cr.M.P. is allowed.

Sd/-

(Narendra Kumar Vyas) Judge kishore